§ 4.28 p.m.
§ Second Reading debate resumed.
§ VISCOUNT DILHORNE
My Lords, the Statement made by the noble Lord, Lord Beswick, has led to an unusual but extremely interesting debate. I do not think I can ever remember an occasion when such a Statement has led to speeches of such interest following upon it. But may I now bring back the attention of the House to the Bill which is the subject of our consideration? The interesting debate we have just had may have made noble Lords forget the speech made by the noble and learned Lord the Lord Chancellor in dealing with the Administration of Justice Bill. I have been asked to take the place of my noble friend Lord Colville of Culross at the moment, because he was unavoidably absent during part of the speech of the Lord Chancellor.
I am sure the whole House is grateful to the Lord Chancellor for his clear exposition of the provisions of this Bill. 459 I should like to thank him for that. He was unusually uncontroversial and, if I may say so to him, I do not think that this Bill (this may give him some comfort) offers any such scope for controversy as did the Theft Bill. He began his speech with a tribute to laywers who spend so much time in formulating proposals for reform. I was very glad to hear him pay that tribute, with which I should like to associate myself. It is a fact, of which I think the public are singularly unaware, that many, many distinguished lawyers, judges, and practising barristers and solicitors, devote long hours and much of their leisure time to putting forward proposals for changes in our law. This is yet another of the Bills which come about and come before Parliament as a result of the active and unpaid work that these men have done.
Having said that, I should like to comment upon one or two points in this Bill, but I propose to leave until the end of my speech the part which I think is perhaps the only controversial part contained in the Bill: I refer to Part II, which deals with what we lawyers call the "leapfrog" proposals. I am sorry that the noble and learned Lord the Lord Chancellor considers that the time has come to increase the jurisdiction of the county courts to £750. I am not prepared to challenge the necessity for that increase, but I am sorry that it has had to take place; because it seems to me that in my lifetime county courts have changed remarkably in their character.
They used to be the poor man's court, dealing with the cases of people of no great means, and minor disputes; and as the years have gone on we have seen the jurisdiction continually increased. Now, as a result of this Bill, county court judges will be required to hear cases which I think even ten or fifteen years ago no one would have contemplated including within their jurisdiction. I wonder whether we are not putting too great a burden on county court judges. I would say that they have improved in quality and ability tremendously over the days of long ago. At the same time, the county court judges do a tremendous amount of work—and not only civil work. Many of them spend many days administering criminal justice, and I must 460 say that I have some fears lest, in the hope of relieving the load on the High Court, we are transferring too much of a load on to the shoulders of the county court judges. I know that they will do their utmost to discharge it, but we have only recently transferred to them the jurisdiction of dealing with undefended divorce cases; and we seem to be asking them continually to do more and more.
I agree with what the noble and learned Lord the Lord Chancellor said about its not being necessary to have an Act of Parliament every time the adjustment of jurisdiction is required. I think perhaps the reason why in the past we have always had an Act of Parliament is because of the keen desire in many quarters to try to preserve the ancient character of the county court as the poor man's court. I hope that it will not prove that the courts' responsibility for dealing with these bigger cases will substantially delay the hearing of the smaller disputes. In my view it is a sound provision to provide for the adjustment of the limits of jurisdiction by Order in Council. That will give some degree of flexibility and will save a great deal of time. The noble and learned Lord the Lord Chancellor said that the Order in Council would be subject to Affirmative Resolution. I may have missed it, but at the moment I cannot detect provision for this in the Bill. If it is not already in the Bill I am sure that, in the light of what he said, the noble and learned Lord will move the necessary Amendment. I, too, was struck by the tremendous increase in jurisdiction provided for in Clause 5, but in the light of the explanation given by the noble and learned Lord I do not propose to be in any way critical of that.
The noble and learned Lord the Lord Chancellor dealt at some length with Clause 7. He said that it dealt with a demarcation dispute, and I agree with him that for a solicitor not to be able to instruct another solicitor to conduct a judgment summons, or a small case in the county court, because he himself could not get there—a case that did not warrant the employment of counsel—is really indefensible. But I am not at all sure whether it is right to extend this power and permit solicitors to be briefed 461 over the whole range of what will now be the enlarged county court jurisdiction. It will now be possible for one solicitor to brief another solicitor to conduct an undefended divorce case. It will be possible also for one solicitor to brief another solicitor to conduct any of those cases which are now just being brought within the jurisdiction of the county courts. I am not sure that this is altogether a good thing. I am never in favour of demarcation disputes, and I do not want to raise any issues that will lead to controversy between the two sides of the legal profession. But, as I say, I am not altogether sure that this change over the whole area will be beneficial to the administration of justice.
Coming to Part III of the Bill I think that in Committee we ought to pay close attention to what it provides. It is not a subject with which I am very familiar, but at first sight it seems odd to give any other body a power to make a will for a mentally disordered person, when the whole basis of the exercise of that power is that the mentally disordered person is incapable of making a will. It may be absolutely all right but I think it is a matter to which we should give considerable attention when we come to the Committee stage.
With regard to interim payments, I think that what is proposed is thoroughly sound. Indeed, one wishes that it could go a little further than it has gone. I have recently had contact with a case of the most distressing character, in which it is quite clear that three out of the four passengers in the vehicle cannot fail to succeed when the action comes on for trial, and the fourth—the driver of the vehicle—is almost certain to do so. The injuries are extremely grave, and the financial consequences of the accident for that family have been quite disastrous. Yet it is not until judgment can be obtained (and it may be as long as two years before it is obtained) that the wife, who is now trying to maintain the family, will get any compensation from those negligent. I welcome this Part of the Bill, but here again I think we ought to look at it closely in Committee.
Now I come to what will be perhaps the most hotly contested part of this Bill, and that is what is called the "leapfrog" proposals. I must confess that 462 when I was at the Bar I thought there was a great deal to be said in favour of these proposals, the power to go straight to the House of Lords. I believe many at the Bar think there is great force in that contention, but I must admit that now I feel that this right should be exercisable only in a limited category of cases.
I think the noble and learned Lord the Lord Chancellor will be prepared to admit that I can claim now to have had some experience of sitting judicially in the House of Lords on various types of case, including Revenue cases. Revenue cases were one of the examples that he gave where this power to go straight to the House of Lords might be given. In my view, when a case comes before the House of Lords it is of the greatest value to have the views of the Court of Appeal set out in their judgment. And one finds, curiously enough, that as a case progresses the points become crystallised, and the point that finally emerges is one that may be thought to have had minor importance at the actual moment of trial.
I can conceive that there are a few Revenue cases where this power to go straight to the House of Lords would be useful. I remember one case in which I was appearing for the Revenue, and in the court of first instance I was able to persuade the judge that the case was covered by a Court of Appeal decision. I did that with some difficulty, and his judgment was on the lines that if he had not been bound by the Court of Appeal he would have found against the Revenue. Encouraged by that, my opponents went to the Court of Appeal, and they had in the Court of Appeal some of the judges who had sat at the hearing which had given the previous decision. There the Revenue again succeeded. It was fully argued on that occasion, and there again the Court of Appeal said, in substance, "If We were not bound by our previous decision we would have decided the other way". My opponents then went to the House of Lords, full of confidence, and the House of Lords had the benefit of the earlier judgments. Justice was done in the House of Lords, the Revenue succeeded and the House of Lords held that the first decision of the Court of Appeal was entirely right. That may be criticised 463 as an unnecessarily long procedure. I think that to get the right answer in the Lords itself it was a useful procedure.
