COMMONS AMENDMENT (Hansard, 12 April 1973)

§ THE LORD CHANCELLOR
My Lords, this is a more substantial matter but I shall endeavour to take it as concisely as I can, and may I say in advance that in respect of all the Commons Amendments, as they are called, I propose to move, That this House doth agree with the Commons in the said Amendment. At the moment I rise to move, in relation to the first of the Commons Amendments, the new clause after Clause 6, page 6, line 6.
The Commons have sent back this Bill to the House in a substantially longer form than that in which we sent it down to them, and it would be possible for me—indeed if we were starting this matter de novo I think it would be my duty—to deal with these Amendments at rather considerable length. But they have been fully debated in the Commons and they are acceptable to the Government; indeed, they are in the main Government Amendments. I do not believe, therefore, that the House would wish me to be quite as lengthy in my remarks as I would otherwise be. The Amendments deal with a number of totally distinct subjects, and therefore I must explain them separately, or at least three of them I must explain separately.
This one has to do with county court procedure and arbitration in relation to it. Your Lordships will be aware that ever since the last report of the Consumer Council, of happy memory, there has been discussion in the Press and elsewhere about what have been called consumer claims courts or small claims courts. Either before the publication or immediately after the publication of that report I was very much concerned that the county courts, which have always been small claims courts in this country, should bring their procedure up to date, with a view to helping in particular not merely the small claimant or the small defendant but the litigant in person. For that reason I introduced, or I initiated, some 780 two years ago a review of the procedure with that end in mind. I made certain suggestions of my own which in the main have been embodied in what I have ventured to call the New Procedure in the county courts; this centres round a new institution called the pre-trial review—not much improved when a very influential newspaper referred to it as "the free trial review"!
I think this has proved a great success, although it is still necessary to advertise its advantages so that people may take full advantage of it. Broadly speaking, it enables the registrar at a preliminary appointment to ascertain the real point at issue in the case and so dispose of it, either summarily or by some more convenient procedure than taking it at full length with trial and witnesses. It saves time and money, and it assists in particular the litigant in person, but also, I suppose, the legally represented, to present his case so that the real point at issue is disposed of and not a number of points which turn out in the result not to be contentious. I think it really is important that we should give this New Procedure a chance.
In the meantime, this Bill came before the other place, where they discussed the matter at length. Quite clearly, to my mind, the original proposal for a new set of courts was unacceptable. It really cannot be contemplated, in the present state of manpower and of business, that a new set of courts, each with presumably separate court accommodation, court staff, judges and various other impedimenta, should be set up in parallel with the existing courts. This would not be a rational course of action at all. Nor as a matter of policy could I restrict access to the Queen's courts to particular classes of litigants, which was one of the proposals made. It seems to me that constitutionally this is wholly unacceptable. The Queen's courts are open to those who desire to make use of them.
But clearly there is a demand for some kind of procedure whereby small claims of one sort or another, but particularly consumer claims if they can be accurately defined, should be dealt with expeditiously and as cheaply as possible, bearing in mind, which I think some people forget, that the Queen's courts cannot afford to produce second-class justice in any class of claim; they must produce 781 a reasonably reliable result, subject to human fallibility, in all classes of claim. Sometimes you find, perhaps not seldom, and particularly in cases involving the quality of goods and services, that the problem which is brought to light in a small claim is just as difficult, and, to the parties at least, just as important, as a claim involving a very much bigger sum of money, which is a factor I must take into account.
The outcome of this is this Amendment. I am sorry to be taking a little time on this, but I think the House should understand what I am trying to do. There are two clauses at the moment in the County Courts Act providing for arbitration and providing for reference, as it is called, for inquiry and report. The latter is in some ways what many people understand by arbitration, although technically it is not an arbitration because the court retains seisin of the matter. But supposing you have a dispute in which the quality of goods or services is in question, it is often cheaper and more effective to refer the matter to an expert. This is familiar in the City of London. Many of the true arbitrations which take place on the Baltic, or in many other of the great commercial associations, are in effect references to an expert to determine the quality of the goods which are in question or the quality of the service which has been rendered. This remains open in the county courts, although it is not often resorted to.
The purpose of the second part of the Amendment is to amend Section 93 of the existing County Courts Act in order to render this part of the ordinary procedure of the county court in small claims available at the decision of the registrar as well as of the judge, who alone now can make such an order. I do not know in practice how far it will prove effective, but I hope it will. At any rate, it is something that I am trying to do in order to meet what is a legitimate demand, although some of the particular proposals supporting the demand are not necessarily acceptable in themselves. The earlier part of the Amendment is about true arbitration. This again enables the registrar, instead of only the judge—either the judge or the registrar—to refer a dispute to arbitration, and it removes from the clause the necessity for both parties to consent to such reference. The 782 latter part, I think, is open to contention, and I should like at a slightly later point in my remarks to explain how I envisage it happening, because of course if matters are referred without the consent of both parties to a third party for decision, as distinct from inquiry and report, the party whose consent has been withheld is in effect being prevented from full access to Her Majesty's courts.
A question of principle in fact arises here which the House should be aware of. Both these main lines of Amendment are provided for in the Commons Amendment by a regulatory power; it is an enabling Amendment, and the body which is entrusted with the power to prescribe the New Procedure is the county court rule committee, whose rules I allow or disallow, but it is the ordinary rule-making body for the county courts. This was absolutely necessary if, in the time available, we were going to take advantage of this legislative opportunity to do what another place evidently wished us to do. We could not work out in time the full details of the scheme. We therefore have to have a regulation-making power. I have no doubt whatever that the right body is that which is proposed; namely, the county court rule committee, and this House and, indeed, the other place will have some control over what happens because county court rules are subject to, I think, Negative procedure; at any rate they are done by Statutory Instrument and signed, among others, by the Lord Chancellor and therefore there is responsibility to Parliament.
As regards the point which I thought it right to mention a moment ago, I envisage that in the first place the reference, when it takes place without the consent of one or both of the parties, would be to the registrar or to the judge himself. This enables a much less formal procedure to be adopted at the hearing. It also effectively limits the extent to which appeal is possible since the ordinary Arbitration Act limitations would apply, and appeal would be from the registrar to the judge on motion to set aside the award, and from the judge I think it could only be on motion to set aside the award. At any rate, it provides for a limited appeal. If both parties wanted reference to be made to another person, for instance to one of the panels of lawyers who are setting up various experimental arbitration panels 783 in different cities, this would be perfectly acceptable to me and I envisage that provision should be made for it by the rule committee, although I do not envisage that this should be capable of being done, at least in the first instance, without the consent of both parties.
There is only one other thing which I ought to mention. I myself do not favour, although it may be that the rule committee after considering the matter will—I try to take other people's advice about these things—isolating consumer claims as such. It is very difficult to define them to begin with; they can arise in all sorts and kinds of ways, and I do not think they differ, in principle at any rate, from many other claims of a similar sort. For instance, a small motor accident in which there is only damage to the two vehicles is, I should have thought, ideal for this kind of treatment and could not be called a consumer claim as such. I therefore envisage some kind of small claims procedure rather than a consumer claims procedure. I am afraid that this is a little vague. In a perfect world it would have been very much better to introduce a Bill for this purpose rather than an Amendment in an Administration of Justice Bill. I have tried to compromise between my duty to place before the House what is intended and the rational possibilities within the time scale within which I have to operate. With that explanation, I beg to move, That this House doth agree with the Commons in the said Amendment.

