§ 4.5 p.m.
§ Amendments reported (according to Order).
§ Clause 1:
§ Actions of contract or tort, or for money recoverable by statute, and related matters
(2) For subsection (1) of section forty-seven of the principal Act there shall be substituted:—
(1) Where an action founded on contract or tort is commenced in the High Court which could have been commenced in the county court and the action is not referred for trial to an official referee, then subject to subsections (3) and (4) of this section the plaintiff—
THE LORD CHANCELLOR (VISCOUNT KILMUIR) moved, in subsection (2), at the beginning of paragraph (a) to insert:
if he recovers a sum less than four hundred pounds.
The noble and learned Viscount said: My Lords, I beg to move Amendment No. 1 standing in my name on the Marshalled List. This Amendment is slightly more than drafting. Its purpose is to meet a doubt as to whether paragraph (a) of the subsection which is substituted by Clause 1 (2) of the Bill for subsection (1) of Section 47 of the principal Act might not be construed so as to apply the costs sanctions, which your Lordships' House discussed on the Committee stage, to certain classes of action to which they do not apply at present— namely, actions in detinue, actions for the recovery of land, and actions for an injunction, in so far as these actions are based on contract or tort. I do not think your Lordships need be troubled by the authorities which say that at the moment the present costs sanction does not apply to actions of the kind I have mentioned. The present subsection applies the costs sanction only to actions in which specified sums of money are recovered. It was not intended that under the new Bill they should be applied to the three classes of actions that I have mentioned. There was some doubt about the wording which was before your Lordships, and I thought that that doubt should be removed. Accordingly, I have brought forward the Amendment which stands in my name.
Page 2, line 4, at beginning insert the said words.—(The Lord Chancellor.)
§ EARL JOWITT
My Lords, I assume that your Lordships will accept this Amendment, because it clears up what might have been a possible ambiguity. It always seems to me rather odd that if a man brings an action to recover a specific object, say a fountain pen, even though it is worth only a few shillings, if he brings an action in the High Court, he is entitled to recover High Court costs. That has always been the law. The noble and learned Viscount is making it plain that that should continue to be the law. I think we can support him in so doing.
§ On Question. Amendment agreed to.306
§ 4.8 p.m.
THE LORD CHANCELLOR moved, in subsection (2), after paragraph (b) to insert:
so, however, that this section shall not affect any question as to costs if it appears to the High Court or a judge thereof (or when, the matter is tried before a referee or officer of the Supreme Court, to that referee or officer) that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in the county court.
For the purposes of paragraphs (a) and (b) of this subsection a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part or otherwise in respect of matters not falling to be taken into account in determining whether the action could have been commenced in the county court.
§ The noble and learned Viscount said: My Lords, the second Amendment which stands in my name is, I think I may say, the most important of the Amendments which are before your Lordships this afternoon. The House may remember that an Amendment to the subsection substituted by Clause 1 (2) of the Bill for subsection (1) of Section 47 of the principal Act was made in Committee. The purpose of our Amendment in Committee was to indicate that the discretion as costs conferred on the High Court by subsection (3) of Section 47 might be exercised so as to award costs to a plaintiff when it appears to the High Court judge that the plaintiff had reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in the county court.
§ The noble and learned Earl who leads the Opposition and the noble Lord, Lord Silkin, while accepting that Amendment as good, so far as it went, feared that it did not go far enough, and wanted a further Amendment to be made in order to give express guidance to the High Court in such a case. They thought that where the High Court judge was satisfied that the plaintiff had reasonable ground for supposing he would recover more than £400, he should, as a matter of course, award costs on the High Court scale unless there was any good reason, under the judge's inherent discretion as to costs, to award county court costs or 307 no costs at all—for example, if the plaintiff had misconducted himself during the proceedings.