I do not deny that in some cases—and I think they will be very few—this power might be an advantage where the question is the construction of a Statute or a statutory instrument or regulation. But I think it ought to be confined to that, or to the case where it is absolutely clear beyond doubt that the decision of the Court of Appeal in fact covers the case before the trial judge. In the latter case, not infrequently it is thought to do so when the case starts, but some evidence is given, something happens, and it is not I think unknown for the Court of Appeal to say, "As a matter of fact, although some may have thought that this case was covered by our previous decision, it is not so covered," and the Court of Appeal decides it. In such a case, where it is not covered, then in my view there is no case for the "leapfrog" procedure. The Bill, as I see it, goes further than to provide just for an appeal on the determination of the meaning of a statutory provision, because it gives power to use this procedure where there is a point of law thatrelates wholly or mainly to the construction of an enactment or of a statutory instrument …".The insertion of those words "wholly or mainly" enlarges the scope of this procedure tremendously, and I think those words should come out.
It is provided in the Bill, and it is an important fact, that this procedure cannot be used unless all the parties to the litigation agree to its use. I think that is a good procedure to start off with, but one thing that I find wrong is that it should be left to the trial judge to decide finally whether or not this procedure should be operated. Your Lordships will bear in mind that the application for this procedure to be used will be made to the trial judge with the consent of all parties to the litigation, and that if they do not consent the application is bound to fail. So the trial judge will be faced by this application, backed by all parties, to go straight to the House of Lords without going to the Court of Appeal. He will not hear the contrary arguments, which may be powerful, and it may be 464 that the trial judge, as is the case with so many of them nowadays, has not himself very much experience of the practice or procedure of this House when sitting judicially. I fear that if this provision remains as it is you may get a number of cases going direct to the House of Lords which ought not to go there, which, ought to go to the Court of Appeal, and which, if they went to the Court of Appeal, might terminate there.
I think the right method of obtaining leave to go straight to the House of Lords would be that an application should be made to the Appeal Committee of this House for leave to follow this procedure. I do not follow the argument that the noble and learned Lord the Lord Chancellor advanced, that if you provide that you are going to provide something that is costly and would amount to a minor hearing. Nowadays the Appeal Corn, mittee hears applications for leave to appeal in cases that do not involve great expense, nor do they involve anything in the nature of a trial. All that one is concerned to see—and these applications come when the Court of Appeal have refused leave—is that it is a fit case to come before the House of Lords to determine as a judicial matter. I cannot see why the procedure should not be equally simple when it is desired to follow this "leapfrog" procedure.
After the trial before the judge all parties may get together and they all may consent to the application being made to this House to be able to come direct to this House. It seems to me right that those who are in charge of the judicial business in this House should themselves be able to determine whether the case is one in which the "leapfrog" procedure should be followed. I hope that the noble and learned Lord the Lord Chancellor does not have a closed mind on this. I regard it as a matter of great importance (although it is very technical) in the administration of justice, and I hope that after further thought the noble and learned Lord will regard such a change as beneficial.
When one comes to Clause 14, I must say that I am a little puzzled by subsection (2). Perhaps it is my fault. Bearing in mind the recommendations of the Evershed Committee, which are 465 carried out in subsection (3) of Clause 12, I was a little astonished to read that:No certificate shall be granted under section 12 of this Act in respect of a decision of the trial judge where—(a) the decision is in proceedings other than proceedings under the Matrimonial Causes Act …It would seem to me that some word must have been left out somewhere. I hope that there is no intention of confining this procedure to proceedings under the Matrimonial Causes Act. I cannot believe that there is, but as it stands the Bill would seem to me to have that effect. There is also paragraph (b). I may have misread it, but I will not spend any more time on that.
I have now said all I wish to say with regard to the Bill. We ought to consider these "leapfrog" proposals very carefully in Committee. I apologise to the House for touching on what one might call Committee points, and I will refrain from making any observations upon what the noble and learned Lord the Lord Chancellor called the "Alice in Wonderland" part until we get to the Committee stage.
§ 4.50 p.m.
§ LORD REID
My Lords, I shall restrict my remarks to Part II of the Bill because I do not think I have anything useful to say on the rest of the Bill. Part II originates, of course, from the proposals of the Committee which was headed by the late Lord Evershed. Ever since their Report was published, about fifteen years ago, this particular proposal has always created very sharp differences of opinion. I am glad to see that there is in the Bill a new feature, to which my noble and learned friend the Lord Chancellor alluded: the fact that there must be consent before an application can be made to adopt this new procedure. If that had not been put in I should undoubtedly have opposed the whole scheme; and for this reason. It is going to raise the most impossible problems if you start trying to force an unwilling respondent, who may be a man of quite moderate means, to come straight to the House of Lords. At present, I think rightly, in allowing an application for an appeal to be brought here we often impose conditions as to costs. I personally think that that could be extended, but it would be extremely difficult to safeguard a respondent of 466 moderate means if there were any proposal that he should be brought here against his will.
There are plenty of cases which, obviously, will come here if leave can be obtained after the Court of Appeal decision, and where leave almost certainly will be given. You have an important point of law; you have two sides well able financially to fight to the last Court of Appeal, and it is highly desirable in the public interest that they should be allowed to spend their money, in order that the public interest may be served by this House having an opportunity to give a final decision on the meaning of some troublesome enactment. Therefore, I look at the Bill as it stands to see what are the possible or probable advantages and disadvantages.
The only advantage that has yet been claimed, or that I can see, is that delay and expense will be saved to the parties to that litigation. That is a most important advantage. A great deal of law reform is taken up with trying to save time and money without having to abandon the vital safeguards for the proper administration of justice. Of course, the disadvantages are, first, the possibility that one of these safeguards may have to be abandoned—I refer to the matter of our losing the advantage of having before us the judgments in the Court of Appeal. That is a serious loss, and one must balance that loss against the advantage to the public interest in saving delay and expense in the prosecution of cases.
But there is another matter which I think has not yet been referred to. If a case comes here directly from the trial judge it is likely to take longer, and not a shorter time than if it had gone through the usual channels, because the Court of Appeal generally sort out the issues, and the appellant here is caused to realise that a good deal of what he has said to the Court of Appeal is now not worth saying here. Although I am sorry to say that many cases which come before your Lordships' House take a long time when they need perhaps take a shorter time, I think they will take a longer time still if the Court of Appeal have not had their say.
But it is essentially a matter of balancing opposing public interests. I have always taken the view that when you 467 have balancing arguments it is a cardinal rule of common sense that you try to experiment, instead of going on arguing as the Mediaeval school men used to do, and their argument would have come to an end if they had tried experiments. But of course you must experiment under conditions which make it possible to go back to where you were if the experiment does not succeed. I look at this as a purely experimental proposal. If in three or four years it is found that, on balance, this new procedure is doing more harm than good, then it ought to be repealed, or at least substantially amended. If, on the other hand, it is found that the disadvantages are not so great as had been thought, or that the advantages are greater, then it can be continued and, if necessary, expanded. But I do not see why we should go on arguing interminably when we can put the matter to the test quite easily. That is why I support this proposal.
