§ 3.0 p.m.
§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I rise to move that this Bill be now read a second time. The Bill is substantially the same as that which your Lordships' House considered and passed towards the end of the last Parliament, and I am confident, therefore, that your Lordships will not 912 wish me to repeat the general arguments for the Bill which I advanced on that occasion. But it may be convenient if I point out, quite briefly, the main points of the Bill. The principal object of the Bill is to increase the jurisdiction of the county courts in actions of contract and tort from £200 to £400 and to make corresponding increases in other jurisdictions. At the same time, the Bill strengthens the economic sanctions, which, by depriving a plaintiff of all or some of his costs, will encourage him to start proceedings in the county court rather than in the High Court, whenever it is possible for him so to do. In addition, in order to ensure that the county courts will be able to deal with the increase of work which is likely to result, the Bill increases the maximum authorised number of county court judges, and gives power to make rules to extend the jurisdiction of registrars. It also provides for an appeal on fact in cases, broadly speaking, coming between the old £200 and the new £400 limit of jurisdiction.
There is one other aspect of the Bill with which I ought to take up a few moments of your Lordships' time. I refer to the changes which it has undergone since it was considered by your Lordships' House in the last Parliament, both before its introduction in another place and during the course of its passage there. The first point is one which has, not very euphoniously, but conveniently, been called the "cushion." There has been introduced into the costs sanctions, which Clause 1 (2) of the Bill strengthens by an amendment to Section 47 of the County Courts Act, 1934, what has come to be known by the name I have just mentioned. Under the Bill as originally drafted, a plaintiff who started an action in the High Court which he could have started in the county court and who recovered less than £400 would have been entitled only to county court costs. The effect of the "cushion" now in the Bill is that this particular sanction, which deprives the plaintiff of High Court costs, will come into operation only if he recovers less than £300 in the High Court.
Your Lordships may remember that the noble and learned Earl, Lord Jowitt, and Lord Silkin were in favour of an Amendment moved by the noble and learned Earl with the very object of introducing a "cushion" in the costs sanctions. That Amendment was not accepted by the 913 Government for the reason that we were afraid that it might prevent a number of actions from being brought in the county court, and the object of the Bill is to increase the number of actions brought there. Instead of a "cushion" I introduced a provision, which was accepted by your Lordships' House, which provided that where a High Court Judge was satisfied that the plaintiff bringing proceedings in the High Court had reasonable grounds for thinking that he would have recovered more than a county court could have awarded, the costs sanctions would not apply at all. It was strongly urged in another place and by the representatives of both branches of the profession that, despite this saving provision of mine, a "cushion" was needed in the interests both of the litigant and of his legal advisers, who in actions of tort, it was said, particularly claims arising from personal injuries caused by motor cars and from accidents in factories, would find it difficult to estimate with any accuracy the amount recoverable by the plaintiff. I hope your Lordships will agree that the margin of £100 now provided by Clause 1 (2) (a) is fully adequate to meet this difficulty.
I have no more reluctance than the next man about dying in the last ditch, but when I find that on this point the noble and learned Earl, Lord Jowitt, the noble Lord, Lord Silkin, the Chairman of the Bar Council, the President of the Law Society, all the legal members who spoke in the House of Commons and The Times newspaper considered that the provision suggested by me was not sufficient, it did not need the somewhat emphatic language of the late Lord Protector Cromwell to persuade me that there was another point of view besides that which I had taken.
The only other point I would mention to your Lordships is that in Clause 5 there is power to transfer to the High Court any case where, in the course of the proceedings, it appears that the action is suitable for the High Court because the plaintiff might, and probably would, gain a greater amount of damages than that recoverable in the county court. I see that the noble Lord, Lord Douglas of Barloch, is in his place, and may I hope that this will do something to meet the point which he urged with such clarity and eloquence in various stages of the Bill in the last 914 Parliament. There is another small alteration with regard to probate proceedings, which makes the test the net value of the estate. The result of this will be that if there are considerable debts in an estate, or there is house properly with a big mortgage, that will not prevent the matter from being considered in the county court.
