HL Deb 17 November 1955 vol 194 cc641-55

3.12 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. As your Lordships will see, the Bill deals with a number of miscellaneous matters between which the only link is that they are all, to some degree, concerned with the administration of justice in the Supreme Court or in the county courts. It is always difficult to give any underlying unity to one's remarks in introducing a Bill of this kind that deals with diverse matters, but I shall try to avoid a detailed description of the various clauses to-day. I think your Lordships may be assisted by the fact that the Bill falls conveniently into four parts. The first deals with the Admiralty jurisdiction of the courts in England and Scotland, the second and third with a number of reforms in the Supreme Court of Judicature and the county courts, many of which were recommended by the two Committees appointed by the noble and learned Earl, Lord Jowitt, to consider these matters. The fourth deals with the execution of High Court and county court judgments, on which those Committees made important recommendations.

The object of Part I is to make such amendments in the law relating to the Admiralty jurisdiction of the High Court, the Liverpool Court of Passage and the county courts as will enable the Government to ratify certain International Conventions on Maritime Law which were signed in Brussels in May, 1952. These Conventions were negotiated on behalf of Her Majesty's Government by a strong team led by Mr. Justice Pilcher, and they are supported by the shipping interests of this country, who consider that the British shipping industry would benefit from the ratification of the Conventions. The two Conventions which involve amendments of the law relate to the arrest of sea-going ships and to the courts' civil jurisdiction in matters relating to collision. The difficulty hitherto has been that there has been no uniformity of practice as to the circumstances in which a ship may be arrested by someone having a claim against the owners or charterers of the ship, and foreign courts are apt to claim jurisdiction and to permit the arrest of ships in circumstances in which our own courts would refrain from doing so. It is obviously desirable that there should be as much uniformity as possible in these matters between the leading maritime nations, and this is what the Conventions set out to achieve.

The Convention relating to the arrest of sea-going ships contains a list of the maritime claims for which alone ships may be arrested and includes a power to arrest sister ships—that is to say, ships in the same beneficial ownership as the ship against which the claim arises. This conception is novel in English law but I understand that it is well known in Scottish and Continental law. Thus the power to arrest sister ships will not increase the risk of British—certainly of English—ships being arrested abroad, bit the fact that it will be possible to arrest a sister ship in this country may be of some assistance to British owners by enabling the foreign claimant to bring his action against the ship here instead of abroad.

The Convention dealing with civil jurisdiction in matters of collision describes the circumstances in which the courts may entertain proceedings in matters of this kind, and limits to some extent the existing jurisdiction of the English and Scottish courts. I am satisfied that it does not do so in a way that is of material disadvantage to this country. I should like to inform your Lordships that this part of the Bill has been very carefully examined by the noble and learned Lord, Lord Merriman, who is, of course, President of the Probate, Divorce and Admiralty Division, and in this matter he has had the assistance of Mr. Justice Willmer, who also has great experience of these affairs. They are both satisfied that the provisions of Part I will enable this country to give effect to the Brussels Conventions and that at the same time the whole of the law relating to the courts' Admiralty jurisdiction has been re-stated in a convenient and up-to-date form.

Your Lordships will see that Part V of the Bill deals with the Admiralty jurisdiction of the Scottish courts, and its object is to amend the law of Scotland in order to bring it into line with the purposes of the Conventions. I do not think your Lordships would desire me to enter into a detailed explanation of these provisions at this stage of the Bill.

May I now turn to Part II of the Bill? Before I describe the main object of these provisions, however, I should like briefly to remind your Lordships of the history of the two Committees which I mentioned earlier on. Your Lordships may remember that in 1947 the noble and learned Earl, Lord Jowitt, was responsible for the setting up of two strong Committees, the first to inquire into the practice and procedure of the Supreme Court and the second into that of the county courts. The first Committee was under the Chairmanship of the learned Master of the Rolls. Sir Raymond Evershed, and the Chairman of the second Committee was Mr. Justice Austin Jones. These Committees reviewed the whole of the procedure in the Supreme Court and the county courts most thoroughly and made a large number of recommendations for reform.

