Lords Sitting of 29 March 1955

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers
  SAINT STEPHEN COLEMAN STREET BILL [H.L.]
  Read 3a, and passed, and sent to the Commons.

  BUSINESS OF THE HOUSE
  THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY): My Lords, I beg to move the Motion standing in my name.
  Moved, That Standing Orders Nos. 34 and 41 be considered in order to their being suspended for this day's sitting for the purpose of passing the Consolidated Fund Bill, the National Service Bill, and the Trustee Savings Banks (Pensions) Bill through their remaining stages, and of giving precedence over the Committee stage of the County Courts Bill to the other Orders of the Day.—(The Marquess of Salisbury.)
  On Question, Motion agreed to, and ordered accordingly.

  CONSOLIDATED FUND BILL
  Order of the Day for the Second Reading read.
  THE PAYMASTER GENERAL (THE EARL OF SELKIRK): My Lords, this Bill being in the usual form, with which your Lordships are very familiar, I beg formally to move that it be now read a second time.
  Moved, That the Bill be now read 2a.—(The Earl of Selkirk.)
  On Question, Bill read 2a: Committee negatived.
  Then, Standing Order No. 41 having been suspended (pursuant to Resolution), Bill read 3a, and passed.

  NATIONAL SERVICE BILL
  2.36 p.m.
  House in Committee (according to Order): Bill reported without amendment.
  Then, Standing Order No. 41 having been suspended (pursuant to Resolution), Bill read 3a, and passed.

  TRUSTEE SAVINGS BANKS (PENSIONS) BILL
  House in Committee (according to Order): Bill reported without amendment.
  Then, Standing Order No. 41 having been suspended (pursuant to Resolution), Bill 3a, and passed.

  RURAL WATER SUPPLIES AND SEWERAGE BILL
  Read 3a (according to Order), and passed.
  IMPERIAL WAR MUSEUM BILL
  Read 3a (according to Order), and passed.
  UNIVERSITY OF HULL BILL [H.L.]
  Returned from the Commons, agreed to.

  COUNTY COURTS BILL
  2.42 p.m.
  Order of the Day for the House to be put into Committee read.
  Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The LORD MERTHYR in the Chair]
  Clause 1:
  Actions of contract or tort, or for money recoverable by statute, and related matters.
  (2) For subsection (1) of section forty-seven of the principal Act there shall be substituted:—
  "(1) Where an action founded on contract or tort is commenced in the High Court which could have been commenced in the county court, then subject to subsections (3) and (4) of this section the plaintiff—

  (a) shall not in any event be entitled to Any more costs of the action than those to which he would have been entitled if

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  the action had been brought in the county court; and

  (b) if he recovers a sum less than seventy-five pounds, shall not be entitled to any costs of the action";

  and in subsection (4) of the said section forty-seven (which allows costs on the High Court scale where, in an action in the High Court for a debt or liquidated demand only, twenty pounds or more is recovered without the action proceeding to trial) there shall be substituted for the words "twenty pounds," wherever occurring, the words "forty pounds."
  THE LORD CHANCELLOR (VISCOUNT KILMUIR)THE LORD CHANCELLOR (VISCOUNT KILMUIR) moved, in subsection (2), in the proposed new subsection (1), after "county court" (where that term is first used) to insert:
  "and the action is not referred for trial to an official referee."
  The noble and learned Viscount said: I beg to move the first Amendment in the Marshalled List. Your Lordships will appreciate that under Section 47 of the principal Act, as amended by Clause 1 (2) of the Bill, certain sanctions in costs are applied where an action founded in contract or tort, which could have been commenced in the county court, is commenced in the High Court. Your Lordships will also know that by the provisions of the Supreme Court of Judicature (Consolidation) Act, 1925, it is provided that the High Court may refer an action to an official referee for trial if the parties consent, or if the action requires prolonged examination of documents, or scientific or local investigation, or relates to matters of account. Your Lordships will appreciate that, in practice, the order for reference is made by a Master on the summons for directions. Actions of this kind are normally complicated and lengthy, taking, on an average, from two to three days to try. In 1954, 178 actions involving less than £400, mostly originating in London, were tried by official referees. It is clearly undesirable that this body of work should be transferred to the county courts as a result of the sanctions provided by the Bill. The county court, by its nature, is not suitable for these prolonged hearings, therefore we suggest that actions of this kind should be cut out of the provisions of the Bill and should continue to be tried by official referees. I beg to move.
  Amendment moved—
  Page 2, line 1, after ("court") insert the said words.—(The Lord Chancellor.)
  On Question, Amendment agreed to.
  2.45 p.m.
  THE LORD CHANCELLOR: This is little more than a drafting Amendment. The words "in any event," which we propose to omit, are not strictly necessary, and it has been suggested that they could be interpreted as fettering the discretion of the High Court, under Section 47 (3) of the principal Act, to award High Court costs. I do not want that impression to get about, and accordingly I think it is simpler to cut the words out of the Bill. I beg to move.
  Amendment moved—
  Page 2, line 3, leave out ("in any event").(The Lord Chancellor.)
  On Question, Amendment agreed to.
  THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after subsection (2) to insert:
  "(3) An order under subsection (3) of the said section forty-seven (under which the court may by order exclude or modify the operation of subsection (1) of the section) may be made in any case where it appears to the High Court or a judge thereof (or where the matter is tried before a referee or officer of the Supreme Court, that referee or officer) that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in a county court."
  The noble and learned Viscount said: This is an Amendment dealing with a point which I believe is of importance in the eyes of a number of your Lordships. Perhaps I may explain it, and it will then be for your Lordships to consider what further discussions we shall have, and what further Amendments.
  Under Section 47 (3) of the principal Act, the High Court is given a discretion to award High Court costs in an action which could have been commenced in the county court, notwithstanding that, by virtue of Section 47 (1), the plaintiff has recovered an amount which entitles him only to county court costs or to no costs at all. But some matters have turned on the actual wording of this subsection, because under Section 47 (3) a High Court judge can exercise his power to award High Court costs only if he is satisfied, among other things, that there was—and I quote the words in the section—"sufficient reason "for bringing the action in the High Court. The words "sufficient reason" have been considered in the courts on several occasions, and decided cases indicate that the mere fact that the plaintiff's claim has exceeded the limits of county court jurisdiction cannot