May I also refer your Lordships to the alteration in Clause 9 of the Bill which was made before its introduction into another place. The noble and learned Earl, Lord Jowitt, thought I had not allowed a sufficient increase in the number of county court judges by increasing them from 65 to 75. With that easy assumption of the mantle of Elijah, which, if he will allow me to say so, suits the noble and learned Earl so well, he suggested at one stage of the Bill that I might be able to settle for an additional five judges, bringing the number up to eighty. He will see that the Bill now does so. I thank him for his consideration in the earlier stages.
My Lords, I hope that I have dealt with the Bill at sufficient length to indicate the points of change. Its original main function still remains, and that is that more cases should be brought in the county court, which we believe will give speedier determination of differences between Her Majesty's lieges and also allow that determination of their differences to take place at less expense. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.10 p.m.
§ EARL JOWITT
My Lords, I have no desire to travel again over the ground which we explored pretty fully before the Election when this Bill was introduced into this House. And, indeed, we all want to get on to the next subject of discussion, to be raised by the right reverend Prelate, the Lord Bishop of Derby. We are anxious to hear what he says about "subsidence" or "subsidence," and particularly to learn how he pronounces that word. I will therefore content myself by being very brief. I venture to suggest to the noble and learned Viscount the Lord Chancellor, however, that the proceedings on this Bill indicate a useful lesson for him which I hope he will learn. The lesson is this: how ready he should 915 be to accept Amendments when they are moved by the Opposition. I often wonder whether we, as an Opposition, are performing any, and if so precisely what, useful function in opposing at all. It is obvious that whatever reforms may be made in this House, as the noble Lord, Lord Hastings, has said, inevitably there will always be a big majority for the Tory Party over the Opposition; but the correlative of that is that the Government must always be anxious to meet the Opposition on those occasions, if any, when the Opposition are being thoroughly reasonable. And any Amendments I move are always thoroughly reasonable.
What is the position? The first big question was whether we should have what we call a "cushion." I moved an Amendment that there ought to be a "cushion" of £300. I am not going to explain it all again, because that will take too long and it is too boring. What did the noble and learned Viscount the Lord Chancellor say? He smiled sweetly, beamed at me, as he always does, and said that he would consider it—which is a modest way of saying that he is not going to do it. And he did not do it. Then I asked him about the number of judges. I asked whether he was quite sure that he had enough—I think he had only seventy-five. I moved an Amendment to make the number eighty-five, and, knowing full well, having occupied the noble and learned Viscount's office, that the real difficulty would be the Treasury, because the Treasury is the real dictator of this country, I suggested that he had better try to compromise with the Treasury for eighty. Again he smiled sweetly; and did not accept my Amendment. Then my noble friend Lord Douglas of Barloch moved an Amendment of most cogent reason, but again he got nothing for his trouble. All those proceedings turned out to be abortive.
Then the General Election came and the Bill had to start its life all over again in another place. What happened when it came before the other place? The noble and learned Viscount heard the opinion of The Times and the President of the Law Society and then realised that what I had said had a great deal of sense behind it; and although he did not accept the precise language of my Amendments, he accepted the substance of the Amend- 916 ments which he had turned down in this House. When we come to the number of judges, what do we find? We find now that the number which the Lord Chancellor may appoint is 80—the very number for which I told him he had better settle. As for my noble friend Lord Douglas of Barloch, though he has not got by any means what he wanted or asked for, he has had a real and generous concession. As I said before, I congratulate the noble and learned Viscount on having seen the light. I regret that it required The Times newspaper and not the Leader of the Opposition in this House to tell him what the light was, and I sincerely hope that in future on all these Bills the noble and learned Viscount the Lord Chancellor will go out of his way to meet the suggestions which the Opposition of this House may make to him.
§ 3.15 p.m.
§ VISCOUNT HAILSHAM
My Lords, I think the noble and learned Earl, Lord Jowitt, has some justification for claiming that his Amendments have proved in the long run to be successful. Possibly he was depreciating himself too far when he suggested that the ultimate victory was not his own but that of the President of the Law Society and of The Times, because it may well be that he will be able to say in future that what the Leader of the Opposition in this House says to-day, the President of the Law Society and The Times will follow by saying to-morrow. But I think he is entitled at any rate to the degree of self-congratulation which he permitted himself on this occasion.