Many of these reforms have already been carried out, including the important recommendations for the extension of county court jurisdiction, to which effect was given by the County Courts Act which received the Royal Assent last summer. A number of other recommendations made by the Evershed Committee have been dealt with by rules of court—for instance, those relating to the summons for directions, procedure in the Chancery and Admiralty Divisions, and the proposals for a system of trial without pleadings in the Queen's Bench Division—and my intention is to bring further proposals based on the Committee's recommendations before the Supreme Court Rule Committee as occasion permits.

This Bill provides a useful opportunity for giving effect to most, though not indeed all, of the recommendations of the Evershed and Austin Jones Committees which cannot be achieved without legislation. I pause for a moment to recall that some time ago the noble Lord, Lord Silkin, had a Motion on the Order Paper with regard to the Evershed Committee. I can tell him that I have taken the occasion of the introduction of this Bill to take stock of the whole position and at a suitable time, though I do not think that the Second Reading would be a suitable time to go into the complete details, I can give him the results of that stocktaking, if he cares to find an opportunity for me to do so.

I turn to another aspect of Part II of the Bill. Part II contains provisions dealing with the Official Referees of the Supreme Court. This may be thought rather a misleading description for those who are in reality Assistant Judges of the High Court, but it is a title which is well-known and hallowed by many years of usage. The Official Referees, of whom there are four, perform a most useful function in trying cases which involve building contracts, matters of account and other long and complicated investigations for which the High Court Judges doing their ordinary day-by-day work have not sufficient time. The Evershed Committee thought that the jurisdiction of the Official Referees should be extended so as to enable any matter to be referred to an Official Referee where the interests of the parties to the proceedings demanded it.

What the Bill proposes, by Clause 16, is to enable rules of court to be made to give effect to this recommendation, as well as to another recommendation made by the Evershed Committee to the effect that there should be a limited right of appeal on questions of fact from the Official Referees to the Court of Appeal. I hope your Lordships will not think that there is any disadvantage in having these matters dealt with by rules of court. These rules are subsidiary legislation, but they provide for flexibility and so meet the interests of parties to litigation and save time and expense; and, of course, every rule is considered by the Rules Committee, under my chairmanship, on which the Judiciary and both branches of the profession are represented. In order to underline the increased importance attaching to-day to the office of Official Referee, Her Majesty has been graciously pleased to agree that the Official Referees should be appointed by the Queen herself.

There are a number of other miscellaneous provisions in Part II of the Bill on which I shall be only too happy to give your Lordships any explanations that you may wish, but I do not think that at this stage you will desire me to go further into the clauses in detail. Perhaps, especially for those noble Lords who are Dickensians, I should mention Clause 17, which repeals a number of old Acts which provided for the registration, among other things, of the mysterious documents known as "cognovits." A cognovit was a formal admission of liability by a debtor on which a creditor could enter up' judgment. Your Lordships may remember that it was on a cognovit for the costs due to Messrs. Dodson and Fogg in the famous action of Bardell v. Pickwick that Mrs. Bardell was lodged in the Fleet Prison where she met Mr. Pickwick again. It is a far cry from the days of Messrs. Dodson and Fogg, and I think we may now safely abolish cognovits and all that went with them.

Part III of the Bill deals with the county courts. Your Lordships will see that, as in the case of the Official Referees, provision is made for the appointment of county court judges by Her Majesty the Queen. I have long thought it anomalous that, while recorders, chairmen of quarter sessions and metropolitan magistrates are appointed by Her Majesty, and have before entering on their office to take the appropriate oaths, no formality attends the appointment of such important persons as the county court judges. In future not only will they be appointed by Her Majesty, but they will have to take the oath of allegiance and the judicial oath before the Lord Chancellor. This, I hope, will help to mark the increased importance attaching in modern times to the office of county court judge.

I think I should draw your Lordships' attention in particular to Clause 27, which imposes a penalty on persons who fail to attend before a county court judge on what is known as a judgment summons. This is the procedure which applies when a person against whom judgment has been obtained is summoned before the court for examination as to his means in order to see whether he can satisfy the judgment. At present the failure of the debtor to attend is punishable by a small fine. But for failure to pay the fine he can be sent to prison only if the judge, after examining him orally, is satisfied that he had the means to pay. Thus, if the debtor fails to attend at all, he can snap his fingers at the court and the law is to that extent brought into contempt.

