HL Deb 22 October 1985 vol 467 cc997-1001

44 After Clause 48, insert the following new clause: ("Reimbursement of additional costs resulting from death or incapacity of presiding judge, etc.

.—(1) Where—

  1. (a) the judge, or (as the case may be) any of the judges, presiding at any proceedings to which this section applies becomes temporarily or permanently incapacitated from presiding at the proceedings, or dies, at any time prior to the conclusion of the proceedings; and
  2. (b) any party represented at the proceedings incurs any additional costs in consequence of the judge's incapacity or death,

the Lord Chancellor may, if he thinks fit, reimburse that party in respect of any such additional costs, or in respect of such part thereof as he may determine; but the amount of any such reimbursement shall not exceed such sum as the Lord Chancellor may by order prescribe for the purposes of this section.

(2) Subject to subsection (3), this section applies to—

  1. (a) proceedings in the civil division of the (Court of Appeal;
  2. (b) civil proceedings in the High Court; and
  3. (c) proceedings in a county court;

and, in the case of any interlocutory proceedings falling within paragraphs (a) to (c), applies separately to any such proceedings and to any other proceedings in the cause or matters in question.

(3) This section does not apply to proceedings in the civil division of the Court of Appeal if the incapacity or death of one or more of the presiding judges does not reduce the number of the remaining judges to less than two.

(4) For the purposes of this section the amount of any additional costs incurred by any person as mentioned in subsection (1)(b) shall be such amount as may be agreed between the Lord Chancellor and that person or, in default of agreement, as may be ascertained by taxation.

(5) Where any proceedings to which this section applies—

  1. (a) are due to be begun before a judge at a particular time; but
  2. (b) are not begun at that time by reason of the judge becoming temporarily or permanently incapacitated from presiding at the proceedings or by reason of his death,

subsection (1) shall have effect in relation to the incapacity or death of the judge as it has effect in relation to any such incapacity or death of a presiding judge as is mentioned in paragraph (a) of that subsection, but as if any reference to any party represented at the proceedings were a reference to any party who would have been so represented but for the judge's incapacity or death.

(6) In this section (except subsection (3)) 'judge" in relation to any proceedings, includes—

  1. (a) a master, registrar or other person acting in a judicial capacity in the proceedings; or
  2. (b) a person assisting at the proceedings as an assessor or as an adviser appointed by virtue of section 70(3) of the Supreme Court Act 1981;

and, in relation to any such person as is mentioned in paragraph (b), any reference to presiding at any proceedings shall be construed as including a reference to assisting at the proceedings.

(7) Any order made by the Lord Chancellor under this section shall be made with the concurrence of the Treasury, and shall be so made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(8) Any sums required by the Lord Chancellor for making payments under this section shall be paid out of money provided by Parliament.")

4.15 p.m.

The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 44. The new clause fulfils an undertaking which I gave at an earlier stage of the Bill that provision should be made for payment from public funds of costs wasted because of the death or incapacity of a judge.

The new provision does not impose an open-ended financial commitment on the public purse but will enable wasted costs to be reimbursed up to a fixed sum which will be variable by statutory instrument. We shall be consulting widely on the question of what the amount should be, but it is likely to be in the region of £5,000 to £10,000. I beg to move.

Moved, that this House do agree with the Commons in their Amendment No. 44.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, this is an important amendment. For a long time it has been felt that payment ought to be made from public funds when a judge dies or becomes incapacitated and costs have been, in those sad circumstances, ineffectively incurred. Happily, it is not a contingency which arises frequently.

When the matter was first raised in Committee by my noble friend Lord Mishcon, at that stage—and I say this without criticism in view of the second thoughts which developed—the noble and learned Lord was not in favour of the idea. But then generously at Report stage he allowed my noble friend to refer to a letter which the noble and learned Lord had written which contained an undertaking to which effect was given in another place in the amendment which was there carried to the Bill.

My noble friend's proposal imposed a mandatory duty on the Lord Chancellor to make good the loss. The clause as it now stands gives a power to the Lord Chancellor, if he thinks fit, to reimburse the party in respect of any additional costs. There is a second limitation; namely, that the amount of any reimbursement shall not exceed such sums as the Lord Chancellor, presumably with the concurrence of the Treasury, "may by order prescribe for the purposes of this section."