There is one other matter to which I feel I must refer because it too would, to my mind, have been a vital bar to the introduction of this proposal if I had not reason to suppose that this objection is going to be removed by action taken in the immediate future. If you allow "jumping the gun" (if I may use a popular expression); if you allow one case, which is probably a long case, to get in front of the others that have gone through the ordinary procedure of going through the Court of Appeal in order to avoid delay, it means that that case will take its place further up the queue than it would have done had it come through the ordinary channels, and thereby you will prejudice other litigants whose cases will not be considered until a later day. We are at present suffering serious delays. There are few cases, apart from criminal cases where we do give priority, which are decided within one year of the date of the decision in the Court of Appeal: often it is nearer two years. That is far too long, and if there were any risk that the additional cases that come to this House under this scheme would increase that delay still further, I should oppose this proposal with all the power that I may have.
The reason why there is this congestion is quite simply that there has been an immense increase in the judicial work 468 of the House in the last 15 years. I can remember some 15 years ago that once, or I think twice, we came to the end of our list about the week before the term came to an end, so that we had an extra week's holiday. It is unthinkable that that should happen to-day. There are two reasons for this. By reason of the change in legislation we have a great many more criminal cases than hitherto. This is all to the good, because I think this House has done good work in tidying up—perhaps I should put it stronger than that; but I do not want to claim things that might come better from others, if they said that we had done good work. The same applies with regard to legal aid. New types of cases have come up here. It is a good thing that they should do so, because they are ventilated and we have a chance of dealing with chapters of the law which have hardly ever before been dealt with in this House.
We have done what we can to avoid this congestion. For example, we save three weeks in every year by not reading out our Opinions in this House but handing out printed copies. Some years ago this House authorised the appointment of a second Appellate Committee, so that two Committees might deal with appeals at the same time. This has been much of a dead letter because there was not enough manpower. Now we have power to have still another Lord of Appeal, and the result is that it will be possible for two Committees to sit simultaneously for a substantial part of the year. I think that if we can do that we shall be able to absorb the extra cases which may come up by reason of the operation of this scheme, and I should hope that we can also reduce the present delay. And I hope that, before I die, I shall see the general rule that cases coming up here are decided within one year, at most, of the date of the decision below. I hope that, instead of that being the exception, as it is to-day, that will become the rule. Therefore, on the footing that we are now able to sit, and that we shall sit, in two divisions for a substantial part of the year, I think that any criticism that this scheme will overload the House is not very serious. But, even so, we must watch that we are not swamped.
I should have liked to see more detailed provisions in the Bill about the class of case that can come here, but I 469 fully realise the difficulty in drafting these, and I think that my noble and learned friend has been quite right in leaving this matter rather vague, because we shall learn only by experience, and if we try to define the scheme more closely we shall probably do more harm than good.
With regard to the point raised by my noble and learned friend Lord Dilhorne, I do not take any very strong view as between the Appeal Committee here and the trial judge giving leave. After all, this is experimental, and if it turns out that the trial judges are giving leave in cases where they obviously should not, that can be put right. But if the House thinks it would be better to put on to the Appeal Committee here the extra work of considering these cases before leave is given, I do not think anything serious would happen. I approach all these questions having firmly in mind that all this is highly experimental, and that it is no good trying to lay down to-day any sort of firm lines to which this scheme must conform for decades to come.
There is just one other matter that I would mention. There is provision in the Bill for including Northern Ireland. I ask my noble and learned friend the Lord Chancellor whether Northern Ireland have asked to be put into the Bill. If they have, we cannot possibly say "No" to them. But, if they have not, I would ask: have they been consulted? Because it may well be that the Northern Ireland authorities do not want this new provision, and I think that in this matter we should go by what they want. My Lords, you will see that my support for the Bill is hardly enthusiastic, but nevertheless it is firm support. I think it is worth making this experiment because the alternative is that we shall go on arguing until Domesday.
§ 5.4 p.m.
§ LORD DENNING
My Lords, in most of this Bill there is little to object to. I would support what my noble and learned friend Lord Dilhorne said about the county courts. There is a danger that we may put too heavy cases upon them. At the moment the judges may sit in one town on one day, and then after a case is adjourned they cannot take it for another two months. They cannot sit from day to day, as most of our other 470 courts can. Therefore we do not want to load them with heavy cases. So far as possible, it should be kept a poor persons' court, as it always has been. I see the Master of the Rolls and the Lord Chief Justice are losing their jurisdiction to appoint some clerks in the Central Office. Well, as they have not done it for many, many years, they are not losing anything by this tiny amendment.
Our real anxiety, however, is about Part II of the Bill dealing with the "leapfrog" proposals. They were made in the first instance by my predecessor, Lord Greene, who suggested that there were some cases—and particularly he had in mind Revenue cases—which could jump over the Court of Appeal and which were obviously fit to go straight to the House of Lords, there to be decided. As my noble and learned friend Lord Reid has said, that was in very different days; it was in the days when this House had time to spare and could take cases in that way. Furthermore, it was in the days when most of the people who came to this House were rich people. Now we have legal aid, the work of the Home has increased a great deal, and the situation is such that the recommendations made in 1953 by Lord Evershed's Committee are not applicable to-day. If I may say so, those proposals were not implemented at that time because I think the great majority of the Members of the House of Lords, if not all, were then opposed to them.
What is the position to-day? The position is that in the Court of Appeal, with ten or eleven Lords Justices to do the civil work, we dispose of 600 or 700 cases a year. The House of Lords, quite properly, has to deal with the very important cases and, after full consideration, may deal with 30 or 40 cases a year. It is quite right that that should be so, because it is, after all, the supreme tribunal; the cases must be well and carefully considered and not rushed through. If I may say so, having sat in both places for a considerable number of years, the House of Lords obtains considerable benefit from the judgments which we give in the Court of Appeal.
Now, what is the proposal? What cases are to be brought direct to the House of Lords? There is one class I do not mind in the slightest. That is where there is a binding decision of the 471 Court of Appeal already dead on the point. It is no use then having that argued out again in the Court of Appeal; let it come straight to the House of Lords. But this new proposal is not confined to that. It is put in the widest and most ambiguous terms which, in another province of the law, the criminal law, has given rise to great difficulty in the Court of Appeal. It is where a point of law of general public importance is involved in the decision. We often find a point of law may be involved, but there are dozens of other points of fact or other points of law also involved, and all those cases are able to come straight up on statutory construction to this House.
Furthermore, it is to be done by consent of the parties. The parties are often quite wrong in their thinking about what is, or is not, involved. Lord Evershed's Committee itself said,… although the parties at the trial might assert that the case would undoubtedly have to go to the House of Lords, it not infrequently happened that after hearings in the Court of first instance and the Court of Appeal there was then in fact no desire to litigate further, not, or not so much, on the ground of expense but because the losing party was advised that a further appeal would be unlikely to be successful.Here we open the door to a great number of our cases, Court of Appeal cases, coming straight here, because, if I may say so, the great proportion of the cases which are now considered in the Court of Appeal do involve a point of law of statutory construction. Whether it concerns the Rent Act, the Factories Acts or the Lands Tribunal, practically all our cases involve points of law, and they are all points of general public importance. Whether the case is about the selective employment tax, redundancy payments or the like, all these cases come through our Court, and it provides a sieve and a filter so that the House of Lords is not troubled with the multitude of cases which we have to hear.
