§ 2.28 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, in rising to move that this Bill be now read a second time, it is almost unnecessary to explain to your Lordships that the main object of the Bill is to increase the jurisdiction of the county courts. For those of your Lordships, however, who have not had the benefit of being in a county court in a professional or any other capacity, it might be convenient if I said a word about county courts and the jurisdiction that they have at present. Their jurisdiction is limited in amount, but extends over all types of civil proceedings which can be brought in the High Court, except matrimonial cases, actions for libel, slander, seduction and breach of promise of marriage. In practice, they have an exclusive jurisdiction in certain other matters—for example, in cases arising out of the Rent Restrictions Acts.
I should like to give your Lordships some idea of the volume of litigation that is already dealt with in the county courts every year. Nearly 650,000 plaints—that is, the document by which proceedings are started—were issued in these courts in 1953. In the High Court the corresponding number of writs was about 127,000; thus it is clear that the great bulk of the civil judicial business of this country is done in the county courts. The county courts were established in their modern form in 1846, and the jurisdiction they then had in respect of actions founded on contract and tort was £20. In 1888 this jurisdiction was increased to £50 and in 1903 to £100. The last increase was made in 1938 by the Administration of Justice (Miscellaneous Provisions) Act of 264 that year. That fixed the jurisdiction in actions of contract and tort at £200; but, at the same time, it gave the defendant in actions where the claim was over £100 the right to have the action transferred to the High Court.
In 1949, the question of county court jurisdiction was considered by the Committee on Supreme Court Practice and Procedure, under the chairmanship of the present Master of the Rolls, Sir Raymond Evershed. This Committee recommended, in its First Interim Report, an increase of jurisdiction to £300 in actions of contract and tort, as well as certain increases in the other jurisdiction of the county courts. Although no mention is made in the Report about the fall in the value of money since the limit of jurisdiction was fixed at £200 in 1938, I have no doubt that the Committee had it in mind, in deciding the increase which they should recommend. Legislation was not immediately brought in on this point and chiefly, I think—the noble and learned Earl, Lord Jowitt, will tell me if I am wrong—because the operation of the Legal Aid Scheme was then limited to the Supreme Court. The transfer of business from the High Court to the county courts resulting from an increase in county court jurisdiction, without a corresponding extension of legal aid, would have deprived many litigants of the right to financial assistance in bringing proceedings which they at present enjoy. During the years immediately following the Evershed Report, the state of our national finances made it impossible to allow the additional expense involved by the extension of legal aid; but now, as your Lordships are aware, the Government have decided that the time has come to extend this much-needed public service to the county court, so that this reason for postponing the adoption of the Evershed Committee's recommendation is no longer valid.
There is, however, another factor which is of great importance and which now makes some increase in county court jurisdiction a matter of absolute necessity: I refer to the heavy pressure of business in the Queen's Bench Division of the High Court and the resulting delays in the disposal of actions, both in London and in the larger provincial towns, especially Manchester. I am glad to say that the position is now somewhat better than it was a few months ago—and I should like to take this opportunity of 265 paying a tribute to the Lord Chief Justice for the work that he has done in this matter—but it is still important that steps should be taken as early as possible to relieve the congestion in the High Court. An increase of county court jurisdiction to £300, the figure recommended by the Evershed Committee, would give a certain measure of relief, but it would not be enough, particularly since the value of money has fallen still further since the Evershed Committee reported.
I now come to the actual provisions of the Bill. Clause I proposes to increase to £400 the county court's jurisdiction in actions founded on contract or tort. Subsection (4), as your Lordships will see, gives power to increase the jurisdiction still further to £500 by Order in Council, subject to Affirmative Resolutions of both Houses of Parliament. I have considered the amount very carefully, and I think it right that we should not at this stage go beyond £400, because we do not want to risk swamping the county courts with work, thus transferring to them the delays that are at present in the High Court. Parliament is constantly increasing the work of county courts. Recently, last Session, we gave them a lot more work under the Landlord and Tenant Act, and if their pecuniary jurisdiction is now to be extended and legal aid introduced at the same time, I think that, with a jurisdiction up to £400, the county court judges will have plenty to do.
Further—and I regard it as a most important consideration—it would not be right to increase their jurisdiction to such an extent as to alter the traditional character of the county court, which is the character of a poor man's court. When I used to practise in county courts this special quality impressed me very strongly, and I have not forgotten it to-day. Your Lordships will forgive a short personal excursus into the past, but I have looked up the debates in another place on the last Bill in 1938 in which both the noble Lord, Lord Milner of Leeds (as he is now), and I took part. He may well remember that I took the same point at that time: it is one that has constantly been in my mind as of the greatest importance.
It is the original and essential nature of the county court that it is a tribunal where people can expect justice to be done expeditiously in all the many small 266 disputes that arise out of their business and social relationships, at a cost which is not out of proportion to the amount at stake, and in a manner—and this is most important—which ensures that these minor troubles of their daily lives should receive most careful attention from the judge. I consider that the question of costs is very important, from the point of view both of the plaintiff and of the defendant, but particularly of the defendant, who at the end of the day, if he has lost, should not find the claim for the costs of both sides to be overwhelming. That is the one side. On the other side, having regard to the fall in the value of money, I do not think that an increase to £400 is unreasonable. I think that subsection (4), to which I referred, which gives Parliament the right, by Affirmative Resolution, to increase the amount to £500, gives a flexibility which we shall be able to use if we find that the increase is justified.
Your Lordships will notice that Clause 1 also provides, as the Evershed Committee recommended, that a defendant should no longer be entitled, irrespective of the nature of the proceedings, to have an action in the county court for more that £100 transferred the High Court. I think that the right of transfer under the 1938 Act did a great deal to destroy the value of that Act. I am told that that is the experience, and I agree with the Evershed Committee that we should take out that provision. I have already told your Lordships that one of the main objects of the Bill is to relieve the burden of work in the High Court. It is calculated that if the jurisdiction of the county courts were increased to £400 about 30 per cent. of the actions at present tried by High Court judges could be brought to the county court, and such a shift of work would afford a real relief to the High Court. But I am certain that it cannot be achieved without some strengthening of the provisions in the existing County Courts Act, which is designed to induce litigants to start proceedings in the county court and not in the High Court.