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  be regarded as "sufficient reason" for bringing the action in the High Court.
  There are a number of cases, but I would refer those noble Lords who are interested in such matters particularly to the case of Finch v. Telegraph Construction and Maintenance Co., Ltd., reported in 1949 All England Reports, Volume 1. In that case, Mr. Justice Devlin considered this difficulty. It was argued against the giving of High Court costs that the words "sufficient reason" implied, if I may put the matter shortly, some special reason. The argument the other way was that the whole background of the case should be considered. The learned judge, although he decided against High Court costs, did not decide that point specifically—which left the matter still subject to discussion. So I thought we ought to clear it up in this Bill. Since this Bill strengthens the costs sanctions, so that they operate up to the limit of county court jurisdiction, it is very desirable that the High Court should not find itself fettered, as a result of decided cases, from exercising its discretion on the ground that the plaintiff's claim exceeded the jurisdiction of the county court. Before awarding High Court costs, the High Court should, however, be satisfied that the plaintiff had reasonable ground for supposing the amount recoverable to be in excess of the amount recoverable in an action commenced in the county court. The Amendment is designed to achieve this object.
  Take the case where a plaintiff fails to get over £400 and gets, say, £325: it would then be possible at the end of the case for the plaintiff to show the judge the medical reports he had at various stages of the case and, if he so desired, the advice he had from his counsel and anything else relevant to the point, and the judge could then decide (if I may take your Lordships back to the words of the Amendment) whether
  "there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in the county court."
  Far be it from me to suppose or desire that any words of mine spoken at this Box should be taken as guiding judges in the exercise of their judicial functions, but I do not think it would be improper to say that I contemplate that this would cover the case where the amount actually
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  recovered was relatively near £400 and there would have been "reasonable ground" for the plaintiff to suppose that he might have got more than that sum. What I want to make clear is that this question is open to the judge in exercising his discretion, and he has not to find any special circumstances, as if it were a test action or anything of that kind, in order to exercise his discretion. I tried to draw the words to give the judge the widest discretion possible on that point.
  I should like to deal shortly with the point that is the subject matter of a further Amendment, because I should not like your Lordships to think that in considering this Amendment I have omitted to put before your Lordships the question of those cases where contributory negligence reduces the damages, a matter which was raised by several noble Lords on the Second Reading of the Bill. In actions in which contributory negligence is an issue, the word "recoverable" refers to the gross damages recoverable by the plantiff before any deduction is made on account of his contributory negligence. Your Lordships will see that that is so, if you would be good enough to consult Section 1 (1) of the Law Reform (Contributory Negligence) Act, 1945. I think there can be no doubt about it, but it is reinforced by the judgment of the Court of Appeal in the case of Kelly v. Stockport Corporation, which is reported in Vol. 1 of All England Reports, 1949. From the wording of the Amendment it is plain that in a case where, for example, the gross damages awarded to a plaintiff are £400 and they are then reduced by reason of his contributory negligence to £200, the High Court may award High Court costs if satisfied that the plaintiff had reasonable ground for supposing his gross damages, without regard to the possibility of deduction for contributory negligence, would exceed £400.
  I hope your Lordships will agree that this is the right way to approach the problem. On the specific point of contributory negligence, after consulting the wording in the Contributory Negligence Act and the judgments of the Court of Appeal in Kelly v. Stockport Corporation and the words of the Bill and the Amendment, I have no doubt that the plaintiff would be safeguarded in these circumstances. I know that this was one point which was worrying your Lordships—cases where the plaintiffs would have been able to

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  recover a sum which might have been considerably in excess of £400. In fact, we might have a case where the plaintiff was seven-eighths to blame and might have been able to recover as much as £3,200, only to have this reduced to £400.
  I have assured myself, to the best of my ability, that that difficulty will not arise in these circumstances. That is the purpose of the Amendment that I present, and I hope your Lordships will take the view that it answers the points posed by noble Lords during the Second Reading debate, and that the difficulty of estimating damages is met by giving to the judge who tries an action in the High Court the wide discretion which this Amendment confers upon him, so that if the plaintiff has come within reasonable distance of the £400 and has had reasonable ground for expecting more, he will not be damnified. I have said, "if he conies within reasonable distance," but my Amendment would go farther than that, and I think this is one of its attractions. Take a case which often occurs, where there are two heads of damage: for example, take the case where there are superficial injuries, but the doctors on one side say that these have brought on a disease, or it may be an abortive birth, and there is a heavy medical question whether the injuries have produced the secondary condition. On my Amendment, even though in the outcome the plaintiff recovered, say, only £50 for superficial injuries, the judge would be able to say that on the question of the disease or abortion there obviously was a serious point and though he had decided in favour of the defendant's doctors, he found that the plaintiff had reasonable ground for supposing that the secondary condition would come into the damages, in which case more than £400 would have been awarded. In such a case, although the plaintiff recovers only £50, he would have that discretionary chance of getting High Court costs. I know that many noble Lords are interested in this point; therefore I have taken rather longer to move this Amendment than otherwise I would have done. I beg to move the Amendment.
  Amendment moved—
  Page 2, line 14, at end insert the said new subsection.—(The Lord Chancellor.)
  2.59 p.m.
  EARL JOWITT EARL JOWITT moved, as an Amendment to the above Amendment, to add to the proposed new subsection:
  "Provided that if the plaintiff recovers three hundred pounds in an action whether founded on tort or on contract he shall be entitled to recover his costs of such action unless the judge certifies that there was no reasonable ground for bringing the action in the High Court."
  The noble and learned Earl said: I am sure that we are all grateful to the noble and learned Viscount the Lord Chancellor for the adequate and full explanation he has given of this clause. This is a very good Bill, and, although I do not want to delay its passage, I am sure the noble and learned Viscount will agree that this is an important point, which merits consideration. I am not sure, but I believe that, historically, this Bill was actually drafted in my time as Lord Chancellor. I did not take any steps to put it into force because in those days legal aid did not apply to the county courts, and I thought it unfair to try to push off a great many cases to the county courts, where there was no legal aid, from the High Court, where there was legal aid. But now that the Lord Chancellor has been able to induce his Chancellor of the Exchequer (and it shows what greater control he has over the Chancellor of the Exchequer now than I had over the Chancellor of the Exchequer in my day) it is all to the good.
  This is not a subject which lends itself to easy treatment, I am afraid, and I cannot pretend that any of your Lordships will derive much enjoyment from the speech that I am about to make. But it is an important point, and I think we should get it clear. It deals with a subject which is rather near the heart of the legal profession—what is colloquially referred to as the "cushion." I will tell your Lordships what I mean. I must go back to the County Courts Act, 1934—and the Lord Chancellor will correct me if I am wrong in any statement that I make, because I have not had anybody to assist me in my labours, and I may go wrong. In the year 1934 the limit of the county court jurisdiction was £100. Since, however, an action which could be brought in the county court might be brought in the High Court, the framers of that legislation thought it desirable to have some means of discouraging that; and the obvious means was in regard to costs.

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  Therefore, it was laid down that if a plaintiff brought an action in the High Court and recovered less than a certain amount—in the case of an action in tort it was, I believe, £50–he should, subject to the power of the judge to make a special order, get only county court costs. But if he was awarded more than £50 in the High Court action, then automatically he was granted High Court costs. I will give your Lordships a simple illustration. If a man was knocked down by a passing car and brought an action in the High Court, and recovered £55, then he would get costs on the High Court scale, in spite of the fact that £55 was within the limit of £100 and that he might have brought the action in the county court. That was the law then.
  In 1938, by the Administration of Justice (Miscellaneous Provisions) Act, the limit of the county court jurisdiction was raised to £200, although the cushion remained the same—at least, it became a more adequate cushion, because if a man brought an action in tort in the High Court after 1938, and recovered £55 (that is to say, anything over £50) he was still automatically entitled to recover High Court costs. I think, and the Lord Chancellor thinks, that that is far too generous a cushion, more especially since the Lord Chancellor desires to remove some of these actions from the High Court into the county court, one of his objects being to avoid, to some extent, the congestion which is rearing its ugly head in the High Court. But as he drafted his Bill he had no cushion at all. Here I must explain to your Lordships that the difference between High Court costs and county court costs is not inconsiderable. In the ordinary simple case, I am told that I may assume the difference would be of the order of £50, although it might be more in other cases.
  Let me take £50 as an illustration. It is extremely difficult for a young barrister to answer a client who goes to him and asks: "How much do you think I shall get out of this claim?" The first question he would ask the client would be, "What judge are you coming before?"—because it is notorious and inevitable that, given an unfettered discretion, some men will take a more generous view of damages than others. Unless we have a kind of robot judge (which I hope we never shall have) it is
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  impossible to avoid the personal equation coming in. Apart altogether from that, the amount of damages depends so much on how, for instance, the evidence of the doctor comes out, and how the injury is progressing. I would assert that there is no man who, when somebody comes for advice on the amount of damages he is likely to get for an accident, can confidently say that it will be either £500 or £300. What must the barrister then do? We are now, by this Bill, raising the county court jurisdiction to £400. Is he to advise his client to bring his action in the county court? If the man does that, he cannot get more than £400. If, on the other hand, the barrister tells his client to bring his action in the High Court, where he can get £500, £600—or any amount—and, by evil chance, he gets only £300 or £350, then he will get only county court costs, unless the judge makes some special order.
  Let us consider the effect of the Amendment of the Lord Chancellor. It is an Amendment which I welcome as being better than nothing, and as making for improvement of the Bill; but, after all, the wording is only that the judge "may" do this. The Lord Chancellor has done away with the words "sufficient reason," which appeared in the County Courts Act, 1934–wisely, as I think, because that limitation lends itself to all sorts of classifications of what is a good reason, what is not, and the rest—and has adopted at once a simpler test. But he leaves it more to the discretion of the judge. I speak knowingly about this matter, and I am sure the Lord Chancellor will not mind my saying that long exrperience has taught me that nobody can predicate with certainty how the unfettered discretion of a judge will be exercised. After all, Lord Chancellors used to introduce the system of equity, and in its early days equity differed from the rigour of the Common Law by being bound by no rules at all. Equity was what the Lord Chancellor of the day thought was equitable, and it is recorded in Selden's Table Talk that:
  "Equity is a roguish thing, as variable as the Chancellor's foot."
  By that was meant that one man's idea of what is fair, given an unfettered discretion, is bound to differ from that of another man. The effect of the Lord Chancellor's Amendment is simply that, given certain circumstances, the judge may make an order that the costs of an

