§ 3.56 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
I beg to move, in page 1, line 14, at the end, to insert:Provided that, if the amount claimed exceeds two hundred pounds the defendant may, within such times as may be prescribed by county court rules, give notice that he objects to the action being tried in the county court and, when such notice is given, the judge shall order that the action be transferred to the High Court.
§ The Chairman
I think that this Amendment might be discussed together with the proposed Amendment to the First Schedule in the name of the hon. Member for Oldham, West (Mr. Hale) in page 11, line 1, to leave out paragraph 3, and the proposed Amendment in the Second Schedule in the name of the hon. Member for Islington, East (Mr. E. Fletcher) in page 14, line 14, column 3, to leave out "Section sixteen."
§ Mr. Silverman
The Attorney-General, I am sure, will recognise the words in my Amendment as being exactly the words in Section 16, I think it is, of the Administration of Justice (Miscellaneous Provisions) Act, 1938, with one amendment. For that, and for other reasons, I should have thought, Sir Charles, that your suggestion of dealing with this Amendment together with the other Amendments relating to Section 16 of the 1938 Act would be of assistance to the Committee.
967 All I seek to do in this Amendment is —instead of repealing Section 16 altogether as the Bill in its present form would do—to retain the principle of Section 16 and its machinery, but adapt it to the new increased limited jurisdiction in the county courts. In other words, in the days when the limited jurisdiction was £200, Section 16 provided that a defendant could, on his option, transfer a case to the High Court if the amount was £100 or more. The Bill increases that sum to £400 and the logical consequence, if we are to retain the same principle, is that a defendant could transfer a case to the High Court if the amount involved was £200 or more. The real difference, therefore, between the Amendment which I am proposing and the Bill is whether the principle of Section 16 should be retained or not.
I think that the opinions of hon. Members on that point will depend very much on what is their approach to the Bill as a whole. Many right hon. and hon. Members think that nowadays the county courts should be given a totally new jurisdiction. They consider that the alteration should not merely be an alteration in the quantitative jurisdiction, but that county courts should be treated as a kind of affiliate, so to speak, or a branch of the High Court with an independent jurisdiction of their own. So that once a case has been started in the county court, or ought to have been started there, it should remain there without any right in the dependant to remove it into another court.
I do not know that there is a great deal of importance to be attached to it. For my part, and I do not wish to delay the Committee with argument about it, I think that Section 16 was a useful Section; that the right it afforded is a right that a defendant should be allowed to retain and that all that is necessary is to limit the figures so as to apply the old principle in the new circumstances. For that reason, I am against repealing the Section altogether. I would prefer to retain the Section, altering the qualifying figure from £100 to £200.
§ Mr. David Renton (Huntingdonshire)
I hope that my right hon. and learned Friend will not accept this Amendment.
The opportunity given to a defendant under the 1938 Act to have a case trans- 968 ferred to the High Court has, I think within the experience of many of us, been used mainly for the purpose of obstruction. It can be so used very easily, irrespective of the simplicity of the case. It is used sometimes because a defendant hopes that if he threatens the plaintiff with having to bring the case in the High Court, he will hear no more of the matter. For those reasons, I should have thought that experience would have told us that this manoeuvre should not be allowed to continue, and that, therefore, this Amendment should not be accepted.
§ Mr. Leslie Hale (Oldham, West)
I ought to explain that my own Amendment, for which I am wholly responsible and for which I apologise, clearly does not carry out what I intended to do because I should have coupled it with the Amendment later in the Schedule repealing Section 44 of the principal Act.
The intention of my Amendment was to destroy the right of a defendant to have the absolute right of transfer, but not to destroy the limitations which the right hon. and learned Gentleman puts on it. Therefore, so far as I am concerned, and speaking only for myself, I should have thought that the limitations contained in paragraph 3 of the First Schedule—which means that a defendant would have a right of transfer only provided that the judge satisfies himself that an important point of law or fact may arise—is a fair and proper limitation which should continue.
I agree with the hon. and learned Member for Huntingdonshire (Mr. Renton). In my experience, and in general, the right of transfer is a right which can be used for obstruction, and which is so used. It adds to expense and to the difficulties of poor litigants. We are always in difficulty about discussing anything during the Committee stage of a Bill, because we discuss only one Amendment at a time, and we cannot have regard to what the Clause might look like when all the Amendments to it are carried or rejected. But the limitations on the plaintiff now, and the penalties directed at he who brings his case in the High Court instead of the county court, show clearly the implicit and differential arrangements as to orders for costs, and so on.
Why should a defendant have this special privilege? Why should a defen- 969 dant have the absolute right to come to the court and say, "I wish to transfer this case to the High Court as a matter of right?" I am not sure whether one is in order in moving a Clause and advocating its rejection at one and the same time, but as we are discussing two Clauses and trying to get the best of both, I would venture to say that I should have preferred to sec my hon. Friend's Amendment carried with the addition to the limits on that right imposed in the Clause which now stands in the Schedule as paragraph 3. In other words, I should prefer that if a defendant has the right to transfer at all, it should be limited to £200 subject to satisfying the judge that matters of importance arise which should be transferred. I should have thought that during the Report stage something might be raised on those lines which might meet the views of lawyers on the matter.
In these debates we have not had a chance of hearing views widely expressed, but most of us have had a chance to ascertain the opinions of our colleagues and what law organisations are thinking and saying. We have also had the opportunity of seeing the representations of my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) in the columns of "The Times" and of familiarising ourselves with various points of view in that way. On the whole, therefore, I should have thought that that might be the best solution to this difficult problem.
§ 4.0 p.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I have listened with interest to the arguments adduced by the hon. Member for Nelson and Colne (Mr. S. Silverman) in support of his Amendment, and I am grateful to him for the brevity and clarity with which he expressed them. I must, however, disappoint him by saying that we cannot accept the Amendment, partly for reasons advanced by my hon. and learned Friend the Member for Huntingdonshire (Mr. Renton) and also by the hon. Member for Oldham, West (Mr. Hale) namely, that such a right of transfer can be abused by defendants who are anxious only to secure delays in the hearing of their cases.
There is another and perhaps more powerful reason for resisting the Amendment. Paragraph 36 of the First Interim 970 Report of the Evershed Committee recommended the abolition of the defendant's right to transfer as a part of its recommendations for reducing the cost of litigation. Experience since 1938, when this right was first created, has shown that the proviso to Section 16 of the 1938 Act has done more than anything else to divert to the High Court actions which a county court is fully competent to try.
While enlarging the jurisdiction of the county courts, as the Bill proposes to do, and while providing a "cushion"—if the Amendments which I propose to move shortly are accepted—it would be a thoroughly retrograde step if we maintained the provision which the hon. Member for Nelson and Colne has put forward in the Amendment. The defendant has, and will continue to have after the Bill reaches the Statute Book, a right of transfer under Section 44 of the 1934 Act. This will apply in any action involving more than £40, and the judge will he obliged to order such transfer if the defendant gives security for costs not exceeding £450 and the judge certifies that, in his opinion, an important question of law or fact is likely to arise.
That is a useful provision, because the amount at stake is not always an accurate criterion of the complexity and importance of the issues involved. In addition, Section 111 provides that a Master of the High Court can remove a case from the county court if he thinks it desirable that the proceedings should be heard and determined in the High Court. With those two provisions remaining, we feel that it 'would be unwise and wrong, for the reasons which I have expressed, to accept the Amendment. I hope that I have been able to satisfy the hon. Member that it would be undesirable to do so, and that in those circumstances he will be good enough to withdraw the Amendment.
§ Mr. S. Silverman
I do not wish to press the Amendment unduly, and I have listened with great interest and some satisfaction to the arguments which have been put forward. I want to make two points before dealing with that matter. First, I cannot accept the view that the plaintiff should always be entitled to the choice of tribunals. As the right hon. and learned Gentleman has just said, the amount at stake is not always the only criterion, or even the most important one 971 of the proper tribunal before which a matter should be litigated. Merely because the amount falls below a certain sum and it is, therefore, proper to commence an action in a county court, I do not think that the defendant should be deprived of a share in the choice of a tribunal.