What I propose, therefore, following a recommendation made by the Austin Jones Committee, is that a debtor who fails to attend the hearing of a judgment summons—and I stress this point—after it has been adjourned for the specific purpose of enabling him to do so, may be sent to prison for not more than fourteen days. I am the last person, either temperamentally or as a former Home Secretary, to desire to increase the powers of imprisonment for debt, but on the other hand, I think it is entirely wrong that we should have a legal procedure which can be avoided by the simple process of not going near the courts, with no sanction for bringing the man there. I hope it will be found that the judges will have little need to exercise these powers and that the mere threat of them will be sufficient to ensure that debtors attend as they ought to do. I put that point to your Lordships and I shall be interested to know whether any of you can suggest an alternative procedure which will ensure that justice is done to the creditor as well as to the debtor. I have tried to find one, and I have failed to find any except that which the Austin Jones Committee recommended, which I have ventured to put before your Lordships to-day in this Bill.

I will not weary your Lordships by dealing at any greater length with the provisions relating to the county courts, but I should like to make one or two brief comments on Part IV of the Bill, which deals with the method of enforcing certain judgments both in the High Court and the county courts. The question of the execution of judgments is one to which the Evershed Committee gave particular consideration. One of their recommendations was that the ancient writ of elegit should be abolished. I can see an intense additional interest on all your Lordships' faces as I mention the writ of elegit—although I am sure most of your Lordships here had never heard of it before I uttered the words.

A NOBLE LORD

Hear, hear!

THE LORD CHANCELLOR

If I may digress for a moment on the interjection of the noble Lord, it reminds me of a quotation which Mr. Serjeant Sullivan was famous for giving in many cases in which he was engaged, of the judge who said to counsel: "Has not your client ever heard of the maxim sic utere tuo?" Serjeant Sullivan said: "My Lord, on the hills of Connemara they tall: of nothing else." After that excursus into Irish history, perhaps I may return to the writ of elegit. As l said, the recommendation was that it should be abolished and replaced by a more up-to-date procedure. Now, my Lords, I let you into the secret which I am sure you are dying to know: a writ of elegit is the method of execution appropriate where the debtor has no goods or chattels which the sheriff can seize, but instead has some land. The present procedure involves the summoning of a sheriff's jury, who are required to ascertain what land the debtor does in fact own. In the dimmer centuries of history the original justification for this procedure was that a jury of local men would know the circumstances from their own knowledge; but of course, this no longer applies to-day and, as the Evershed Committee said, the jury are usually mystified by the whole proceedings and do what they are told to do by the under-sheriff. Clause 35 abolishes this ancient procedure, while Clause 36 replaces it by a simple system under which both the High Court and the county court may make an order imposing a charge on the debtor's land for the payment of the judgment debt, and provision is made for the registration of these orders in the Land Registry.

I think I ought also to mention the important provisions of Clause 39, which enables High Court judgments to be enforceable in the county court. The Evershed Committee was rightly concerned with the high cost of enforcing a High Court judgment, and they recommended that creditors should be encouraged to enforce judgments for comparatively small amounts in the county court by the simple process of depriving them of their costs of execution if they sought to enforce the judgment in the High Court. The Committee recommended that no costs of execution should be recoverable in the High Court in respect of judgments for less than £40, and that in the case of judgments for sums between £40 and £75 the creditor should be limited to the costs which he could get in the county court. Clause 39, as I have said, provides for all High Court judgments being enforceable in the county court. It does not deal with the question of costs, because again these will be covered by rules of court which will be made in due course.

I have attempted to give your Lordships a general explanation of the scope of this Bill without entering into too detailed an explanation of the different clauses, many of which are necessarily technical. I hope your Lordships will agree that the Bill makes a number of valuable amendments in the law relating to the administration of justice in the High Court and the county courts.