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  action be paid on the High Court scale. Or, of course, he may not.
  Put yourselves for a moment in the position of a judge under the Amendment of the Lord Chancellor. He is not fettered by any rules at all. He has to consider whether there was reasonable ground for supposing that the amount recoverable would be in excess of £400. In a case where £350 has been recovered, the judge might well say that there was reasonable ground for supposing that £400 would be recovered. But he might then say: "How shall I exercise my discretion? Shall I make an order, or shall I let the law take its course?" Unless he does make an order, the plaintiff will get only county court costs. The judge might well say to himself: "The difference involved here is £50. The man has brought his action in the High Court, and unless I make a special order he will get only county court costs. Shall I make a special order? It is quite right, on the one hand, that he might have hoped for more than £400—I think that is reasonable—but on the other hand, he has got only £350. Why should I make the unfortunate defendant pay this extra £50? As between these two men, the plaintiff and the defendant, the plaintiff having recovered £350, one of them has got to pay the £50. Why should I order that the plaintiff should get this £50 extra? Why should I make the defendant pay?" That is the problem with which the judge might be confronted.
  The whole idea of the Lord Chancellor's Amendment is that he should be bound by no fettering rules and, I may say, guided by no fettering rules: it is entirely a matter for his discretion. What I call the "cushion" is removed altogether by this Bill, and all that we get in place of it is the fact that the judge may, quite unfettered, award High Court costs if he thinks there was a reasonable chance for supposing that the plaintiff might get more than the £400. I am not sure that that is very satisfactory. I am not sure that I have anything much better to offer, and I agree with the Lord Chancellor that the full extent of the cushion should go. If it does not go, the main sanction which operates to make people take their cases to the county court will go, too. Therefore I think the Lord Chancellor is right in taking this line. In the Bill I drafted, I guarded myself against
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  being dealt with in this way, and no doubt that is exactly what the Lord Chancellor had in mind. I think the point is a difficult one.
  It occurred to me to try to work on these lines. Suppose you gave the judge a pretty broad hint and said "If the man gets £300—which is three-quarters of £400—then let there be a cushion: let him get his High Court costs unless" (I put it the other way round for this purpose) "you decide that there should be only county court costs." That would give the judge a broad hint. The figure of £300 which I put in is, of course, a purely arbitrary figure. I suggest that we might consider working it on these lines, but have some figure which is lower than the maximum which could be recovered, and say: "If you get more than that figure—I take £300 at the moment—"then unless the judge makes an order to the contrary, that shall carry High Court costs. On the other hand, if you get less than that figure, unless the judge makes an order, it shall not carry High Court costs." In that way the plaintiff is given a sort of guiding post by which he can steer his ship. Whether the figure of £300 is right or not I cannot say, but I would point out that it is much more difficult to forecast what the damage is going to be in actions in what is called tort than in actions in contract. In the case of damages for breach of contract, one ought to be able to assess with some degree of accuracy what the amount of the damages should be; but in cases of injury, cases of tort, it is extremely difficult. As I have said before, it is impossible to say what the damages are going to be. Therefore there is something to be said for following the procedure of the County Courts Act, 1934, and for having different figures for actions in contract and those in tort.
  I mention this fact because the Lord Chancellor might like to consider it. I may say at once that I am not going to press my Amendment to a Division, and I shall certainly withdraw it. I am only saying what I do in order that the Lord Chancellor may look at it and consider it, as I will certainly consider his suggestion. I have also considered whether I should have put the sum at £250, or whether I should have put £250 in tort and £350 in contract. Or should as I have done here, put in a figure of £300

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  as being midway, and more or less an arbitrary figure for both? All sorts of variants of this figure are possible. From what I have heard from lawyers, I am bound to tell your Lordships that although they think the Lord Chancellor's Amendment is much better than nothing—it does give a judge a discretion—yet they do not think it is in any sense anything like the cushion we had before, and they consider it puts the young barrister in rather an embarrassing position. His man comes to him and says, "I want to bring an action. Shall I bring it in the High Court or the county court?" If the barrister says, "Bring it in the county court," and the county court judge awards him the full £400, which is the most he can give, and says, in giving his judgment, "I am only sorry that I cannot award more, because I think £500) is the least that ought to have been given," imagine the reaction of the litigant. He turns to his solicitor, and his solicitor turns to his counsel, and says, "Look here, you have made a fool of yourself. You have deprived this man of £100 by not bringing the action in the proper place."
  On the other hand, if the barrister says, "We will bring your action in the High Court," and the damages awarded in the High Court are only £350, then, unless the judge makes some order—if the law simply takes its course—the unfortunate litigant will find himself mulcted, in addition to the ordinary costs, of costs to the tune of, say, £50. I am told that that is rather a low estimate, and it might well be £100 which will have to Come out of his damages. That is the dilemma, and that is why we had the cushion in the old days. That is why we welcome the discretion which the Lord Chancellor is giving, but we do point out that the discretion is completely unfettered, and the judge who has to decide whether or not to exercise his discretion may be in great difficulty be-cause one side or the other must bear this loss. The judge will have to decide: "Shall I put it upon the defendant?—after all, he did not bring the action—or shall I put it on the plaintiff?"
  I would therefore suggest to the Lord Chancellor—as I say, it is merely for his consideration—that he might adopt that scheme. I think he is right to leave this
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  matter to the unfettered discretion of the judge, but he might give him the kind of hint I have suggested, which would be the effect of my scheme. If the plaintiff recovers a certain amount, a different amount if you like, in actions for tort and in actions for contract—and I am not trying myself at all to what the amount should be—then he should get his costs albeit the action is brought in the High Court. If he recovers less than that amount, then he should not get his High Court costs unless the judge exercises his discretion to that effect. In the one case the discretion must be exercised, and in the other it need not be exercised. It is the onus of proof, or analogous to the onus of proof: if the judge does not make an order in one case, then the law takes its course; if he does not in the other case, then equally the law takes its course. That is the scheme I would commend to the Lord Chancellor for consideration. I am not sure that it will altogether satisfy the Bar Council who, I think, would like to leave something like the cushion of the old days. But I quite understand the Lord Chancellor's reluctance to do that if he wants to get these actions transferred. I have tried to suggest a halfway house, which I most humbly commend to the Lord Chancellor's consideration in order that he may see, after he has considered it, whether or not something on these lines should be adopted.
  I merely add that so far as the drafting of this Amendment is concerned, he need not take too much notice of it. I did myself in a few moments of time, and no doubt if he is going to adopt something of this sort it could be put in much better shape by the Parliamentary draftsman. I consider that the drafting of this Bill is greatly to the credit of the Parliamentary draftsman. If the Lord Chancellor thinks anything of this idea, I hope he will not consider my wording as sacrosanct, but will take the point into consideration and put it into the proper form, whatever it may be. In the meantime, in order that we may have a discussion on this scheme, I beg to move the Amendment standing in my name as an Amendment to the Lord Chancellor's Amendment.
  Amendment to Amendment moved—
  At end of the proposed new subsection insert the said proviso.—(Earl Jowitt.)
  3.20 p.m.
  LORD SILKIN: My Lords, there is little it is necessary to add to the case that my noble and learned friend has just made. It seems to me, as a practitioner, that this Bill puts one in a dilemma in advising a client. I do not want to make too much of that, because there is the even bigger dilemma of whether or not one's client has a case at all, let alone the question of damages. In advising a client, one has to advise on two things: first, is there a case at all; and, secondly, if there is, what are the damages likely to be recovered? I would not stress too hard the particular dilemma whether one should go to the county court or to the High Court, but it is a dilemma all the same. Upon the decision that one makes will rest what may be to the litigant a very considerable sum of money. I think, therefore, that the Amendment which the noble and learned Viscount the Lord Chancellor has moved is a move in the right direction. Frankly, I cannot see what more one can do than to give the judges discretion in the way in which the Amendment provides, except to give them, in addition, the sort of guidance which the noble and learned Earl has suggested in his Amendment. It really carries the thing a stage further. It not only says that the judges are to have discretion in the manner indicated in the Amendment, but gives them a lead to the way in which they are to exercise it. That is all to the good.
  My noble and learned friend indicated that discretion is a matter which rests very much not only upon the length of a person's foot but very often upon what he has had for breakfast or lunch, or what may have happened in circumstances other than the atmosphere of the court. All these things enter into the way in which discretion is exercised. A judge may be influenced even by the way in which a witness gave his evidence, which may have nothing at all to do with the merits of the matter upon which the judge has to decide. If it is possible to work on the lines that my noble and learned friend has suggested, giving the judges a clear lead to the way in which they are to exercise the discretion, I think that will be all to the good. But there might be the danger of going so far in that direction as really to give them a discretion on the one hand and remove
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  it from them on the other. I think that my noble and learned friend has provided a happy medium between going too far in the way of instructing the judges on how they are to exercise their discretion and not giving them any lead at all.
  With him, I agree that the figure is capable of discussion. Broadly, I think that the more simple one can make these things, the better. I agree with my noble and learned friend that there is a theoretical case for trying to make a case of contract more exact than one of tort: it is capable of more exact forecast than in the case of tort. But I think that simplicity is a great advantage. The Amendment of my noble and learned friend provides for a 25 per cent. margin of error, which is not unreasonable. Therefore I hope that the noble and learned Viscount who sits on the Woolsack will see his way to agree to something of this kind which will give the judges some guide to the manner in which they are to exercise their discretion.
  THE LORD CHANCELLOR: I am grateful to the noble and learned Earl for the careful study and presentation that he made of this point, and to the noble Lord, Lord Silkin, for giving us his views, based on experience in this problem from his particular angle. I should like to put before you my difficulties on the matter, because I should not like your Lordships to think that this is in any way (it is not) an Amendment on which I have any desire, if I may be colloquial, to "stonewall" or to approach in that way at all. I want to solve the two problems which are before us: first, to draw cases into the county court and thereby relieve congestion in the High Court and reduce the cost of litigation; and, secondly, to do justice to the litigants.
  May I start in the same way as did the noble and learned Earl, with the original wording of the Act of 1934? As I mentioned when I addressed your Lordships last, that had the words "sufficient reason." That was open to the objections which were mentioned. What I tried to do—and I think I have succeeded to that extent—was to make sure that there was no such difficulty about "sufficient reason," but that there was included the position that is met in my

