§ 8.41 p.m.
§ Report of Amendments received (according to Order).
§ Clause 1:
§ Jurisdiction of county courts in undefended matrimonial causes
§ 1.—(1) The Lord Chancellor may by order designate any county court as a divorce court, and any court so designated shall have jurisdiction to hear and determine any undefended matrimonial cause, except that it shall have jurisdiction to try such a cause only if it is also designated in the order as a court of trial.
§ LORD SILKIN moved, in subsection (1) after "undefended" to insert "or defended". The noble Lord said: My Lords, I should like to begin by expressing my thanks to my noble and learned friend on the Woolsack for having arranged for this Report stage, so enabling me to move my Amendment which was due to be moved on the Committee stage. I was, unfortunately, quite unable to be present for the Committee stage, and I recognise it as a great act of courtesy on the part of my noble and learned friend in enabling me to move it now. I have three Amendments on the Order Paper, but they all stand together, and in moving the first I am virtually moving all three.
§ The object of the Amendment is a simple one. It is to enable the Government at some time, if they find that the existing proposals in the Bill are working satisfactorily—that is to say, if they find that undefended cases are being satisfactorily disposed of in the county 128 courts—to make rules so as to enable certain defended cases to be taken in the county courts. It is not intended—and if my Amendment gives this impression, then it will not be the first time that an Amendment has been badly worded—that this should operate now. I think it would be a mistake to introduce defended cases into the county courts at the present stage. But I think it might well be desirable in a few years' time after we have had ample experience of the working of undefended cases in the county courts. What I am suggesting, however, is that, if it should be thought desirable hereafter, we should have the opportunity of introducing defended cases into the county courts by a simple rule, without having to get fresh legislation.
§ What I have in mind is not that all defended cases should ever be dealt with by the county courts. Some of them are very long and complicated, and I think they are more appropriately dealt with in the High Court. But there is a considerable proportion of defended cases which are of short duration and simple in character which could be quite well dealt with in the county courts. As my noble and learned friend knows, there is a procedure by which a petitioner in a matrimonial case files a petition and fully sets out the grounds upon which she is seeking relief, and in due course the respondent, if he wants to defend, sets out in full his answer to the petition; and then there may be in either case, where the actual petition or defence is not clear, further particulars delivered, and eventually the case is complete so that each side knows exactly what is the case that is going to be presented by the other.
§ At this stage, the matter would go before a registrar of the county court. The registrar would then be able to assess whether that defended case was likely to be a lengthy or a short case, or even if it was merely a formal defence for the purpose of enabling the respondent to appear, but not to put up any serious defence. What I have in mind—as I say, not immediately, but in due course, when experience has justified it—is that it would be for the registrar to decide, on the basis of the estimated time to be taken and their complexity, which of these defended cases should be dealt with 129 in the county court and which should go to the High Court. A case that might be disposed of perhaps in a couple of hours, I suggest, would be a suitable case to be dealt with in the county courts; a case which might take a day or more would be suitable to go to the High Court. In the event of any dispute, there would be an appeal to the county court judge. It seems to me—and I have had some experience in these matters—that there should be no difficulty by the time the pleadings are closed in forming a fair judgment as to whether the case is (a) a lengthy one or (b) a simple one.
§ There will never be any danger of the courts being overloaded. In 1965, the total number of defended cases was 2,825, of which 1,045 were in London and 1,780 were in the provinces. I assume it would not matter very much if the London cases were dealt with in the High Court, although, again, I see no reason why a proportion of them should not be dealt with in the county courts. But if one takes the whole 2,825 (I have no means of forming an accurate judgment) and if one were to say that roughly half of them would fall in the category of simple defended cases that could be dealt with in the county court, this would look like 1,400 a year and since we are going to have over 100 county courts which will be dealing with undefended divorce, 14 a year, on an average, would not unduly overload a county court. From that point of view, therefore, I submit that there would be no ground for not enabling county courts to deal with a case of this kind.
§ I realise that there is a difficulty about extending the undefended divorce cases to the county courts, which is that a case heard in the county court will enable a solicitor to have a right of audience. I should think that a good many solicitors would actually appear on behalf of their clients in undefended cases. There would, of course, be a considerable saving, whether on account of counsel's fees or otherwise. On Second Reading my noble and learned friend said it was estimated that the saving might be something like £700,000 a year. I ventured to guess that it might be somewhat more than that, but be that as it may, that is the order of the saving by enabling undefended divorce cases to be dealt with in the county courts.130
§ There might be a further saving if defended cases of the kind I have described could be dealt with in the county courts as well, but I do not base my case on that. I base my case on the convenience of enabling both parties in a defended case to appear in the county court locally with their witnesses, rather than having to attend in London or at the Assize courts, which may be some considerable distance away. It may well be that they would have to be away for one or two days, and spend the night at an hotel. This is an inconvenient and costly business for a great many people who cannot afford it, and therefore if these simple cases could he dealt with in the county courts it would result in a substantial convenience to those who are participating.