§ The difficulty, as I tried to indicate it to the noble and learned Earl, was that if we had carried out the Amendment on these lines, it would really have involved four stages: first of all, the stage of deciding whether the claim came within subsection (3) of the original Section 47—that is, under the words "sufficient reason for bringing the action in the High Court." The second stage was, the Amendment which we moved on the Committee stage, which modified that discretion by indicating that the High Court judge may, if satisfied that the plaintiff had grounds for supposing that he would recover more than £400, exercise his discretion in the plaintiff's favour. The third stage would be that which was suggested by the noble and learned Earl, that there should be guidance to the judge, which would require saying that where the judge was satisfied that there were reasonable grounds he should award costs on the High Court scale. Of course, that would involve a fourth stage, of saying that the inherent discretion of the judge was retained, and making some qualification of the mandatory process suggested.
§ I felt that that would produce a rather cumbersome and difficult structure, so in my Amendment I have suggested a different procedure which I think arrives at a satisfactory result. The present Amendment simply provides that where the High Court is satisfied that there was reasonable ground for supposing that the plaintiff would recover an amount in excess of £400, the old Section 47, which relates to costs sanction, shall not have any effect on any question about costs. In other words, the costs sanction shall not apply in any case where the judge is satisfied that the plaintiff had reasonable grounds. But the effect of not applying that section will be that the judge is left his inherent discretion as to costs, so he can, if he thinks fit, make a special award as to costs, either depriving the plaintiff of costs or giving him a lower scale of costs, if he feels there is good reason, such as the plaintiff's misconduct, or something else. In the absence of any such order, the law, in the words of the noble and learned Earl, Lord Jowitt, "would take 308 its course," and the plaintiff would recover costs on the High Court scale.
§ The next part of the Amendment deals with another point raised by the noble and learned Earl—namely, the effect of contributory negligence when contributory negligence reduces the original amount of the damages. I still think that the law which I ventured to explain to your Lordships on the Committee stage is right, but as I have a well-founded belief in my own fallibility, I am always prepared to make the matter clear, as was suggested by the noble and learned Earl. I hope that that has been done. The second part of the Amendment is designed to dispel any doubt which may arise on the construction of the new section in actions where the gross damages recovered by the plaintiff are reduced by reason of his contributory negligence. I promised the noble and learned Earl that I would consider this matter and, if I could find one, I would put down an Amendment that would not throw doubt on the existing law. I think he will agree that I have found such an Amendment, the effect of which is to make it clear whether, for the purpose of deciding whether an action could have been brought in the county court at all or for the purpose of deciding whether, under paragraphs (a) and (b) of the new Section 47 (1), the plaintiff has recovered the sums specified in these paragraphs, the figure to be considered is the figure of the gross damages recovered by the plaintiff, without any reduction for his contributory negligence.
§ The noble and learned Earl will observe the second part of this portion of the Amendment, the purpose of which is to secure that no doubt shall be cast on the present law, and it makes it clear that for the purpose of applying the costs sanctions the sum which the plaintiff must be regarded as having recovered is a gross sum without any deduction made in respect of matters not falling to be taken into account in determining whether the action could have been commenced in a county court, or for contributory negligence. The noble and learned Earl will of course have seen that what I have in mind is a counterclaim. That would not be taken into consideration because it is in the nature of a cross action. I have used these words in order, I hope, to avoid the 309 trouble which might possibly have arisen of throwing doubt on the existing position. I apologise to your Lordships for taking so much time in introducing this Amendment which is an effort to meet two points raised by the noble and learned Earl. I hope that it does so, and accordingly I beg to move.
Page 2, line 9, at end insert the said new words.—(The Lord Chancellor.)
