HL Deb 05 June 1934 vol 92 cc789-801

Order of the Day for the Second Reading read.


My Lords, I do not think that I need detain you for very long upon this Bill in moving that it he now read a second time. Its main object is to impose a restriction upon the right of appeal in legal cases. Some reforms are designed both in the interests of the State and of the individual, to ensure economy and expedition in the administration of the law; others are intended in the interests of the litigant himself. The present Bill is mainly intended for that object. Of all the complaints made against our present legal system, the one most frequently advanced is with regard to the multiplicity of opportunities of appeal. From every case in the High Court there are usually two opportunities of appealing—namely, to the Court of Appeal and to your Lordships' House; but from a case in the County Court, which is supposed to be a poor man's Court, there are three opportunities—namely, to the High Court, by leave to the Court of Appeal, and then to your Lordships' House.

That there should be some restriction on appeals seems to be the opinion universally held. The Council of Judges, the General Council of the Bar, the Law Society, arid numberless chambers of commerce are all in favour of such a reform. It has been said that it is the first step that counts, but it is the fear of being taken step by step through several Courts, or, as the man in the street puts it, the fear of being dragged from Court to Court, that prevents many people from endeavouring to obtain their rights. There are some who would like to lay the axe to the root and abolish either the Court of Appeal or your Lordships' House. Whatever the future may have in store for us, that method is not at the moment practical politics. It is not our way to make violent changes in the administration of the law. At present the Court of Appeal acts as a sieve for the House of Lords.

Taking the average for the last three years, the number of appeals heard annually in the Court of Appeal has been 424, of which 124 were wholly successful and in nineteen the judgment was varied. To abolish that Court of Appeal would throw such an amount of work on this House as would necessitate alterations too drastic to be carried out at one and the same time. With regard to the judicial side of your Lordships' House, may I be permitted to say that although I have received many deputations and suggestions with regard to legal reform, there were very few indeed who advocated that the appeal to your Lordships' House should be abolished. On the other hand, there seems to be a very general desire for some check to be placed upon appeals to this House. The cost of such an appeal is high. The fact that there is an unrestricted right is not seldom held in terrorem over the heads of an intending litigant, especially in revenue cases. The present Bill proposes as a remedy that there should be no appeal to this House without the leave of the Court of Appeal or of the House itself.

I do not prophesy that this Bill will mean a great saving in judicial time, but it will save great anxiety to many a litigant. The first clauses of the Bill carry out this reform, which has been recommended by the recent Report of the Committe presided over by my noble and learned Friend Lord Hanworth. The Report says: With regard to appeals from the Court of Appeal to the House of Lords, which we are also required to consider, we are of opinion that such appeals should in no case be as of right. At present, save for some cases in bankruptcy in which the right of appeal from the Court of Appeal is either non-existent, or is only with leave of the Court of Appeal, appeals to the House of Lords are as of right. In our opinion restrictions should be imposed upon all appeals from the Court of Appeal to the House of Lords. There should be an appeal only with the leave of the Court of Appeal, or if refused there, of the House of Lords. Probably this latter leave will he applied for to and granted by the Appeal Committee of the House of Lords and any great expense avoided. There are two precedents for such a course. Probably the best analogy to take is that of the Judicial Committee of the Privy Council. The law on this point is not very easy to state simply and exhaustively, but I think it is nearly true to say that no appeal lies from a Court in any other part of the Empire to the Privy Council in this country, without the leave either of the Privy Council itself or of some Court of Law having jurisdiction in the place from which the appeal is to come. With regard to statistics, the average number of English appeals heard in your Lordships' House during the last three years was thirty-three, out of which twelve were successful.

The remaining part of the Bill deals with appeals from County Courts. As I have already pointed out, this is a glaring example of an excessive number of appeals—namely, three, to the High Court, by leave to the Court of Appeal, and to this House. It is not too much to say that there is universal agreement that some restriction should be placed upon this number, but opinions differ as to the way of accomplishing the desired end. There are some who think that appeals from the County Court should stop short either at the High Court or at the Court of Appeal. But it does not seem right to deprive any of His Majesty's subjects of his right of appeal to your Lordships' House. Cases very often arise which, although they are of small amount, affect thousands and thousands of His Majesty's subjects, and it must be remembered that these cases are very often fought on both sides by powerful federations or associations.