Secondly, I should have been very ready to accept an Amendment to my Amendment which limited the defendant's right to transfer by not making it an absolute right but a judicially discretionary right if he established certain things. In that connection, when we come to the other Clauses which the right hon. and learned Gentleman mentioned, I should have thought that if a defendant satisfied a judge that he has an important point of law he ought to be entitled to have his case transferred to the High Court even if the amount at stake is no more than £40. However, provided that the points raised against the Amendment are remembered in my favour in subsequent Amendments—I think the right hon. and learned Gentleman knows what I mean—I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Eric Fletcher (Islington, East)
I beg to move, in page 2, line 3, at the end, to insert: (a) if he recovers a sum of two hundred and fifty pounds or more shall be entitled to costs on the High Court scale.
§ The Chairman
I think that we can discuss, together with this Amendment, the three following Amendments to line 4. The four would appear to go together.
§ Mr. Fletcher
If you please, Sir Charles.
The Amendment raises perhaps the most crucial and controversial question that has been occasioned by the Bill. It has been colloquially referred to in the Press, in this House and elswhere as the "cushion." Hitherto, there has been a certain area in which it has been possible for a plaintiff to bring his action either in the High Court or the county court, without any sanction as to being penalised in costs if, by bringing his action in the High Court, he recovers an amount of damages which happens to be less than the maximum in the county court scale.
That provision has been found very convenient in practice and, in fact, essen- 972 tial. As all practitioners know, there are innumerable cases where, at the outset of an action, it is quite impossible for a plaintiff's advisers to give him any kind of satisfactory estimate of the amount of damages he might recover. That happens in cases of contract and tort and, notably, in cases of personal injury, which occupy such a large amount of the time both of the High Court and of the county court. We therefore regard it as important that the Bill should contain this cushion.
If there is no cushion an intending plaintiff and his advisers will be faced with an intolerable dilemma at the outset. If the county court jurisdiction is £400 and the plaintiff has a cause of action which obviously merits substantial damages, his advisers will not know whether, when the case comes to trial, he will be awarded more or less than £400. It may be that the plaintiff will be entitled to £500, £600, or £700. On the other hand, by the time the case comes to court he may have made a certain amount of recovery; the medical evidence may not be so potent as it was thought to be, and the views of the judge before whom the case comes may be different from what his advisers thought—and he may be awarded less than £400.
As the Bill originally stood a plaintiff had to choose between bringing his action in the county court—limiting his claim to £400 and perhaps finding, after so doing, that he has had to forgo a considerably larger sum in damages, to which he would have been entitled if he had brought the action in the High Court—or chancing his arm and bringing his action in the High Court and perhaps finding, for some reason which could not have been foreseen, that he will recover less than £400, thereby being mulcted in costs to the extent that instead of recovering the normal costs applicable in the High Court he will receive costs upon the county court scale, which makes a difference of £50, £60 or even more. That is why we believe it is essential that a cushion should be provided.
On opening the Second Reading debate, the Attorney-General said that in the view of the Governmentthe existence of a cushion would go a long way—indeed, a very long way—to defeat the object of the Bill—[OFFICIAL REPORT, 24th June, 1955; Vol. 542, c. 1658.]I entirely disagree with that point of view.
§ Mr. Fletcher
It depends entirely upon the object of the Bill, but if the object is as the Attorney-General stated on 24th June he appeared to think that the existence of a cushion would go a long way to defeat it. We think nothing of the kind. We think that the existence of a cushion is not only essential to justice to litigants, but will not do anything to defeat the objects of the Bill. In a nutshell, the objects of the Bill are twofold. They are, first, to relieve the pressure on the High Court by diverting a certain number of cases to the county court, and secondly, they are to bring the limit of county court jurisdiction into line with the conditions which have resulted from the change in the value of money.
That being so, we believe that the necessity for a cushion is the same as it was before the Bill was introduced. Speaking for myself, I am inclined to believe—I hope that I am interpreting the Attorney-General correctly—that by his proposed Amendment in page 2, line 4, to leave out "four" and insert "three," he has to some extent been converted by the arguments which were addressed to him, not only from this side of the Committee, but by hon. Members on his own side on Second Reading. I can only assume—and I hope that the Attorney-General will tell us so quite frankly when he speaks on these series of Amendments—that having accepted in principle the arguments for a cushion, he no longer believes that the existence of a cushion will defeat the objects of the Bill.
I believe that this is merely another example, of which there were many instances in the last Parliament, and no doubt there will be several more in this Parliament, of the Government being prepared to accept suggestions put forward by the Opposition for the improvement of Bills which they introduce.
Assuming that the question of principle is accepted, and that the Government have been converted by our arguments on principle, there remains the question of the amount. I ventured to suggest on Second Reading that the appropriate figure would be £250. I mentioned that figure because that seemed to me to be a relative comparison with the cushion that exists now. After all, £250 is a fair sum of money. 974 I would have thought that any plaintiff with a claim for damages, and not being able to tell what the amount of that claim might be, should be entitled, if he so desires, to bring his action in the High Court and if he recovers £250, should have the satisfaction of knowing that as a consequence and as a right he will get his costs on the High Court scale.
May I say, of the Attorney-General's observation on Second Reading that this would defeat the objects of the Bill, that there are various motives in different parts of the country which induce litigants to choose between the High Court and the county court. The reasons which induce them to do so are not the same in the Metropolitan area as in the provinces. Those who practice in London are tempted to go to the High Court because, in London, it is very much more convenient to bring an action in the High Court than it is in the county court.
The same considerations do not apply in the provinces. A practitioner in Bournemouth might well say that the convenience and relative inexpensiveness of bringing an action in the Bournemouth County Court outweigh the advantage of his case being tried at Winchester Assizes. Whatever the reason may be that operates in this choice, I would have thought it desirable that there should have been this element of choice, and that wherever litigants are situated geographically, they should be able to choose which court suits them best.
I do not think that it will impinge on the objects of this Bill in the slightest if there is now written into the Bill the words which I venture to propose, and I hope that for these reasons the Amendment will be accepted.
§ 4.15 p.m.
§ The Attorney-General
I think it may be for the convenience of the Committee, as all these Amendments are being dealt with together, if I say a word at this stage about the Amendment in my name. I think that that will probably clarify the position, and, perhaps, shorten the debate on this matter.
The hon. Member for Islington, East (Mr. E. Fletcher) has referred to certain observations of mine which I made in the course of the Second Reading debate. I 975 will say a word or two about those observations in a moment. I think that it might be convenient to remind the Committee that the Amendment in my name, which we are now discussing, also goes with the Amendments to Clause 1, page 2, lines 38 and 39. It might be convenient to discuss those Amendments at the same time as this one.
The Bill as it was introduced extended the jurisdiction of the county courts to £400 and that was one of the main objects of the Bill, and it still is. As an inducement to use the extended jurisdiction, the Bill provided that the litigant in the High Court should only be entitled to county court costs if he recovered less than that sum. The Committee will remember that there are still two safeguards in the Bill, namely, the power under Section 47 (3) of the High Court judge to award High Court costs if he is satisfied that there was sufficient reason for bringing the action in the High Court, and also the power, of the judge to award High Court costs if he is satisfied that it was reasonable to suppose that more than £400 would be recovered.
§ Mr. S. Silverman
Will the Attorney-General explain why it was necessary to put in both provisions? Would not the first one to which he drew our attention cover the second, and include it?
§ The Attorney-General
I think I did refer to that on the Second Reading. The provision under Clause 1 (2), which is new, was deliberately put in, in view of the doubts as to whether "sufficient reason" in Section 47 (3) made it possible to take into account the fact that the claim might have amounted to more than the limit. As the hon. Gentleman reminded us, these proposals were criticised from both sides of the House on Second Reading. The hon. Gentleman seemed to claim all the credit for the criticism to himself and to his friends, but, of course, that was not the case. There was general criticism of the abolition by the Bill of what the lawyers regard as the cushion.
The criticism was on two grounds, First, that the abolition would penalise a litigant in a case where it was difficult to assess the damages which he or she would recover, particularly in personal injury cases. It was contended, on the one hand, that a judge would be reluctant to say 976 that it was reasonable to bring an action in the High Court and expect more than £400 if he himself had awarded less. We need not discuss now what force there was in that argument. I think that it is right, however, to remind the Committee of it. On the other hand, it was contended that the litigant might be forced to go to the county court, where the maximum is £400, when in the High Court he might have recovered £500 or more.
We have carefully considered the views expressed in the Second Reading debate. This is really a non-party Measure, although some hon. Members may seek to claim party credit for some particular proposal. As I said in my speech on Second Reading, I recognise the difficulty —all lawyers do—of advising clients as to the amount which they are ultimately likely to recover.