But if this clause, with its wide wording, is accepted, it means that a trial Judge, by consent of the parties, can give permission for a case to come straight to the House of Lords. I have wondered what trial Judges will do. There are 60 of them. Some may take one line and some another. If both parties say, "We 472 want to go straight to the House of Lords, since it will save the expense and delay of going through the Court of Appeal", the easy course will be for many Judges to say, "Good luck to you. Go to the House of Lords direct". And how many cases are going to come to the House of Lords and add to the volume of which my noble and learned friend Lord Reid has spoken? Will it take a year or two years for a decision? We in the Court of Appeal get through our cases in four to six months. And if these extra cases are added, there is the danger not only of the House being overwhelmed but of people jumping the queue and getting advanced over other cases in the Court of Appeal list.
There is one final matter. I would suggest that we go back to Lord Greene's suggestion that it should not be the trial Judge who should decide this matter but the Appeal Committee of this House, because the House then can keep control over its own lists. The House can see which are the important cases that really ought to come here for decision. The Supreme Court of the United States follow that practice; a good deal of their work of certiorari and the rest is sifting out the cases which are worthy of their mettle. So it should not be the trial Judges who should do this, since they have not the experience or knowledge, but the Appeal Committee of the House itself.
I listened to my noble and learned friend the Lord Chancellor for any reason against it. It was suggested that there would be the cost or expense of a re-hearing before the Appeal Committee. But if, as the Bill suggests, the parties are coming by consent and it is a really important case, then there would be no controversy. There need be no counsel or advocates because, on the face of the Judge's judgment, the Appeal Committee ought to be able at once to say, "This is a case which raises a point of such importance that it ought to come to us at once, and we do not need the help of the Court of Appeal upon it." It seems to me that if the House itself accepted the responsibility of deciding whether or not there should be a "leapfrogging", most of the objections—and I am authorised by the Lord Chief Justice to say that, although he cannot be here to-day, he agrees with what I have said—could be 473 removed. It means that it would overcome the objection of my noble and learned friend Lord Reid, because the House knows the state of its own business; it could keep control of the volume of business coming to it and the nature of the case. Subject to those observations, many of which may be Committee points, I welcome the Bill.
§ 5.14 p.m.
§ LORD GOODMAN
My Lords, this has been an instructive debate, particularly in relation to the speeches made about the "leapfrogging" provisions. I found myself for once (and I venture to say this without the slightest degree of unfriendliness because I do not always find myself in this position) in great sympathy with the noble and learned Lord the Lord Chancellor. He has endeavoured to make what I think is a very mild reform in relation to the processes of litigation. What he has tried to do is to reduce the time taken and the expense involved. Of all the provisions in this Bill—and it contains a miscellany of provisions—I regard this as the least important. We have had a number of speeches, addressed to us by lawyers of immense eminence, which convey the impression that what we are trying to do is sink the Fleet, abolish the Bank of England, and do something of such enormous importance to the Constitution that the darkest forebodings must be felt by all of us.
I should like to indicate to some of your Lordships who are not lawyers precisely what this clause involves. It involves a process of appeal at a stage which is not normally a final appeal. It means that in the course of litigation, when the parties have what can be regarded as a preliminary point, if it becomes necessary to determine it before one goes on to determine the whole case it can be agreed that this is normally a matter which may be dealt with by these "leapfrogging" provisions. This is ordinarily the type of case in which the point would he taken as an advance point. It may dispose of the litigation; it may not.
§ VISCOUNT DILHORNE
My Lords, surely the noble Lord is wrong in that. This "leapfrogging" proposal will not apply to a preliminary point. It will apply only after judgment has been given by the trial judge.
§ LORD GOODMAN
My Lords, as I understand it, it will apply in circumstances where the parties are trying to get a ruling on a point of law which may be done in connection with some stage of a case, not the final stage. But let us assume that it does not. Let us assume that it is a case where one is "leapfrogging" after final judgment. What one is seeking to do is to make it possible to dispose of a case by one appellate process only instead of by two. It is agreed by all lawyers that there is no merit in two appellate processes. We have it as an historical accident. The process which we happen to have is immensely expensive. It is no better than one; it is no worse than three. It is simply an accident that we have that particular number. The disadvantage of it is obviously that it is much more costly. If we can reduce the appellate process to one, instead of two, so much the better. The litigant, who is rarely considered in these matters, will be wholeheartedly in favour.
§ LORD CHORLEY
My Lords, is the noble Lord aware that the business of only one appeal was established by the Judicature Act in its first form? After very careful consideration it was decided to put it back and to have the double appeal which is now provided.
§ LORD GOODMAN
My Lords, I am not sure what the inquiry connotes. At this stage we have two processes of appeal which are available in ordinary circumstances, sometimes with leave, sometimes without leave. I am suggesting that we should be better off with one process of appeal. Whether at some stage—in 1870, or whenever it was—it was decided that we ought to retain a second process of appeal does not seem very relevant to the considerations at this moment of time. I think that it is unimportant.
The one important consideration in connection with the process of justice is to have a system of justice that is available to everybody and is not calculated to be so costly that people cannot resort to it. However perfect a system of justice may be, if it is beyond the means of the people who want to resort to it then that perfection is no use to them. Anything that is done to make it possible to reduce the prohibitive cost of litigation in this country should receive the greatest 475 and most vehement encouragement from lawyers. If it is possible by "leapfrogging", by hurdling, or by any device one can think of, to reduce the processes of appeal so that one brings the cost of litigation in this country into conformity with the average man's means, then something of real importance and something of a real reforming nature will have been achieved. That is why I strongly support the "leapfrogging" provision. One can see the difficulties. Of course it is difficult suddenly to reform a single process in a very long, elaborate and historically established system of precedent, and in machinery of justice which is closely integrated. I see the Lord Chancellor's difficulties in the matter; but we should try wherever possible. If, after experiment, we find that it does not work, we can change it; but experiments of this kind should be wholeheartedly welcomed.
I said that I did not think this was the most important provision in this Bill. The more important provision, and one where there is an opportunity—and an opportunity which I hope may be seized more amply than it has been in the Bill—is in regard to the extension of the county court jurisdiction. The noble and learned Lord, Lord Denning, expressed misgivings about this, and hoped that we should not thrust too large a burden on to the county courts. He hoped that the county courts would remain as they always were—the poor persons' courts. But I sincerely hope that they will cease to have any such designation, if they ever had it. I hope we shall cease to have anything in this country which is remotely corresponding to, or is understood to be, a poor persons' court. I hope we shall have equality of justice which is identical for people, whatever their means.
I hope also that we shall not regard the importance of an issue as determined by the financial amount involved, because the point here is that the county court determines issues of immense difficulty. The county court judges have issues to determine which are just as difficult as those which come before judges of first instance in the High Court, and often, indeed, more difficult. The only difference is that the amount of money involved in issues coming before the county courts is smaller. A county 476 court judge must have a thorough working knowledge of all branches of the law. In many ways he has to have a much wider general knowledge than a High Court Judge, because he is exercising for Common Law and for Chancery jurisdiction. I am not sure we should not recognise that this responsibility may be asking too much of county court judges, and that there should be a division with different judges operating for Chancery matters and for Common Law matters within the county courts. I think it would be a good thing for the county courts if we recognised that equality of jurisdiction makes it difficult for one man to administer the whole field of law in this matter.