These provisions are in the nature of economic sanctions. Under them a plaintiff who is successful in proceedings in the High Court which might equally well have been brought in a county court is deprived of his costs, or is entitled only to costs on the county court scale, 267 depending on the amount he recovers. Thus, under the present law, a plaintiff who brings an action in the High Court and recovers less than £40 in an action founded on contract, or less than £10 in an action founded on tort, is not entitled to recover any costs at all from the defendant. If he recovers between £40 and £100 in an action of contract, or between £10 and £50 in an action of tort, he is entitled only to costs on a county court scale.
The Evershed Committee recommended an extension of these provisions, and they also recommended that where an action within the limit of county court jurisdiction is brought in the High Court, the Master or Judge in Chambers should order it to be transferred to the county court, except where he is satisfied that there is sufficient reason for its remaining in the High Court. I have not adopted that recommendation, partly because I think that it derogates from the right of a subject, at his own expense and risk, to bring an action in the High Court, and partly because the economic sanctions, strengthened in the way which I shall now explain to your Lordships, are I think likely to prove more effective.
The way that I have dealt with the sanctions is this: Clause 1 (2) provides that a plaintiff who does not recover more than £75 in an action of either contract or tort brought in the High Court, is to be deprived altogether of his costs; he can get costs only on the county court scale if he recovers more than £75 but less than the upper limit of county court jurisdiction—that is. Either £400, or £500 if it is subsequently extended.
Your Lordships will see that I suggest abolishing the distinction between contract and tort. I feel that in these days, and in view of the many actions for personal injuries, the distinction is not so clear as it was when it was first introduced. There are special provisions for the debt-collecting actions, which we lawyers know so well as "under Order 14." I should just add this: that where an action which is within the county court limits has been brought in the High Court the judge still has a discretion to give the plaintiff High Court costs if he thinks the plaintiff was entitled to take that action. I have considered the matter, and to the best of my judgment I think that 268 these provisions will achieve the object which the Evershed Committee had in mind, and will ensure that actions which are within the county court jurisdiction will not be brought unnecessarily in the High Court, thus securing a substantial transfer of business to the county courts.
My Lords, may I deal briefly with Clauses 2, 3 and 4 of the Bill—I will, of course, answer any questions later on with the greatest pleasure. These clauses increase the jurisdiction of the county courts in actions relating to land and in Admiralty and Probate proceedings. At present, the county court jurisdiction in actions for the recovery of land, not being cases within the Rent Restrictions Acts, extends only to land of a full yearly value or rent not exceeding £100. The test of rent and full yearly value of land is difficult to apply, and often gives rise to disputes. Therefore, Clause 2 alters the test of jurisdiction to the net annual value for rating, which can easily be ascertained by reference to the valuation list. The Evershed Committee recommended that the jurisdiction should be fixed at £60 rateable value, which they thought represented a slight increase on the old £100. But in the Bill the jurisdiction is fixed at £100 net annual value for rating—a substantial increase. This has the advantage of corresponding with the figure under the Rent Restrictions Acts, so far as premises in London are concerned, and therefore keeps the two matters in line.
Clause 3 deals with Admiralty jurisdiction and increases the jurisdiction in Admiralty proceedings from £300 to £1,000; and, correspondingly, the present jurisdiction of £1,000 in claims for salvage is raised to £3,500. Clause 4 deals with probate. It gives jurisdiction to the county court in probate proceedings where the value of the deceased's estate was less than £1,000. Up to now, the jurisdiction has been limited to cases where the value of the personal estate was under £200 and the value of the real estate was not over £300; but it seemed to me (I hope your Lordships will agree) better to make the jurisdiction dependent on the value of the whole estate. Again, I do not think many people will quarrel with the proposal that a probate action for a small estate up to £1,000 should be brought in the county court, with the lesser expense attached.
269 If I may for the moment go on to Clause 7, to the date of operation, your Lordships will see that I ask the House to agree that the provisions extending the jurisdiction shall came into force on a day to be fixed by me. I propose to appoint a day for this purpose as soon as the necessary arrangements for the introduction of legal aid in the county courts have been completed. That will take a little time—as some, of your Lordships are well aware, there is a considerable amount of administration to be done—but I can assure you that the Law Society, which under my general guidance is responsible for the administration of the legal aid scheme, has this matter well in hand, and the delay will be reduced to the absolute minimum.
Clause 5 deals with a small matter. In order to save time, may I put it in a very few words indeed. It is simply that at present parties cannot consent to an action being dealt with in a county court unless it has been commenced in the High Court. The Court of Appeal, in their wisdom, discovered this a short time ago. Up till then, we had always believed that anyone could start an action in the county court by consent, but the Court of Appeal have pointed out that our general belief was wrong. It is now up to us to restore the general belief by legislation, and to get back to the more convenient position.
Clause 6 deals with the Mayor's and City of London Court. Your Lordships will see (I am sure the noble and learned Earl, Lord Jowitt, has observed) that in the Second Schedule we have been able to do, if I may put it colloquially, a good deal of cleaning up with regard to the legislation relating to this court for the City of London. As your Lordships are aware, the Mayor's and City of London Court is a combination of the old Mayor's Court, which has a pecuniary jurisdiction in civil matters equal to that of the High Court but limited to matters arising within the City, and the City of London Court, which for the purposes of proceedings within the county court jurisdiction is deemed to be a county court. The clause provides that the county court jurisdiction of the City Court, both in its pecuniary limits and its territorial ambit, shall be the same as that of county courts and shall be governed by county court procedure. The clause also removes a number of anomalies and obsolete statutory provisions.