§ EARL JOWITT
My Lords, I am grateful to the Lord Chancellor for the Amendment he has moved. May I deal first with the latter half of it As I said on the previous occasion, I agree with him that it was probably unnecessary to have these words in; but, equally, I think it was as well to clear up the matter, since doubt had been expressed and has continued to be expressed about it. I think he has cleared up the matter. There are of course two ways in which, in practice, the amount may be reduced: one is by counter-claim and the other is by set off, which is a different concept in law. So far as counter-claim is concerned, it now becomes absolutely plain that that does not enter into consideration of the amount; so far as set off is concerned, I suppose it still does—that would be my reading of this clause. I think it is all to the good that we should have this point cleared up and I am grateful to the Lord Chancellor for so doing.
Now I come to the first half of the Amendment. There, again, I must express my gratitude. The Amendment does not go quite so far as I suggested, but it is a most ingenious method of going some way along the road which I suggested was the right one. This is not a very interesting subject to discuss to-day, which is I gather an important day in our history, but briefly the position can be put as follows: in certain circumstances, if the judge thought there was ground for supposing that the amount recoverable would be in excess of £400, under the old Amendment proposed by the Lord Chancellor he had a discretion—he may do this, that or the other. But there was no certainty about what he would do, and no indication as to what he ought to do. Therefore, as I suggested, he was put in a difficult position—should he let the law take its course or should be make some special order? The difference in regard 310 to this Amendment, as I follow it, is that if he once comes to the conclusion that there was reasonable ground for supposing that the amount recoverable would be £400, unless he makes some particular order High Court costs are applicable. He can, of course, make an order, for he has complete discretion: but if it is to be a case of the law taking its course and no special order being made, there is then this provision under this new Amendment, which is all to the good. Since our discussion on the Committee stage I have received no communication from either the Bar Council or the Solicitors, so I assume that they are happy with what has now been done. I should like to express my gratitude to the noble and leaned Viscount the Lord Chancellor for going a considerable way to meet me in the points which I made.
§ LORD DOUGLAS OF BARLOCH
My Lords, I think that the first part of the Amendment which has been moved by the noble and learned Viscount meets the point which I intended to cover by my first Amendment; therefore I shall not move it.
§ THE LORD CHANCELLOR
My Lords, I intervene only for a moment to express my gratitude to the noble and learned Earl for what he has said and my entire concurrence with the expression of the meaning of the Amendment which he has given to your Lordships' House. I am also grateful to the noble Lord, Lord Douglas of Barloch, for his intimation.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, this is a drafting Amendment and I think I need trouble your Lordships no further with it. I beg to move.
Page 2, line 10, leave out ("and"), and insert ("(3)").—(The Lord (chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, this Amendment is consequential upon the Amendment which I have already moved. I beg to move.
Page 2, line 16, leave out subsection (3).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.311
§ 4.23 p.m.
LORD DOUGLAS OF BAR LOCH moved, after subsection (3) to insert:
(4) Without prejudice to the proviso to subsection (1) of section forty of the principal Act a county court shall have jurisdiction to hear and determine any action founded on tort or on contract, but if the claim is not limited to the sum of four hundred pounds the defendant may within such time as may be prescribed by county court rules give notice that he objects to such action being tried in that court and thereupon the judge shall order that the action be transferred to the High Court.
The noble Lord said: My Lords, this Amendment is designed to probe further the point which I raised on the Committee stage of this Bill. As the scheme of legislation stands, it is possible to bring in the High Court proceedings for any sum whatever. It is true that in so doing one is subject to the qualification which we have recently discussed: that if the amount recovered is less than £400 one may be penalised by being awarded costs only on the county court scale.