§ The question arises of the right of audience in such cases. There is no suggestion that solicitors should not have the right of audience in undefended cases, but I recognise that it may be a hardship for the Bar that they should be able to appear in defended cases. I should be willing to incorporate in the Amendment words to give the Bar the exclusive right of audience in defended cases. I think that would be right, because it gives the young barrister the opportunity of finding his feet, of being able to express himself and of feeling his way round the courts, which he would not do in undefended cases, which are largely formalities. I think it would be a good thing to enable the members of the Bar to have this exclusive right, and if my noble and learned friend was prepared in principle to accept the idea that one day, when it was eventually decided that the time was appropriate, short defended cases should be dealt with in the county court, I should certainly be prepared to incorporate in my Amendment words conferring upon members of the Bar the exclusive right of audience in these cases in the county court. I beg to move.
Page 1, line 8, after ("undefended") insert ("or defended").—(Lord Silkin.)
§ LORD WELLS-PESTELL
My Lords, do not know whether I can say anything which will persuade my noble friend Lord Silkin not to press his Amendment. If I cannot, I hope the noble and learned 131 Lord on the Woolsack will be able to do so. As I understand my noble friend, he is not pressing for this to take effect immediately, but merely to make provision in the Bill that, should it be considered desirable at some later date, the machinery will be there to enable it to be done. The fact that the noble Lord does not envisage that it should be done immediately makes me say, with great respect, that I hope he will not press his Amendment, but that if he or any other of your Lordships felt at a later date that it was desirable to make that provision, then it should be made by making a change in the Bill after it has become an Act.
My reason for opposing this Amendment is not on the grounds that it may be a matter of conflict between members of the Bar and solicitors. I am not concerned with that at all, any more than I am concerned with the time factor. I think that in a marriage which is on the point of breaking down the time factor is unimportant. I think people should realise that marriage is a sacred institution, and that it is perhaps necessary to spend some time on it. Nor am I concerned with the saving in money. I think the noble and learned Lord on the Woolsack said that the saving on undefended cases being heard in the county court would be in the region of £400,000, if my memory serves me correctly, but frankly I do not think it is worth saving that amount of money by taking even undefended cases to the county court.
As the noble and learned Lord on the Woolsack knows—because I have said this before—I am not persuaded that it is in the best interests of family life or of the community that divorce cases should go to the county court at all. I know it can be argued that perhaps a bad marriage needs an unceremonious burial, but I think that if it is going to be given such a burial it needs to be done with dignity; and quite frankly I do not think that divorce cases in the county court, whether they be defended or undefended, would mean that a marriage would get a dignified burial. I think that, so far as the public are concerned, the county court is a kind of "dumping ground". I say this with great respect, and casting no reflection 132 on county court judges. The county court takes cases which are considered to be too important for the magistrates courts, and cases which are not considered to be important enough for the High Court. In these undefended cases, which I understand in many instances take only a matter of a few minutes, I do not see how the court can discharge its responsibility—if I have this correctly, and I may not—of seeing that there is no condonation, connivance or collusion. I do not know how it does it in the time.
When we move towards thinking in terms of including defended cases, I want to remind your Lordships of what Commission after Commission has said about this. I do not want to go back into the dim and distant past, but the Gorell Commission in 1912 made it quite clear that divorce was an extremely grave matter. Divorce is a grave matter, whether it be undefended or defended, and the Commission went so far as to say that such cases should be determined by the superior courts. I can come nearer home and remind your Lordships that the Royal Commission on Marriage and Divorce which published its Report in 1956 said:We accept that principle as sound and as being as applicable today as in 1912".
§ LORD SILKIN
My Lords, I hesitate to interrupt my noble friend's train of thought, but is he not arguing against the principle of the Bill, which has now received a Second Reading? Is not his argument equally applicable to undefended cases as to defended cases? He is merely having another bite at his opposition to the Bill.
§ LORD WELLS-PESTELL
My Lords, I think my noble friend Lord Silkin is perfectly right. I think probably I am guilty of doing precisely that, but it is because I feel it is wrong that undefended cases should go to the county court that I feel it is doubly wrong that defended cases should go there. If I may say so, I nail my flag to the mast of the Denning Committee, which said this:If there is a careful and dignified proceeding such as obtains in the High Court for the undoing of a marriage then quite unconsciously"—and this is the point I would emphasise—people will have a much more respectful view of the marriage tie and of the marriage 133 status than they would if divorce were effected informally in an inferior court.Divorces are becoming greater in number every year; there has been a steady increase in the incidence of divorce for some years now. It is important, I feel, that we should maintain the right kind of image in this country, so far as marriage is concerned, and I think we should be doing a very grave disservice if the House accepted the Amendment of my noble friend Lord Silkin, because I think that would be the thin end of the wedge and moving towards the kind of system one finds in Reno to-day. It would be only a matter of years before somebody said, "Let us take it to the magistrates' courts", and after only a matter of years before people would be going along to their local town hall to dissolve their marriage. I think this is the thin end of the wedge, and would be disastrous to family life in this country; and, while I have made my own views known in the past with regard to undefended cases, I am now dealing with the Amendment which relates to defended cases, and I hope that the House will not accept it.