270 Clause 8 is complementary to the result of increasing the jurisdiction of the county courts, namely, the transfer of business from the High Court. This will mean that more county court judges will have to be appointed. Clause 8 increases the maximum number at present authorised from sixty-five to seventy-five. Your Lordships will remember that in 1950 the authorised number was increased from sixty to sixty-five, and there are now sixty-three judges on the county court bench. I think it is clear from what I have already said that the result of this Bill will mean that judges will have to try a large number of cases of a more substantial kind, which at present are heard in the High Court. Although it is not easy to estimate exactly the results of the increase of jurisdiction and the introduction of legal aid, I am sure that some additional judges will be required. I am advised that it would not be safe to budget for fewer than ten additional judges, although I do not expect to have to appoint more than six or seven in the next year.
Clause 9 deals with a small point, the increase from £10 to £30 of the jurisdiction of the registrars to hear defended actions, in the absence of objection by the parties. The clause also enables rules to be made conferring jurisdiction on the registrars to hear actions of any amount with the leave of the judge and the consent of the parties. These provisions follow the suggestions made by what is known as the Austin Jones Committee, the Committee on County Court Procedure which was presided over by Mr. Justice Austin Jones. Clause 10 contains a small but, I think, useful provision to enable the county court judge to transfer the hearing of the case to another and more convenient court on his circuit.
That leaves only one major matter—one which has given me considerable difficulty and heart-searching—that is the question of appeals. The present position is that there is a right of appeal from a county court to the Court of Appeal on a point of law, subject to the proviso that there can be no appeal without the leave of the county court judge where the subject matter in dispute does not exceed £20 in value. There is also a limited right of appeal on fact in Admiralty proceedings. Except for that, there is no right of appeal on questions of fact 271 from the county courts. This may seem a little odd to those of your Lordships who do not belong to the legal profession, but I would ask you to cast your minds back to what I said about the county court being the poor man's court. It is, I think, very important that a judge who is deciding a case between litigants who are there in person should not have to make a formal note, and that his decision should be the end of the litigation and the finish of the quarrel between the parties. That undoubtedly is the view that has always been taken.
The Evershed Committee discussed this question at some length and they heard a great deal of evidence, much of it conflicting. Clearly there is much to be said on both sides. I have given you one side, the traditional side of keeping the county court as the poor man's court in which justice is administered speedily and comparatively cheaply, and where the decision is, as I said, final. The Evershed Committee pointed out that to introduce an appeal on fact would not only destroy the finality but would slow down proceedings by the need for preserving a record of the evidence, with the inevitable consequence that the costs of the proceedings would tend to increase, apart from the costs of the appeal itself. On the other hand, it is difficult to defend the anomaly that a finding of fact by a High Court judge can be questioned in the Court of Appeal, whereas that of a county court judge cannot be so questioned. Particularly is that so when we consider that the action in which there is an appeal on fact from the High Court may be one which could have been brought in the county court. My Lords, I do not think anyone who has ever sat in a judicial capacity of any kind would seek to controvert the statement that all judges, wherever they sit, are liable to make a mistake.
Having tried to weigh up the different sides of the matter. I thought a sound and salutary rule to adopt was this: that where a person to-day has a right of appeal on matters of fact, we should not take away that right. What we are doing under this Bill is to provide, we hope and intend, that a number of actions which would now be heard in the High Court shall in future be heard in the cheaper tribunal of the county court. I suggest that the proper approach is that 272 where, up to the passing of the Bill, the action would have been brought in the High Court, so that the litigants would have a right of appeal on fact, that right should be preserved; but where the action is within the old limits of county court jurisdiction, and the parties would not have a right of appeal on fact, no additional right should be given to them.
That is what Clause 11 tries to do, and that is the basic principle underlying the somewhat complicated provisions of the clause. Perhaps I might just summarise them: in contract and tort there will be a right of appeal on fact where the claim exceeds £200 or where the relief sought includes an injunction. With regard to land there will be a right of appeal on fact where the net annual value for rating exceeds £60; that is equivalent to the present limit of jurisdiction. In probate proceedings there will be a right of appeal where the value of the estate exceeds £500; in Admiralty proceedings where the claim exceeds £200.
I want to point out, and I think it is very important, that there will be no right of appeal on fact in Rent Act cases; they are excluded by subsection (4). Both on precedent and on my own strong view, I think that is right. The Evershed Committee thought that in claims for possession of premises under the Rent Restrictions Acts there should be no right of appeal on fact. As your Lordships know, these Acts are confined to premises with a rateable value of not more than £100 in London and £75 elsewhere. The Committee considered it very important that the county court judge's decision should be accepted as final. I think that is right, because when there is a question of deciding greater hardship, a county court judge who has had dozens, if not hundreds, of these cases, knows the position in his own locality and the mentality of the people among whom he lives. He has to judge an essentially personal and human question—as, for instance, whether there is likely to be greater hardship upon the owner of a house by his being kept out or upon a tenant by his being turned out. It is a matter upon which the decision of the man who has seen the witnesses and has been able to judge all the human factors should not be disturbed. I hope your Lordships will agree with that view. I am glad to be confirmed in it by the 273 laborious examination made by the Master of the Roll and his Committee.
I am sorry to have detained your Lordships for so long, but this Bill is an important matter for the administration of justice in this country and, if the House will forgive my saying so, it is naturally a matter which is very close to my own heart. I have dealt with the main provisions of the Bill and have done my best to explain them in terms which I hope are not too technical for those of your Lordships who have the good fortune, or otherwise, of not belonging to the legal profession. But many of your Lordships may agree with me that an increase in the jurisdiction of the county courts is overdue. All noble Lords will, I hope, agree that the provisions of this Bill, coupled with the extension of legal aid to the county courts, represent a much-needed measure of social reform.
Its importance is enhanced by the relief which it will give to the High Court where the delays have long been a matter of concern to successive Lord Chancellors and have, in some instances, amounted almost to a denial of justice. As I have told your Lordships, however, the delays are now considerably less than they were, and I trust that with the passage of this Bill they will become a thing of the past. In one Statute after another Parliament has added to the labours of the county court judges, and now I am suggesting to your Lordships an important increase in their jurisdiction. I have no doubt whatever that they will discharge this new task with the skill and care which we have come to expect of them, and I most readily take this opportunity of associating myself with the tributes which have been paid in this House by my predecessors and others of your Lordships to the work done by the county court judges. I hope that this Bill will have the general approval of your Lordships and that it will today be given a Second Reading.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.5 p.m.
