COMMONS AMENDMENT (Hansard, 28 July 1981)

§ The Lord Chancellor

My Lords, in all this long series of amendments I shall be moving the same Motion, but I hope to group them in a convenient form. The Motion which I beg to move on this amendment, which will be the same in every case, is that this House doth agree with the Commons in their Amendment No. 1. In speaking to that amendment, I shall, with permission, speak at the same time to Amendment No. 12, No. 1 being the paving amendment to that one, which will be a new clause to follow Clause 144.

When the Bill was first before your Lordships it was pointed out that under the present law a solicitor could not appeal from an order made against him personally by the Crown Court. The noble Lord, Lord Mishcon, moved an amendment to give jurisdiction to the civil division of the Court of Appeal to hear such an appeal by a solicitor. I accepted, it will be remembered, that there was a gap in the law here which should be filled, and accordingly, following consultations with the Law Society, the Government moved these amendments into the Bill in another place. The new clause confers a right of appeal in respect of any exercise of the court's inherent jurisdiction, not simply its jurisdiction to make an order relating to the payment of costs by a solicitor. This will have the result that the same provisions will operate throughout the Supreme Court. It will also enable the Court of Appeal to regulate any purported exercise of the inherent jurisdiction by the lower court so as to ensure that it is not used in cases in which it would be more appropriate to invoke the disciplinary process of the profession. The change is made by way of a textual amendment to Section 50 of the Solicitors Act 1974, since it is subsection (2) 658 of that section that confers the relevant jurisdiction on the High Court and the Crown Court.

Amendment No. I also deals with a point which came to light while the new clause was being prepared. The words it would add to Clause 18(1)(f) of the Bill can be found in its predecessor, Section 31(1)(h) of the Act of 1925, originally from the Judicature Act of 1873, but they were omitted from Clause 18(1)(f) because it was thought at the time of drafting that they served no useful purpose. It now appears that they might do so. There is authority for the proposition that an order against a solicitor personally to pay costs is not an order relating only to costs which are by law left to the discretion of the court because it has been held that an order can be made against a solicitor only if he has in fact been guilty of some misconduct or negligence; it cannot, therefore, be said that such an order is entirely within the discretion of the court. Without these words, Clause 18(1)(f) would in future catch such appeals and therefore impose a requirement of leave to appeal. With the words reinstated, such appeals would fall outside that paragraph and there would accordingly continue to be an unfettered right of appeal.