There is also the other important factor to remember, that if we are to increase the jurisdiction of the county court it should be a real increase of jurisdiction. We should secure that cases up to that limit actually go to the county court. We appreciate the objections to the Bill, and we have considered most carefully the views that have been expressed. The Amendment in my name is designed to meet the difficulty. It reintroduces the so-called cushion.
The effect of the Amendment will be that the High Court litigant who recovers £300 to £400 will be entitled to High Court costs, notwithstanding that he could have sued in the county court. It is our belief that the margin from £300 to £400 gives an adequate margin for error, particularly when one bears in mind that the extra safeguard contained in Clause 1 (2) remains. Let me give this example. Even though a judge awards in the High Court a sum, say, of £200, under Clause 1 (2) it will still be open to him to say, "I am satisfied that the plaintiff had reasonable ground for commencing this action in the High Court," and to award High Court costs.
§ The Attorney-General
I do not agree with the hon. Gentleman, but I will certainly try to clear up that point. The judge dealing with these matters does so from two different points of view when hearing the case, and when he has to assess damages. He hears evidence from both sides, and he has to come to the right conclusion on the evidence. Having heard that evidence, he may think that in view of the plaintiff's injuries the right sum to award is £250. It may be a very proper sum.
Then he has to look—and this is well within the powers of the judge—at what the position was when the litigation started. He has to consider the quite different question, whether there was reasonable ground then for starting the action in the High Court. He may say that, having regard to the medical evidence then available and to the gloomy prognosis about the plaintiff's recovery, it was entirely reasonable for the plaintiff to start the action in the High Court.
The judge has to look at the matter from two different points of view. I ask the hon. Member to bear that fact in mind. The point I am seeking to make, for what it is worth—and the hon. Gentleman disagrees with me about what it is worth—is that the powers in Section 47 (3) still remain, over and above the cushion.
The Amendments to lines 38 and 39 are consequential. If the jurisdiction of the county court is raised to £500, which can be done by Order in Council under Clause 1 (3), the cushion area is also raised from £400 to £500. Then the High Court litigant recovering between £400 and £500 will be entitled to High Court costs and below £400 to county court costs, subject, again, to the safeguards to which I have referred.
I emphasise that the object of moving these Amendments is to meet the practical difficulties to which so many hon. Members on both sides of the Committee have referred, and which confront litigants and their advisers, particularly in personal injury cases, in deciding in which court to start their proceedings. It is not the object of the Amendments in my name to divert all the £300 to £400 cases to the High Court, but experience showed that the majority of the cushion cases went in the past to the High Court.
978 It was in that connection that I indicated on the Second Reading that the creation of a cushion would impede the operation of that part of the Bill which is designed to raise the limit of county court jurisdiction to £400. The reason was perhaps that as the Evershed Committee indicated the lower costs in county courts provided inadequate remuneration for those who work in those courts. That matter is being dealt with at the present time county court scales are now under consideration.
If the effect of the Amendments is to reduce the effective jurisdiction of the county court from £400 to £300—we feel that £400 is the proper figure—the Government may have to reconsider the position. It might prove necessary to ask Parliment to approve a draft Order increasing the jurisdiction to £500 sooner than if the Bill had not been amended. I hope I have made it clear that there is nothing between us, judging by the Second Reading debate, on the issue whether or not there should be a cushion. The Amendment moved by the hon. Member for Islington, East seeks to provide a cushion and so does the Amendment in my name. There is no need to say anything more about the necessity for a cushion. The question is, "Where should the line be drawn?"
We have given careful consideration to that question. In our view, the right figure for the cushion is £300. That will provide an adequate margin bearing in mind the safeguards contained in the County Courts Act, and the additional safeguards in the Bill. The hon. Member for Islington, East suggested £250. Other hon. Members have put forward the figure of £200. Every step one takes in a descending scale, enlarging the cushion, increases the risk of all cases which might be started in the county court being started in the High Court.
I assure the Committee that since the Second Reading, and, indeed, before it, we reached the conclusion that the right figure to put in the Bill as the limit for the cushion was £300. I hope that the Committee will realise that in providing for a cushion we have done a great deal to meet views expressed on both sides of the Committee. I hope that in due course the Committee will accept the Amendment.
§ 4.30 p.m.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
May I now ask a question to clear up what the right hon. and learned Gentleman said? I understand from him that there is between us merely the £50 in the amount of cushion. That is a serious matter and will certainly be debated by us. The right hon. and learned Gentleman will notice that in the Amendment which my hon. Friend has just moved there is a positive provision that, over and above the limit, the litigant shall be, entitled to costs on the High Court scale.
In the Bill there is no corresponding positive provision. First, is it his view that there is no need for that provision, inasmuch as the ordinary rules of the High Court would apply, carrying High Court costs with the amount that would be recovered? Secondly, would there be any objection on his part to include in the Bill for the sake of clarification—perhaps on Report—a positive provision to make it perfectly clear to anyone who reads the Bill that, over and above whatever limit the Committee eventually decides, the High Court scale of costs would apply?
§ The Attorney-General
I think I can answer those questions quite shortly. In the first place, I do not think that there is any need whatever for a positive provision of that sort. In the absence of a provision saying that something other than High Court costs will be awarded, High Court costs, within the judge's discretion, would necessarily follow. I think that the judge should have his usual discretion, as he has in all cases. Whether the case were brought in the county court or not I should be sorry to see the judge's discretion in any way affected.
The hon. and learned Gentleman asks whether, supposing £350 were recovered in the High Court there is any need for an express provision that there should be High Court costs? My answer is, "Certainly not." One has to have an express provision that it does not carry High Court costs, and we are taking out that provision. But if there is any doubt about it I shall certainly consider it between now and Report—but I do not think that there should be any doubt about it at all.
§ Mr. S. Silverman
The Committee as a whole will be grateful to the right hon. 980 and learned Gentleman for having, at any rate, conceded the point of principle about which, I understand, there was considerable debate on Second Reading, and about which, in view of his statement, I agree with him entirely that there is no need for considerable debate now. We are now, apparently, all agreed on both sides—wherever the initiative may originally have come from—that the principle of the cushion ought to be preserved in this Bill, and, indeed, improved in what may be called its resilience as compared with what it is in the existing law.
The Attorney-General having proved so amenable to reasonable argument and persuasion on the principle, I hope that he will not close his mind entirely to the question of quantum, which still remains. The effectiveness of the safeguard—which it is now conceded by every hon. Member there ought to be—is considerably influenced by the choice one makes in drawing the line. Although it may, at first blush, seem that there is not a great deal of difference between drawing it at £250 and drawing it at £300, I think that the right hon. and learned Gentleman will agree that when we are dealing with cases of the kind contemplated in this Amendment a difference of £50 may be a very substantial matter. If the line is drawn at too low a level a great deal of injustice may easily be done, and I hope that the Committee will not think that I am unduly prolonging the argument if I devote a minute or two to looking at this question.
Quite a number of hon. Members will have had considerable experience over a great many years of handling the kind of case in which this type of question is most likely to be important. I think that all of them who have had that experience will agree with me when I say that probably the most difficult thing that a professional adviser is called upon to do is advising a probably quite inexperienced client as to what is the reasonable expectation of the quantification of his damage—in other words, advising him how much. It arises at various points in a case; not only at the commencement, when we are concerned with choice of tribunal but at later stages, when payments into court are made. When one is acting for very poor people, to whom the results of the case may be of the very 981 greatest importance, it is extremely difficult, on the one hand, to advise, "You are quite certain not to get more than £400," or, on the other hand, "You are quite certain to get less." It is a very difficult question and it has the most important consequences.
What is the object of the Clause which we are seeking to amend? The Attorney-General put it clearly and fairly. He said that it was to make sure that the object of the Bill, which is to make the effective jurisdiction of the county court £400 was defeated by making the effective jurisdiction £300 or, as my hon. Friend would have it, £250. In other words, what the Bill, as drawn, seeks to do—and no one quarrels with it in principle—is to impose a penalty. It says to a litigant, "You bring your case in the wrong court at your peril. If you bring it in the High Court you may be just lucky and get £405, and you will be all right. But you may get only £395 and then you will have to lose a substantial portion of the damages you sought to recover."
It is blind guess. There is no criterion, no yardstick, no way in which one can, at the beginning of a case, correctly forecast what the damages are likely to be. Nowadays, when so many cases are tried quickly by a judge alone—I do not complain of that—there is the added fact that different judges do, in practice, take very different views about what are the proper damages for a given set of facts. What is done is to impose on a poor litigant—because it is only there that the matter is really of importance—a very heavy penalty if he chooses wrongly.