But I hope that we shall take advantage of increased jurisdiction in the county courts although I think the present increase is much too small. To increase the limit of jurisdiction from £500 to £750, with the changes in the value of money since the original limit was imposed, is really much too small. There seems no reason why, if we accept that county courts are competent to deal with amounts of £5,000 in Chancery jurisdiction, they should not deal with a similar amount in Common Law jurisdiction. Once you determine that a county court judge has qualifications to decide the issues involved, then it is not of tremendous importance what monetary consequence there is in relation to that issue. It is just as important to a litigant who is concerned about £50 to have the matter accurately determined as to a litigant concerned about £2,000 or £3,000.
One of the great advantages of county courts is that they are speedy and inexpensive, and, on the whole, give equality of justice about which very little complaint can be raised. Also, of course, there is a direct right of appeal to the Court of Appeal where, if the county court judge has gone wrong, a matter can be rectified. There is every argument in favour of increasing county court jurisdiction to the absolute limit. I do not make this argument as part of what is known to be one of my fervent and passionate beliefs, that there ought to be a reconstruction of the legal profession. I do not make this argument because it happens that both branches of the legal profession have audience in the county courts. I make it at this point because I believe 477 that county courts are an appropriate tribunal to deal with issues to a much greater value than £750.
The other matters on which I should briefly like to touch are ones which are troubling me. I apologise for making on these matters what must be a Committee speech, but the nature of the Bill makes it difficult not to do so, because it deals with such a variety of topics. There is the question of enabling a will to be made for a person who is mentally defective. I share the misgivings expressed by the noble and learned Viscount. Lord Dilhorne, on this matter. I do not say that it should not be done, and I do not say there are not circumstances where it may be highly beneficial that it should be done. But I venture to think that some more thought requires to be given to this problem than appears to have been given by the drafting of the clause.
There are, for instance, such considerations as these. What is to happen if the testator—the person for whom the will is being made—has already made a will of which the judge is not aware? Is the new will to take effect as revoking that will? I should have thought that in those circumstances it ought not. In short, a will under this clause ought not to revoke a will previously made, which was made by the testator when he may have had full capacity. This seems to be one consideration which ought to be inserted into this clause.
Another consideration of the greatest difficulty is to what extent you preserve a right, which it has always been a matter of high importance to preserve, that the would-be testator is entitled, notwithstanding his mental infirmity, to purport to make a will, and leave it to the court later to determine whether or not he had mental capacity. It may well emerge that persons who have decided at some stage that he is to be regarded as mentally defective were, in the event, wrong in relation to his testamentary capacity. This would be a matter for very careful determination by a Chancery court—I think not by a Probate court—at a full trial. Now to what extent would the testator be entitled to preserve that right which at the moment he has, because one of the two things for which a person is entitled to incur expense is to take advice about making a will, and to take 478 advice about discharging a receivership. This makes it clear that it has always been left to a patient in this condition to seek advice as to whether or not he can make a will, and even to make a will notwithstanding that somebody may later declare it to be invalid. That possible conflict also, has not been resolved in these provisions.
There are quite a number of matters which occur to me, where, if one is making a change of this character, it is of extreme importance that one should survey the field with the greatest care. One cannot allay one's anxieties too easily, by saying that the procedure is analogous to the procedure in making settlements, because I understand that the settlements are nearly always revocable. That being so, you have a very different situation from when you are making a will which will take effect in an irrevocable and final fashion. These are probably Committee points, but they seem to be points of some substance in relation to this provision.
There are two other matters on which I should like to touch. The first is that I was asked by the Society of Public Notaries of London to do two things. One was to thank the noble and learned Lord the Lord Chancellor for having inserted in the Bill a provision relating to their articles. The other was to express to him their faint misgivings that the provision did not achieve quite what they wanted. I have seen a rather entertaining correspondence between them and the Lord Chancellor's Department when, not perhaps without justification, a member of the Lord Chancellor's Department—who had obviously expended a great deal of time and energy in research as to the law relating to notaries public; a matter which goes back to time immemorial—pointed out, I think with some asperity, that he had now reached a point where he could research no longer and it was either this amendment or nothing. May I intercede on their behalf and ask that the few additional words for which they plead, since they are the people particularly concerned in this matter, might be considered, even by the gentleman whose patience has been tried so hard, and to whom they remain so very grateful? May I make that proposal?
The second comment which I should like to make is about the Court of the 479 County Palatine of Durham. I observe that the Church Commissioners are now selling this back, and that we are buying it for 15 years' purchase on £427 7s. 4d. The comment that comes to my mind, since I am acquainted with the admirable lawyer who presides as the judge there, is: how has this gentleman contrived to be paid adequately out of the £427 7s. 4d. which has been paid during this period, and to ask that appropriate consideration should be given to setting up some additional fund to enable the Court to be conducted, not on a lavish scale but at least on a scale which is not quite at such a starvation level. In these days, when we are concerned with regionalisation. I think it is very important to consider preserving these Courts. The two of them—I believe there are only two; one at Lancaster and one at Durham—have a considerable degree of local popularity. They save the immense expense of coming to the Chancery Division in London, and I hope that not only will they be preserved but that everything possible will be done to improve them.
§ 5.30 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
>: My Lords, I should like to join with other noble Lords in expressing a general welcome to this Bill. The suggested increase in the jurisdiction of the county court does not alarm me. I do not feel that that increase need alter the character or detract from the quality and type of work that is undertaken in the county court. The present limit has been in existence for, I think, some nine years, and the planned increase does little more than take heed of the change in the value of money.
I am sure that we were all very glad to hear the tribute paid by the noble and learned Lord on the Woolsack to the work done by the Committee presided over by Lord Justice Winn. That Committee made the suggestion, among other very valuable suggestions, that provision should be made for interim payments in personal injury actions; and Clause 19 of the Bill before your Lordships' House provides that such orders may be made. I wondered whether Clause 19 was not couched in very wide terms indeed. The recommendation of the Winn Committee was in reference to personal injuries. Clause 19 enables the 480 rules in both the High Court and the county court to include the power… to make provsion for enabling the court in which any proceedings are pending, in such circumstances as may be specified in the rules, to make an order requiring a party to the proceedings to make an interim payment of such amount as may be specified in the order",and so on.
My Lords, I imagine that if any words of limitation were imposed it might be found in the course of the next period that they were unhappily phrased and that further legislation was needed; but this clause enables orders for interim payments to be made in any type of litigation. Having said that, may I add that I am well content, for when one knows the composition of the Rules Committee one can be quite happy that no rule would be made which would be unacceptable; and I think I am right in saying that rules must be laid before both Houses of Parliament after they have been before the Rules Committee.
May I say just a few words in regard to Part II of the Bill, which more particularly concerns some of us? As I listened to the debate in your Lordships' House I was reminded for one moment of a remark which was made a short time ago when people were having a discussion and somebody said, "Why do we go on talking about this when half of us are unanimous?" My Lords, those of us who have the honour of sitting in your Lordships' House and taking part in the consideration of judicial matters are, I think, very conscious that many interests are involved when an appeal is being heard. First, and primarily, there are the interests of the particular litigants. But their interests, as well as those of a wider public—the interests of the whole public—are, further, that the decisions in your Lordships' House should be decisions which settle the law clearly and which develop the law as a sensible and just system.