§ EARL JOWITT
My Lords, when one of the noble Lords who is usually associated with me on this side of the House saw that this was a legal Bill he said, without knowing any more about it, that he feared the discussion was likely to last a very long time; but, in fact, this Bill is 274 an important one, as the noble and learned Viscount has said. It deals with the administration of justice. It is of vital concern to everybody, be he lawyer or be he not. We are grateful to the noble and learned Viscount for having taken the trouble to go so carefully through this Bill and to expound it to us. I may say at once that I am going to relieve myself of a detailed consideration of the Bill by asking the noble and learned Viscount the Lord Chancellor whether he will give me an undertaking. I am fairly certain that there is no rejoicing at all in the Temple over this Bill, and in saying that I put it mildly. It may be that the Law Society are delighted about it—I do not know. I want the noble and learned Viscount to agree, however, not to hurry the Committee stage of this Bill, and to give us ample time before Committee consideration.
In the meantime, I should like the noble and learned Viscount to be willing to receive a deputation from both the Bar Council and the Law Society. Both bodies are intimately concerned with this Bill. I have no authority to say that they wish to see the noble and learned Viscount, but I know that the Bar Council have appointed a committee to consider this matter, and I feel certain that such observations as they may have to offer as a result of their studies will be well worth hearing. The most convenient way would be for the noble and learned Viscount to hear them in order that he might come to a conclusion on the merits. I suggest, therefore, that the noble and, learned Viscount might let it be known that he is willing to receive a deputation representing each of those two sets of people. They are obviously vitally interested in this Bill and will want to help ensure its success. I am sure I can speak for the Bar (although I have not been in touch with them) in saying that the Bar would be the last people on earth to hold that any sectional advantage or disadvantage should stand in the way of the general wellbeing—for that is all they will wish to be satisfied about.
May I make one observation on the position of the judges? I believe, and have often said, that the 'satisfactory administration of justice is the greatest strength of any State. I believe that upon that, more than upon anything else, must rest the strength of democracy. To-day, 275 as in the past, we owe more than can be said to our judges for the way in which they have administered justice to the satisfaction of all classes and all sections of the community. In my young days it was quite common to find that, when judges came to be appointed, men who had achieved great academic distinction at Oxford, Cambridge or some other university were chosen. I have now sat on the Committee of one of the Inns of Court which awards scholarships to promising young men from the universities to enable them to live during the first few lean years at the Bar. My impressions over the last twenty years have been that the standard of men we are getting to-day does not compare favourably with that of the men we had twenty years ago. In those days it was almost a matter of course that, if a man did brilliantly at Oxford or Cambridge and got a brilliant double first, he would almost surely be earmarked for the Bar.
To-day that is no longer so. I do not know why it is, though I rather suspect that the reason is that the impact of taxation has rendered the Bar less attractive than commerce, where a man may, by building up a business, develop something which is valuable to him; whereas at the Bar, at any rate, that situation does not arise, and the barrister has to bear the full burden of taxation. That is a matter which concerns us all, because should the time ever arise, for whatever reason (it has not yet arrived, thank God! and I am not suggesting it will arise in the immediate future), when we can no longer get, as our judges, men of the calibre we have to-day and have many times had in the past, it will be a most unfortunate thing. It is a matter which gives me some anxiety at present, and I trust noble Lords will not think me wrong to mention it.
With regard to county court judges, a body of men for whom I have the highest respect, here again let us remember that the success of this scheme will depend entirely upon the calibre of the men we can get as county court judges. If we get the right set of men, as we have today, we shall succeed; but, if we have to be content with men of less good quality, we shall fail. There again, one is bound to consider the question of inducement: are we inducing the right sort of people? When I left the office of 276 Lord Chancellor I had succeeded in getting the salary of county court judges up to £2,800—I speak subject to correction—what time the salary of a High Court judge was £5,000 a year. This meant that a county court judge received more than half the salary of a High Court judge. I think I am right in saying that to-day the High Court judge receives £8,000 a year. Thus you will see that the salary of a county court judge now—it remains at £2,800—is very substantially below half the salary paid to a High Court judge. I think this Government were entirely right to move up the salaries of the judges, but it has rather upset the balance as between the High Court and the county court. I need say no more now, except to commend that matter to the notice of the noble and learned Viscount who sits on the Woolsack, pointing out that I believe it to be of vital importance that we should pay such proper salaries as will enable us to attract the right type of men and the best brains to this great position—for a great position it was, and an even greater position it will be in the future.
For the rest, may I just utter this general consideration. Anyone who knows anything about the administration of justice will know how immensely the Bench must rely upon the Bar. Given a good Bar, a good Bench will probably follow. Equally, the Bar must rely upon solicitors of competence and skill and of complete integrity. Thus is the administration of justice built up. If any one subject of those three—solicitors, Bar or judge fails, then the whole thing fails and breaks down. It is a commonplace to those of us who have thought about these things, but it is fundamental to bear it in mind. I am a little concerned about this Bill, and that is why I want the Lord Chancellor to receive deputations upon the question of proper remuneration alike to solicitors and barristers who are going to undertake these cases.
The Evershed Committee, if my recollection is right, made it plain that their recommendations were dependent upon there being a proper and adequate scale of costs by way of remuneration to the solicitors. The last thing I want to suggest is that the lieges who have to resort to the courts of law should be in any way fleeced. Certainly not! On the other hand, it would be foolish to adopt such a 277 low scale of costs that there was not proper remuneration to the competent and high-class solicitor doing the work. If he is knocked out of the business, other people will arise who will resort to other means to do the work. Therefore, I want the Lord Chancellor to consider this matter, either now or at the Committee stage, or after the Committee stage, in order to be sure that there shall be a proper scale of costs payable to those who undertake the work, be they solicitors or be they barristers.