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  Amendment: the case where it appears to the High Court judge
  "that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action in a county court."
  My difficulty arises when one moves from that to the proposal of the noble and learned Earl. So far as my Amendment is concerned, it is true that it is discretionary, but the condition of the discretion is that the judge shall apply his mind to the question: had the plaintiff reasonable grounds for expecting more than £400?
  Now let us assume that the judge considers that point and says: "The plaintiff has recovered only £300. I have looked at his medical reports, I have looked at the advice that he got from counsel at that stage in the case, and I do not think he had reasonable grounds for expecting to get more than £400." He has considered that point and come to the conclusion that there were not reasonable grounds; but the figure is £300. Then he has to consider the noble and learned Earl's Amendment. He says: "Ah! but, £300 having been recovered, the plaintiff is entitled to High Court costs unless I decide that there was not reasonable ground for bringing the action in the High Court." What are the criteria left to him between these two positions? He has already decided that the plaintiff has not satisfied him that there were reasonable grounds for expecting more than £400. He has then to apply his mind to the question in the noble and learned Earl's Amendment. That is very difficult.
  I put out my suggestions for the noble and learned Earl to consider. I am not pontificating on the matter at all. I would suggest that there are only two things which would enable the judge to exercise his power: first, that the plaintiff had been perverse, had been silly and stupid and not looked at the facts of the case, and that no person who approached it with an open mind as opposed to a perverse mind could have expected £400; and secondly, the ordinary default provision as to costs, which I am putting very simply—noble Lords who are in the profession will understand why I am doing it—that the plaintiff, in the conduct of his case, has shown some fault which should be penalised in costs. But, apart from that,
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  there are no grounds, there are no facts, as I see it, on which the judge could exercise his discretion, because he has already approached the problem and considered (this is the hypothesis on which we must proceed) that the plaintiff had not reasonable ground.
  The noble and learned Earl put the matter on a question of onus. Of course, onus is a starting gate in litigation. Onus is a help at the beginning of a case, to decide who shall establish certain facts. At the end of the day, when all the points are before the judge, onus is of less importance, because he has to decide whether there were, or were not, reasonable grounds—whichever way you put it, he must decide that question. I have tried to apply my mind as well as I can to the matter, but my trouble has been that the noble and learned Earl's Amendment does not, at the end of the day, provide a discretion; it says that in all except very exceptional cases High Court costs shall be given where the plaintiff recovers £300, unless he has been perverse or in default. It really comes back to saying in a different way that there shall be a cushion or something equivalent to a cushion.
  I should like to consider that point for a moment because, again, I should not like your Lordships to think that I am being insensitive on a difficult point. The noble and learned Earl gave us the history of the matter with complete correctness: I would like to add only some foot-notes. Before 1938, when the limit of jurisdiction was £100, there was the cushion of which the noble and learned Earl spoke, of £50 in cases of tort; there was, as the noble and learned Earl will remember, no cushion in cases of contract. But in 1938 we tried extending the jurisdiction of the county courts to £200, with the proviso that the defendant could remove any claim of between £100 and £200 to the High Court. The effect was that in the last year for which I have figures, the number of claims between £100 and £200 was 4,849—
  EARL, JOWITT: Which were transferred?
  THE LORD CHANCELLOR: No; they were brought in the county courts—and the number of actions concerning amounts of under £100 brought in the county courts was 571,397. In round figures, that is 5,000 cases between £100 and £200, and 600,000 cases of under