I would say to the Attorney-General that the thing that will make the object of this Bill work most effectively is not penalties and sanctions on costs. If litigants and practitioners find that they get much quicker, and quite as effective and impartial, objective justice in the county court as they would in the High Court, the object of the Bill will be satisfied, because it will serve a public need to the satisfaction of those who have to rely on it. If it proves true that these cases can be dealt with far more cheaply and quickly in the county courts than in the High Court people will prefer to go to the county court. That is the real answer. If that turns out not to be so the existence of a penalty on plaintiffs who wrongly chose the High Court will not 982 make it worse, because they will prefer to take that risk anyhow.
§ Mr. Raymond Gower (Barry)
Will the hon. Gentleman deal with the other point made by my right hon. and learned Friend—that if the cushion is brought down low enough litigants might be tempted in great numbers to go again to the High Court?
§ Mr. Silverman
I do not think that they would be tempted at all. There are long, long delays in the High Court, and one of the main advantages of increasing the jurisdiction of the county court is to enable cases, which by their very nature demand to be dealt with much more quickly, to be taken to the county court. That is the real inducement, and unless it is going to work like that, we had better not have the Bill at all.
If we do have the Bill and if it works in that way, there is no reason whatever for saying that people will prefer to go to a court that takes longer and is more expensive rather than obtain the quicker and easier justice in the court on their own doorstep. It is an exaggerated fear, in my opinion.
I come, finally, to the question whether it ought not to be a little lower. I myself would prefer £200, but I am quite content to support the £250 proposal of my hon. Friend. I should have thought that £300 was putting it too high, and that the margin between £300 and £400 is a much narrower margin than the reasonable margin of error. Those of us who have had experience of the assessment of damages in different courts will see exactly what I mean.
I need two more minutes to put the point clearly, and perhaps I may be excused for citing two cases of which I myself have professional knowledge. One was a case in the High Court in which a High Court judge awarded what, after all calculations had been made, amounted to £120. It was not thought to be sufficient. We went to the Court of Appeal, and we got £465. The margin of error was very nearly 400 per cent. The High Court judge concerned was a most humane man, with long experience, and no one could possibly have complained of his handling of the case, the way he dealt with it or anything else except the result. He happened to take a view of 983 damages that represented only one-quarter of what three judges in the Court of Appeal thought they ought to be.
The margin is too wide. The possible reasonable margin of error is altogether too wide to be properly cushioned by a mere £100 between £300 and £400. I therefore ask the right hon. and learned Gentleman, who, I know, wants to do the right thing in this matter, not to close his mind to it, but to keep it open, to listen to the arguments here and elsewhere, and to reconsider it between now and Report stage to see whether he cannot agree with us that, if we are to have a cushion at all, it should be an effective cushion, and that an effective cushion must be something more than the difference between £300 and £400.
§ Mr. Renton
The interesting speech of the hon. Member for Nelson and Colne (Mr. S. Silverman) could have been made equally well and with equal force if we had been discussing the difference between, for example, £100 and £150 as the basic level for the cushion.
I should have thought that the right way in which we should judge this matter is to decide whether the cushion which we are to allow is big enough to cover a reasonable margin of error, taking due account of the law of averages, but not so big as to deprive the county courts of the jurisdiction which we wish them to have. On the figures with which we are actually dealing, and leaving out exceptional cases of the kind mentioned by the hon. Member for Nelson and Colne, which incidentally can always be covered by appeal to the Court of Appeal, I should have thought that—
§ Mr. Renton
We are necessarily dealing with theory as well as fact, and I think it is right for us to bear in mind that at any rate there is the theoretical possibility of appeal, when there has been an assessment of damages wrong in principle, or wildly wrong in quantity. That is a factor which we should not exclude from our minds.
§ 4.45 p.m.
§ Mr. S. Silverman
May I suggest to the hon. and learned Member for Huntingdonshire (Mr. Renton) that the factor which he should not exclude from his mind is that we are dealing for the most 984 part in these matters with very poor people, to whom the Court of Appeal is as unattainable as is Paradise in their lifetime? In the case of which I was speaking, the Legal Aid Committee, supported by the Legal Aid Appeal Committee, refused us legal aid to go to the Court of Appeal. We managed to do that, but it is only in very exceptional cases that we can do so.
§ Mr. Renton
That is an argument which might equally well be addressed to the Committee if we were discussing any difference in principle at all. What we are discussing here is whether a cushion of 25 per cent. in the total proposed jurisdiction of the county courts of £400 is appropriate, which is what the £300 proposed by my right hon. and learned Friend would give, or whether we should have a cushion of 37.5 per cent., which is what the figure of £250 would give.
The question for us to decide is whether, on the law of averages and within the experience of most of us, the margin of error which is likely to be made, not only by solicitors and junior counsel, but also by committees of the Law Society —which, when legal aid is applied to the county courts, will have to consider the matter—is a fair margin to allow. It is a matter of opinion. Mr. Speaker has already described today what a matter of opinion is, and I am not going to repeat his apt definition.
I should have thought that the 25 per cent. margin of error proposed by my right hon. and learned Friend was, in the circumstances, a perfectly fair one to allow. The 37.5 per cent. margin of error, if I may say so with great respect to the hon. Member for Islington, East (Mr. E. Fletcher), whose experience in these matters we all acknowledge, I should have thought was too big. Generally speaking, the legal profession do not make as large a margin of error in advising upon, and neither do judges in assessing, damages as 37.5 per cent.
§ Mr. E. Fletcher
The hon. and learned Gentleman will appreciate that the present cushion is very much larger, being the difference between £50 and £200.
§ Mr. Renton
I entirely agree that the cushion is very much larger, and, personally, I have always found great difficulty 985 in my own mind in trying to justify it. There has been extremely little justification for maintaining the large cushion which has prevailed up to the present, but I do not think that point is relevant to the very narrow argument before us at this moment.
I would say that, bearing in mind the need to take the best possible advantage of this extended jurisdiction of the county courts, we should not allow a greater margin of error than 25 per cent. I think that is a reasonable one, and one which the Committee would be well advised to accept.
I would only add that I agree with the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), who spoke from the Opposition Front Bench, that we should acknowledge the fact that the Attorney-General has shown his willingness to listen to the views of both branches of the legal profession on both sides of the Committee in this matter, and that we should welcome his usual adaptability to the views which have been expressed.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I should like to add a few words in support of what my hon. Friends have said. I recognise that the Attorney-General has very fairly summarised the arguments put from both sides, and has conceded the fact that the cushion is necessary. Therefore, one need not spend much time or use many words in taking that argument further now.
A sum of £300 is suggested on one side. I would prefer £200. Like my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), I will settle for £250. It is really a matter of opinion, but surely that opinion must be based upon practical experience. I was very surprised to hear it stated from the benches opposite that £300 would be sufficient. Surely, from the point of view of experience, it is clear that a margin of £100 would be far too great. We know of many cases in which injustice would be done, and I ask the Attorney-General, as he has been so conciliatory in allowing the principle of the cushion to be accepted, to recognise that a figure of £250 is far more acceptable.
It is possibly to put forward arguments on both sides. One can say that £300 is enough or that £250 is enough, but I suggest that from the point of view of 986 practical experience, £250 is nearer the mark. In this case, when we are seeking to remove a cushion of a far greater margin than we are now proposing, surely some indulgence ought to be shown, and I suggest that £250 is a proper figure.
§ Mr. Hale
I hope that I may now explain to the Committee the Amendment which we have been discussing for the last three-quarters of an hour. Up to now, few Members who have spoken appear to have read all four Amendments which are before the Committee. My hon. Friend the Member for Islington, East (Mr. E. Fletcher) has moved a new provision stating that when a man recovers over £250 he shall be entitled to High Court costs, subject to the discretion which exists in every form of litigation. The Attorney-General is in favour of a figure of £300; and I am in favour of £200 instead of £300.
My hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), who is a skilled debater at Question Time, has been riding two horses at once with his usual skill, and has left us in some doubt as to which horse he was riding at the termination of his remarks. I thought that he was throwing over the reins of my horse and perhaps leaving it to me to ride—or perhaps he retained the right to support me in the Division Lobby.
§ Mr. S. Silverman
It is true that I am riding two horses, but they both happen to be going the same way, and I want to be on whichever horse comes first. If there is any possibility of my hon. Friend persuading the Committee that the figure should be £200, I will certainly support it. But I would sooner have £250 than £300.