I hope, however, that I shall not be thought presumptuous if I enter what might be described as a cautionary note about any further legislation of this character. This Bill, of course, is assured of a place on the Statute Book. It follows the recommendations of a Committee, and now that it has satisfied the requirements of the two branches of the profession I think it may be said to be non-controversial. But speaking for myself, I hope it is the last of the series of Acts enlarging the jurisdiction of the county courts which I shall see in my lifetime. It has gone a very long way since I first went to the Bar rather more than twenty years ago, and though, on the whole, it has justified itself, I think any further advance would be a step in the wrong direction. May I briefly indicate to my noble 917 and learned friend on the Woolsack and the House why I think that may be so?
The system of law in this country which has commanded the respect and admiration of a large portion of the civilised world has depended on a number of practical factors to a greater extent than is generally recognised. In the first place, I believe it has depended on the separation of the two branches of the profession. In the second place, it has depended on a Judiciary centred upon London, going out to the Provinces but with frequent opportunities of consulting together and with a close sense corporate unity. I do not believe that English jurisprudence would have reached its present state of perfection without both of these factors being operative. It cannot be doubted that the general extension of county court jurisdiction in practice has weakened both those factors in our jurisprudence. It would be utterly wrong that I should utter a word, a syllable, of criticism of the splendid body of judges we have in our county court judges, but the fact remains that they are spread out over the country, resident largely in their own areas, and they have not the same opportunity for consultation as High Court Judges have and they do not represent the same close corporate tradition as do the High Court Judges. Therefore they tend, to some extent, as I think they will be the first to recognise, to develop each in his own separate area different traditions of administration and a not altogether uniform system of justice.
One quite recognises that they have done justice and that their work has been recognised. The proof of the excellence of the justice they dispense is the long series of laws which we have passed extending their jurisdiction. But, speaking for myself, I think the process has gone far enough, and that any further development of county court jurisdiction would tend to weak en the separation of the two professions. I think it would tend to weaken the traditions of our Judiciary. I am not sure, despite the noble and learned Earl's advocacy of a larger number of judges, that there can be found in the legal profession very many more judges than we are providing at the moment without a diminution in the standard provided. I believe that there has of late proved to be a tendency on the part of the High Court and of those re- 918 sponsible for its jurisdiction to hand over their work to somebody else and call that expediting the business of the High Court. While giving every support to the legislation which is now before the House, I trust that my noble and learned friend on the Woolsack will seriously consider whether the process has not probably gone far enough.
I respectfully believe that cheap justice is not necessarily the best justice. The lowering of costs which undoubtedly follows the county court procedure does not always lead to the same certainty of result, and in the long run a judicial system is likely to be judged, not entirely by its cheapness or even by its expedition, but by the certainty and reliability of the results which it produces. Therefore, while there is no doubt that this measure will find its place upon the Statute Book, I hope it will be a long time before it is followed by any others in the same sense.
§ 3.20 p.m.
§ LORD SILKIN
My Lords, I should like to associate myself with the remarks of my noble and learned friend who leads the Opposition. Like him, I have sometimes wondered what was the purpose of the Opposition; but to-day it looks as if occasionally an Opposition does serve a useful purpose, even though it needs to be bolstered up 'by such outside bodies as The Times newspaper, the President of the Law Society and the President of the Bar Council. Nevertheless, this is a better Bill because of the efforts of the Opposition, and, as such, we on this side of the House welcome it; and I welcome in particular every one of the Amendments which has been incorporated in the new Bill.
There are only two things I want to say about it, and the first is on the number of judges. I know that my noble and learned friend was prepared to settle for 80; that was the best he could do, and it was a reasonable compromise. But I still wonder why it is necessary to limit oneself to a specific number of judges. Surely, the right number of judges is the number that eventually turns out to be necessary. This is, to a considerable extent, a leap in the dark, and one cannot calculate by a process of arithmetic the exact number of judges that will be necessary. Surely it would have been wiser to empower the Lord Chancellor 919 to appoint judges by Order in Council, so that he would have to make a case for each one, but could do it without the necessity of legislation. This point is emphasised by the fact that there is provision in this Bill for increasing the jurisdiction of county courts from £400 to £500 by an Order in Council. I presume that the number of 80 has been settled on the basis of a jurisdiction up to £400. What happens if it is decided to increase the jurisdiction to £500 and there are not enough judges? It will mean that there will have to be legislation to appoint additional judges, although the increase in the jurisdiction can be carried out merely by an Order in Council. I should have thought it would be wiser to be able to do the two—to increase the jurisdiction and increase the number of judges—by Order in Council.