Taking an average over the last three years, the number of appeals from County Courts entered for hearing in the Divisional Court of the King's Bench Division is 141, of which forty-two were withdrawn or struck out, leaving ninety nine effective for hearing. The number actually heard was slightly larger—namely, 107—as there happened to be some arrears which were disposed of at the rate of 8 per annum. Out of the 107 cases heard, the proportion of successful appeals was forty-nine. During the same period the average number of appeals from the High Court heard by the Court of Appeal in cases commenced in the County Court was eight, of which three were successful. Assuming, therefore, that the right of appeal to your Lordships' House is to be maintained—as to which I think there is no real difference of opinion—it follows that the appeal either to the High Court or to the Court of Appeal in County Court cases should be abolished, and the method chosen in this Bill is the one recommended by Lord Hanworth's Committee—namely, to do away with the appeal to the High Court and to make County Court appeals go direct to the Court of Appeal. For such a course there is ample precedent. It is already done in cases under the Agricultural Holdings Act and under the Workmen's Compensation Act.

Let me at once say that I do not look forward to a great saving of judicial time by this reform. Indeed, it may be that it will lead rather to a small increase in judicial time being required, because, although the number of cases at present going from the High Court to the Court of Appeal will be eliminated, it will be necessary to have three Judges to try this class of case in the Court of Appeal instead of the two Judges who are now trying them in the High Court. It may well he, however, that there will not be quite so many appeals from County Courts to the higher tribunal. At the present moment the Court of Appeal has as much work to get through as it can accomplish, but it must not be forgotten that this is probably due to the fact that its time has been occupied during the last twelve months with an unusual number of exceptionally long cases. Up till quite recently the Court of Appeal has been able to give assistance to the High Court and take Divisional Court cases for a short time, the Lords Justices sitting as additional Judges of the King's Bench Division.

It would be clearly impossible to transfer all these County Court appeals to the Court of Appeal unless some provision were made at once for providing for a third Court of Appeal. This can be done by taking advantage of Section 7 of the Supreme Court of Judicature (Consolidation) Act, 1925, which enables the Lord Chancellor to appoint Judges of the High Court to sit in the Court of Appeal from time to time. This is a power of which use is frequently made. There has hardly been a single year for many years in which it has not been resorted to. It will be possible to appoint two Judges of the King's Bench Division to sit in the Court of Appeal and one Judge of the Chancery Division. It must be remembered also that the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Division are both members of the Court of Appeal and from time to time have sat to preside over a third Court.

In this way it will be possible to give relief to the litigant by abolishing the appeal to the High Court, although it may not result in a great saving of judicial time. The saving of judicial time, however, is not the main object of the law reformer. The real ambition is to enable his fellow subjects to obtain their rights by the most efficient machinery and to ascertain truth at the smallest possible cost of time and money. While everyone, however, is anxious to have greater expedition and greater economy, no one desires to accomplish this reform at the expense of over-worked High Court or Appeal Judges, or by having cases stamped or tried too hurriedly. Those who have had experience of sitting in both the King's Bench and in the Court of Anneal will agree that it is extremely useful for a Lord Justice of Appeal to have had experience as a Judge of First Instance, and to know the difficulties that arise in a trial with witnesses or before a jury. There are men, too, whose training and mental equipment make them better Judges of First Instance than Judges of Appeal.

It may be possible to secure expedition and economy by simpler procedure and more efficient organisation. We are devoting our energies to the accomplishment of this end. The present Bill is another effort to improve the administration of the law. It cannot be asserted that at present our procedure is perfect or that our organisation is efficient. Far from it. When we have done all that is possible in these two respects, if we still find that there is something lacking, it may be neccessary to ask Parliament to consider an increase of the Judicature, either in the Court of Appeal or in the King's Bench Division. The object of the remaining clauses of this Bill is to transfer County Court cases from the High Court to the Court or Appeal, and I beg to move that the Bill be read a second time.

Moved, That the Bill he now read 2ª.(The Lord Chancellor.)