§ Mr. Hale
I am grateful for that assurance of support. We shall have to see how the contest proceeds.
I say with all diffidence that I do not think the Committee has considered the immediate practical point with which this Clause confronts us, or some of the inherent difficulties in it. If one brings an action in tort at the moment—a running-down case or a case against employers at common law—no responsibility is placed upon solicitor and counsel to consider what the damages are likely to be—and for very real and valid reasons. We have always accepted the view that 987 it is not possible to estimate the damages at that stage.
What happens is this. A writ is issued. One says, "We have lost so much in wages, and these are what we claim by way of special damages." But one does not have to say that one is claiming £5,000 or £4,000 or £500 as general damages. One merely claims damages at large. There are practical reasons for that. If I may put the lowest of the reasons first, no scale of costs allows solicitor or counsel at that stage to consider the matter. No claim could be made for making the inquiries at that stage because the law presumes that there is no point in the inquiries, that there is no substance in them and that no one could say at that stage what is the gravity of the injury.
We are now being asked to assume a wholly new duty. The whole responsibility is being placed on a solicitor to say at the commencement of a case, "In my view, in no reasonably foreseeable circumstances in this case could the damages exceed £400." With respect to the Attorney-General, I know that he put forward a fair case on the Second Reading, and I have no desire to come into conflict with him on this matter, but he knows as well as I do—and there is not a Member of this Committee who appears in court who does not know this—that the margin between one judge and another can be at least 100 per cent. One judge will award £1,000 and another judge will award £500. The margin is often wider.
I remember a case involving neurasthenia. After all, nervous consequences are the commonest effects of accidents and the most difficult to estimate. Very rarely is a solicitor in a position to know how far the injuries are genuine or to what extent the plaintiff may be exaggerating in a claim for nervous disease. Any doctor will say that only within certain limits can he decide a matter of that kind with certainty.
I once had a case in which I offered to settle for £150. The case had been entered in the High Court. The doctor said, "The woman is a great deal better and you ought to settle." The defendant offered £75 and I said that I would not take it. The defendant asked for a special jury. I said, "Very well, if we have to fight, we will fight." We called 988 expert medical evidence, and the special jury gave us £1,500. These are common events in court, and naturally I quote the sort of case in which I got more than I expected rather than the cases in which I got less. Of course, I concede that such cases do exist.
The Attorney-General, in reply to an interjection by me, said, "There is no point in this. A judge can easily say that in his view the right figure today is £300, but the figure in the mind of the solicitor who commenced the action may have been £450 three months ago." On what evidence? Is it suggested that a judge will hold an inquiry into the professional propriety of a solicitor in his conduct of the case, into how many inquiries he made at the time, into whether the solicitor has ascertained that the doctor used the word "possibly" recently but that in his report three months ago he used the word "probably" and that has made all the difference? We should be opening up fantastic inquiries.
§ Mr. E. Fletcher
And on which presumably the solicitor can be cross-examined by the unsuccessful defendant.
§ Mr. Hale
Yes, on which the solicitor can be cross-examined by the unsuccessful defendant if this Clause were applied in the way that the Attorney-General suggests it will be applied. I do not think it will. I do not think judges would tolerate it. If that does not happen, the Attorney-General's argument is destroyed.
Someone may say, "I was badly knocked about and bruised in a motoring accident. My nerves are suffering. I cannot sleep and my doctor does not know how long this will go on. I am taking sleeping tablets." What do we do? On what basis does one say, "I think this woman will be better in about six months. It is not worth more than £400. She is married. She is not working and is not losing any wages"? On what basis does one say that she will not be in the lunatic asylum in five years' time? Who can judge?
Is there anyone who has had any long experience of actions in tort who does not know that time after time the whole basis of medical opinion changes and that the whole diagnosis of a case changes? We have heard of the man who has walked about for three months with a fractured skull. Time after time 989 X-rays taken by the specialist have presented a state of affairs which were not known before the hearing, in spite of the exercise of reasonable diligence which a solicitor is entitled to give to a case of this kind. Therefore, when I urge the acceptance of £200 I am even now only urging what I regard as something which leaves a genuine evil. But I realise that there has to be some protection against the wanton use of the High Court.
I agree with every word that my hon. Friend has said. I cannot speak for the practice in the large towns, but one of the reasons that I welcome the Bill is that it will provide an incentive to bring cases into the county court. It is said that there is a big difference between costs in the county court and in the High Court, and we have been told that that difference is to be narrowed. The announcement by the Attorney-General is one of the important factors in considering the merits and the practicability of this Measure.
The principal difficulty for solicitors and counsel has been the absence of power in the county court to give costs for instructions for brief. This was removed by the Committee on county court procedure which sat under the chairmanship of Mr. Justice Austin Jones.
People still think that costs go exclusively to solicitors and barristers, whereas in fact the costs of litigation are largely the costs of the witnesses. In litigation at assizes they are very largely the costs of witnesses. Everybody knows that in spite of all the recommendations made by various committees from time to time, doctors are kept waiting for three days or more before giving evidence. Specialists demand almost exorbitant fees because of their reluctance to give evidence. I have had to pay as much as 200 guineas to an expert for him to give evidence in the witness box. It was a case of difficulty and gravity where some doubt was felt and I had to take the responsibility of guaranteeing that fee, for which I had no resources and which, therefore, I had to guarantee at my own risk.
Those are the big items, and every solicitor therefore prefers to litigate in the county court if he can do so on reasonably practical terms. There is no ground for the suggestion that in the main solici- 990 tors prefer to go to the High Court. In a number of cases it would mean issuing writs some distance away and carrying out the whole proceedings at a distance. It leaves the possibility of the proceedings being transferred to London by an appearance having been entered there, and it means handing the case over to London agents and all sorts of other difficulties.
I wonder whether the right hon. and learned Gentleman's advisers have considered some of the implications of his proposal. If we want to claim in the count court we have to say exactly what we are claiming, and we pay hearing fees and plaint fees based on that amount. In the High Court we issue the writ and pay 30s. and we do not have to say what we are claiming, but in the county court we have to say what it is that we are claiming. These provisions will place a real difficulty upon solicitors, counsel and plaintiffs. They must make up their mind at a very much earlier stage.
I urge the right hon. and learned Gentleman to consider the practical difficulties of the Clause between now and Report and to see what he can do about them. I hope we shall consider the matter thoroughly because it is one of real importance. I believe that in the Clause there is a danger of the Bill being wrecked.
§ Mr. Frederick Lee (Newton)
On a somewhat similar occasion a layman who dared to intervene was described as the hon. and nearly learned Gentleman. There is precious little fear of that being said about me.
I was grateful to the Attorney-General for accepting the principle of the reintroduction of the cushion. I can speak with some authority in trade union matters, and I can say that my own trade union, the A.E,U., has been very concerned about these questions because they involve accidents sustained at work. Those who advise the unions have a difficult problem even under existing conditions in the county courts, with a cushion of £150. The Bill as drawn, without the provision of a cushion, might make life pretty well impossible for them and it would mean that they would tend to play safe. That of itself, I should have thought, would be a negation of justice.
991 The provision would mean that they would be so afraid of involving those for whom they act in heavy damages that they would not take the chance. They would be disposed to go to the county court and in that way probably negative the chance of a client getting effective justice in the compensation which he receives. I am thinking of the future position of the smaller trade unions, in particular, which have not adequate financial backing. If they have constantly to think in terms of the effect on their finances of going to the High Court, that would be a very bad thing and would mean that their members were not receiving justice.
I thought that the suggestion made by the hon. and learned Member for Huntingdonshire (Mr. Renton), that under those conditions one could lessen the extent of the cushion, was a bad suggestion. At a time when we are widening the scope of the courts there is at least a case for saying that we should keep certainly the same ratio of cushion as that existing under the £200 rule.
I am grateful to the Attorney-General for his general comments, and I know that he is trying to be fair, but I wish he would look again at this problem, because the whole course of these cases from now on will be affected by it. I do not know what percentage of these cases is taken by trade unions but it must be quite large. If they are all to be forced into forever looking after the pool of funds at their disposal because of the fear of further cases arising, it will be very bad.
Some of the smaller unions, operating in heavy engineering and foundry work, for example, have a very high percentage of accident cases arising among their members. It would be detrimental to increased production in industry and to men going full out at their work if they feared that they would not get adequate compensation in the event of accident. All that could have a deterrent effect.