There is one other matter I want to mention in this connection. I am not expressing any final views; I am only mentioning certain things which I think ought to be borne in mind. Those of your Lordships who have had to consider it—as I had in my early days, when I used to have a large practice in the county court in "running down" cases—will know the extraordinary difficulty of expressing an opinion on how much a man is likely to recover as a result of his case. Indeed, it is imposible. People used to ask me: "How much do you think I shall get?" To that one felt inclined to reply: "First I should like to know what judge you are going before," because, of course, the human equation applies here. One judge is apt to be more generous than another in awarding damages, It is, however, impossible to express an opinion, even if you know the judge; much depends, for instance, on the way in which the doctor puts over his case, be it on one side or the other. Under the Bill as drawn, a man who has been knocked down by a vehicle of some sort or other wishes to bring an action. He goes to the young barrister advising him and asks "How much do you think I shall get?" It may be £500; it may be £300, or anywhere between the two—or, indeed, over one extreme or under the other. No human being can tell.
What is the barrister to tell the man about the court in which he should bring his case? If he brings it in the county court, he can get only £400: he has to abandon the excess. If he brings it in the High Court, though he can get £500 or over, he runs the peril about costs, because costs in a High Court action are substantially greater than costs in a county court action. If he brings an action in the High Court and recovers only £300, he will receive costs only on the 278 county court scale. Heretofore, there has been a kind of cushion. I think I am right in saying (the Lord Chancellor will correct me if I am wrong) that if a man brings an action for damages in the High Court and gets over £100 he can get his High Court costs, even although he is within the limit of county court jurisdiction, which is £200. There has been that cushion, to avoid a man being placed in the difficulty. Now, I understand, there is to be none. If a man gets less than £400 in an action in the High Court, he is limited to county court costs. I think that is one matter which needs to be considered, and I have no doubt that it will be put before the Lord Chancellor when he receives—if he does receive—a deputation either from the Bar or from the Law Society.
There is very little more that I want to say about this Bill: for the rest, I think it is largely a series of Committee points which we shall have to take. But may I just say one word about Admiralty proceedings? I happen to have had at one time a fairly considerable Admiralty practice, and it used to be my fate sometimes to go down to a county court to deal with Admiralty cases. It was sometimes a very trying experience. It is not easy to try an Admiralty case before a man who has not the least idea which is the port and which is the starboard side of a ship. There may be something to be said, may there not, for the suggestion put forward, as I saw, by the Admiralty leaders (though it was not accepted by the Ever-shed Committee)—that these Admiralty actions might be heard by a judge who has had some training during his time at the Bar in Admiralty cases. I think that that may be an idea worth considering.
As to the limit of jurisdiction, the Evershed Committee recommended £300, but there has been a very substantial fall in the value of money over the last few years, and I do not think that the sum of £400 is excessive. We must be careful to see that these courts are not overloaded. We must also be careful to avoid another difficulty. It used to happen in the old days that with a case of rather more substance than usual in a county court, where the judge does not sit as a rule, de die in diem, it would sometimes be part heard, and would have to be adjourned to the next court, which might be a week or a month ahead. Then it would come on again subject to the busi- 279 ness of the day, and again it might be only part heard. Sometimes a case may have to be adjourned to a third occasion, rather like our Road Traffic Bill here, which we are taking by dribs and drabs; and that is not a very satisfactory way of dealing with litigation. On the other hand, if a country court judge sits de die in diem like a High Court judge on assize, then virtually it is an assize presided over by a county court judge, which may or may not be a good thing. I think all this needs consideration. I am not expressing any final view.
I am glad the noble and learned Viscount the Lord Chancellor has taken power to increase the number of county court judges. In the use of this power I am perfectly certain that we can trust the Lord Chancellor, whoever he may be or to whatever Party he may belong, not to appoint judges for the sake of appointing judges. In some previous Acts I think there was a procedure whereby the Lord Chancellor had a right of appointing judges with the consent of the Treasury. I should be perfectly content to trust the Lord Chancellor and give him a free hand in this matter of appointing as many judges as are necessary, always bearing in mind that it is quite wrong that a litigant should be deprived of justice, or of the speedy administration of justice, merely because there is not a sufficient number of judges. Even if it may be necessary to have judges who sometimes have nothing to do but play a round of golf, it is far better that that should happen than that a litigant should be unable to get his case heard. Anyway, part of the judges' salaries would go back to the Exchequer in income tax and surtax. I welcome that provision.
I am not absolutely happy in my mind about the power to increase by Order in Council the £400 to £500. It is not a matter I feel strongly about, but if on a future occasion, which will not be for a good long time, we were going to increase the £400 to £500, we should want to explore the whole position rather carefully. It might be better to do this by a Bill. In my experience I have always found that Bills of this kind are completely non-Party and non-controversial and are considered on their merits, and I suggest that a Bill is more convenient than an Order-in-Council. However, it is not a matter on which I feel sufficiently strongly to 280 wish to challenge it, even on Committee stage, if the noble and learned Viscount the Lord Chancellor thinks that this is the right way of dealing with it.
With those random observations, which I thought I might usefully make, I commend the Bill to your Lordships. It is a Bill which I should have brought in during my time if I had been able to satisfy my Chancellor of the Exchequer that he should spend money on legal aid in the county court. But the legal aid scheme was experimental and we were anxious to start slowly, and the time had not yet arrived when the Chancellor of the Exchequer could see his way to do that. I feel that it would be wrong to increase county court jurisdiction and send people to the county court if thereby we were indirectly depriving them of the benefit of legal aid, but I think it is right of the noble and learned Viscount to introduce legal aid in the county court and that it is right to increase the county court's jurisdiction. While reserving the right to bring forward Committee points, I think this is a good Bill and one which we should support; and I very much hope that it will enable us to get rid of the delays attending the High Court without putting upon the county court a further burden of delays which would make the position no better. For that reason, I am sure all of us will give this Bill a Second Reading.
§ 3.24 p.m.