So more than the interest of the litigants is involved; and in the process with which your Lordships' House is concerned when sitting judicially I am quite sure that all of us feel that it is of the utmost importance to have the considered views of the learned Lords Justices in the Court of Appeal. It would be a very great pity if anything took place which 481 detracted from the value of the decisions in your Lordships' House and if that were a result which might follow if the judgments of Lords Justices were not available in a case. After there has been a hearing in the Court of Appeal, and after there have been three judgments, those judgments are subjected to very careful consideration by skilled counsel, and all that consideration is of the utmost value in the determination of the right result as a matter of law in the particular case.
Those reflections led me at first to the approach that it would be undesirable to go further than the proposal that there should be direct appeal to this House in cases where an existing decision of the Court of Appeal or the House of Lords governed the case. I appreciated the point taken by my noble and learned friend Lord Denning, when he referred to the words,a point of law … is involved in that decision".I must say I had read those words not as denoting that a point of law was just incidentally involved but as denoting that the point of law was really the point in the case; that the effective decision in the case was on the point of law. If I am right in thinking that that was the intention of the Bill, and if it could be read in the way in which my noble and learned friend Lord Denning has read it, it could be easily changed by some slightly different wording.
But, though my first approach was to limit the power to come direct to your Lordships' House to the one type of case where there was a governing decision in the Court of Appeal or the House of Lords, further reflection has led me to the view that it would be a good thing, as an experiment, to give the proposed system a trial. After all, it was considered very carefully by the very powerful Committee under the late Lord Evershed, and it would be a pity to adopt any attitude that was negative, an attitude that was not willing to give reasonable trial to a new proposal.
I am very much affected by the two points that, first, both parties must agree, and, secondly, that the Court must agree. I use the words "the Court" at the moment because, like other noble Lords, I am not very definite as to whether it 482 should be the trial Judge or whether it should be an Appeal Committee of your Lordships' House. I lean rather in favour of leaving it to the Judge. There would be some delay—not very much—and some expense if it came to the Appeal Committee, whereas the Judge, having heard the case, could give his decision quickly. One cannot really tell how this proposal would work out in practice. It might well be that the winner before the trial Judge would not be disposed to consent to by-passing the Court of Appeal. He might argue: "I have won the case. Let my opponent go to the Court of Appeal if he will. If he loses there he will probably stop. If, unhappily, he wins there, then I hope to be able to go to the House of Lords".
But it may well be that from the, start both parties recognise that the case involves simply a matter of construction—the construction of an Act of Parliament or the construction of a Statutory Instrument. It may be that some change in the law, in a Statute, is necessary once there is a final decision. If both parties say, "We wish to go straight to the House of Lords", and if that involves some diminution in expense and some shortening of time, prima facie there is a lot to be said for their wish. But I would not leave it there. Nor does the proposal in the Bill. For the Bill says that, though the parties may agree, it is necessary for the Judge to be satisfied that it is expedient for the matter to come straight to your Lordships' House. I think that any High Court Judge considering whether it is expedient would know the type of case that is suitable for hearing in your Lordships' House, and he would not proceed to give his certificate merely because both parties asked him to do so. So I think that with those two safeguards—being, as I say, not very emphatic as to whether the permission should be given by the trial Judge or by the Appeal Committee of your Lordships' House—I feel that here is an experiment that we should at least try.
§ 5.40 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I agree with the noble Lord, Lord Goodman, that this is not an easy Bill on which to make a Second Reading speech, because so diverse are the provisions in it that I think it is no criticism 483 to say that there is no theme except one of a general tidying-up of the law and of providing useful reforms. Therefore I do not wish to do more than to touch upon four points. The first two of them I will approach with wary tread.
The first, raised under Clause 7, concerns the right of audience. I must be wary here because, since I am an ordinary member of the Bar, it is obviously most necessary that I should not be thought to be taking any partipris attitude about increasing the opportunities for solicitors to have a right of audience. I certainly do not want to do that. It seems to me, having looked at the arguments for and against the changes which the Bill makes in the County Courts Act, that the case for the change that is suggested here has been made out. I should like to support the provisions in the Bill on that matter. I think it is to be noted also that, as a concomitant (or it may be a pure coincidence that it also appears in the Bill), in Clause 9(3) there are provisions whereby disciplinary rules can be made regarding solicitors which I think could not previously have been made. This will no doubt be useful if they use the powers given in Clause 7 as to rights of audience.
The second matter which I approach in a wary fashion is the matter of Part II. It is, of course, here that someone who has listened to a debate in which there has been crossfire of great power from noble and learned Lords who take one view or another, must be careful if he is not of their number. It seemed to me that all noble Lords who spoke agreed that there were circumstances in which a 'leapfrog" procedure could be justified. The difference was as to the occasions on which it should be used and, to some extent, as to the methods. I am bound to confess that I have not myself altogether understood how it is to work—it may be because I have not taken enough trouble; but, equally, I am not sure that it is altogether clear from the Bill.
My noble and learned friend Lord Dilhorne said that he thought the Appeal Committee of your Lordships' House, rather than the trial judge, ought to decide whether any specific case fell within the rules set out in Clause 12(3). I think that one of the reasons he gave for that 484 was that the trial judge will not have the advantage of hearing anybody opposing the two parties, who ex hypothesi, must consent. Both of them will say that they think it falls within the rules; and there will be nobody to argue to the contrary. Precisely the same thing seems to me to apply if the matter is dealt with by the Appeal Committee; because there, presumably, both parties must agree and, if the matter is heard at all, both parties will be saying that they would like the case to come straight to the House of Lords.
§ VISCOUNT DILHORNE
My Lords, the Appeal Committee will be in a better position than any trial judge to judge whether the case is suitable for the House of Lords.
VISCOUNT COLVILLE OF CULROSS
My Lords, that is another point. I do not think that that followed directly from what my noble and learned friend said.
The point that really concerns me is this—there are really two points. First, it is very interesting indeed, as the noble and learned Lord, Lord Denning, said, to hear that if this matter were dealt with by the Appeal Committee of your Lordships' House, it might not be necessary to have any hearing at all. If that is so, it is quite clear that this would be a fairly inexpensive method of dealing with the matter; but I do not think I have heard anyone else say that this should be done. I think the House would like to have confirmation about whether or not this is a possibility.
Then there is the difficulty, unless it is a matter of abysmal ignorance on my part and I have it wrong, that in ordinary cases (of course, this procedure does not apply where there is no appeal to the House of Lords) where there is a right of appeal to the House of Lords that right is available only on leave either of the Court of Appeal or, if that Court does not give leave, of this House itself. But what is the position about the certificate? If the trial judge grants a certificate under Part II, is that, in effect, the equivalent of the Court of Appeal giving leave to appeal to the House of Lords? If it is, I wonder whether this House has considered whether it is right that the trial judge should have this jurisdiction to decide a matter which I think is sometimes quite a difficult point for 485 the Court of Appeal itself to decide, and when, after all, if the Appeal Court decides against giving leave, the matter can he argued again in your Lordships' Committee.
If the trial judge is in fact doing what the Court of Appeal now does, which is to decide whether or not a particular matter is a suitable one to be sent to the House of Lords, is not a similar sort of argument going to have to take place before the Committee of your Lordships' House—or might it not?—because just the same sort of difficulties will arise as to whether or not the matter falls within the rules? If so, even if both parties agree, I should have thought it probable that your Lordships' Committee would want to hear counsel to see whether they could be persuaded, even though both parties agreed, that the matter fell within the rules laid down in this Bill. If that is so, then, with the greatest possible respect to the noble and learned Lord, Lord Denning, it seems to me that there is the chance of having a fairly substantial hearing on occasions on the question of whether the Appeal Committee will issue a certificate.