The noble and learned Viscount, Lord Hailsham, has raised, as he always does, a number of interesting points. Taking a small point first, I understand he doubts whether there are a sufficient number of people of quality available to become county court judges.
§ LORD SILKIN
Yes. That is bound to be a matter of opinion—and I concede at once that the noble and learned Viscount, from his point of view, has possibly as good opportunities of judging as, if not better than, I have. Nevertheless, I should have thought that it was largely a question of remuneration. As I have said on a number of occasions, the remuneration of county court judges is hopelessly inadequate. I believe that if they were paid a reasonable remuneration, having regard to their responsibilities, there would be no difficulty in getting judges of the right quality. I think that the general quality of the average barrister is high. It is an unfortunate profession, in that there are so many casualties before the young barristers can get on to their feet; in many cases they are compelled to leave the Bar and take other occupations because of the long time that elapses before they can make their livelihood at the Bar. But the quality is there, and I believe that if they could look forward in increasing numbers to county court 920 judgeships and to stipendiary magistracies at a reasonable remuneration, we should get more barristers remaining at the Bar, and we should certainly get the right kind of quality.
I would join issue with the noble and learned Viscount, Lord Hailsham, on the question as to whether this should be the last extension of the jurisdiction of the county court. The case for this extension is largely the difference in the value of money: £400 to-day is the equivalent of £200 before the war. Little, if anything, has been done in reality to enlarge the jurisdiction, because when we talk of £2 to-day we are talking of what was £1 before the war. I see every advantage in increasing the jurisdiction. It is an immense benefit to people to have their court locally; and if this is coupled with legal aid, as I gather it is going to be, then the question of cost does not arise: people will be assisted in the county court, as in the High Court, and I hope that we shall get as good justice there and that the county courts will be able to build up a good tradition just as is done in the High Court. I should like to see county court cases reported more freely and regarded, not necessarily as precedents which are binding on other courts, but, at any rate, as cases to be quoted, so gradually building up a tradition of quasi-Case Law (if I may so call it) which can be quoted as between one county court and another. If that were possible, I believe it would go some way towards meeting the criticism of the noble and learned Viscount, Lord Hailsham.
One thing we must do, and that is make the county courts work, because, by and large, they are the courts to which the vast majority of litigants have to go. We must make quite sure that they not only get justice, but believe they are getting justice, and that they get it in the environment and with all the dignity and proper majesty of the law. For that purpose, I think we must maintain the quality of the Bench; we must ensure that there is no unreasonable delay, and we must, so far as possible, make the records accessible to everybody, regardless of whether they can afford to pay the costs or not. I should like to say a word or two about delay, because it is the justification for making quite sure that we have an adequate supply of judges. Fortunately, I do not practise very strenuously to-day, but I have been 921 a practitioner, and I shudder when I calculate the number of days of my life that I have spent in the county courts waiting for cases to come on which never matured but which were adjourned for a month. I must have spent a considerable part of my life hanging around the county courts, and I have no doubt other noble Lords sitting here to-day have had the same experience. It is a shocking waste of time. That applies not only to barristers and solicitors, but to litigants and their witnesses, including doctors and all kinds of technical people. The aggregate amount of time wasted in the county court is really shocking. This is a matter which ought to be taken seriously, and in order to ensure that there is no unreasonable delay and, even more, waste of time, we ought not to be grudging about the number of judges, especially when we are increasing the jurisdiction.