My Lords, I do not rise at all to oppose the Second Reading, the principle of which, I think, will commend itself to all your Lordships, but possibly I may be allowed to say a few words on the subject, speaking as one who has had experience of hearing these appeals in all three capacities—in the High Court, in the Court of Appeal, and now in your Lordships' House. In reference to the proposal to limit the appeal to your Lordships' House, it appears to me that no objection at all can be taken, for your Lordships will still retain the control of appeal and always grant leave if application is made. Speaking for myself after five or six years experience of this House, I may say that very few cases have, in fact, come before your Lordships' House which were not suitable for appeal and in which in all probability leave would not have been given. There have been a few cases, but I agree with what has been said by the Lord Chancellor: the great importance of this reform is this, that a rich corporation—or perhaps I might say strong Government Department—will not for the future be able in any way to terrorise the person with whom they may have a dispute by a threat that the case will certainly be taken to the House of Lords. I think it is a great advantage that a case will not come now to your Lordships' House unless there are substantial grounds for so taking it, either in the opinion of the Court of Appeal or of your Lordships' House.

In reference to County Court appeals, again I imagine that there can be no doubt at all that there ought to be some restriction as to the number of appeals. Indeed, I am not quite certain that it is a wise thing to allow such appeals even to come to your Lordships' House, and even by leave. There are some matrimonial appeals which cannot come to your Lordships' House. But how to do it is a diffeent question, and I am bound to say that it does seem to me to be rather a strong measure to deal with this matter, not, as I think might have been done, by making the decision of the Divisional Court final, but by transferring the cases wholesale to the Court of Appeal. From the figures that the Lord Chancellor has given it would appear that a hundred cases a year at least will be added to the list of the Court of Appeal, and that is a number Which it would be quite impossible for the Court of Appeal, as at present constituted, to deal with. The cases are, for the most part, trumpery cases. There is a right of appeal in any case where the claim is above £20, and the time of the Divisional Court in these cases has been occupied very largely with matters of relative unimportance, though no doubt of great importance to the parties themselves. I cannot help thinking that it is rather a strong measure to say that the Court of Appeal, with three Judges, must try these cases, whereas they have been disposed of, as your Lordships have heard, by two Judges throughout the last three years, with only eight appeals in each year to the Court of Appeal, and then only three of those cases have been upset on appeal.

However, that is the proposal that has been made. At present I say nothing about it, except that it is rather remarkable that the last Committee which sat before Lord Hanworth's, the Committee of Lord St. Aldwyn, suggested that the County Court appeals should be heard by one Judge. The suggestion now is that they should be heard by three Judges, and it is perfectly obvious therefore that this proposal involves one Judge more being occupied in hearing these hundred Appeals. Of course, that might be the right measure to take, though I think it might be subject to reconsideration. But I do want to say this. These appeals are the appeals as a rule from the poor man's Court, appeals of poor litigants or litigants who, at any rate, are not very often persons of very large means. It is of the very first importance that those cases should be heard promptly, and it would be very wrong that those hundred cases should be added to the general list of the Court of Appeal. It would result in delaying the important cases now in the jurisdiction of the Court of Appeal, and it would have the result of further delaying the hearing of those cases. In the King's Bench Division I am sorry it has been not uncommon for there to be a delay of six or eight months in hearing these appeals, and I think it will be found in this term that the cases at the head of the list have been set down for four, five, or even six months. One would like to have some assurance by the Lord Chancellor some day that that matter will be provided for.

It seems to be essential that there should be a special list of the County Court appeals kept in the Court of Appeal, and that some special provision Should be made for hearing them. And I think it is also of very great importance that this additional work thrown upon the Court of Appeal should not be allowed in any way to interfere with the position which is enjoyed by the existing Court of Appeal as now constituted. I should be sorry to think that Courts of Appeal should be in any way weakened by any provision that should be made by introducing other Judges Who are not Lords Justices for the purpose of hearing these cases. I agree that a Special Court will be necessary to perform these duties, and if it is thought fit to have an ex officio member of the Court of Appeal and two King's Bench Judges, or a King's Bench and a Chancery Judge, well and good; no one would object. All one can say is that the litigants are rather fortunate. They have one extra Judge beyond What they had before, and three Judges are employed rather than two. At any rate they are well looked after. But these to my mind are the essentials that should be borne in mind: first, that these cases must be dealt with separately; secondly, that they must be dealt with promptly; and, thirdly, that they should he so dealt with that the ordinary cases are not disturbed, and the ordinary prestige and influence of the Court of Appeal should be in no way diminished by reason of this change.