§ The object of that provision is, in part, as the noble and learned Viscount said in introducing this Bill, to secure that more actions will be tried in the county court, thereby relieving the High Court of part of the pressure of work to which it is now subjected. This provision, nevertheless, places a plaintiff in substantial difficulty. On the one hand, in a case in which it is not clear whether the amount likely to be recovered is more or less than £400, the plaintiff is virtually obliged either entirely to forgo the possibility of recovering more than that sum and bring his action in the county court—because he is forced to declare that he is not seeking to recover more than £400 and cannot possibly recover more than that sum—or, on the other hand, he is in the difficulty that if he brings his action in the High Court and is not successful in recovering £400, he loses the difference between costs on the county court scale as compared with those on the High Court scale. This arrangement therefore does not work reciprocally. It would do so only as between the two courts if there were introduced a provision such as that which I am suggesting in this Amendment, namely: that a plaintiff shall not be debarred from recovering more than £400 in the county court, though he would not, of course, recover more than the county court scale of costs.312
§ In the case which has been dealt with by the noble and learned Viscount's first Amendment the position is relatively simple if one can say definitely beforehand that there is a prospect of recovering more than £400. But there may quite easily be cases in which it is very difficult to make this prediction in advance. I know that there is a means by which we can evade the difficulty—that is, that if the solicitor having the conduct of the case can find a barrister who will advise him that there is a likelihood of recovering more than £400, then he is probably covered and may, in the end, avoid his client's being penalised by the excess of costs. But even there the matter is a little difficult, because this decision has to be made at the beginning, before any proceedings are commenced; and at that stage it will often happen that neither the plaintiff nor the defendant is so well informed of all the possibilities as they become at a later stage, after the discovery of documents and interrogatories and so on, when it is rather too late.
§ I suppose there is the possibility that the plaintiff might then avail himself of the option contained in Section 47, subsection (3), of the principal Act and apply to have his case transferred from the High Court to the county court. But by that step a solicitor at once puts himself in the tactically invidious position of confessing that he does not expect to recover for his client more than £400. I feel that the noble and learned Viscount the Lord Chancellor will agree that that is a position which one would wish to avoid if it is at all possible, especially in dealing with cases of tort, accidents in streets and factories, and similar cases, in which the margin of doubt as to the amount that may be recovered, and the negotiation which very often takes place with a view to settling matters of this kind, create considerable difficulties. If the party who has been injured is placed in a disadvantageous position by having to confess that he does not think that he can recover more than £400, I submit that a serious injury is done to him.
§ I do not know any good reason why my Amendment should not be agreed to. We are by this very Bill extending the jurisdiction of the county court to a considerable extent, and it is surely not going to be said that the county court is not a tribunal in which the subject 313 can expect to receive justice even if his claim should happen to be a little larger than this crucial limit of £400. Indeed, the scheme works in a quite arbitrary fashion, because the £400 is not an absolute limit to the jurisdiction of a county court, applicable in all cases. In the first instance, of course, any two litigants can agree to have any claim, whatever the amount involved, tried in the county court. That, it may be said, is a matter of agreement between the two parties. But there are other cases in which a claim of any amount can be tried in the county court. If, for example, proceedings are brought against someone, and he files a counterclaim, the counterclaim is not subject to any limit whatever. It may be for £1,000, and the county court has jurisdiction to deal with it.
§ Then there are other cases. Take the Rent Restrictions Acts. A case may be brought in which property of very great value is concerned, for in cases affecting property, the criterion by which the jurisdiction of the county court is determined is the annual value of the property, whereas its capital value may be twenty times as much. So limitations on the jurisdiction of the county court at present are quite variable. Therefore, I submit that there is no good reason why the maximum amount recoverable should not be extended in the particular cases which I am contemplating. That would not mean an indefinite extension of the county court's jurisdiction, because where there was no doubt whatever that the amount likely to be recovered was more than £400 the choice of the plaintiff, in most cases, would be that the venue should be in the High Court. For those reasons I beg to move this Amendment.
Page 2, line 24, at end insert the said subsection.—(Lord Douglas of Barloch.)
§ 4.34 p.m.