I should like to add one other word, and that most sincerely, and I hope the noble and learned Earl, Lord Jowitt, when he comes to read it will not think it presumptuous, or your Lordships inappropriate, if I do so. It is, I trust, fitting that one who has been his junior and opponent in the Law Courts, who has also been his successor in office and colleague in the war-time all-Party Government, and always—if this will not cause the noble and learned Earl any political embarrassment—his friend, should convey the thanks of the legal profession for the improvements in the law which the noble and learned Earl effected when he was their head. The institution of legal aid, the Crown Proceedings Act and the appointment of the two Committees which I have mentioned to-day are not only memorials to the noble and learned Earl, but milestones in the law. He and I agree, I think, that the deep and historic roots of the law, which we both venerate, do not prevent its being a living social servant to a changing world, and it has been an honour to me to carry on his work in the spirit which we both share. As I say, I hope your Lordships will not think it unfitting that I render these thanks and pay this tribute to my predecessor to-day. I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.39 p.m.

LORD SILKIN

My Lords, I am sure my noble and learned Leader, Lord Jowitt, will be delighted to hear of the gracious tribute which the noble and learned Viscount on the Woolsack has just paid to him for the work he has done in connection with the law. We all know that nothing is dearer to the heart of my noble and learned friend than the service of the law. It has been something to which he has given his whole life, and I know that one of the things he has had most at heart has been the improvement of the practice and procedure of the law. I know that he will be very moved by the tribute which the Lord Chancellor has just paid to him. We who are his colleagues shall shine in the reflected glory of those words.

The noble and learned Viscount the Lord Chancellor has discharged his task —a difficult task—with that simplicity and touch of humour which we all learn to expect front him. He has told us that there is no underlying unity about this Bill; and, indeed, there is not. It is difficult to make a connected story of it. The noble and learned Viscount has somehow made us appreciate that there is, nevertheless, some underlying unity in it, and so far as that is the case we all support the Bill. The first part of the Bill carries into operation the International Conventions on Maritime Law which were signed in Brussels in 1952. We in this House attach considerable importance to international understandings, and we are delighted to have the opportunity of expressing our appreciation of the work that has been done in Maritime Law by approving this Bill. I am in the same position, I imagine, as most other noble Lords in this House: I do not pretend to understand it. You have to be an experienced practitioner in Admiralty Law and Maritime Law to understand the provisions, but on the assurance that they have col-amended themselves to Lord Merriman and Mr. Justice Willmer, I am prepared to accept those provisions as adequate and proper for the occasion.

I understand that the remainder of the Bill, apart from Part V, brings into operation many of the recommendations of two Committees, the Evershed Committee and the Austin Jones Committee, on the practice and procedure of the High Court and county courts respectively. I have taken some interest in the Evershed Report, as the noble and learned Viscount was good enough to say. I had a Motion down on the Paper for a long time. Frankly, I constantly put it off because of the complexity of the Report itself, and whenever my Motion looked like getting on the Paper for a fixed date I took it off again because I was nervous of the immense amount of work necessary in studying all the details. It was a very long and complex Report, making a great many recommendations, and I am not at all critical of Her Majesty's Government for not having implemented all these re- commendations up to the present time. But I freely admit that many of the recommendations have lent themselves to administrative procedure by amendments of the rules of court, and that not a great many require legislation. I understand from the noble and learned Viscount that all those recommendations which the Government have decided to accept and which need legislation are incorporated in this Bill, and that no further legislation will be necessary even for the purpose of implementing further recommendations.

THE LORD CHANCELLOR

I said most, but not all. The main one with which we have not dealt and on which we reserve our opinion, is the question of a direct appeal from the High Court to the House of Lords. The noble Lord will readily understand that that is a matter which requires serious consideration and in which the Judiciary are closely concerned. It is a proposal to ask the ultimate court to deal with certain cases without the advantage of the judgments of the Court of Appeal. That matter, as I say, is reserved. There may be one or two others, but I did not want the noble Lord to be under any misapprehension about it, so I thought I ought to tell him the that.

LORD SILKIN

I am obliged for that elaboration, I understand, then, that apart from these possibly large points of principle which have not yet been settled, we now have the position that such matters as require legislation are incorporated in this Bill, with the exception that the noble and learned Viscount has made, and that those recommendations in the Reports which the Government have agreed are worthy of acceptance and which do not require legislation have been or will be dealt with administratively. Since the Evershed Committee were appointed only in 1947, and it was not until several years later that they reported, I think the Government are to be congratulated on the speed with which they have acted on this Report, and also on the Austin Jones Report.