§ 9.2 p.m.
§ THE LORD CHANCELLOR
My Lords, may I first remind your Lordships what happens at present? Although it is done in the name of the High Court, the county court judges do, in fact, deal with nearly all the undefended divorce cases and, outside London, with a certain number of defended cases that are likely not to last more than three hours. Of course, the Lord Chancellor is always entitled to appoint any barrister of sufficient standing, and a fortiori a county court judge, to try High Court cases, and that has happened on a number of occasions a year in different places, simply because a High Court Judge is taken ill and no other High Court Judge is available. If this were not done, those on remand in prison would remain untried too long or civil litigants would have to wait too long. The Lord Chancellor has used those powers in the past to enable county court judges to try defended cases, and he could do so again.
I mention that only because at the Committee stage in answer to the noble and learned Viscount, Lord Dilhorne, I made what I think was a rather equivocal remark. I said:Of course, the noble and learned Viscount knows that the Lord Chancellor may always 134 appoint a county court judge or an official referee or a barrister of sufficient standing to act as a Commissioner, therefore having power to try High Court cases.And then I said:but one would not want to do that in the ordinary way without the approval of Parliament."—[OFFICIAL REPORT, 2/3/67, col. 1192.]It seems to me a somewhat equivocal remark to have made. All I had in mind was this. If the Amendment proposed by the noble Lord, Lord Silkin, is not made, so that the county court judges try only undefended cases, it is still quite possible that for a time they may have to try some defended cases if it turns out that the High Court Judges now available are having considerable difficulties in dealing with this increase in work until one or more additional High Court Judges can be appointed. What I intended to say was that I should not use this power to allow the county court judges to continue doing defended cases on the whole and without time limit. I meant that to exercise my powers in that way, to do that without the approval of Parliament, would be wrong, if Parliament had taken the view which is put before them in this Bill: that county court judges should do only undefended cases.
What the county court judges should do is a question on which there are three different views. There is the view of my noble and learned friend Lord Denning, and my noble friend Lord Wells-Pestell, that the county court judges should not do any divorce cases at all. Secondly, there is the view of my noble friend Lord Silkin, that they ought to be able to do not only undefended but defended cases, too, if the Lord Chancellor thinks it right. I do not think, in answer to the Amendment, that this is a matter which ought to be left to the Lord Chancellor. I think that Parliament ought to take a decision. The third view, which is the Government's view, is that they should do undefended cases but not defended cases.
Of course, the parties are vitally concerned in their own divorce case, and I think we shall probably all agree that the State also has an interest. If one were to disregard the interest of the parties and consider only the interest of the State, I could understand the argument of the noble and learned Lord, Lord Denning: 135 that from that point of view the undefended case is just as important as the defended case. But from the point of view of the parties themselves there is all the difference in the world between a case in which one spouse is saying, "I am entitled to a divorce", and the other is saying "No, you are not", on which the whole of their marital future depends, and an undefended case in which there is no dispute. I appreciate the views put forward by my noble friend Lord Wells-Pestell, but I am not sure how far he appreciates that it is the county court judges who are now doing all the undefended cases in the Law Courts. They can go on doing them in the Law Courts, or the appropriate courts, and if the Bill is passed as it stands they will simply go on doing, very largely in the same courts, by the same procedure, exactly the same as they are doing now, except that they will be doing it in the county court instead of, as at present, being really county court judges but, as I have said, dressed up as High Court Judges for the day.
The difficulties which I feel about this Amendment are, first, that one of the main reasons for giving county courts jurisdiction in undefended divorce cases is that they have done them for the last twenty years. But while they have also done some short defended cases outside London, the 24 county court judges who help in divorce cases in London take only undefended cases. Therefore, it would mean that about a quarter of the county court judges would be dealing with defended cases, which they have never done before. I suggest to my noble friend that the only logical distinction is between those which are defended and those which are undefended. Once this distinction is abandoned, one is left with the alternatives of giving county courts jurisdiction to deal with all cases, defended and undefended alike, except those which the judge, in the exercise of his discretion, thinks ought to be tried in the High Court, or as my noble friend's second Amendment suggests, leaving the matter to Rules of Court.