§ LORD MILNER OF LEEDS
My Lords, I should like to join the noble and learned Earl the Leader of the Opposition in thanking the noble and learned Viscount on the Woolsack for the lucid and detailed explanation of this Bill which he has given the House. I should also like to thank my noble Leader and support him in what he has said. I think he has made most weighty pronouncements on a number of matters which I am sure will have the full consideration of this House. As a member of the Council of the Law Society, I am sure that that body will be happy, as indeed the noble and learned Viscount the Lord Chancellor said, to co-operate in any way in making this Bill, when it becomes an Act, the success we all hope it may be. The Bill is attractive to us all and I have no doubt will receive the support of the whole House. On the face of it, it would appear to make litigation easier, 281 to give it a more local application and possibly to reduce its cost. However, the subjects with which the Bill deals are not so simple as they appear and there are a number of matters, some of which my noble Leader has mentioned, which I am sure will receive consideration on Committee stage.
In my experience, and possibly in the experience of all lawyers, it is a curious thing that litigants much prefer to have their litigation in the High Court, except in very small cases. I do not think that that is any reflection on county court judges, of whom the great majority do their work extremely well; but that is a factor one has to pear in mind in considering some of the sanctions which the noble and learned Viscount has mentioned to us. In considering this Bill, I am thinking particularly of cases of negligence and running down, and Factories Acts cases, which frequently are of great importance to the persons concerned, particularly to the plaintiffs, and which at present form a large part, if not the largest part, of litigation before the High Court and at Assizes.
There is one point which my noble Leader mentioned to which I am sure the noble and learned Viscount will give his attention—that is, that it would be impossible for a practising solicitor to obtain the necessary evidence, to prepare it and consider it, and to prepare and present adequately any case of the kind I have mentioned, on the existing scale of county court costs. This Bill introduces what are termed sanctions, to which the noble and learned Viscount has made full reference. Before a case is brought in the High Court and a sum is recovered which indicates that the case was one which ought to have been properly brought in the county court, how is the plaintiff or his legal adviser to know with any accuracy what he may recover? He may think, and counsel may confirm, that the case is a clear one and he should recover £500 or £600. The case is brought in the High Court, and the verdict is for £300 only. In those circumstances who is to pay the costs thrown away? Then, though the plaintiff may be entitled to £500 or £600, he may be held guilty of some contributory negligence and the net sum for which he receives a verdict may be only £300—that is to say, below the county court limit. There, again, what is the position regarding costs? Is the plaintiff going to be mulcted in them?
282 It seems to me that to have lawyers advising on one possibility—as to what the amount recovered may be—is difficult enough, but, bearing in mind the question of contributory negligence, to advise on two possibilities is quite impossible. Suppose a solicitor advised his client to limit his claim to £400 ant hence bring the case in the county court. A serious injustice may have been done to the plaintiff, who might be deprived of a large part of his just claim which, could he have brought the case in the High Court without the sanctions to which reference has been made, he could have recovered. The whole question of sanctions where a case is brought in the High Court which might have been brought in the county court requires great consideration by all concerned.
Another point that occurs to me is that many solicitors—I am sure the noble and learned Viscount will be aware of this—do not undertake county court work at all. Some are able to sustain it only by combining their county court work with a certain amount of High Court work. Therefore, if the Bill is to work when it becomes an Act, and if it is to fulfil its purpose and justice is to be done to the litigants, an increase in the permissible costs in the county court is essential. Incidentally, I think it is quite erroneous to imagine that in all cases proceedings are more expeditious in the county court than in the High Court. Any practising lawyer can tell your Lordships that judgment can frequently be obtained more speedily in the High Court, certainly in simple contract or debt cases, such as, for example, those mentioned by the noble and learned Viscount, the Lord Chancellor, under what is known as Order 14 procedure. The machinery of enforcement in the High Court is frequently more expeditious than in the county court. It may be that some alteration should be made in the procedure so that the work of the county court bailiffs, and so on, might approximate more to the work of the under-sheriff, and so forth, in the High Court.
The question of legal aid is very much involved in the proposals contained in this Bill. If, as we know to be the case, legal aid is to be extended to the county court, then it may be desirable (I am sure the Lord Chancellor will bear this in mind) that the legal aid certifying committee should give directions as to whether a case 283 should be brought in the High Court or in the county court; and indeed, it may be that the Legal Aid Scheme in legal aid cases ought to accept responsibility for the appropriate proportion of any proper costs, irrespective of the amount recovered. The National Assistance Board is also involved here, to some extent. All these are serious issues. The Bill is an important one, and I hope that the Government will accede to the suggestion of my noble and learned Leader and allow some weeks for consideration of the Bill and for representations to be made—I know that the Law Society have not yet had an adequate opportunity of considering the matter. If that is done, then I feel sure that the Bill can be made to work satisfactorily and will, when placed on the Statute Book, be of great service to those it is intended to benefit.
§ 3.30 p.m.
§ LORD SILKIN
My Lords, the rather surprising figures which the noble and learned Viscount, the Lord Chancellor, gave us of the number of cases that are entered in the county courts (I believe he said they were 650,000 per annum) are a clear indication of the great number of people who are today affected by the work of the county court, and of what an important part it plays in the life of the community. Therefore I make no apology for intervening in this debate, even if, to a certain limited extent, I cover ground which has already been covered. I feel that this is a most important Bill. One can bring forward various grounds for justifying the Bill: the ground of cheapening the cost of litigation; the ground of bringing the jurisdiction into conformity with changes in the value of money; and the ground of speed—and, with great respect, I believe that the county court is speedier than the High Court, without any qualification whatever. I do not want to cross swords at this moment with my noble friend who has just spoken, but when he talks of Order 14 and proceedings of that kind, I would say that there are so many ways of circumventing the speed of the High Court that, on balance, I am quite satisfied that in every respect the county court is speedier.
This Bill is justified, also, because more and more it is bringing litigation into the locality of the people concerned. 284 With so many people involved at the present time, it is a tremendous convenience that they can have their disputes settled within range of their homes or their business, and that they have not to travel long distances to assize courts or to other courts for the purpose of getting justice. I regard the fact that they will be able to get their disputes settled nearer their homes as one of the important factors justifying this increase of jurisdiction.