I do not propose, as the noble and learned Viscount has not done so, to go into the details of the various provisions, can promise the noble and learned Viscount that we shall discharge our duty from this side of the, House as an Opposition, and shall go through the Bill; and if any points arise which we consider need elaboration, explanation or amendment we shall not hesitate to put them forward. In this connection, I am grateful to the noble and learned Viscount for his offer to let me have a statement of the position of these Reports—which recommendations have been accepted and which have not—and I hope that he will allow me to take advantage of that offer in the near future, possibly before the Committee stage, if he can manage it.

I think we should pay a tribute to these Committees for the enormous amount of work they must have done. One need not be a lawyer and one need not read the Reports to have a conception of what is involved in dealing with the matter that was placed before the Committee for their consideration and report. The Reports are on the Table, and noble Lords will no doubt have an opportunity of looking at them. There really was a vast amount of work, wholly unpaid, and involving an enormous tax on the time of the members of the Committee. I do not think we are sufficiently appreciative of the wholly voluntary work which members of these Committees do, without any glory but just for the love of the work and the satisfaction of achieving results. We are not sufficiently appreciative of the great sacrifices that these Committees make, and I am sure the whole House would wish to express its gratitude to these Committees for their Reports.

There are just two matters of detail that I should like to mention. First, I am sure it is right that we should mark the importance of the office of county court judge by requiring a judge, as in the case of other judiciary officers to take the Oath of Allegiance. I hope the noble and learned Viscount will not be surprised if I remind him that there is another method by which he could mark the importance of these officers—a method to which I have drawn the attention of the House on a number of occasions. I hope the noble and learned Viscount has not forgotten that the question of judges' salaries is still a burning one. I am sure judges would greatly appreciate, coupled with the introduction for them of the Oath of Allegiance, a further consideration of their remuneration.

Having said a word for the county court judges, may I conclude by saying a word on behalf of my own profession? I have noticed several clauses in this Bill which set out the qualifications required for different officers: sometimes they have to be judges of ten years' standing, sometimes of five years' standing; sometimes they may be solicitors of five years' standing or of ten years' standing. I can detect, certainly at first glance, no underlying unity about all this. I can well understand that there may be positions where it is eminently desirable that the person holding the office should be a barrister, but there are a great many offices referred to in this Bill where the position could be filled quite adequately, and possibly better, by a solicitor with experience. I should be grateful if the noble and learned Viscount would look into this aspect of the Bill to see whether it would not be possible to give solicitors as well as barristers an opportunity of filling a certain number of these positions, as I am sure they could do with great credit and distinction. I myself will look more closely into that aspect of the Bill. Perhaps we could have another word about it during the Committee stage. Subject to these few remarks, we on this side have little criticism of the Bill. Generally speaking, we regard the provisions as being improvements and calculated to facilitate the administration of justice in our courts.

I would add one further comment—it is perhaps not wholly relevant, but I understand that one of the purposes of setting up these two Committees was to bring about a reduction in the cost of the law. Obviously, simplification of procedure by itself should bring about some reduction, but one has found that there has been no substantial reduction in legal costs since many of us first entered the profession. The procedure has changed enormously since the noble and learned Viscount was first called to the Bar and since I first entered the legal profession. There has been an enormous change, and, generally speaking, for the better. There has been a good deal of simplification, yet, somehow, it has not resulted in a cheapening of the law. It is just as expensive, or even more so, to go to law to-day as it ever has been, even allowing for the increase in legal fees.