I hope the right hon. and learned Gentleman will consider the argument used by my hon. Friends the Members for Oldham, West (Mr. Hale) and Islington, East (Mr. E. Fletcher). There is great force in their argument. I seriously believe that it could have a detrimental effect in industry if we narrowed the scope of the cushion by comparison with the cushion which has existed under the old conditions.
§ Mr. Barnett Janner (Leicester, North-West)
I think everybody will agree that the difficulty to which my hon. Friends have referred is a real one. To all of us who have had experience of these matters the question of margin is one of considerable difficulty from the commencement of the case until the end. It is impossible to advise a client and impossible to get counsel to advise a solicitor as to what amount he should consider reasonable in a particular set of circumstances.
We should have been able to deal with the question much more easily had we known exactly what the Attorney-General has in mind for the fresh scale of costs. A lot depends on that.
§ The Attorney-General
As I said on Second Reading, that is still being negotiated by my noble Friend, and I can give no indication.
§ Mr. Janner
I appreciate that, but had we known what ultimately would be the scale on what county court costs would be awarded, we should have been in a better position to decide the amount on which High Court scale of costs should be awarded. It would make a considerable difference to the argument.
It is also extremely important that we should know what new regulations the Government have in mind in respect of legal aid in the county courts. How can anyone decide an issue of this description without knowing exactly, or at least as nearly as possible, the deciding elements in the remuneration of those who will undertake this work? That is a perfectly reasonable request to make of the Government, and I hope that before we reach the Report stage we shall be given more definite information about that and about the earlier point which I made.
As a practising solicitor, in both provincial and town practice, I know what affects the position when a poor litigant comes forward to have his case considered. Many solicitors and counsel put themselves out considerably for litigants who are not in a position to pay fees. We are talking about moving a large number of cases from the High Court to county courts. If we are to make that general the position must at least be one in which some kind of reasonable return is made to those acting in the professions and assisting litigants, on whichever side they may be, to get a just result.
993 My hon. Friend the Member for Newton (Mr. Lee) had no cause to apologise for intervening in the debate. A trade union official knows very much more than most of the lawyers who practise in the courts what the position is in matters pertaining to damages which come within the purview of his trade union. I have seen that in South Wales. Very often the union has to decide what amount it will allow professional people to accept by way of damages in a case of settlement: not infrequently it falls on the union to make the decision as to those amounts and to give that view to those advising on the legal side.
I think those two points are of very considerable significance and will play an important part throughout the whole of our discussions in Committee and during later stages of the Bill. In my view, the Government ought to take into consideration the largest margin—not the smallest margin—so that litigants who desire to take their cases shall not be precluded from having the very best assistance they can have. I have practised in the county courts for many years. There is no question at all that in the county court legal and factual points which arise are as difficult as, if not more difficult than, in most cases before the High Court. As much and more attention has to be given to those matters when a small amount is under consideration as when larger sums are being applied for.
In fairness to the litigants, the people who have claims, and to the professional people who have to deal with them, I appeal to the Attorney-General to accept the lower sum of £200 and to forgo the right of being able to say, "I was right." No one can be certain in this matter, and to enable all to be fairly treated the lowest sum is, in my view, the most likely to be the right one.
§ The Attorney-General
We have had an interesting discussion on this Amendment as to the line at which the cushion should be inserted. We have a long list of Amendments to be discussed during the Committee stage, raising many other important questions. I hope that the Committee will think it is about time we came to a conclusion on this important, but narrow, question. May I say at once in answer to the hon. Member for Leicester, North-West (Mr. Janner) that the first two points which he made 994 were made on Second Reading and answered by the Solicitor-General.
§ The Attorney-General
There has been time since then, and negotiations are still continuing. I am sure the hon. Member knows that the Law Society is working hard on the scheme for legal aid. That scheme will be brought into effect as soon as it is ready and as soon as it is approved. We want to bring in the enlarged jurisdiction of the county court at the same time. Work on both is going on contemporaneously.
§ 5.15 p.m.
§ Mr. Janner
Does not the right hon. and learned Gentleman agree that the scales which will be allowed in and regulations made in respect of the county court bear very significantly on the subject matter which we are dealing with now, and will be dealing with throughout the debate?
§ The Attorney-General
If the hon. Member will read the speech that I made in moving the Second Reading of the Bill he will see that I paid attention to that and said something about it. I am not going to take up time in saying the same thing today.
The Amendment in my name seeks to provide a cushion. The whole debate has been directed to trying to induce the Government to provide a bigger, better and softer cushion. I am one who always looks for a fairly large cushion if one is available. We have given very serious consideration to this matter and we think we have drawn the line where it should be drawn.
I have listened to all that has been said in support of a lower figure. We all know the difficulties that a barrister or solicitor has in advising as to quantum. The difficulty of knowing what the judge's assessment is likely to be also exists. We have to balance the two claims—on the one hand, the difficulty of assessing damages and, on the other, the serious risk that if we make the lower limit too low we shall make the effective increase in county court jurisdiction very small indeed. Those are the two issues which we have to bear in mind.
The Evershed Committee recommended a rather Draconian method for securing that cases within the county court juris- 995 diction went to that court. The Committee suggested that power should be given to a master to order a case to be transferred to the county court whether the parties liked it or not. We did not think that right, and thought it was going a bit too far. At the same time, experience has shown that one wants a bigger incentive than has existed up to now to secure that, where possible, cases within the county court jurisdiction should find their way into the county court.
The Evershed Committee recommended £300 as the increased jurisdiction. We felt it should go up to £400. We feel that a cushion of £100—a 25 per cent. margin —should be more than sufficient in the vast majority of cases. In the case where a claim is brought in the High Court and damages of, say, only £200 are recovered we are not providing a hard-and-fast line. That fact does not finally and irrevocably preclude the obtaining of High Court costs. The discretion in the High Court still remains as it has been since 1934. Over and above there is an extra discretion, which I think may well prove of value, whereby if it appears to the judge —that does not necessarily mean he has to hear evidence on the subject—that there was reasonable ground for bringing the case in the High Court, even though the amount recovered is less than £300, he can still award High Court costs.
§ Mr. S. Silverman
Will the right hon. and learned Gentleman say what kind of reasonable grounds would be operative in such a case?
§ The Attorney-General
I can only give the indication that occurs to my mind. For instance, if one had a client in a personal injury case who sustained what at first sight appeared to be a very serious injury, and then, before the case came on in the High Court—which may take nine, ten or twelve months—he or she made a wonderful recovery, the damages would be low but I am sure that on the production of the first medical report showing a gloomy diagnosis at that time by his or her medical advisers, the judge would not be reluctant to say that there was reasonable ground for bringing the case there. After all, one has to bear in mind that nearly all judges who try these cases have had experience of these difficulties, and appreciate them.
996 We have given serious consideration to this matter. Most of the arguments which have been advanced today were touched upon during Second Reading—the arguments, I mean, about the difficulty in which advisers of litigants, and so the litigants, are placed. We have provided a cushion. I am sorry to have to disappoint hon. Members who still think that it should be a bigger and better cushion, but I must tell them, quite frankly, that we cannot accede to any of their Amendments to lower the limit.
§ Sir L. Ungoed-Thomas
As we have had a considerable debate on this matter, I shall be very brief. First I should like to thank the Attorney-General for the Amendment which he has put down. I certainly do not want to say anything which will make him stiffer, more obdurate, in considering other Amendments which may be moved to this or any other Bill.
Our approach to this question of the margin appears to me to be fundamentally different from that of the Attorney-General. He would not, of course, have introduced a Bill without a cushion in it if his approach were not that we must push into the county courts as many of these cases as we can. Our approach is entirely different. It is summed up in this question. Would the litigant be put in a difficult, in some cases in an impossibly difficult, position if no cushion were provided? So the right hon. and learned Gentleman for his part and we for ours approach the matter from two different angles. The Attorney-General is now to make a concession and is to give a cushion of £300, but, nevertheless, our attitude and approach to the problem are fundamentally different.
I shall not repeat what my hon. Friends the Member for Nelson and Colne (Mr. S. Silverman) and Oldham, West (Mr. Hale) have said. We do not consider that there is a reasonable margin of error between £300 and £400, and we must express in the Lobby our opposition to this inadequate cushion. It becomes merely a question of which horse we should put our money on, and I am allured by the suggestion of my hon. Friend the Member for Nelson and Colne that we should put our money on the horse which will travel the farther. I certainly advise my hon. Friends to divide upon the Amendment.