§ THE LORD CHANCELLOR
My Lords, I have listened with great care to what the noble Lord, Lord Douglas of Barloch, has said on this Amendment, and I also listened carefully to his speeches during the Committee stage of the Bill. I regret that I cannot accept the Amendment. May I, first of all, look at the Amendment as it is put before your Lordships' House? The form of the Amendment is that: 314… a county court shall have jurisdiction to hear and determine any action founded on tort or on contract.Now that means that one starts from the position that the noble Lord's Amendment gives to the county court unlimited jurisdiction, and it is subject only to this proviso. I read the next words:but if the claim is not limited to the sum of four hundred pounds the defendant may within such time as may be prescribed by county court rules give notice that he objects to such action being tried in that court and thereupon the judge shall order that the action be transferred to the High court.With the greatest respect to the noble Lord, I do not agree with the point of view that all actions should be capable of being tried in a county court. I was brought up in county courts in Lancashire. As I said to your Lordships' House on the Second Reading of this Bill—and I am in the remarkable position of having said the same thing on the Second Reading of the last County Courts Bill in another place, seventeen years ago—we must preserve the county court as a poor man's court. Your Lordships will remember—I do not want to repeat any words of mine—that I called your Lordships' recollection to the words of the noble Lord, Lord Silkin, on Second Reading. The noble Lord gave what your Lordships may remember as a moving picture of his introduction to the county court and the atmosphere that he found there. It is immensely important that there should be courts into which poor people can go—often they go without representation—and feel that their small actions, which are intensely important to them, will receive great and unhurried attention from the county court judges. And it has been my fear that if one allows an unlimited incursion of larger cases, one will, almost of necessity, create a feeling of hurrying with the smaller cases in order to get on to the "big stuff." I feel that very strongly. In fact, I say to your Lordships with complete sincerity that if I ever become convinced that the result of this Bill is to prevent, or make harder, the access of poor people to the county courts, I shall come before your Lordships and ask you to put the matter right again. Therefore, I do not agree with that general proposition.
The noble Lord, Lord Douglas of Barloch, has tried to deal with the objection by giving the defendant the right to 315 remove the action to the High Court. My answer to that—again with great respect to the noble Lord—is that it is not only the defendant's rights with which I am concerned; I am concerned with the rights of everyone and the management of business in the county courts. That is my difficulty with regard to the Amendment. The noble Lord, Lord Douglas of Barloch, referred to other matters of high value and great importance that are dealt with in the county courts. I hope that neither he nor anyone else will consider that these words of mine are any reflection on the ability of the county courts to deal with important matters. That is not what I intend to convey at all. It is simply, as I have said, a question of leaving them ample time to deal with the other matters.
Now I come to the noble Lord's difficulties with the present situation. I should like your Lordships to look once again at the position of the borderline cases to-day, because what the noble Lord, Lord Douglas of Barloch, has in mind is the case which either may be borderline of its inherent nature or else may change its character as time passes. Let us consider these cases for just one moment. The borderline case, if it is a question where the plaintiff had reasonable grounds for thinking he would recover more than £400, is now dealt with, as the noble and learned Earl, Lord Jowitt, expounded on an earlier Amendment, by saying that once that fact is demonstrated, once a High Court Judge is satisfied of that fact, then he must give High Court costs, unless there is some special reason for depriving a plaintiff of costs according to the discretion ordinarily exercised in that regard. I feel that that case is covered by the Amendment we have already made.
I have carefully considered the noble Lord's other suggestion—that is, of a case that starts off looking as if the damages were going to be over £400 and changes its nature. I do not want any words of mine to lay down an attempted law of the Medes and Persians but, roughly, I should say that if the change were shown before the summons for directions in the case, then the matter could go to the county court by consent without any difficulty in the way of the plaintiff. If it did not show itself until much later, then the plaintiff would be able to show that he had brought his 316 case to the High Court and prosecuted it with reasonable ground existing for his supposing that he would get more than £400; and he would be within the benefit of the Amendment I have moved. I feel that we have gone a long way to meet the difficulties in a borderline case. I think they have been met so far as is susceptible with the real preservation of discretion on costs, which is very important in the administration of justice. Therefore, both for the negative reason that I think this Amendment will cause general trouble and for the positive reason that my Amendment goes a long way to meet it, I would ask the noble Lord not to press his Amendment at this stage of the Bill.