One of the great advantages of the county court—there are many—is that you are given a fixed date and a fixed time when your case is supposed to come on. I should not like to talk in percentages, but my own experience, which goes back for some time now, is that it was a fifty-fifty chance whether your case came on at all on the day for which it was fixed. It was an even chance whether it came on, and there was less than an even chance whether it would be completed on the day. Quite often it would be part heard and you would have to come back some considerable time later when you had forgotten what the case was all about, and you had to refresh your memory again. So, even at this late stage, I would plead with the noble and learned Viscount who sits on the Woolsack to make quite sure that we do not run these risks merely for the sake of restricting the number of judges to an inadequate figure. I would ask him once more, as I have on a number of occasions, to see what can be done to give the judges an adequate remuneration, so that we get the right quality of judge and enhance the traditions of justice which have existed in the county courts and which we want to maintain in view of the increased jurisdiction.
§ 3.32 p.m.
§ THE LORD CHANCELLOR
My Lords, I am grateful to noble Lords who have contributed to this debate, and I 922 want to say only a few words on the more general points that have been raised. The same answer really applies to the criticism of the noble and learned Earl, Lord Jowitt, of my reluctance to accept the "cushion," and the most important point which my noble and learned friend Lord Hailsham has raised. I felt that it was essential to have a procedure which would ensure that a considerable number of actions were brought in the county court. As my noble friend Lord Hailsham fairly said—and I make no comment about his argument at all—this is the result of two Committees which have made inquiries into two subjects: the service which the administration of justice is giving to the country, and the expense to which the people of the country are put. They came to the conclusion—and I agree with them—that a number of actions ought to be commenced in, the county court which, at the present time, are being commenced in the High Court.
I believe, broadly, despite the point made by the noble Lord, Lord Silkin, to which I will come in a moment, that the Bill will have two results—one, a speedier determination of cases, and, secondly, that cases will be tried much more cheaply. I think there was a danger—we saw it a year or two ago—of delays in the disposal of cases in the High Court amounting to an injustice. I do not think we ought to contemplate with equanimity there being 2,000 cases to be tried with an average of nearly a year between setting down and trial. These are things we ought to deal with. The position is better to-day, and I was prepared, as I have shown by Amendments made to this Bill, to consider the matter in the light of that improvement. But I thought it was necessary to have more cases tried in the county court or else these intolerable delays would continue.
I thought that the difficulty that was raised about estimating how much damages could be recovered could be met by giving a discretion. As I said in my opening speech, the majority in the professions take a different view. I want this Bill to work. I want it especially to work when we introduce legal aid into the county courts. For that reason I have accepted the general view—and the noble and learned Earl knows that I am the last person in the world to mind having one of my Amendments slightly elongated 923 when I have changed my mind. On the main point I thought it was necessary that there should be an alteration in the jurisdiction in the interests of cheapness and expedition, and by that I stand.
I should like to reassure the noble Lord, Lord Silkin, that the increase in the number of judges to which I have agreed has been carefully considered taking into account a possible increase of jurisdiction to £500. I think we should be able to meet the situation which he fears. I think he and I are in the happy position of now being damnatores instead of laudatores temporis acti, because there is improvement, I am told, from the time that he and I remember. The delays were partly because of the Rent Acts cases, which he will remember used to take up a lot of time in the morning, making it difficult for the judge to estimate when he would reach his ordinary cases in the afternoon. There are not so many of these now, and I think the noble and learned Earl will agree with me that the office over which he presided, and which I have the honour to preside over now, has tried by administrative arrangements to improve the chances of judges' arranging their lists so as to avoid that waiting time which, I agree, used certainly to exist in the days twenty to thirty years ago which he and I remember very well.
Apart from that, on the general point which the noble and learned Earl raised, I want to express our gratitude to the Opposition for their suggestions. I do not think anyone who heard or read my speeches would have any doubt as to the view that I hold. But it is essential on matters of this kind which have no Party political content, and are an attempt by the House as a whole to fit legislation to the needs of those of the people whose convenience has to be served, that Governments should have an open mind as to suggestions that are made to them. This Government has shown an open mind. I am sure the result will merely be, as is usually the case when people have shown an open mind, that we shall be criticised by those who take one view because we did not adopt it early enough, and criticised by others who take a different view because we adopted it at any time at all. The real instinct for legislation in this country lies in the fact that we have always sought, and generally 924 succeeded, on matters of this kind to get not only our highest common factor of agreement, but something which will fit the working conditions of the people we as a legislative body try to serve. I think we have arrived at that result in this case, and without any reserve I express my gratitude to noble Lords on both sides of the House who have contributed to it.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.