The difficulty about the first alternative is that nobody would ever know in advance whether a case was likely to be tried in the county court or in the High Court; no doubt variations in practice 136 would tend to develop between one county court and another, and I suggest that his proposal to leave it to the county court registrar to decide is not a very satisfactory one. If the second alternative of leaving the matter to rules were adopted, it depends of course what rules you adopt.
There is no statutory definition of what is a short defended case. At the moment it is one which is estimated to last not more than three hours. My noble friend suggests that the registrar should decide on looking at the pleadings, but it is a difficult way, I would suggest, in which to distinguish between those cases which should be tried in the High Court and those which should be tried in the county court. If, on the other hand, one tries to adopt the yardstick of the difficulty or importance of the case, then again it would not I think be satisfactory to leave this to the county court registrar.
The Bill goes some way towards meeting my noble friend's object, because Clause 1(5) requires Rules of Court to define the circumstances in which any matrimonial cause is to be treated as undefended. It is intended that where the answer is a purely formal one, the cause should not be treated as defended. For example, a petition for divorce on the grounds of the respondent's incurable insanity is one in which the official solicitor acting on behalf of the respondent invariably puts in a formal answer. He is saying in effect, "Well, you prove your case". Those cases are not in fact contested, and this might very well be included in the definition of an undefended case. Similarly, if after an answer has been filed and the case has been transferred to the High Court the answer is struck out, the petition would be treated as undefended, and sent back to the county court. Apart from obvious cases of this kind it would be impracticable for rules to draw any satisfactory distinction between a case which was fit for the High Court and one which should remain in the county court.
I hope, therefore, that on reconsideration my noble friend will not press this Amendment. I am sure myself that the basis of this rather modest Bill is right. It means, as I have said before, that the county court judges will hear fewer divorce cases than they do now, because they will no longer hear the defended 137 ones. For twenty years now they have heard all the undefended ones, and it has really only been a pretence that they are heard in the High Court. On those grounds I would very much hope my noble friend may think it right not to press his Amendment to a Division.
§ LORD SILKIN
My Lords, I certainly do not intend to press this Amendment to a Division. I am disappointed, and I should like to think about my noble and learned friend's reply when I read it in Hansard to-morrow. In the circumstances this evening, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9:
§ Remuneration of persons giving legal aid
§ 9. Rules of court may provide that the sums payable under section 6(5) of the Legal Aid and Advice Act 1949 to a solicitor or counsel acting in an undefended matrimonial cause shall, instead of being an amount ascertained on taxation or assessment of costs as provided by Schedule 3 to that Act, be such fixed amount specified in the rules as may be applicable under the rules; and may provide for modifying the said Schedule in relation to any proceedings which by virtue of this Act are at any stage treated as pending in a divorce county court.
THE LORD CHANCELLOR moved to leave out all words after "shall", down to and including "rules;" and to insert:
at his election, be either—
§ The noble and learned Lord said: My Lords, I beg to move this Amendment standing in my name on the Order Paper. It is a somewhat technical one. Its object is to ensure that the prescribing of fixed costs in undefended divorce cases will not prevent the costs being taxed if the solicitor or counsel so desires. As it stands, the first part of Clause 9 enables Rules of Court to provide that the sums payable to a solicitor or counsel acting for an assisted person in an un- 138 defended matrimonial cause shall be such fixed amounts as may be applicable under the rules, instead of being an amount ascertained on taxation as provided by Schedule 3 to the Legal Aid and Advice Act 1949. It has been suggested that this provision may have the effect of excluding the possibility of taxation in the cases in which the fixed costs prescribed by the rules are applicable. This is not the intention behind the clause.
§ As I explained on the Second Reading at col. 173, a solicitor should continue to have the right to demand taxation if he wishes, although if he receives on taxation no more than he would have been allowed by way of fixed costs, he ought to have to pay the costs ordinarily allowed for drawing the bill and attending the taxation. The Amendment makes it clear that the rules can give the solicitor or counsel an election accompanied by a sanction against its being exercised irresponsibly. In the cases in which the fixed costs prescribed by the rules are applicable, the solicitor or counsel will have the option of accepting the fixed costs or of asking for his costs to be taxed, but if he asks for taxation and the amount allowed (excluding the cost of taxation) is no more than the fixed costs, the cost of taxation will not be included in the amount allowed.
§ Fixed costs will, I think, be helpful, because it will lead to a reduction in costs for the clients, because solicitors are usually prepared to take less if they do not have the trouble of having to get out a detailed bill of costs and attend the registrar for taxation. There is a danger, however, that in the absence of some sanction the right to ask for taxation might occasionally be abused. Therefore, it is only right that, should it turn out that they get no more by applying for taxation than the fixed costs that they would have got when applying for taxation, they should have to pay themselves for the costs incurred in the initial taxation. I beg to move.
Page 5, leave out lines 4 to 6 and insert the said new words.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.