§ 4.42 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, certainly the last thing I should wish to see resulting would be that the character of the county court should be changed in such a way as to be prejudicial to the poorer litigants who have cases to bring and who often bring them without any legal assistance whatever. I did not contemplate that this Amendment was going to produce such a transformation as that in the conditions in the county court. After all, as the noble and learned Viscount, I think, informed us at an earlier stage, the extent to which the normal county court proceedings are going to be diluted by actions diverted from the High Court will be almost infinitesimal. It may well be that in point of time the comparison is not quite the same; no doubt it will take longer to try. I do not want to press this Amendment. I realise that this is debatable ground, but then the matter is full of great difficulties.
I accept the argument that where, in the beginning, the plaintiff has reasonable ground for saying that he expects to recover more than £400, his course is moderately clear. But suppose the position is precisely the reverse of that which has been illustrated by the noble and learned Viscount, and that in the beginning, on the facts which are there available, it looks to him as if he has no expectation of recovering more than £200. He is then committed to proceedings in the county court, and if, thereafter, in the light of more knowledge of the facts, the discovery of documents, interrogatories and other procedure which may be brought to bear on the question, he 317 discovers that there is a possibility of recovering more than £400, what then is the position of the unfortunate plaintiff?
I know that he can discontinue proceedings completely, suffer the whole costs which have been incurred up to that time in the county court, and then bring the case in the High Court. But he is still running a certain amount or risk, because, with all respect to noble and learned Lords who have practised the profession of law, it is very difficult, particularly in cases of accidents, to predict what damages will be recovered. It is something which I have never found myself competent to assess with any exactness. I know that text books have been produced in which attempts have been made to digest and classify the results of cases which have been decided in the courts, and upon that basis to predict what is going to happen, but a great deal depends upon what is the mind of the judge before whom a case happens to come. In many cases, the assessment does, not depend upon a precise calculation of anything that can he assessed in that way. Suppose a young lady meets with an accident and suffers some disfigurement. What calculus is going to be applied in order to determine what damages ought to be given to her? It will depend on a great many factors, many of them subtle, and the way in which a particular judge arrives at a conclusion upon the matter is something about which I should not like to speculate. So I submit with all sincerity that there is a point here which needs to be considered, though I admit that the proposal I put forward for dealing with it may have some defects. I beg leave to withdraw the Amendment.
§ THE LORD CHANCELLOR
My Lords, I am grateful to the noble Lord. As he is aware, this Bill will be considered in another place, and I am sure that this point will be brought up again. I promise him that we shall never close our mines on this matter, but I should like to make it equally clear that, thanks to the co-operation of noble Lords, we have made great advances upon the Bill 318 as it was introduced. I rise to express my gratitude to the noble Lord for the course he has taken.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Amendment of other enactments]:
§ THE LORD CHANCELLOR
My Lords, this Amendment is consequential. It takes the same course with regard to Admiralty proceedings as we have taken with regard to proceedings on dry land, I beg to move.
Page 3, line 35, leave out from beginning to ("in") in line 36, and insert ("Subsections (2) to (4) of the said section fifty-nine shall not affect any question as to costs").—(The Lord Chancellor.)
§ On Question, Amendment Agreed to.
§ 4.49 p.m.
§ THE LORD CHANCELLOR
My Lords, this Amendment is also consequential and applies the Amendment which has been made on the question of contributory negligence to Admiralty proceedings. Again it is desired that there should be no doubt about the matter. It could be argued whether the Amendment is necessary or not, but I have tried to meet what I felt was the feeling of the Committee and to remove all the doubts that I could. I beg to move.
Page 3, line 40, at end insert ("and for the purposes of the said subsections a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part or otherwise in respect of matters not falling to be taken into account in determining whether the action could have been commenced in the county court.").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.