Your Lordships may have noticed a recent case in which there was a relatively simple issue to be tried, as to whether or not a certain person had suffered from false imprisonment through being taken to hospital. The costs on her side—she was legally aided—came to, I understand, between £2,000 and £3,000, and the costs of defending the action were about £10,000. These figures have been quoted in the Press. I do not know whether they are correct, but, if they are, it represents a shocking state of affairs, that one cannot get a decision as to whether or not one has a good case without somebody—in this case the public—spending £2,000 or £3,000, the other side not being able to resist the claim without spending something approaching £10,000, which they will never recover. The effect of that is that it would have been infinitely cheaper for the defendants to pay rather than resist the action. They could have settled the matter, presumably, for substantially less than the cost of defending it. If we are reaching a state of affairs where a person who is being threatened with legal proceedings is forced to say to himself, "It is cheaper to pay and submit to an injustice than to fight and defend it," then we are very far removed from that state of justice in this country for which we are striving.

These two Reports, even in the simplification of our procedure, have not really struck at the root of the problem that we still have to face in connection with the administration of justice. I hope that the noble and learned Viscount will erect for himself a worthy memorial by paying great attention to this particular question and by seeing what he can do to bring down the cost of legal proceedings so as to make them accessible to every one of Her Majesty's subjects, regardless of their means and without the necessity of having to get public assistance to do so. If the noble and learned Viscount could do that, he would achieve something well worth while in the cause of justice.

3.57 p.m.

THE LORD CHANCELLOR

My Lords. I am grateful to the noble Lord, Lord Silkin, for the manner of his reception of the Bill at present before the House. I shall welcome any suggestions that he or his noble friends have to make at the Committee or any other stage of the Bill. I need hardly say, because it has become the rule between us in dealing with Bills, that if there is any point on which the noble Lord desires the help of myself or my Department before that stage, he has only to ask for it and we shall do everything we can to help him. I shall certainly have a summary of what has been done under the Evershed Committee prepared and I shall let him have it before the Committee stage.

If I may now deal with the points that the noble Lord has made, I want to make clear again that, while improving the status of the official referees and the county court judges under this Bill in the way I have explained, I have not forgotten the other aspects of the matter. I will ask the noble Lord to believe that that is not only in my mind but has occupied a considerable amount of the time of myself and my staff since we last discussed the matter. The noble Lord mentioned the question of the offices open to solicitors. I fully appreciate the general importance of what he has said. He will note that the course which he suggested has been taken in regard to the Chief Land Registrar in this Bill. I think he will agree that that is the sort of office that he had in mind, to which the remarks that he made would be particularly appropriate. I shall be glad to consider any further suggestions that he has to make.

The noble Lord has raised a vitally important question in his concluding remarks. He was good enough to say that the recommendations of the Evershed Committee, which was appointed in 1947 and reported in 1953, received reasonably quick treatment at the hands of Her Majesty's Government. I would ask the noble Lord to remember that that treatment has been caught up by events and the changed value of money between 1947 and 1953. That is one aspect which one must bear in mind. But I do not seek to evade the noble Lord's point in that answer. It is one of the most difficult matters in the world to control the cost of litigation, but the function of the State in that matter, as I see it, is to secure that the least time and complexity arises in the legal proceedings which the subject has to bring. I think the noble Lord will agree that the County Courts Act which we passed a few months ago will improve matters in that regard. The county court is much less expensive and the time taken for actions to come on is much shorter. To-day, in this Bill, I have some proposals, and in introducing it I mentioned the steps that I have taken in order to speed up trials in the High Court and also to make available to litigants the quicker and more acceptable ways of deciding their differences.

I assure the noble Lord, Lord Silkin, that I shall go on with that work. He knows that I, as head of the legal profession, have also to consider that the hire should be worthy of the labourer as well as the labourer worthy of his hire. In fact, the noble Lord and his colleagues pointed out to me recently, when we were considering the County Courts Bill, that if the Bill was going to be made a success, then I should have to make provision in my rules of court for a suitable standard of costs for solicitors who did the work and also took up the legal aid in the county court which was being concurrently introduced. I think the noble Lord will agree that it is no easy balance to handle, but I agree with him that it is a matter that requires our constant and instant attention. I shall never resent it—I shall welcome it strongly—if he or any noble Lord in any part of the House can make a suggestion to me, or even if they cannot make a suggestion, then prod at me, if I may use the words, so that I shall do something. I assure him that my mind is at one with his on that. My Lords, once again I say that I am grateful to him for his reception of the Bill.

On Question, Bill read 2a and committed to a Committee of the Whole House.