§ Question put, That those words be there inserted:—998
§ The Committee divided: Ayes 191, Noes 234.999
|Division No. 15.]||AYES||[5.24 p.m.|
|Ainsley, J. W.||Griffiths, Rt. Hon. James (Llanelly)||Orbach, M.|
|Albu, A. H.||Griffiths, William (Exchange)||Oswald, T.|
|Allaun, F. (Salford, E.)||Hale, Leslie||Owen, W. J.|
|Allen, Scholefield (Crewe)||Hall, Rt. Hn. Glenvil (Colne Valley)||Padley, W. E.|
|Anderson, Frank||Hall, John T. (Gateshead, W.)||Paling, Rt. Hon. W. (Dearne Valley)|
|Attlee, Rt. Hon. C. R.||Hamilton, W. W.||Paling, Will T. (Dewsbury)|
|Awbery, S. S.||Hannan, W.||Palmer, A. M. F.|
|Bacon, Miss Alice||Hastings, S.||Panned, Charles (Leeds, W.)|
|Balfour, A.||Hayman, F. H.||Pargiter, G. A.|
|Bartley, P.||Henderson, Rt. Hn. A. (Rwly Regis)||Parkin, B. T.|
|Bellenger, Rt. Hon, F. J.||Herbison, Miss M.||Paton, J.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Hewitson, Capt. M.||Pearson, A.|
|Benson, G.||Hobson, C. R.||Peart, T. F.|
|Blackburn, F.||Holmes, Horace||Price, J. T. (Westhoughton)|
|Blenkinsop, A.||Houghton, Douglas||Probert, A. R.|
|Boardman, H.||Howell, Charles (Perry Barr)||Proctor, W. T.|
|Bottomley, Rt. Hon. A. G.||Howell, Denis (All Saints)||Pursey, Cmdr. H.|
|Bowden, H. w. (Leicester, S.W.)||Hubbard, T. F.||Rankin, John|
|Bowles, F. G.||Huges, Cledwyn (Anglesey)||Reid, William|
|Boyd, T. C.||Hughes, Emrys (S. Ayrshire)||Rhodes, H.|
|Braddook, Mrs. Elizabeth||Hughes, Hector (Aberdeen, N.)||Roberts, Albert (Normanton)|
|Brookway, A. F.||Hunter, A. E,||Roberts, Goronwy (Caernarvon)|
|Brown, Rt. Hon. George (Belper)||Hynd, H. (Accrington)||Ross, William|
|Brown, Thomas (Ince)||Hynd, J. B. (Attercliffe)||Shinwell, Rt. Hon. E.|
|Burke, W. A.||Irving, S. (Dartford)||Short, E. W.|
|Butler, Herbert (Hackney, C.)||Isaacs, Rt. Hon. G. A.||Silverman, Julius (Aston)|
|Butler, Mrs. Joyce (Wood Green)||Janner, B.||Silverman, Sydney (Nelson)|
|Callaghan, L. J.||Jay, Rt. Hon. D. P. T.||Simmons, C. J. (Brierley Hill)|
|Carmichael, J.||Johnson, James (Rugby)||Skeffington, A, M.|
|Champion, A. J.||Johnston, Douglas (Paisley)||Slater, Mrs. H. (Stoke, N.)|
|Clunie, J.||Jones, Rt. Hon. A. Creech (Wakefield)||Slater, J. (Sedgefield)|
|Coldriok, W.||Jones, Jack (Rotherham)||Sorensen, R. W.|
|Collick, P. H. (Birkenhead)||Jones, J. Idwal (Wrexham)||Sparks, J. A.|
|Corbet, Mrs. Freda||Jones, T. W. (Merioneth)||Steele, T.|
|Cove, W. G.||Key, Rt. Hon. C. W.||Stewart, Michael (Fulham)|
|Craddock, George (Bradford, S.)||King, Dr. H. M.||Stokes, Rt. Hon. R. R. (Ipswich)|
|Cronin, J. D.||Lawson, G. M.||Stones, W. (Consett)|
|Crossman, R. H. S.||Ledger, R. J.||Strauss, Rt. Hon. George (Vauxhall)|
|Cullen, Mrs. A.||Lee, Frederick (Newton)||Summerskill, Rt. Hon. E.|
|Daines, P.||Lever Leslie (Ardwick)||Swingler, S. T.|
|Dalton, Rt. Hon. H.|
|Darling, George (Hillsborough)||Lewis, Arthur||Ungoed-Thomas, Sir Lynn|
|Davies, Ernest (Enfield, E)||Lindgren, G. S.||Usborne, H. C.|
|Davies,Harold (Leek)||Lipton, Lt.-Col. M.||Viant, S. P.|
|Davies, Stephen (Merthyr)||Logan, D. G.||Warbey, W. N.|
|Delargy, H. J.||McGhee, H. G.||Watkins, T. E.|
|Dodds, N. N.||Mclnnes, J.||Weitzman, D.|
|Donnelly, D. L.||McKay, John (Walsend)||Wells, Percy (Faversham)|
|Dugdale, Rt. Hn. John (W. Brmwoh)||McLeavy, F.||Wheeldon, W. E.|
|Dye, S.||MacPherson, Malcolm (Stirling)||White, Mrs. Eirene (E. Flint)|
|Edwards, Rt. Hon. Ness (Caerphilly)||Mahon, S.||Williams, Rev. Llywelyn (Ab'tillery)|
|Edwards, Robert (Bilston)||Mallalleu, E. L. (Brigg)||Williams, Ronald (Wigan)|
|Edwards, W. J. (Stepney)||Marquand, Rt. Hon. H. A.||Williams, Rt. Hon. T. (Don Valley)|
|Evans, Edward (Lowestoft)||Mayhew, C. P.||Williams, W. T. (Barons Court)|
|Evans, Stanley (Wednesbury)||Mikardo, Ian||Willis, E. G. (Edinburgh, E.)|
|Fernyhough, E.||Mitchison, G. R.||Wilson, Rt. Hon. Harold (Huyton)|
|Fletcher, Eric||Monslow, W.||Winterbottom, Richard|
|Forman, J. C.||Moody, A. S.||Woodburn, Rt. Hon. A.|
|Fraser, Thomas (Hamilton)||Morris, Percy (Swansea, W.)||Yates, V. (Ladywood)|
|Freeman, Peter||Mort, D. L.||Younger, Rt. Hon. K.|
|Galtskell, Rt. Hon. H. T. N.||Moss, R.||Zilliacus, K.|
|Gibson, C. W.||Moyle, A.|
|Greenwood, Anthony||Neal, Harold (Bolsover)||TELLERS FOR THE AYES:|
|Grenfell, Rt. Hon. D. R.||Noel-Baker, Francis (Swindon)||Mr. John Taylor and|
|Grey, C. F.||Oliver, G. H.||Mr. G. H. R. Rogers.|
|Griffiths, David (Rother Valley)||Oram, A. E.|
|Agnew, Cmdr. P. G.||Atkins, H. E.||Bidgood, J. C.|
|Aitken, W. T.||Baldook, Lt.-Cmdr. J. M.||Birch, Rt. Hon. Nigel|
|Allan, R. A. (Paddington, S.)||Balniel, Lord||Black, C. W.|
|Amery, Julian (Preston, N.)||Banks, Col. C.||Body, R. F.|
|Anstruther-Gray, Major W. J.||Barber, Anthony||Bossom, Sir A. C.|
|Arbuthnot, John||Barter, John||Boyle, Sir Edward|
|Armstrong, C. W.||Baxter, Sir Beverley||Braine, B. R.|
|Ashton, H.||Bevins, J. R. (Toxteth)||Braithwaite, Sir Albert (Harrow, W.)|
|Brooke, Rt. Hon. Henry||Holt, A. F.||Pannell, N. A. (Kirkdale)|
|Brooman-White, R. C.||Hopkinson, Rt. Hon. Henry||Peake, Rt. Hon. O.|
|Browne, J. Nixon (Craigton)||Horobin, Sir Ian||Peyton, J. W. W.|
|Bryan, P.||Horsbrugh, Rt. Hon. Dame Florence||Pickthorn, K. W. M.|
|Buchan-Hepburn, Rt. Hon, P. G. T.||Howard, Hon. Greville (St. Ives)||Pitman, I. J.|
|Bullus, Wing Commander E. E.||Howard, John (Test)||Pott, H. P.|
|Butcher, Sir Herbert||Hudson, Sir Austin (Lewisham, N.)||Powell, J. Enoch|
|Carr, Robert||Hudson, W. R. A. (Hull, N.)||Price, David (Eastleigh)|
|Cary, Sir Robert||Hughes Hallett, Vice-Admiral J.||Price, Henry (Lewisham, W.)|
|Chichester-Clark, R.||Hughes-Young, M. H. C.||Prior-Palmer, Brig. O. L.|
|Clarke, Brig. Terence (Portsmth, W.)||Hutchison, Sir Ian Clark (E'b'gh, W.)||Profumo, J. D.|