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  £100. Therefore I do not think I am making a false point in saying that that attempt to bring cases to the county court largely failed. I am anxious to see that my attempt, for which I am glad that the noble and learned Earl has claimed some paternity, should not fail. I have told your Lordships that we are dealing here with the question of trying to get 1,300 cases transferred from the High Court to the county court. I should think the effect of this proposal would be that something like one-sixth of that number would not come to the county court. I am most ready to consider the matter—I shall, of course, always be delighted to do that.
  I must say that while the noble and learned Earl and the noble Lord, Lord Silkin, were speaking, I wondered whether I ought not to consider another possibility. Under the Bill as it now stands, the limit of county court jurisdiction is £400, with power to extend it to £500 by an Affirmative Resolution of both Houses of Parliament. If the cushion were introduced, I should have to consider whether I should not increase the limit, because the effect of introducing the cushion in one way or another would be to exclude so many cases that I want to bring in, in order to establish a balance between the High Court and the county court, and between London and Assize and local jurisdiction.
  The other aspect which I should like the noble and learned Earl to consider is that between the plaintiff and the defendant. The basis of my Amendment is that the plaintiff is bringing his action, and it is for him to satisfy the judge that he had reasonable grounds for bringing the action in the High Court. The trouble in regard to the noble and learned Earl's Amendment is that it puts a negative onus on the defendant. His Amendment puts it the other way round, namely, that the costs shall be allowed unless the judge certifies that there was no reasonable ground for bringing the action in the High Court. The difficulty of proving a negative is something upon which I need not dilate. On the other hand, the plaintiff, who under my Amendment has to prove a positive assertion, is in full command of the facts on which it can be proved. It seems to me, on general principles, that it is difficult to let the plaintiff escape from proving the facts known to him, and to put on to the defendant the onus of
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  proving facts of which he cannot have knowledge. Therefore I feel that we have to face the point; do we in one sense or another want a cushion inserted? And if we have such a cushion inserted, are we prepared to take the inevitable result that there will be a considerable decrease in the number of cases that are brought to the county court?
  I have deliberately put my argument in the form of trying to raise questions which I should like noble Lords opposite to consider, as I am sure they will. I will consider what they have said, and I shall be grateful if, on that assumption and assertion that I will consider the matter carefully—I shall be most happy to discuss it with the noble and learned Earl, and with the noble Lord, Lord Silkin as well—the noble and learned Earl will, as he suggested, withdraw the Amendment for to-day. Then, before the Report stage, let us return to this matter, after we have had further opportunity of considering it.
  3.40 p.m.
  LORD DOUGLAS OF BARLOCH: Before my noble and learned friend withdraws his Amendment there is a point that I should like to put to the noble and learned Viscount the Lord Chancellor. The dilemma which exists here arises from the fact that a person who brings an action in the High Court recovers whatever debt or damages the court may award, even an amount below the limit for county court jurisdiction. If, on the other hand, he brings an action in the county court, he cannot possibly recover more than the limit for county court's jurisdiction, even though the judge may consider that he is entitled to recover more. If the arrangement were made to work reciprocally, so that the county court judge could award more than the amount of that limit by way of debt or damages, but could not award High Court costs, we should not be confronted with this dilemma.
  I can say from my own experience, as a solicitor for more than thirty years, that this is a very serious question. One is faced with great difficulty in advising a client, particularly with regard to actions of tort. In contract, it is easier to predict the possible result, although even in those cases it is not always simple. The Lord Chancellor, out of his experience, will know very well that in

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  litigation relating to contracts for building work there is extreme uncertainty, because of the magnitude of possible difference of opinion upon every detail in the contract, over what should be the price and whether or not the work has been done properly. And when it comes to actions of tort, one is in still greater difficulty. I will give noble Lords an illustration from my own knowledge. A man met with a fatal accident in a factory. At the inquest, evidence was given by the police surgeon who had conducted the post-mortem examination. He said, "As a result of my post-mortem examination, I say that this man had not more than two weeks to live." If that was so, the man's chance of recovering any appreciable amount of damages was obviously very small, because his expectation of life was said to be so low. Yet in the end, £750 was recovered for the unfortunate relatives. Faced with a problem of this kind, what is a solicitor to do in advising his client?
  I would draw the attention of the noble and learned Viscount to the wording of his Amendment:
  "…that there was reasonable ground for supposing the amount recoverable…to be in excess of"
  what could have been recovered in the county court. Had the subsection been framed in the way in which the noble and learned Viscount put his argument to the House, that it was reasonable to bring the proceedings in the High Court, that is one proposition; but to say that it was "reasonable" for the plaintiff to expect to recover more than £400 in damages is quite a different proposition. I will not weary your Lordships with details, but it would have been difficult, in the case I have mentioned, to advise my client that it was reasonable to bring these proceedings in the High Court. It would have been difficult to say, "I think you will certainly recover more than £400," but it was reasonable to bring those proceedings and, in the result, was proved so to be.
  If the unfortunate plaintiff is forced, in such a case, to go into the county court, he may be deprived of a sum of money which he or she ought to get. I suggest, with respect, that we ought not to assume what has apparently been assumed throughout the consideration of the relative positions of the county court
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  and the High Court—namely, that there ought to be an absolute barrier to prevent anybody from recovering in the county court more than the amount of the limit which is placed there, whatever that may be. It is not so in the High Court; there, if a plaintiff succeeds in a claim but recovers less than the limit, he still gets his award. He may be deprived of some costs, but that is another story. At any rate, judgment is given for whatever the court considers to be the entitlement. I see no reason why in the county court, also, one should not get a judgment for whatever the court thinks is the proper amount.
  3.47 p.m.
  EARL JOWITT: Those are very cogent observations. I shall certainly do what the noble and learned Viscount the Lord Chancellor asks. I will withdraw my Amendment, on the understanding that he will consider this matter. The noble and learned Viscount was good enough to say that he would have a discussion with me, and I should be glad to do so, if I thought I could in any way help to solve his difficulty for him. But I believe that it is for him to decide, although whatever he decides will be considered wrong by a large number of people. I hope that he will come to a wise decision. My own feeling is that if this question is to be left to the judge—as it must be—there is something to be said for giving him a hint as to the way in which he should exercise his discretion, otherwise he is completely unfettered.
  It is easy to see whether there is a chance of more than a certain amount being recovered, although I do not much like the idea of counsel's opinion being handed in, because of the possibility of there being dishonourable counsel (I am thinking back to the old days, to my early days at the Bar), who would invariably say, "You ought to get at least £1,000." That opinion would be handed in, and would be held to be good ground for getting High Court costs. I think that would not be a good feature. However this provision is worded, the matter must be left to the discretion of the judge, but it might be well worth while to consider giving a judge a broad hint—depending on the amount, whatever it may be. The question is then: is the judge going to take some special step and exercise discretion at all? A judge may say, "Let

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  the law take its course," and if the law takes its course, there would be a different result, according to whether the damages were under or over £300. I quite understand the remarks of the noble and learned Viscount the Lord Chancellor about the £500 limit; and that may be right at times. I have no definite views and it may be wiser to go by stages here. With your Lordships' permission, and greatly thanking the noble and learned Viscount for the obvious care and attention he has given to this matter, and knowing that he will look into it again and try to arrive at the best possible solution, I beg leave to withdraw my Amendment to the Amendment.
  Amendment to the Amendment, by leave, withdrawn.
  On Question, Amendment agreed to.
  3.50 p.m.
  EARL JOWITT EARL JOWITT moved, after subsection (2) to insert:
  "() In determining the amount recovered for the purposes of the preceding subsection any reduction by reason of the plaintiff's contributory negligence shall be disregarded."
  The noble and learned Earl said: There is nothing much in this Amendment, because, if I may say so with respect, I agree with the noble and learned Viscount the Lord Chancellor: I have very little doubt that this is the law at the present time. Take a simple case under the Law Reform (Contributory Negligence) Act, 1945. Contributory negligence used to be a bar to recovering anything at all. Under that Act, it is no longer a bar but the amount a plaintiff recovers can be reduced, having regard to his own contributory negligence.
  Take the simplest example. A man brings an action for £600 damages—he has to do it in the High Court, of course—and the judge puts the damages at £600. But he says: "This was a case of fiftyfifty—each side was equally to blame. In the circumstances, I divide the £600 by two, and award the plaintiff £300." I think it is pretty plain that that action would automatically carry High Court costs, though the amount actually recovered was only £300. I think so for this reason. I do not believe that that is an action which could have been started in the county court. I know that the Lord Chancellor has dealt with this matter
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  —and may I thank him for being good enough to receive a deputation both from the Bar Council and from the Law Society: I know how very grateful both those bodies are to him. He expounded this point, but in some quarters, apparently, there still remains some doubt about it. As I have already said, I humbly agree with the Lord Chancellor that the matter is clear enough. But that being so, would it not be well to have a subsection for the purpose of making it quite plain, so that he who runs may read, and may understand that the law is as the Lord Chancellor and I believe it to be?
  I know that eminent people at the Bar are anxious that this point should be cleared up. We are always desirous of making our law as simple and acceptable as possible, and I would suggest that some subsection on the lines of this Amendment might be considered. I am not wedded to this precise wording, because these are only my own words, put down in a matter of a few minutes, and the Amendment would clearly need to be considered by the experts. But I suggest that something on these lines might well be put in. It would not, of course, alter the law, but it would make it plain, so that anyone, even if he does not know much about the law, would clearly realise how this matter stands. Though I do not intend to press this Amendment, I commend it to the noble and learned Viscount the Lord Chancellor for him to see whether something on these lines might be put into the Bill. I beg to move.
  Amendment moved—
  Page 2, line 14, at end insert the said new subsection.—(Earl Jowitt.)
  THE LORD CHANCELLOR: It might be convenient if I said another word or two so that the basis of my view—which I was glad to hear is shared by the noble and learned Earl, Lord Jowitt—appears quite clearly in the OFFICIAL REPORT. Then if anyone has any further point to make it will be open to him to raise it. The position starts, as I think the noble and learned Earl will agree, with the opening words of Section 47 (1) of the principal Act, the County Courts Act, 1934, both now and as amended by the Bill. Those words are:
  "Where an action founded on contract or tort is commenced in the High Court which could have been commenced in the county court…"

