HL Deb 14 June 1934 vol 92 cc1085-94

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clause 1 agreed to.

Clause 2. [Appeals from County Courts]:

LORD MERRIVALEmoved, after subsection (1), to insert the following new subsection:

"(2) The Master of the Rolls with the concurrence of the Lord Chancellor may from time to time give such directions as he shall deem necessary as to the sittings and the membership of Courts for hearing the appeals in subsection (1) mentioned so as to ensure prompt disposal of the same without delay of the general business of the Court of Appeal."

The noble and learned Lord said: As those of your Lordships who are interested in matters of this kind are aware, the proposal embodied in this Bill is a proposal for limiting costs and saving time in respect of appeals in cases decided in the County Court, by giving a direct appeal to the Court of Appeal instead of the existing appeal to the King's Bench Division, with a subsequent appeal in some cases to the Court of Appeal. The body of litigation which is affected here is not very great. I believe there are something like 100 cases in a year as a rule, and it is an interesting fact with regard to them that in a percentage, well over 90 and much nearer 100, the original judgments ultimately stand.

But the proper administration of justice no doubt requires power of appeal, and due regard to economy and to other public interests require that appeals should be limited by reasonable restrictions. That is the object in view here. The two matters about which I am concerned in considering Clause 2 of this Bill are these. It is common knowledge that at the present time the Court of Appeal has no time to spare. It is not a Court which is found rising, as some Courts elsewhere do, at mid-day, and not having to resume. It is a Court which goes steadily on all through the sittings. Not only so, but it deals with business of the very greatest importance. It has been proposed, and proposed not at all recklessly, that the Court of Appeal should be a final Court of Appeal. That is a matter which has had consideration, and no doubt will have consideration from time to time, but the class of business which is in question here is not the class of business which ordinarily goes to the Court of Appeal. The matters dealt with here are mostly smaller ones—matters arising in business transactions or domestic transactions, and of the class in which an appeal, duly heard, will dispose of the dispute between the parties.

The first essential here, I think, is that care should be taken that the general business of the Court of Appeal is not obstructed and the recognised efficiency of the Court of Appeal, as it functions now, is not put in danger of being impaired by the inter-mixture of these small matters which, I dare say, might occupy the Court of Appeal a fortnight in the course of a year. But they are small matters which can be segregated, and in the past have been segregated and dealt with by the Judges of the King's Bench Division who, from the nature of their duties, have daily contact with the sort of questions which occur in these small cases. I am very anxious that there shall not be an obstruction of the business of the Court of Appeal. There is another thing about which I am anxious, and that is, that having regard to the volume of the business of the Court of Appeal these cases, which are very often the disputes of poor people, shall be put in a position in which it shall be reasonably certain that they shall be promptly disposed of. One fault of the existing system has been that, with the mass of work of the King's Bench Division, and with the varied duties of the Judges there, on circuit, and in London, these cases had to get a hearing when they could, and there have been long periods of delay—an exceedingly undesirable thing. I desire that some security shall be had now, when a new departure is proposed, for dealing promptly with that class of work.

As to both these matters it no doubt would be said by people who are experienced in these things: "Well, there is power now to constitute a supplemental Court of Appeal." So there is, but it is a supplemental Court of Appeal to deal with its old business. It may be said there is power now to fix sittings. So there is, but the character of the business to be dealt with makes it almost impossible to fix them satisfactorily to deal with these little cases. In the pressure that arises the little case has the lesser chance of being immediately disposed of. What I have suggested in the Amendment I have drafted is that the Master of the Rolls may from time to time take counsel with the Lord Chancellor and give directions as to the sittings and the membership of Courts—that is, the constitution of the new branch of the Court of Appeal for the new business—and that the matter shall be so dealt with as to ensure prompt dealing with these little cases without obstructing the general work of the Court of Appeal.

I cannot doubt for a moment that my noble and learned friend the Lord Chancellor who has introduced this Bill desires both those objects. I am quite sure that my noble and learned friend the Master of the Rolls in the ordinary course of his duties will do what he can to secure those objects. But they are, as the Bill stands, subordinate objects. What I desire is that by some means, whether by a subsection in this Bill or by some public declaration, it shall be made clear that the Court of Appeal shall be so manned in addition to its present strength when it is necessary, and that business shall be so regulated in the Court of Appeal after its enlarged jurisdiction, that the Court of Appeal shall be ready at the proper time to deal with this class of appeal and that appeals shall come on promptly and punctually for the benefit of the poorer classes of the population. It can well be done. Until a little while ago I was President of a Division to which appeals came from subordinate jurisdictions. At the beginning of the law sittings the cases were listed and dealt with to the satisfaction of everybody concerned. I desire that something of that kind shall be rendered practicable by the form in which this Bill is framed and by the policy which is followed with regard to it. With that object, and not with any ambitious desire to take part in the framing of a new code for the Court of Appeal, I have ventured to put down the Amendment which I now move.