The noble and learned Viscount who introduced the Bill gave us an estimate of what he thought would be the increase in the work of the county courts as a result of this extension—he thought about 30 per cent. Of course, any figure can only be a speculation. One has to take account not only of the increase in the number of cases brought about by the increase in the jurisdiction, but also—and this is an imponderable factor—what will be the effect of providing legal aid in these matters. There is also the untried number of additional cases resulting from recent legislation, such as the Landlord and Tenant Act, the Housing Repairs and Rents Act, and so on, all of which are going substantially to increase the work of the county court and also the complexity of that work.
Therefore, while I fully agree that it will be necessary to increase the number of judges, I was rather surprised that the Government had thought fit to limit the increase to ten. On the basis of an increase of work, with the possibility of a further increase flowing from the other factors I have mentioned, and regarding it purely as a mathematical matter, I should have thought that the proper in, crease should be more like twenty or twenty-five. The noble and learned Viscount will appreciate that it is not merely a mathematical increase in the number of cases, but also an increase in their complexity—the more money that is going to be involved in these cases, the longer they will tend to take. Therefore, I should think that the Government are seriously underestimating the number of judges who will be required to carry out this work, and will be in danger very soon of finding that the county courts will become as congested as the High Court is at present. I should have thought that it would be wiser not to put any limit on the number of county court judges, but to leave it to the Lord Chancellor of 285 the day to decide—and I, for one, would he perfectly prepared to trust the Lord Chancellor in this matter—whether or not, and when, an increase in the number of county court judges was necessary.
Little has been said about the position of the registrar of the court, whose jurisdiction is also going to be increased: he is to be able to try cases up to a limit of £30. I believe that no statutory provision is necessary for increasing the number of registrars, but I hope that the noble and learned Viscount on the Woolsack will be ready to take into account the fact that this Bill will increase considerably the work of the registrars of the court, and that an increase in their number will be equally necessary. On this subject I listened with great interest to what the noble and learned Viscount had to say about appeals. The considerations which he mentioned as regards appeals on the question of fact also apply of course, to appeals against the decisions of registrars. I can see little value in giving to registrars the power to hear cases up to £30, and then to permit either party to appeal to the judge on questions is of both fact and law. I should have thought it would involve no saving, but in a great many cases would involve a duplication of the work. It seems to me it would be better to reserve appeals even from the registrar to questions of law rather than of law and fact.
I know that the noble and learned Viscount has not been dogmatic on the point—he never is on these matters—and I would equally not wish to be dogmatic, but it seems to me that it is making matters unnecessarily complicated to divide up questions of appeal on fact as between those cases which were under the original jurisdiction and those cases in the county court which come within the extended jurisdiction. This may be an important line of division, but as the years go by it will become purely historic and of no particular significance. If the principle is right in the one case, surely it is right in the other. If a county court judge is not to be a judge of fact, then he is not fit to be a county court judge at all. I feel that it would be better to permit appeals merely on questions of law rather than on law and fact.
I wish to associate myself wholeheartedly with what my noble and learned leader has said about judges' salaries. I 286 think county court judges are to-day hopelessly underpaid. I have seen them from time to time travelling to courts, of necessity, in tubes and buses and having to strap-hang. While there are many of us who have to do that, and I do not put it forward as a particular hardship, it seems to me rather undignified that a judge going to court to deal with cases should be at the possible mercy of litigants who are going to the same court in the same way. It is not really maintaining the dignity of the court that a judge should not be able to maintain that splendid isolation which Judges of the High Court invariably try to do. It is just a matter of income; and on the income which the county court judge at present receives, it is often impossible for him, unless he has an income of his own, to keep a car, especially if he has a large family.
Apart from that, there is the point which my noble and learned friend made of attracting the right calibre of person. We do not want to associate the county court judge with the failures of the Bar, but the salary which we are paying at the present time to a county court judge is inadequate to attract the best type of person. I feel that, particularly with the extension of jurisdiction, we must seriously consider the question of a proper rate of remuneration for county court judges. They are obviously in a difficult position to make this case themselves, but it is right that the case should be made and I make no apology for making it, because I have made it on two previous occasions without so far meeting with much success. I would say the same about the registrars. I think their salary is due for revision to-day. They have had no material increase. We are giving them increased responsibilities, both in hearing cases and in the administration of their courts, and I think that their remuneration should correspond with the increased amount of work and responsibility we are giving them.
My last point is on the question to which the noble and learned Viscount referred and about which he spoke feelingly—that is, the conception of the county court as a poor man's court, with its informality, its friendly atmosphere, the helpfulness which a litigant gets who is not represented, the right of audience by the solicitor—all thugs which tend to give to the county court a particular 287 character and atmosphere of its own. If I had any reservations at all about this Bill—and I have very few—it is my fear that possibly the character of the court may change. One of the things that I have in mind is the great helpfulness and guidance that one experiences at the hands of judges and registrars, particularly as a beginner in the profession. The noble and learned Viscount is not so old that he does not remember the struggles of the young man when starting his legal profession. He has to get a chance, but nobody is willing to give him a chance, because the solicitor has to consider his client and do his best for him. Yet if the young barrister does not get a chance, how is he ever to get on at all? Well, you give him a chance in the county court or the police court. You give him a two guinea brief which is undefended and, with the kindness and consideration of the judge, he gets on his feet and the judge helps him along, and gradually he gains more and more confidence. That is a factor which we have to retain in the county court.
My fear is that, with the extension of jurisdiction, the young man may get crowded out. It may become a place where barristers of longer standing will attend, and there may even be silks. I should deprecate the invasion of the silk into the county court to any considerable extent, but, as the noble and learned Viscount knows, with jurisdiction extending to £400, there will be cases, especially where matters of principle are involved, where there will be a temptation on the part of people to whom money is not a particular consideration to employ silks. In those cases there is the danger that the young man may be crowded out. That is a thing which I personally should greatly deplore. I remember, if I may be pardoned for a personal reminiscence, my own first intervention in the county court, when I was not even admitted. I was an articled clerk and my principal had failed to turn up to deal with the case. The case was called, and my client was quite incapable of doing anything herself. I threw myself on the mercy of the judge and, although I had no right of audience, he was kind enough to let me do what I could for my client, and really took the matter entirely into his own hands. That is the sort of atmosphere I should like to retain. I fear that, by encouraging 288 expensive juniors, and even more expensive "silks," to come to the court with increased jurisdiction, we may be losing something of that atmosphere in the county court which many of us value and treasure. However, this is a good Bill and nothing I have said will, I hope, lead the noble and learned Viscount to think I am being critical of it. I believe that it is a necessary advance and that the Bill is capable of some improvement. I am sure we shall be able to co-operate, as we have done in previous measures, in doing our best to make a better Bill of it before it leaves this House.