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  It is clear that an action such as that mentioned by the noble and learned Earl, where the damages are £600 but are cut down because of contributory negligence to £300, is not an action which could have been commenced in the county court. The case to which I have referred, the case in the Court of Appeal of Kelly v. Stockport Corporation (reported in 1949, I All England Reports, page 893) was decided in relation to the existing limit of £200 on the jurisdiction of the county court, and it was held that an action cannot be commenced in the county court where the damages suffered are more than £200, even though they are reduced, on account of the plaintiff's contributory negligence, to a sum below that figure.
  The case turned on the language of the Law Reform (Contributory Negligence) Act, 1945, and the relevant section, Section 1 (1), reads as follows:
  "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage,"
  I ask your Lordships' attention to the next words:
  "but the damages recoverable in respect thereof shall be reduced to such extent as the court think just and equitable having regard to the claimant's share in the responsibility for the damage…"
  The effect of this provision is to require the court first to assess the "damages recoverable" (the words to which I drew your Lordships' attention) in respect of the claim for damage suffered by the plaintiff, after which it may proceed to reduce them to take into account the plaintiff's degree of contributory negligence. The decision in the case I have quoted shows that, in deciding whether to bring his action in the High Court or in the county court, the plaintiff must have regard to the gross amount of "damages recoverable" in respect of his injury, without taking into account the possibility of a reduction of those damages by reason of his own contributory negligence. It is certainly not the intention, nor I believe is it the effect, of the Bill to change that decision. That is the law as I understand it.
  I apologise for inflicting it on the House at such length, but I think it is important that one should get it clear. Of course I will look into the noble and learned Earl's
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  suggestion. He knows far better than I (he was a Law Officer long before I was, and he has had vast experience) of the traditional reluctance to putting in an addition when the law is believed to be already clear. But I do not want to be hide-bound. Naturally—if I may be quite frank—I shall consult the Parliamentary draftsmen, and try to find whether there are any repercussions. As the noble and learned Earl knows, the danger is that the insertion of some further words may throw a doubt on something else. But I will consider this fully, and if it can be done without raising any difficulty I shall be glad to do it. I hope that the noble and learned Earl will allow me that freedom because he knows that it is a very difficult matter—and he realises what one always has to bear in mind in this connection. I hope that, upon that assurance, the noble and learned Earl will not press the Amendment in this form.
  EARL JOWITT: I certainly shall not press the Amendment. I am grateful to the noble and learned Viscount the Lord Chancellor. What he has said makes the matter perfectly plain. If I may say so, I humbly and respectfully agree with everything that he has said. What still impresses me so much is that, even after he had expounded this, some eminent persons, members of the Bar Council, were still worried. Therefore, if there is no objection, it might be as well if the Parliamentary draftsmen, after examining the question, were to put the terms of my Amendment in appropriate language. I beg leave to withdraw the Amendment.
  Amendment, by leave, withdrawn.
  Clause 1, as amended, agreed to.
  Clause 2 [Actions for recovery of, or relating to, land]:
  THE LORD CHANCELLOR: The next two Amendments go together. If I may be quite frank with the Committee, we thought that we had found a good term which expressed the sense in which these words were used, but after mature reflection we thought we had better come back to the words of the Bill, and these have been restored. I beg to move.
  Amendment moved—
  Page 2, line 34, leave out ("full yearly value") and insert ("value by the year").—(The Lord Chancellor.)
  On Question, Amendment agreed to.
  THE LORD CHANCELLOR: This Amendment is consequential. I beg to move.
  Amendment moved—
  Page 3, line 5, leave out ("full yearly value") and insert ("value by the year").—(The Lord Chancellor.)
  On Question, Amendment agreed to.
  Clause 2, as amended, agreed to.
  Clause 3 [Admiralty proceedings]:
  THE LORD CHANCELLOR: This Amendment is consequential. It applies to the same matter in Admiralty proceedings. I beg to move.
  Amendment moved—
  Page 3, line 25, at end add—
  ("(3) A certificate may be given under any subsection of the said section fifty-nine in any case where it appears to the High Court or a judge thereof that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in proceedings commenced in a county court.")—(The Lord Chancellor.)
  EARL JOWITT: I agree that this is consequential. If anything comes of our previous discussion, then, of course, some corresponding alteration might have to be made here. The noble and learned Viscount will follow that.
  THE LORD CHANCELLOR: Certainly; I should have said that. I entirely agree.
  On Question, Amendment agreed to.
  Clause 3, as amended, agreed to.
  Clauses 4 to 7 agreed to.
  Clause 8 [Increase in number of judges]:
  4.1 p.m.
  EARL JOWITT EARL JOWITT moved to substitute "eighty-five" for "seventy-five." The noble and learned Earl said: This is a very simple matter. I suggest to the noble and learned Viscount the Lord Chancellor that he had better take wider discretion than he has given himself in this matter, although it may never be necessary. The number of county court judges who may be appointed at the present time is sixty-five. The noble and learned Viscount is going to increase the number to seventy-five. One thing we have to remember about this Bill is that the county court is supposed to be a poor man's court. It exists primarily for the dealings of simple
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  people and small claims, and, whatever we do, we must not interfere with the speedy and satisfactory hearing of the poor man's case because we have these larger claims brought before the county court. I am sure that the noble and learned Viscount would be the first to agree that it would be disastrous if that came about.
  None of us quite knows how this scheme is going to work. It may mean that because of the new extended jurisdiction, the Lord Chancellor will have to appoint a number of new judges to get the work done. I think it is obvious that he will have to appoint new judges. The question is, how many? We on this side think the noble and learned Viscount ought to be trusted. I cannot imagine that any Lord Chancellor will run amok on this matter and appoint county court judges right, left and centre, just for the sake of it. Obviously he would not appoint county court judges unless there was a good need, and I suggest to the noble and learned Viscount that it would be just as well if he took the power, which I suppose in practice he would never exercise without the consent to the Treasury. I suggest that he should take wider discretion than he has already given himself. Accordingly, I beg to move my Amendment.
  Amendment moved—
  Page 5, line 13, leave out ("seventy-five") and insert ("eighty-five").—(Earl Jowitt.)
  LORD SILKIN: This is a matter which I raised on Second Reading. The increase of the work of the county courts is something that nobody can forecast. It is not merely the increase which will flow from extending the limits of jurisdiction. As the noble and learned Viscount will know, in the last year or two there has been a considerable increase in the work of the county courts by reason of the legislation which has been passed by Parliament—by, for instance, the Housing Repairs and Rents Act and the Landlord and Tenant Act. What the increase will be is quite incalculable. It seems to me somewhat unwise to fetter the Lord Chancellor by limiting the increase in the number of judges. One knows the difficulty of promoting legislation. If it is found that the county courts are becoming congested, it will take a long time to establish the fact; then there is the time spent on agitation. With all respect to the noble and learned Viscount