Whether that is better; or whether it is better to leave it to the trial judge, who will, as it were, pre-empt the matter and take it altogether out of the hands of the House of Lords I do not think I am in a position to say. It will be a matter for the House to decide. I do not think the matter is altogether clear, and I should be grateful if the noble and learned Lord the Lord Chancellor could say a bit more about how he thinks this will work in practice. I appreciate that this is an experiment and that nobody knows; but I am sure that it is something that has been carefully thought out before being introduced as part of this Bill. I think at Second Reading we might with advantage have more detail so as to consider whether any Amendments may be necessary at subsequent stages of the Bill.
My Lords, I pass on to a matter on which I have a lot more confidence. This is in Part IV. My noble and learned friend Lord Dilhorne wondered whether one could not go further (I think he said this) in the business of making orders for interim payment. If that is what he said, I entirely agree with him; because there is one matter not covered by this 486 Bill which I think could be dealt with in this House, although it might require an amendment of the Long Title and is completely analogous to the sort of subject matter in Clause 19. This is the matter of compensation for compulsory purchase. The arguments for interim payment, as I understand them, are that in personal injury cases, or other matters where it is perfectly clear that somebody is going to get some money in due course, and where the argument is over how much, the case for putting in a provision to grant an order for interim payment is that the person who has been injured or in other ways damaged should get some of the money straight away.
As it is drafted in Clause 19, this is a fairly wide provision, as I think other noble and learned Lords have said. But most people find that there are few more damaging things that could happen to them than to have their property or business compulsorily acquired. It is equally clear that there is nothing more fundamental in law than that they will get compensation for it in due course, just as people who are damaged in other ways will do. But, just like the people who at present have to wait for judgment in the High Court or county court, or whatever it is, so people who are hoping to get their compensation may have to wait for the matter to go to the Lands Tribunal.
It is no criticism whatever of the Tribunal to say that this matter, just as it does in the courts, may take some time. The pressure is this. If you are losing your house or your business, more particularly your business, you may be entitled not only to compensation for the value of the property but also for what is called disturbance, which is the general upheaval of moving to other premises caused by the original premises having been brought up. It is on that that the difficulty often arises. It is a difficult matter, because often you cannot put a figure on it until it has happened and after the person has moved. If it is going to be contested, there are many occasions when the person who has been dispossessed does not get paid at all until after the Lands Tribunal has decided, and that is not much good if what you really want to do is to minimise the damage, find somewhere else to go, get on with moving your business and, in fact, cut down the 487 disturbance claim to the minimum. I do not say that this always happens, but it certainly does sometimes.
The incentive, therefore, for a person whose disturbance claim, or some other element of his claim against the acquiring authority, is being contested, is to settle—get your money, even if it is less than you are really due to have, because if you settle, and get the money then at least you can go and buy another property. If the bank will not lend you some money, that is what you have to do, or go out of business altogether. I should have thought, therefore, if we are going to have a general provision of the sort that appears in Clause 19, this would repay study. It seems to me very similar in principle to what is in the Bill, and I should be grateful to the noble and learned Lord—though I do not suppose he can possibly answer it to-day as I did not give notice of it—if he would be so good as to consider it a little later on, and perhaps I will return to the matter at a later stage.
The final point I wish to raise is a small one and relates to Clause 26. Here, in subsection (2), we have a list of people to whom pension swapping provisions or pension sharing provisions shall be applied. It seems to me that in these days, when we are looking forward to the Report of the Beeching Commission, it is not altogether impossible that there may turn out to be more people in this position than we have or know about at the present moment; and we may want the situation to be flexible enough to enable their jobs and pension rights to be changed. If the list which is in the Bill is finally enacted, I suspect, unless I have misread the clause, that if we want to add anyone else to it we shall have to have another Bill. That must be difficult because it always takes time.
It cannot be a controversial decision, that two officers, or two judges, or people of that equivalent, who are merely swapping positions from one court to another should have their pensions follow them. Would it not be possible, therefore, to provide for any extra names or positions which do not at present fall within some section to be added by Order in Council? Perhaps this would be a matter for another place alone if it is a financial one, but I do not see anything in the Bill 488 at the moment which would allow that to be done and it might be a useful suggestion to avoid the necessity for legislation later on.
My Lords, I make those comments on the Bill and I think that there will be matters which need discussing in Committee. The noble Lord, Lord Goodman, has set out a list of very important subjects under the provisions of Part III of the Bill, and plainly there are other matters, too. I look forward to a very interesting Committee stage. Meanwhile, from these Benches I warmly welcome this Bill, and I hope that your Lordships will give it a Second Reading.
§ 5.55 p.m.
§ THE LORD CHANCELLOR
My Lords. I am grateful to your Lordships for the welcome which has been given to this Bill and for the comparatively few points which have been raised. As to the increase in jurisdiction, the noble and learned Viscount, Lord Dilhorne, thought that £750 was overdoing things a bit, and the noble Lord, Lord Goodman, thought it was underdoing things a bit. All I should like to make clear, in answer to the noble Lord, Lord Goodman, is that one wants to see how much additional work the existing judges can take on; it is to some extent pragmatic. As the House has agreed that it would be right that in future one should be able to alter the jurisdiction by Statutory Instrument—
§ VISCOUNT DILHORNE
My Lords, the noble and learned Lord said "alter it by Statutory Instrument." Did he not mean alter it by Order in Council?
§ THE LORD CHANCELLOR
My Lords, I think it is by Statutory Instrument, but I will check that point. While it is in my mind, may I say that the noble and learned Viscount asked where to find the provision that it must be affirmatively approved by both Houses of Parliament. That is, in fact, the effect of the Bill as it is drafted, but one has to refer back to the other legislation which is mentioned in the Bill to see how it is arrived at. It is a little complicated and therefore I will write to the noble and learned Viscount to explain why that is so. I think the noble and learned Viscount thought that in a real sense the jurisdiction of the county court was being increased—I mean in the sense 489 that it will now do things that it has never done before. With great respect, this is not so. If one takes the case of a secondhand car, if the jurisdiction is increased to £750 the same kind of car will be being dealt with now as was the case in 1938, because, if the Treasury is right, £742 now is the exact equivalent of the £200 in 1938.
§ VISCOUNT DILHORNE
My Lords, I am sorry to interrupt the noble and learned Lord, but I did not, in fact, express the view that £750 was too much. I said I was sorry that the noble and learned Lord had felt it was necessary to make that enlargement, but I was not opposing it. What I did say was that, with their other activities, I was worried lest too great a load might be put on the county court judges.
§ THE LORD CHANCELLOR
I am obliged. Then, my Lords, I think that on the question of right of audience there has been general agreement, except that the noble and learned Viscount suggested that perhaps the right of audience might be denied to solicitor agents in larger cases. But I would remind him that they get round it now perfectly lawfully by serving a notice of change, and I should have thought that the same point would have applied there.