My Lords, perhaps you will allow me to say a few words in support of the Second Reading of this Bill and incidentally to thank the Lord Chancellor for having introduced it, although it formed a very small part —still a very important part—of the Report of the Committee of which I had the honour to be Chairman. The real point I desire to emphasise in relation to this Bill is that the litigant before he has ever gone to the Law Courts wants to know what are the possibilities, what are the dangers in front of him. We have conclusive evidence, to which the Lord Chancellor has already referred, evidence which he has heard from deputations appearing before him, that the litigant asks the question: "If I do put this matter in suit, is there a danger of my going not merely to one Court, but two Courts, and three Courts, and "(if it be a County Court case) "even to four Courts? "The litigant wants to be reassured that under the procedure of the Courts this multiplicity of appeals may be overcome. That is a very important point because we want to make the judicial procedure of this country attractive to those who desire to seek its assistance.

It is a bad thing if parties are prevented from coming to the Courts, if anxious to do so, by reason of misgivings as to what would be their ultimate fate because of the multiplicity of appeals. So it is that there was an accord of opinion among all those who have studied the question that the number of appeals ought to be cut down, and those who first see the possible litigants—the solicitors—were insistent upon the desire for getting rid of some of the appeals. As Lord Atkin has said, the difficulty of dealing with the matters which will possibly come before this House is not great, because there would be an opportunity of the Court of Appeal giving leave or, if a different opinion is asked for, leave can be asked for in the House of Lords. At the present time in some bankruptcy cases there is a power in the Court of Appeal to refuse leave to appeal, but except in that limited class of bankruptcy cases all cases are open for appeal to your Lordships' House. There are some cases which I have in mind, over the past few years, in respect of which certainly an appeal ought not to have been brought, but an appeal was brought for purposes, I may say, other than that of trying to put a wrong decision right. Sometimes a delay is involved in going to your Lordships' House, a delay which may be worth paying for even though the appeal is unsuccessful. Indeed I have been told of one case in which, after it had passed through the Court of Appeal, the decision to go to the House of Lords was decided upon simply and solely for the purposes of delay. The first clause of this Bill deals with appeals to this House, and only to this House.

I come now to the second clause. If your Lordships will look at the Schedule you will find how difficult it is even to make a slight alteration in legal procedure. That second section sends all the appeals from the County Court direct to the Court of Appeal. I am not unacquainted with the view presented by the noble and learned Lord who addressed your Lordships, that one means of dealing with these appeals and preventing a multiplicity of them would be to make the single appeal from the County Court final—that appeal to two Judges of the High Court which we call a Divisional Court; but there is a real difficulty about adopting that suggestion. It is this: Cases under the Workmen's Compensation Act go direct from the County Court to the Court of Appeal, and the opinion has been expressed by those whose business takes them to the County Court that a certain hardship is imposed on the litigant in the County Court, in that while the applicant in the case of a workmen's compensation case has the right of going to the Court of Appeal direct from the County Court, the litigants in the smaller cases, but important, of course, to the parties, have to go by the slower course of intermediate appeal to what we call the Divisional Court. If a change were being made in the appellate system it was claimed that it would be wrong to stop appeals from the County Court at the High Court and that the same right of going to the Court of Appeal ought to be ensured to all suitors.

That is the difficulty which has been presented and which led to the Committee thinking that the right course was to send the appeals from the County Court direct to the Court of Appeal. If there had been no system of direct appeal from the County Court to the Court of Appeal the matter would have been different, but from the year 1906 onwards there has now been that direct approach to the Court of Appeal in cases of workmen's compensation. The result is that at the present moment that work must go to the Court of Appeal, but I am not unfamiliar with the difficulties to which the noble and learned Lord has referred. A great many persons have attempted to solve that problem in different ways. It is a problem which offers itself with many facets to many minds, and I feel confident that the only way in which it will ultimately be solved is by the experience of how the system works. For these reasons I am grateful to the Lord Chancellor for bringing in this Bill, and I hope your Lordships will give it a Second Reading and that, finally, it may be passed into law.