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  and to whoever sits in his place, I say that these matters do take a long time before they reach him, and it might be several years before an opportunity arises again of increasing the number of judges. Therefore, I should prefer that the noble and learned Viscount should have the right to increase the number of judges according to his discretion, subject, if you like, to the approval of the Treasury. The Amendment raises the maximum to eighty-five instead of seventy-five. I am sure that that would go a long way. I hope that the noble and learned Viscount will see his way either to increase his discretion or accept this Amendment. I am fearful of the effect of the increase in the amount of work. My own forecast is that it will soon justify considerably more than ten additional judges throughout the country. If I am right, there would be considerable congestion before Parliament got round to remedying what they might regard as a small matter.
  THE LORD CHANCELLOR: The only reason why I say anything more than that I should be pleased to consider this, which of course I shall be pleased to do, is that I should like your Lordships to believe that we have given thought to it, and this figure is not really a shot in the dark. I will put frankly before you the way we approached this matter and then your Lordships will be able to judge. We took it on the basis of the jurisdiction going up to £500, because that can be done without further legislation. Then we made the following assumptions. First, we assumed that there would be 1,400 extra cases: your Lordships will remember that I said there would be 1,300 extra with the limit of jurisdiction at £400. If the sanctions were watertight—which is a big "if" on the discussion we have had to-day—1,400 extra cases would come to the county courts Fourteen hundred cases represents one-sixteenth of the number of cases tried in the county courts. The figures to which I referred before were actions brought, but these figures are of cases actually tried. There are now sixty-three judges and one-sixteenth of the judge-power would give me another four judges.
  Then I assumed that the cases that would come to the county courts would be longer cases and I multiplied my number of four by two and a half, in order to allow for the fact that a case in the
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  High Court takes roughly about two and a half times the time of a case in the county court. Then I allowed for the possibility that the sanctions will be only two-thirds effective. If your Lordships' speeches to-day are ultimately as persuasive as they were originally, I was right in allowing for the fact that sanctions would not operate fully. I had to make a deduction for that. On the other hand, however, I had to take into account the increase of work resulting from the Landlord and Tenant Act, of which I know something, and from the Housing Repairs and Rents Act, and I thought that these two figures would balance each other. And that is how I get my figure of ten judges. They are uncertain factors. First of all, there is the question of the effectiveness of the sanctions; secondly, the increase of work arising from these new Acts; and thirdly, the difficulty, as the noble and learned Earl knows well, of securing that all the judge-power is employed, because the increases may appear in one part of the country and not in another. Therefore there is a problem here, and again I should like to reconsider it. The Government speaks with one voice, but the one voice represents more than one Department, and I should like to discuss this matter further. I thought it was only right, in view of the argument put forward, that I should deploy my approach to the problem.
  EARL JOWITT: I am grateful to the Lord Chancellor, and, in asking leave to withdraw my Amendment, I suggest he should try the Treasury with the figure of eighty, and he may "get away with it."
  Amendment, by leave, withdrawn.
  Clause 8 agreed to.
  Clause 9 agreed to.
  Clause 10 [Judge's power as to place of hearing]:
  4.11 p.m.
  EARL JOWITT EARL JOWITT moved to add to the clause:
  "(2) The judge shall have power to transfer a case for hearing to a court outside his jurisdiction with the consent of the Lord Chancellor or of the judge of the district to which it is transferred."
  The noble and learned Earl said: This, again, is a question which I think is rather declaratory of the law, but it is a little odd. If your Lordships look at Clause 10 of the Bill you will see

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  the point which arises. It really arises under Section 99 of the County Courts Act, 1934. That section says that the rule committee may make county court rules regulating the practice of the court. Subsection (2) of that section says:
  "The power of making county court rules shall extend to all matters of procedure or practice…"
  Those two matters are perfectly general. Then, having dealt with those general matters, the section goes on to say, in subsection (3):
  "Without prejudice to the generality of the foregoing provisions of this section, the power of making county court rules shall extend to—
  (b) prescribing the circumstances in which proceedings may be transferred from one court to another…"
  That is the position as it is to-day. I believe it is correct to say that to-day a county court judge has power to transfer a case from his own circuit to the circuit of another county court judge. I do not believe it is ever done without the consent of the other county court judge, but I am not certain about that. That being so, it seems odd that in Clause 10 of this Bill precise statutory powers are being taken and it is made quite plain that there is power to transfer from one area to another in the same circuit. The concluding words of Clause 10 are:
  "…shall take place in the court for some other district of which he is the judge."
  If you are taking statutory powers to do that, it seems odd that you should not also take statutory powers to do something which is rather larger than that—namely, to transfer from one circuit to another circuit altogether. Therefore, I suggest that this subsection might be put in. It is not that I doubt that what is proposed can be done at present; I believe that under Rule 19 of the County Court Rules it can be done. What I am pointing out is that it seems to me odd that you are here, in Clause 10 of the Bill, dealing with power to transfer a case from one place to another in the same circuit, but you are silent on the bigger question of whether a case can be transferred outside the circuit altogether. I agree that the language of my Amendment is not right. All I want is that the matter shall be considered, and, if it is dealt with, for it to be made plain that a case can be transferred, not only within the circuit, but without the circuit—
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  whether it is with or without the consent of the county court judge, or with or without the consent of the Lord Chancellor, I care not.
  I should like to tell noble Lords who do not know what happened in county courts in the old days. When you went there, with what you might well have thought was an important case—though, of course, in those days no case was for more than £100—there would, first of all, be the small business of the day which the judge had to deal with. Then, when he had dealt with that, he would come to your case at a time that might well be fairly late in the afternoon. He would get down to your case. At 6 o'clock (they used to sit until that hour in those days) your case might not be finished, and you would have to come back on the next date when the judge sat in that particular place, which might be a month's time. I have known of cases that had to be adjourned twice: which had been heard on the first day, then heard again a month later and then heard again a month later still. That is most undesirable and it leads to great expense.
  When I appointed the Committee on County Court procedure, they put forward a proposal which I feel is of considerable value. That proposal is in paragraph 28 of their final Report, and is that, so far as London is concerned, a court should be set up, which would sit de die in diem, to which the larger and heavier cases could be transferred, so that the ordinary courts should not get cluttered up with the heavier cases but be able to do their ordinary business, which is of great importance. Whether anything will ever come about on those lines, I do not know. We do not necessarily want a handsome constructure, consonant with the dignity that ought to be the invariable surroundings of the public administration of justice (we have administered justice for a long time in two courts in the Law Courts, which we call the Quadrangle Courts and which are of the plainest, simple, wooden structure, and in which judges of the High Court have often sat) but there must be a building somewhere. It might well be worth an experiment to see whether there cannot be constituted such a court as that, to which could be transferred the rather larger cases, which in the old days we used to refer to as "stickers." If that is to be done, it makes it all the more necessary that it should be plain