My Lords, the power to make wills is a thing which struck me as very odd when I first examined it, and I should welcome any amount of assistance on this subject. It is a matter which we ought carefully to consider in the Committee stage. Under the 1959 Mental Health Act a complete settlement can be made of a patient's estate. There can be no question of the estate being left to somebody by will, because it will not be there; it will have been settled already. All it really comes to is that you now make a settlement in cases, and, if the same thing were done by will, a great deal of tax would be saved. To change that seems to be sensible. Ordinary people are allowed so to arrange their affairs that they attract as little tax as possible, and there does not seem to be any reason why the relatives of somebody of disordered mind should be deprived of an advantage which every other citizen has. But, as I say, I should welcome consideration of it during the 490 Committee stage of the Bill. As to notaries, I promise the noble Lord, Lord Goodman, that I will certainly look myself at the file and see whether we can oblige him any further.
I agree with the noble Lord, Lord Morris of Borth-y-Gest, that the provision in the Bill about interim payments is very wide; but the intention is that the Rule Committee should specify clearly what the cases should be in which alone such Orders could be made. The question of interim payments and compulsory purchase is a new and interesting one to me. As the noble Viscount, Lord Colville of Culross, will appreciate, this is not a branch of the law—compulsory purchase—for which I am responsible. Therefore, I shall have to consult my colleagues before I can deal with that interesting suggestion. I will certainly consider also what he said regarding pensions and the sort of people who are specified in the Bill. The difficulty is that I could not have proposed this unless the local authorities who pay them had agreed, and we could hardly deal with somebody in the Bill whom we had not thought of, without asking the local authorities.
VISCOUNT COLVILLE OF CULROSS
My Lords, I do not think that there will be any difficulty about that, because before any Order in Council or Statutory Instrument was made inserting a new post in the Bill no doubt the agreement of the local authorities would have to be obtained. If it was not obtained, there would not be an Order in Council.
§ THE LORD CHANCELLOR
My Lords, I will certainly consider that. That leaves me only the "leap-frog". I would say that the effect of the clause is that a certificate can be granted where no leave to appeal is required. If an appeal lies with leave, a certificate can also be granted, but where a decision of the Court of Appeal is final, then no certificate can be granted. I think that the Bill is drafted to give effect to that
I agree with those who have said that this ought to be experimental. The Evershed Committee themselves said that in their Report. They said at page 161:We further recommend that the working of the 'leap-frog' scheme should be reconsidered after a period of, say, three to five 491 years, by an appropriate Committee or Commission with a view to seeing whether it should be extended or modified …Maybe we should consider it at an even shorter interval than that. It was at their express request that appeals from Northern Ireland are included. No doubt there are questions of terminology which might be usefully considered on Committee stage.
The chief difference of opinion has been whether the trial judge should give the certificate or whether it should be given by the Appeal Committee of the House of Lords. Three or four of us think that it should be the trial judge; the noble and learned Lord, Lord Reid, was in effect neutral, and the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Denning, think that it should be the Appeal Committee of the House of Lords.
The first thing I should like to say is this. We talked earlier this afternoon of people who gave up a great deal of their spare time to try to help in this field. The Evershed Committee started in April, 1947, and finished in July, 1953. They sat for just about seven years. I think I am right in saying that as a member of the Committee I attended 330 meetings, most of which were for two or three hours, so that if one takes an eight-hour day, this took up something like 100 days of my life.
Who were the members of this Committee? They included the Master of the Rolls, the noble and learned Lord, Lord Evershed; Mr. Justice Lynskey, Mr. Justice Willmer and Mr. Justice Upjohn (as they then were); the Treasury Solicitor; my noble friend Lord Crowther, who is down on the list of members as Geoffrey Crowther, Esq.; then two solicitors, each of whom subsequently became President of the Law Society; a third solicitor who became Deputy Speaker of another place; a president of a trade union, Mr. C. J. Geddes, now the noble Lord, Lord Geddes of Epsom; the Chief Taxing Master; Professor Sir Arthur Goodhart; Sir Arnold Gridley; Sir John HanburyWilliams; Sir Alan Herbert; Professor Marshall; Mr. Giles Newton, who was chairman of the London Chamber of Commerce; Mr. Charles Norton, who 492 subsequently became President of the Law Society, a Master and a chartered accountant. This recommendation was unanimous and they thought of the idea mentioned, that we should go straight to the House of Lords. They did not recommend that both parties should have to agree. As I have explained, I put that in at the suggestion of the noble and learned Lord, Lord Reid.
The Evershed Committee said this at page 161:We imagine that in the great majority of cases in which the scheme would operate it would do so in fact with the consent of both parties. But we think it necessary that the determination to grant or not to grant a certificate on the part of a trial Judge should be at his discretion and should be final, i.e. that there should be no right of appeal by leave or otherwise to the Court of Appeal or the House of Lords against the Judge's grant or refusal of a certificate. Unless this were so, there would, we think, be substantial risk in some cases of considerable expenditure of costs on the question whether a certificate should be granted which might go far to offset any savings that might otherwise be achieved by the 'leap-frog'.The Committee said at page 160:If the 'leap-frog' scheme is, in the first instance, limited as we have suggested, then we think that the objection to leaving to the Judge of first instance the decision to order a 'leap-frog' appeal direct to the House of Lords will be met; and there is no doubt that by so leaving it to the trial Judge the greatest saving in costs is achieved. Moreover the trial Judge will necessarily be fully seized of all the facts and circumstances of the case and will therefore require no further or separate application to be made.Again the Committee said at page 158:It appeared to us that if such application had to be made to the Appeal Committee of the House there was a risk that the costs saved in one direction might be lost in another; for the petition would have to be carefully settled and might require substantial argument. … Finally, we were afraid that a result of petitioning to the House of Lords might be to involve the House in a serious increase in the volume of work.It seems to me that, whatever lawyers might say, we cannot persuade laymen that it is a sensible system of justice under which one might have to get the issue decided by four different courts when the top court but one has already made a ruling about the very point at issue. It has been admitted that a number of these may be tax cases. There have to be barristers and solicitors to argue before the Commissioners. When the Commissioners have decided the 493 whole thing, then there have to be barristers and solicitors to argue the whole thing again before a judge. If it is agreed that neither the judge nor the Court of Appeal can finally decide the matter, it really is impossible to persuade me that then for a third time barristers and solicitors have to argue the matter in the Court of Appeal and then again for a fourth time it has to be argued in the House of Lords. Obviously this cannot be right and it ought to be possible to save one of these appearances. The difficulty of saying that it is not the trial Judge who is to give the certificate but the House of Lords is that, although you may send them the documents, nobody is going to agree to their saying that the Court of Appeal cannot be by passed without his being heard. It is everybody's right to be heard before something is decided against him. By the time you have got up to the House of Lords to argue whether you can bypass the Court of Appeal or not, you might just as well go to the Court of Appeal. If the case goes to the Court of Appeal, then the facts of the case have to be explained, the judgment of the trial Judge read, and the Appeal Court's own previous decision; but the other side will not be arguing it and once you have done that, then you agree that they are bound to dismiss the appeal because you are on the way to the House of Lords.
If, in order to get a certificate, it is necessary to go to the Appeal Com 494 mittee, give them the facts, read the trial Judge's judgment and the previous decision of the Court of Appeal, you might as well go to the Court of Appeal and be done with it. Obviously, this might remove the whole of the saving of costs which it is the object of this reform to achieve. But I will consider most carefully what has been said on this point and the other points referred to. Again I thank all the noble Lords and noble and learned Lords who have been good enough to take part in this discussion.
On Question, Bill read 2a, and committed to a Committee of the Whole House.