LORD JANNER
My Lords, may I say at once that one of the points made by the noble and learned Lord the Lord Chancellor is something which I think we ought always to keep in mind when we are dealing with questions of judicial proceedings of whatever kind. The noble and learned Lord the Lord Chancellor said that the smaller cases frequently involve equal difficulty, both from the point of view of law and from the point of view of the facts. With many of the cases which are tried in the High Court, I think this is frequently overlooked. I am sure that many of my noble friends 784 who are solicitors will agree that involvement in these cases of points causes considerable anxiety on the part of lawyers, solicitors and barristers, equally with matters in which very large sums of money are concerned, and I am very glad indeed that particular note has been taken of this fact by doing all that is possible to remove difficulties that occur in the treatment of these smaller cases. The average layman does not realise that when a person comes into a solicitor's office the thing that matters to him is his case, however trivial it may seem looked at from the point of view of larger cases. The person who has a grievance, or has suffered an injury or some damage, no matter how small—and, incidentally, this applies in regard to magistrates' courts as well—feels that his case, even if it is only perhaps a parking meter case or something of that sort, is as important to him as a case of a very serious nature is to any other litigant involved in the matter. We should be grateful to the noble and learned Lord the Lord Chancellor for accepting the Amendment and also for his concern to keep a careful watch on the situation in the future.