Amendment moved— Page 2, line 15, at end insert the said new subsection.—(Lord Merrivale.)

THE LORD CHANCELLOR (VISCOUNT SANKEY)

I am very grateful to my noble and learned friend for having put this Amendment upon the Paper, for his action in doing so gives me an opportunity of making clear what is the intention of the clause if it becomes law. My noble and learned friend and I have the same end in view, that is that these appeals should be disposed of promptly and that they should be so disposed of as not to interfere with what is now the normal business of the Court of Appeal. For that purpose I think that it will be found possible to deal with them at the beginning of the sittings, that a separate list will be kept of them, and that where it is necessary a third Court of Appeal shall be constituted for the purpose of hearing them.

I trust that my noble and learned friend will be satisfied with this statement and will not press his Amendment to a Division, for these reasons. I have had the advantage of talking over the matter with my noble [...]learned friend Lord Hanworth, and [...]too, agrees. We are in complete agreement, but it would be a pity if by the insertion of this Amendment a matter of arrangement should be turned into a matter regulated by the rigid forms of the Statute. I am not sure whether it would be wise to compel the organisation of the Courts to be carried out by the terms of the Statute. As things now stand, there is and I hope there will continue to be complete elasticity so long as the Lord Chancellor, the Lord Cheif Justice and the Master of the Rolls are in agreement. I see no reason to anticipate that they will not be in agreement. With their agreement these objects can be easily obtained without friction. That course is followed because of the statutory duty already placed upon the Lord Chancellor under the Judicature Act and the powers entrusted to him by that Act.

That result would not follow if a new statutory duty were imposed on the Master of the Rolls. He could not fulfil that duty which the Statute might purport to lay upon him except by making an arrangement with the Lord Chancellor, and probably also with the Lord Chief Justice and with the President of the Probate, Divorce and Admiralty Division. It would be far better to leave those dignitaries, who have hitherto succeeded in arranging their business without any trouble, to continue in the future as they have done in the past and not to impose upon the Master of the Rolls any statutory responsibility. In the future as in the past the Master of the Rolls will be primarily responsible for the business of the Court of Appeal, and there is nothing in the Bill now before your Lordships' House to diminish that responsibility. I am sure my noble and learned friend Lord Hanworth, who is present and who now holds that office, and to whose labours the improvement of our judicial system is largely due, holds the same view as I do and indeed the same view as my noble and learned friend Lord Merrivale. I hope that after this explanation my noble and learned friend will rest content with the speech he has made and, most important of all, with the fact that he has drawn the attention of your Lordships to this very important matter, thereby emphasising the line upon which administration in regard to appeals should be carried out and certainly will be carried out as far as is possible under the present rêgime.

LORD MERRIVALE

The Lord Chancellor has given the House an assurance which I regard as a highly satisfactory assurance. I cannot doubt that that assurance, given as it is with the concurrence of my noble and learned friend the Master of the Rolls, will take effect, and once a proper practice is established in respect of these matters the anxieties which I have had as to the course which may be taken under the Bill will be to a very great extent removed. In those circumstances I think my proper course is to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD HANWORTH

moved, at the end of the clause, to insert the following new subsection: (3) All appeals which under this section lie to the Court of Appeal instead of to the High Court, may be heard before not more than two Judges sitting as Judges of the Court of Appeal; and proviso (b) to subsection (5) of Section sixty-eight of the Supreme Court of Judicature Act, 1925, shall apply to appeals so heard by two Judges as aforesaid.

The noble and learned Lord said: I beg to move the new clause which stands in my name on the Order Paper. The object of Clause 2 of this Bill is to provide that the appeals which hitherto have gone to what we call a Divisional Court of the High Court of Justice, in which two Judges sit, shall in future be heard by the Court of Appeal direct; that is to say that instead of there being an intermediate Court to which they shall have to go, they shall go from the County Court to the Court of Appeal in the same way as appeals in eases under the Workmen's Compensation Acts now pass from the County Court straight to the Court of Appeal. The object of Clause 2 is really twofold. One purpose is to eliminate one step of appeal. It has been pointed out many times by those who have to deal with possible suitors that they feel the danger of coming to the Courts of Justice when they may have to pass through so many stages of Appeal Courts, and it is to obviate that danger that it was decided to eliminate one stage in the appellate jurisdiction of the Courts. The other purpose of the clause is to release as far as possible some of the personnel of the Courts so that their energies may be devoted to other purposes.

The question of whether that step in the appeals should be withdrawn or not was carefully considered by the Committee over which I had the honour to preside. We considered the question of appeals from County Courts. In cases which are dealt with under the Workmen's Compensation Acts the appeal is taken to three Judges sitting in the Court of Appeal, and it has been said, and wisely said, that if you eliminate the Divisional Court and send these other appeals direct to the Court of Appeal, you ought to send them to an Appeal Court manned in the same way and equipped in the same way as the Courts which hear the other appeals which come from County Courts—namely, by three Lords Justices. That is a very legitimate and fair observation. It has also been said that if you send these appeals direct to the Court of Appeal, you are burdening the Court of Appeal with a number of appeals many of which did not go as far as the Court of Appeal previously, for many suitors were content to leave the decision of the High Court of Justice standing.