My Lords, I feel quite sure that everybody who is at all familiar with the judicial system in this country will welcome the effort which is made in this Bill to economise the process of litigation, and for my own part I am very glad that a step has been taken in that direction. I have read the Bill with some care because of particular matters which have occupied my own mind, and some suggestions have been made by my noble and learned friend Lord Atkin which seem to me to be valuable suggestions and I do not doubt they will be considered. First of all, with regard to the general process of carrying the mass of small business in which there are County Court appeals to the Court of Appeal. I am not quite sure that some method ought not to be found of separating that class of business from the general work of the Court of Appeal. There has been a great deal of consideration given to the question whether you should not make the Court of Appeal the final Court of Appeal in this country. When you have a Court of the standing of the Court of Appeal I have misgivings as to the effect of carrying into it indiscriminately the mass of small matters if the thing can be dealt with; but the noble and learned Lord, the Master of the Rolls, and every one who has considered the matter knows the difficulties that are intrinsic in it.

There is another class of difficulty. There is the difficulty about special subjects. For reasons which those who are familiar with the legal profession will understand, I have given some little attention to the separate jurisdiction created by special statutory provisions, jurisdiction exercised in the Probate, Divorce, and Admiralty Division—for example, the County Court jurisdiction in Admiralty cases which is dealt with there and which requires special attention and uniform procedure, and as to which it is exceedingly desirable that somebody shall be in charge generally in that field of appeal who knows what is going on, to whom matters are constantly reported, and who is able to take care that the proper method is used in dealing with that class of business. There is another class of matters. There is the very numerous class of appeals which come up to the High Court under the summary jurisdiction (married women's) procedure —a separate jurisdiction, a jurisdiction which has always been exercised in the Division to which I have referred, and as to which special care is essential because you have the whole of this country mapped out in areas in which that jurisdiction at present is exercised under a special control. You must not lose that control because it has a grip on the domestic life of the country.

I have considered, as I think my noble friend Lord Atkin has considered, whether there is not a possible way out of these difficulties by extending the jurisdiction and constitution of the Court of Appeal so that you give the Judges of the High Court of other Divisions the exercise, in this class of case, of their jurisdiction under the Judicature Act in the Court of Appeal. I take the special class of cases I have referred to, the Admiralty cases and the married women's cases in the special statutory jurisdiction of the County Courts. What occurred to me about that was that if you would constitute a Court of the Court of Appeal in which one of the Judges who has had special experience—by preference I would say myself the President of the Probate Division—should sit, with perhaps a Common Law Judge and a Chancery Judge, you would not derogate from the general capacity of the Court of Appeal, you would facilitate this class of work, and you would also avoid the burden, which I know is a serious matter, of throwing upon the existing Judges of the Court of Appeal a mass of work which, added to their present work, would be beyond the possibility of performance with the present strength of that Court.

I hope it is not thought that I am in any way critical of this Bill, the general proposals of which are useful proposals in the public interest. I offer these observations because I think this is probably the time when the Lord Chancellor, with the advice which is at his command, could formulate a scheme by which this change could be made not only beneficial in point of economy but beneficial in point of administration.


My Lords, it is very gratifying to find the universal support taat this Bill has met with from my colleagues in the various Courts. I am very much obliged to my noble and learned friend Lord Atkin for what he has said. He has had many years experience of these matters both m the King's Bench Division and in the Court of Appeal, as I have had myself, and even before that my learned friend and I were members of the same circuit. I am especially grateful to him for the suggestions he has made and they will be carefully considered. The matter is one really of administration. If my noble and learned friend the Master of the Rolls will allow me to say so, the administration in the Court of Appeal has been extremely successful. The County Court cases which come there are very important ones, because they are very often test cases, and they come from all parts of the country. I know from my own experience of the Court of Appeal when I sat there that they came in a separate list and did not interfere with the other work of the Court of Appeal. The result has been not only very smooth working, but eminently satisfactory working, and I have not the slightest doubt when this Bill becomes law the administration of it will be of very great public importance.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.