§ LORD STOW HILL
My Lords, may I add one word. Speaking for myself, I should very much like to welcome this new clause, and as the noble and learned Lord almost apologetically said that he doubted whether he should explain the matter in great detail, may I say to him that I think his explanation was a most valuable one and I am very glad that he explained the purpose in full because it is of great importance. It is a clause, as the noble and learned Lord explained, the broad objective of which is to make it possible for small claims to be dealt with on a basis which does not involve too much expense, too much time, too much strain on existing manpower; and I should have thought it would be extremely useful in that context. May I respectfully say that, so far as I am concerned, I am very glad indeed that the noble and learned Lord did not draw a distinction between consumer claims and other small claims. I should have thought that the clause has application, broadly speaking, to the type of small claim which over and over again those who have been round the county courts hear, which take a great deal of time, and which certainly, as my noble friend 785 Lord Janner said, matter a great deal to those who go to make a claim or to resist it. This new forum—for that is really what it is—although it is not a new separate sort of court, will prove of great utility in the doing of justice.
As the noble and learned Lord indicated, he weighed in his mind very carefully the need not to preclude the right of any subject of the Queen to approach the Queen's courts and, if I may respectfully say so, I think he has got the balance absolutely right. What subsection (1) of the new clause does is to enable the registrar to do what, in effect, the judge of the county court could already do under existing legislation. With regard to subsection (2) as the noble and learned Lord pointed out, it is a reference for inquiry and report which is in question—not a final decision. The noble and learned Lord said that one must see how this new procedure works out. I feel very confident that it will work out to the great advantage of very large numbers of our citizens over the coming years. It is a very useful innovation in our existing procedure, and I very much hope that your Lordships will support this new clause.

§ LORD CHORLEY
My Lords, as an old practitioner in the county courts, sometimes crossing swords with the noble and learned Lord who has just resumed his seat, I should like to add a word of support. We often used to ask the registrar when the list of the court was full, as it so frequently was in central London, at any rate, to deal with our cases. At that time—and I am sure the situation is just the same now—the registrars were a highly competent set of men, certainly in the London area, and when they agreed to deal with a case they did it splendidly. So I feel that this innovation, which the noble and learned Lord described, of possibly bringing in the registrar a good deal more than in the past, is all to the good.
I have heard through acquaintances something about the pre-trial arrangements and I agree, from what I have heard, that this has been a very useful innovation and has saved a great deal of time. The amount of time which one used to waste going to county courts where the list was so full that one had no chance of being heard, at the time 786 I am talking about, was really stupendous. Often one had to go three times before one got on. This pre-trial system seems to have obviated that problem, so far as I can make out from friends of mine who have been occupied with it, and it is all part of a distinct improvement. This Amendment is part of the same process and is very much to be supported.

§ THE LORD CHANCELLOR
My Lords, I should just like to thank the noble Lords who have spoken of their personal experience, and say that I am grateful to them for the support which they have given. I do not want to prolong my remarks. I think it is fair to say that, although the noble Lord, Lord Chorley, is quite right in saying that, in his days and mine, the registrars were a very competent body of men, they are even more competent to-day.