I feel that there is criticism which may be made on both sides in reference to the proposal to send all the appeals to the Court of Appeal. The Committee over which, as I have said, I had the honour to preside, considered this matter very carefully, and if I may read quite a short paragraph from the Report of that Committee your Lordships will see why I put down this Amendment. The Report says: 'With regard to the latter appeals"— that is, appeals from County Courts— the St. Aldwyn Commission"— a Commission which sat in 1913 and was presided over by the late Lord St. Aldwyn— recommended that those appeals should be dealt with by a single Judge, inasmuch as the facts have all been decided in the County Court and the question on the appeal is one of law only. We do not go so far as this, but while we think that all final appeals should, if possible, be heard before a Court of three Judges, we think that power should be taken to enable a division of the Court of Appeal to sit with two Judges only if necessary. There is power now, if the parties agree, to constitute the Court with two Judges, and of course this is sometimes useful to the parties. It is in pursuance of that paragraph that I move the addition of this new subsection, the purpose of which is to take power to constitute a Court with Judges only.

I do not suggest that as a general practice that should be done. I quite appreciate the importance of having three Judges, and indeed the importance of that is illustrated by the proviso to which the proposed new subsection refers, which provides that if there be a difference of opinion between two Judges sitting as a Court, then there shall be power to re-hear the case before three Judges before the parties shall be compelled to take the expensive course of bringing the case before your Lordships sitting judicially. It is only power that I ask to have; I do not suggest that as a rule, or indeed often, the Court of Appeal hearing these cases should be manned by two Judges only.

The reason I ask for power may be illustrated by an incident which has occurred in the course of the last few days. One of the members of the Court of Appeal is slightly indisposed for a day or two only, but that prevents that Court sitting to hear final appeals. It is impossible at twelve hours notice to disorganise other Courts and to get another Judge to come and sit in the Court of Appeal. We therefore endeavoured to carry out the plan of getting the parties to agree to the hearing of the cases before two Judges only. Counsel in the cases were ready to adopt that course, but inasmuch as a signed agreement has to be placed before the Court, it was not possible in the absence of the parties, who could not be swiftly communicated with, to follow that course and therefore the Court had to fail to sit. If power were taken for a Court to sit with two Judges only, I think a valuable possibility would have been given to the Court. I do not at all press it as a matter of practice I only ask for this power on the lines and for the purposes indicated in the Report, and I do not suggest that that course should be adopted as a general practice. It is on those lines that I ask that this power should be given and it is on those grounds that I beg to move.

Amendment moved— Page 2, line 23, at end insert the said new subsection.—(Lord Hanworth.)

THE LORD CHANCELLOR

I propose to make an appeal to the noble and learned Lord not to press his Amendment, to-day at any rate, for reasons which I am about to give. First of all I Should like to say—and I am glad that I have this opportunity of saying it—under what a great debt the legal system of this country is to the noble and learned Lord. For the last two years he has been presiding over a Committee which has been rendering most useful service, not only by creating greater expedition, but by saving cost in the administration of the law. If he will allow me to say so, I know personally that he gave up the greater part of his last long vacation for the purpose of drawing his Report. Anything that the noble and learned Lord says has extraordinary weight with me, and I should think it almost impossible to oppose it. But at the same time this Amendment—I do not complain at all—was put down but a very short time ago. I have only had an opportunity of seeing the noble Lord for about a quarter of an hour this afternoon, and there has not been time to consider it in all its aspects. What I propose to ask the noble and learned Lord to do is to withdraw it to-day in order that it may be rather more fully considered by the experts, and, should he see fit later on, to bring it forward on the Third Reading of the Bill.

There is one other matter which appeals to me most strongly. It is this: we are getting towards the end of the Session. If this Bill goes through without any amendment we can take the Report stage immediately and have the Third Reading next week; I will give plenty of time for it. On the other hand, if it goes through with an Amendment we cannot take the Report stage until later, and the result may be that the Bill may go down to the House of Commons so late that it will not be possible to get it through before the end of July. In those circumstances, having regard to the fact that one would rather like longer time to consider it and would also like to get the Bill through its present stage without any amendment, I appeal to my noble and learned friend to withdraw his Amendment, for the present at any rate.

LORD HANWORTH

A noble Lord would have to have a much harder heart than I can lay claim to if he could resist the seductive appeal made by the Lord Chancellor, opening with a compliment which I do not feel I deserve and re- inforced by the words which he has used. After that appeal, I beg leave to withdraw my Amendment.

THE LORD CHANCELLOR

I am very much obliged to my noble and learned friend.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Remaining clause agreed to.

Bill reported, without amendment.