§ 3.52 p.m.
§ THE LORD CHANCELLOR
My Lords, it would indeed be churlish of me if I were not to say something in reply to the most kind and considerate speeches which have been made by the three noble Lords who have addressed your Lordships' House. May I thank them, not only for their consideration towards the Bill but also for their approach to what they and I think is the most important subject with which the Bill deals. On the first point which the noble and learned Earl asked me, the question of giving time before the next stage of the Bill, I will gladly meet him. I have made inquiries and I think that it should be possible to have about a month before the next stage is taken, which I should imagine will meet the matter. The only thing of which one must be quite sure is that this Bill does not take its place in that slaughter of the innocents or falling by the wayside which sometimes attacks admirable Government measures as the Session goes on. If noble Lords will bear that point in mind, that I want to be quite sure of getting it through this Session, I will, of course, gladly meet them on that point.
On the second point, which was again a personal one, which the noble and learned Earl put to me, I shall be more than pleased to receive any deputations that care to come and see me. I enjoyed very much the discourses of the noble and learned Earl and of the noble Lord, Lord Silkin, on the question of judges and their quality. I think it is very important that we should occasionally stand aside and look at problems of that kind. There is one curious factor which points the other way (naturally I am not going to give any reply except to say that I shall consider what they have had to say): I refer to the 289 result of the high taxation of the day. Although the high taxation prevents members of professions from saving while they are practising the profession, it also puts a premium on positions which carry a pension. Simply to get the picture in balance, I think one has always to remember that point. However, I will naturally consider it; but, as the noble and learned Earl will be the first to know, I cannot give any undertaking on the point.
The noble and learned Earl and the noble Lord, Lord Milner of Leeds, have raised the question of an increase of costs. I can tell them that that is a matter which my Department is already considering with the Law Society, and negotiations are in process to ensure that the matter is properly considered. The noble and learned Earl, Lord Jowitt, and, I think, the noble Lord, Lord Milner of Leeds, too, raised the question of the difficulty of the borderline case where neither solicitor nor counsel for the plaintiff can with any certainty say that a plaintiff will get £300 or £550. There is a marginal difficulty, which, of course, must exist wherever one fixes the limit, but I would remind noble Lords that there is a provision under the existing County Courts Act which will continue to apply under the increased jurisdiction, by which the judge is given a discretion to award High Court costs in a proper case. I think that that, to some extent, though not entirely, meets the difficulty which the noble Lords had in mind.
With regard to Admiralty cases, of course the Admiralty jurisdiction exists only in a limited number of county courts. I am sure that the noble and learned Earl, Lord Jowitt, and every one of my predecessors considered that point when making appointments to these courts. On the question of part-heard cases, I think that this difficulty may be met to some extent by the provision to which I have referred—namely, that a judge will be able to move cases from one town in his circuit to another, where the risk of the case being part-heard will be obviated.
Of course, I will consider the question of the extension by Order in Council, but the noble and learned Earl will see that I am suggesting that it should be done by the Affirmative Resolution procedure, so the matter will be and must be discussed, and Government time will have 290 to be found for the discussion. I will willingly consider the joint. If I may be quite frank on the point, I have had a lot of conflicting advice as to the new limit of jurisdiction. Some people would have put it higher than I have suggested. I have tried to explain to the House how I arrived at my figure, but it may be that practice will show a demand for and an ability to deal with, a higher one. Therefore, I should like to leave it as it is, without being subject to the difficulties of a crowded Session. That is how it appeals to me. I will willingly consider what the noble and learned Earl has said, and I hope he will consider what I have said. I have already dealt with the question of the noble Lord, Lord Milner of Leeds, as to costs. I have explained that that matter is under consideration. I have dealt with the question which he also raised as to the borderline cases. I appreciate the difficulties which he points out but, as I say, some limit must be found. I would ask him to consider whether he can think of any improvement on the discretionary powers to award High Court costs. If he has any suggestion, I shall be glad to meet him on that point.
The noble Lord, Lord Silkin, mentioned a most important point in saying that this Bill would give the litigant the right to have his litigation dealt with locally. I could not agree with him more. I think that is a most important aspect of the matter. There was just one point on which obviously I did not make myself clear. The 30 per cent. increase which I mentioned was 30 per cent. of the High Court cases, not a 30 per cent. increase in county court work. I have tried to do some arithmetic, and I think that makes my proposed increase in the number of judges more rational than it appeared to Lord Silkin, who thought I was envisaging an increase of one-third in the county court work.
I noted what the noble Lord said with regard to registrars. I must say that I am most interested in what he says about appeals on questions of fact. I think that is one of the most difficult questions that anyone has had to consider. The whole legal philosophy of an appeal on fact is a difficult matter, and I felt that when I was making a change I should try, so far as I could, to do it on the basis of not taking away existing rights. On the other hand, I am quite sure that a right of appeal on fact on 291 all the small matters that come before county court judges would be a tragedy for the county courts and a tragedy for our appellate system.
I was most touched, as I think the whole House must have been, by Lord Silkin's memory of his early days in the county court—indeed, I do not think any of us who have begun in the legal profession in that way can look hack across the arches of the years without something of the same feeling. I well remember, during my earliest days at the Bar, when I had been called only a few months, the magic sound of my clerk's voice saying that some solicitor wanted me at the county court. It then being a quarter to ten, and the case being likely to come on at five minutes past ten, I had to go down to the court and pick up the facts and the law in the case in that time. Those are days in one's life which one never forgets. I am glad to think that this Bill will have many useful results, and, among others, the pleasant result of causing some of your Lordships to recall that happy experience. Again, I thank noble Lords for what they have said, and I ask your Lordships to give the Bill a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.