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  that a case can be transferred from one circuit to another. I am anxious that this matter should be considered for the reasons that I have given. I beg to move.
  Amendment moved—
  Page 5, line 42, at end insert the said subsection.—(Earl Jowitt.)
  THE LORD CHANCELLOR: The position at the moment is that there exist two powers. The first is that to which the noble and learned Earl referred: that under Order 16, Rule 1, of the County Court Rules, the judge has power to transfer a case—that is, not the hearing, but the whole proceedings—to a court outside his circuit. He has also power, under Section 38 of the Act of 1934, with the consent of the parties, to transfer a case for hearing by himself to another place within or without his circuit. What Clause 10 seeks to do is to give him power to transfer a case, for hearing only, without the consent of the parties, to another court on his own circuit. That deals generally with the problem which the noble and learned Earl has graphically described, and which I remember so well, of being faced with your case not being able to be heard for perhaps two months until the judge returned to that place.
  We thought that it was right to do that, but we did not think it right to go further and give the judge the right to transfer to a place outside the circuit, because if that is done without the consent of the parties it seems to us to be an inroad into the principle of local administration of justice by the county courts. I hope that I have made the point clear. This is the case where it is transferring not the whole of the action, but the hearing to another court. That was the difficulty that we felt. But we were, of course, very conscious of the passage, to which the noble and learned Earl referred, in paragraph 28 of the Report of the Austin Jones Committee, where they recommended that a central court should be set up in London for the purpose of hearing longer actions transferred to it by surrounding courts.
  My mind is not closed, but for the moment I take some comfort from the fact that in London the procedure under Order 16, Rule 1, of transferring the whole case, so that the interlocutory work goes on in a different court, is not one that would in most cases work adversely to the parties, because it would not be
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  much more difficult for either party if interlocutory work were done, say, in Westminster instead of in Lambeth. We felt that that for the moment coped with the situation. But, as I say, we are not closing our eyes ultimately to following the suggestion of the Committee. I should like to consider that when I get a better view of how the county courts operate under the new set-up and of what arrangements will have to be made to deal with the additional work of which we have spoken. For the moment, I hope the noble and learned Earl will allow me, as a start, to confine the judge's power to transferring hearings to towns on the same circuit. I promise him that I will keep the matter under review, and if I find that it is not working well I will reconsider it. But I do not want at the moment to make that additional inroad into the right of trust, and I hope that the noble and learned Earl will find it possible not to press his Amendment.
  EARL JOWITT: I will certainly withdraw my Amendment. All I want the noble and learned Viscount to do is this. If and when in the future he is minded to try the experiment set out in paragraph 28 of the Report, I want to be quite certain that he has the powers to do it. All I am asking him to do is to look at the matter between now and the next stage of the Bill; and if he tells me, "I am satisfied that I have the powers already" then I shall say no more. But if there is any argument or question about that, then I hope he will adopt something on the lines of this Amendment, because it may be a useful experiment to try. It may not be; but let us have our tackle in order, so that if it seems fit we are able to try. Having said that, I beg leave to withdraw my Amendment.
  Amendment, by leave, withdrawn.
  Clause 10 agreed to.
  Clause 11 [Appeals on question of fact, and consequential amendments as to appeal on law]:
  On Question, Whether Clause 11 shall stand part of the Bill?
  EARL JOWITT: I should like to ask a question about this clause. This is the clause which gives a right of appeal on fact, and if I remember aright we are now to have a right of appeal where the damages exceed £200.
  THE LORD CHANCELLOR: The original county court figure.
  EARL JOWITT: I think that is right, because if you are taking the somewhat drastic step of increasing the jurisdiction of the county court from £200 to £400, it is right that you should in that event give the person who thinks he is injured a right of appeal. Of course, if you have a right of appeal on matters which depend on fact, it depends upon what those facts are; and that, in turn, depends on what sort of note the county court judge has taken.
  I can remember cases in the old days where the judge's note was hopelessly inadequate. One counsel, when he got to the Court of Appeal, used to say, "My Lords, what took place was this"; and then the other counsel would say, "What took place was that"—"this" being the exact opposite of "that." There being no adequate note at all, what was the Court of Appeal to do? In the High Court there is always a transcript which can be sent for, in case of need; but in the county court there is not—it depends upon what notes the county court judge chooses to make. He may make many, or he may make none at all. Some county court judges in the old days used laboriously to write down almost everything. Other county court judges, no doubt equally laborious, used to think they could spend their time better in examining the witnesses and seeing how they were behaving, rather than by writing down a great many notes. That is all very well, but how is the Court of Appeal to function if there are no notes of the county court judge?
  I should like to know what the Lord Chancellor can say about this question. It would cost much too much to have a shorthand writer taking a transcript at every county court, added to which I very much doubt whether it would be possible to get the people to do it—I do not think they are there. Therefore, I do not think that is a possible solution. Is a possible solution to have some sort of strip-recording, so that in case of appeal (I see the Postmaster General looking at me, so I must be careful to get my technicalities right) the record might be played back, when, I hope, no question of copyright would arise? Is it possible, by some mechanical contrivance, of which I know little or nothing, to do this? Has it ever
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  been tried out? How is the right of appeal to be made effective unless there are notes? Those are the points that occur to me, and I should be grateful to the Lord Chancellor if he could say how his mind is working upon these topics.
  THE LORD CHANCELLOR: I have naturally given considerable attention to this point. May I first deal with the mechanical recording suggestions of the noble and learned Earl? He is absolutely right about shorthand writers of the present day—there just do not exist sufficient men of requisite skill who could be used in this way. With regard to the second point, the Evershed Committee tried an experiment with a tape recorder in Westminster County Court in 1950. That was not very successful, partly because tape recording was still in its infancy and partly because it was impossible to distinguish between the voices. I think that idea has a good way to go, although the noble and learned Earl may remember a trial some ten years ago in which a complete sound track was taken when, I think, he was a visitor.
  EARL JOWITT: I certainly do.
  THE LORD CHANCELLOR: That is obviously a matter which must be considered in the future, but I cannot hold out great hopes for the moment. Then one comes to the point which the noble and learned Earl has rightly underlined, the adequacy of the notes. The noble and learned Earl will remember that, when he and I occasionally used to cross swords, the High Court judges had to take their own note. He and I have argued many a case in the Court of Appeal with nothing more than the judge's note. I felt—and I have discussed the matter with the Master of the Rolls—that the best immediate step would be for the Master of the Rolls to be good enough to give a Practice Direction as to the sort of note that the Court of Appeal desired and would welcome. I felt that it would be best if we approached it on that basis. Like the noble and learned Earl, at one time I had a considerable practice in workmen's compensation appeals in the Court of Appeal where, even although the appeal was on points of law, there were very important questions of fact which had to be dealt with, in order to see whether an accident had taken place. On the whole, my experience was that it worked very well.

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  I could not agree more than I do with the noble and learned Earl that nothing is worse or more derogatory to the conduct of appellate litigation than the sort of dispute which he pictured between the advocates who appeared in the court below. However, I think a great deal can be done to avoid that if the judges will follow the directions which they will receive. There is just one other point about the shorthand note of which I feel I ought to remind your Lordships. One of our objectives is the reduction in the cost of litigation. Rightly, shorthand notes are a very expensive matter. They are very highly skilled work, especially the taking down of question and answer. I cannot imagine anything more horrible, but it is done with the greatest skill and exactitude. In fact, I often feel that my words must have been greatly improved when I read the shorthand note of them. But it is expensive, and it is bound to be expensive. It is bound to add greatly to the cost of litigation. To throw the cost on to the parties, I think, would be prohibitive. At the moment, to throw it on to the State would be unwise. Therefore, I hope that the noble and learned Earl will accept my assurance that I have considered the point and I trust that this Practice Direction will be of great assistance. I will again, as I am sure he will, keep attention on this matter to see how we progress in these new appeals.
  EARL JOWITT: I am much obliged to the noble and learned Viscount for the care he has taken in answering. Probably this Practice Direction is the best way out of the difficulty. I was always rather against the judges who, all the time when evidence was being given, had their noses buried in their note books, writing down what the witnesses said instead of spending a good deal of time looking at the witnesses. It is all a question of drawing a happy line between the two. I have no doubt that the Practice Direction will be of value. I am grateful to the Lord Chancellor for what he has said.
  Clause 11 agreed to.
  Remaining clause and Schedules agreed to.
  House resumed.
  House adjourned during pleasure.
  House resumed.

  ROYAL COMMISSION
  5.0 p.m.
  The following Bills and Measure received the Royal Assent.

  Consolidated Fund,

  New Towns,

  Cocos Islands,

  Colonial Development and Welfare,

  Fisheries,

  Northern Ireland,

  Public Works Loans,

  Transport (Borrowing Powers),

  National Service,

  Trustee Savings Banks (Pensions),

  Rural Water Supplies and Sewerage,

  Imperial War Museum,

  Chatham Intra Charity of Richard Watts and Other Charities Scheme Confirmation,
  University of Hull.
  Inspection of Churches Measure, 1955.
  House adjourned during pleasure.
  House resumed.