I confess that I see the force against an open-ended commitment, but it may well be that in the further negotiations as to the maximum sum, which is now as low as £5,000 or may be as high a figure as £10,000, there will be some good trading upon that which may result in better protection than the figure of £5,000 proposed for the unfortunate litigant. I do not wish to seem ungenerous but be thankful for mercies. They are not wholly small mercies which are tendered to the hapless litigant who has found himself unable to achieve the object of his litigation by, alas, human frailty and the lapse of life and of time.

Lord Renton

My Lords, I think that all of us accustomed to practise in the courts will acknowledge that this is indeed an important and welcome provision. Of course it applies only to civil proceedings, and I would assume rightly so. But I recollect a few years ago that rather a long case at the Central Criminal Court had to be started all over again because of, first, the illness, and ultimately the death of the judge trying those proceedings.

It might be helpful in the long run if my noble and learned friend were able to give the reason why criminal proceedings are not included. I assume that it is because so far as the prosecution is concerned it is public funds anyway and they would have to lump it, and in so far as an innocent defendant who is found not guilty is concerned I assume that the court's discretion would be available to help him if necessary; but a word from my noble and learned friend on that point could be helpful.

Lord Mishcon

My Lords, as the one who had the privilege of moving this amendment, which had the full support of the Law Society, I want to express my personal gratitude (as my noble and learned friend Lord Elwyn-Jones has been kind enough to do on my behalf) to the noble and learned Lord for the fact that his thoughts and decision obviously counted with another place in seeing that the Commons amendment is now before your Lordships. As my noble and learned friend said, it is right that I hoped for a mandatory provision, that there would always be compensation in these cases. I do not want to be ungenerous, but your Lordships will see that this is a discretionary matter within the full discretion of the Lord Chancellor of the time.

Will the noble and learned Lord indicate to the House the kind of matters that would exercise his personal mind in using that discretion? If it is to be discretionary, I believe that it would be useful to have on the record the views of somebody such as the noble and learned Lord that may guide future Lord Chancellors. I hope that what he says will be sufficiently wise for me to pray that noble and learned Lords who in the future hold that high position will. be guided by what he says. If, on the other hand, I find that the discretion will be so limited I shall pray in the opposite direction.

The Lord Chancellor

My Lords, I said in opening that there would be fairly wide consultation on the amount. I shall try to take into account people's opinions on a wider scale, if I am permitted to do so. I am grateful to both noble Lords on the Front Bench, and in a moment I shall be grateful to my noble friend Lord Renton and shall refer to his speech. At this stage I cannot say in detail what would influence my discretion. But I should say that the House will recollect that when we held this debate before I pointed out that in long and complicated cases it was already the practice of the parties to insure the life of the judge, which was a suitable precaution to take. I am happy to see my noble friend Lord Morris in his place. He was less enthusiastic than he might have been in support of what was then the amendment moved by the noble Lord, Lord Mishcon. We do not want to stop the practice of insuring judges' lives in long and complicated cases.

If one reflects about it, it is obvious (although perhaps it was not obvious to me then, as it should have been) that in a simple and not so complicated case it would not occur to the parties to insure the judge's life or his health. It would be most unusual to do so. It is to deal with what I might call the run-of-the-mill case that this concession is being made. I do not think I can go further than that today, but that is the kind of thing I have in mind.

Turning to my noble friend Lord Renton, it may be part of the explanation that the Home Office is responsible for the criminal law and the Lord Chancellor is responsible for civil law. This is one of the inscrutable dispensations of providence that we all have to live with, although we are not wholly able to explain them. Nonetheless, that is the case. My noble friend has put his finger closely on the merits of the case, although not having had notice I cannot speak for my right honourable friend who is not now learned.

The fact of the case is that prosecution costs come out of the public purse, anyway, so the prosecution has no interest in insuring the fife of the judge or getting compensation if he dies. The successful defendant, that is, the acquitted defendant, receives his costs out of the ordinary courts from the central fund, so he may not have much value from a concession of this kind. In any case, 90 per cent. of the costs of defended or undefended cases in the crown court are paid for out of legal aid. The situation vis-á-vis the criminal case would not be at all the same as that inter partes in a civil case. That is the best I can do for the moment.

On Question, Motion agreed to.