|Cole, Norman||Hyde, Montgomery||Raikes, Sir Victor|
|Cooper, Sqn. Ldr. Albert||Hylton-Foster, Sir H. B. H.||Rawlinson, P. A. G.|
|Corfield, Capt. F. V.||Iremonger, T. L.||Redmayne, M.|
|Craddook, Beresford (Spelthorne)||Irvine, Bryant Godman (Rye)||Rees-Davies, W. R.|
|Crookshank, Capt. Rt. Hn. H. F. C.||Jenkins, Robert (Dulwich)||Renton, D. L. M.|
|Crouch, R, F.||Jennings, J. C. (Burton)||Ridsdale, J. E.|
|Crowder, Sir John (Finchley)||Johnson, Dr. Donald (Carlisle)||Rippon, A.G.F.|
|Crowder, Petre (Ruislip—Northwood)||Johnson, Eric (Blackley)||Roberts, Peter (Heeley)|
|Cunningham, S. K.||Kaberry, D.||Robertson, Sir David|
|Currie, G. B. H.||Kerby, Capt. H. B.||Robinson, Sir Roland (Blackpool, S.)|
|Dance, J. C. G.||Kerr, H. W.||Robson-Brown, W.|
|D'Avigdor-Goldsmid, Sir Henry||Kershaw, J. A.||Roper, Sir Harold|
|Deedes, W. F.||Kirk, P. M.||Sandys, Rt. Hon. D.|
|Digby, S. Wingfield||Lagden, G. W.||Schofield, Lt.-Col. W.|
|Donaldson, Cmdr. C. E. McA.||Lancaster, Col. C. G.||Scott-Miller, Cmdr. R.|
|Doughty, C. J. A.||Langford-Holt, J. A.||Simon, J. E. S. (Middlesbrough, W.)|
|Drayton, G. B.||Leburn, W. G.||Soames, Capt. C.|
|Dugdale, Rt. Hn. Sir T. (Richmond)||Legge-Bourke, Maj. E. A. H.||Spearman, A. C. M.|
|Duncan, Capt. J. A. L.||Legh, Hon. Peter (Petersfield)||Speir, R. M.|
|Eden,Rt.Hn.SirA.(Warwick&L'm'tn)||Lindsay, Hon. James (Devon, N.)||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)|
|Eden, J. B. (Bournemouth, West)||Lindsay, Martin (Solihull)||Stanley, Capt. Hon. Richard|
|Elliot, Rt. Hon. W. E.||Linstead, Sir H. N.||Steward, Sir William (Woolwich, W.)|
|Emmet, Hon. Mrs. Evelyn||Lloyd, Maj. Sir Guy (Renfrew, E.)||Stewart, Henderson (Fife, E.)|
|Errington, Sir Eric||Lloyd, Rt. Hon. Selwyn (Wirral)||Storey, S.|
|Erroll, F. J.||Lloyd-George, Maj. Rt. Hon. G.||Summers, G. S. (Aylesbury)|
|Fell, A.||Longden, Gilbert||Sumner, W. D. M. (Orpington)|
|Finlay, Graeme Fleetwood-Hesketh, R. F.||Lucas, Sir Jocelyn (Portsmouth, S.).||Taylor, Sir Charles (Eastbourne)|
|Lucas-Tooth, Sir Hugh||Teeling, W.|
|Fort, R.||McCallum, Major Sir Duncan||Thomas, Leslie (Canterbury)|
|Fraser, Hon. Hugh (Stone)|
|Fraser, Sir Ian (M'cmbe & Lonsdale)||Macdonald, Sir Peter||Thomas, P. J. M. (Conway)|
|Freeth, D. K.||Maokeson, Brig. Sir Harry||Thompson, Kenneth (Walton)|
|Galbraith, Hon. T. G. D.||McKibbin, A. J.||Thompson, Lt.-Cdr.R.(Croydon, S.)|
|Gammans, L. D.||Mackie, J. H. (Galloway)||Thornton-Kemsley, C. N.|
|Glover, D.||McLaughlin, Mrs. P.||Tiley, A. (Bradford, W.)|
|Gomme-Duncan, Col. A.||Maclean, Fitzroy (Lancaster)||Tilney, John (Wavertree)|
|Cough, C. F. H.||McLean, Neil (Inverness)||Touche, Sir Gordon|
|Gower, H. R.||Macleod, Rt. Hn. Iain (Enfield, W.)||Vane, W. M. F.|
|Graham, Sir Fergus||MacLeod, John (Ross & Cromarty)||Vaughan-Morgan, J. K.|
|Grant, W. (Woodside)||Macpherson, Niall (Dumfries)||Vickers, Miss J. H.|
|Green, A.||Maddan, Martin||Wade, D. W.|
|Gresham Cooke, R.||Maitland, Cdr. J. F. W. (Horncastle)||Wakefield, Edward (Derbyshire, W.)|
|Grimond, J.||Maitland, Hon. Patrick (Lanark)||Walker-Smith, D. C.|
|Grimston, Sir Robert (Westbury)||Manningham-Buller, Rt. Hn. Sir R.||Wall, Major Patrick|
|Gurden, Harold||Markham, Major Sir Frank||Ward, Hon. George (Worcester)|
|Hall, John (Wycombe)||Marlowe, A. A. H.||Ward, Miss I. (Tynemouth)|
|Hare, Hon. J. H.||Marples, A. E.||Waterhouse, Capt. Rt. Hon. C.|
|Harris, Frederic (Croydon, N.W.)||Marshall, Douglas||Webbe, Sir H.|
|Harrison, A. B. C. (Maldon)||Mawby, R. L.||Whitelaw, W.S.I.(Penrith & Border)|
|Harrison, Col. J. H. (Eye)||Medlicott, Sir Frank||Williams, Rt. Hn. Charles (Torquay)|
|Harvey, Air Cdre A. V. (Macclesfd)||Milligan, Rt. Hon. W. R.||Williams, Gerald (Tonbridge)|
|Harvey, Ian (Harrow, E.)||Molson, A. H. E.||Williams, Paul (Sunderland, S.)|
|Harvey, John (Walthamstow, E.)||Nabarro, G. D. N.||Williams, R. Dudley (Exeter)|
|Harvie-Watt, Sir George||Nairn, D. L. S.||Wilson, Geoffrey (Truro)|
|Heald, Rt. Hon. Sir Lionel||Neave, Airey||Wood, Hon. R.|
|Heath, Edward||O'Neill, Hn. Phelim(Co. Antrim, N.)||Woollam, John Victor|
|Henderson, John (Cathcart)||Ormsby-Gore, Hon. W. D.||Yates, William (The Wrekin)|
|Hill, Mrs. E. (Wythenshawe)||Orr, Capt. L. P. S.|
|Hill, John (S. Norfolk)||Orr-Ewing, Charles Ian (Hendon, N.)||TELLERS FOR THE NOES:|
|Hinchingbrooke, Viscount||Osborne, C.||Mr. Studholme and Mr. Wills.|
|Holland-Martin, C. J.||Page, R. G.|
|Amendment made: In page 2, line 4, leave out "four" and insert "three."— [The Solicitor-General.]|
§ 5.30 p.m.
§ Mr. Hale
I beg to move, in page 2, line 9, to leave out "seventy-five" and insert "forty."
The Amendment again draws attention to the very serious anomalies of this curiously complex and rather unworkable Clause. It will be found that the words at the outset of Clause 1 (2) are:'Where an action founded on contract or tort is commenced in the High Court which could have been commenced in the county court …'I do not know what that means. I do not think that anyone has ever said what it means. As I have said previously, one does not have to name damages in the High Court. One does not have to say that one is claiming £275 or £75. One claims damages at large. Therefore, who is to say whether an action should have been commenced in the county court? Any action can be commenced in the county court if it is limited to £400.
Then we come to the extraordinary anomaly at which the Amendment is directed. The Government, in their wisdom, say that a defendant shall be entitled to transfer any action to the High Court on his application to the judge, where the claim is over £40, if there is a point of law. On that, presumably, High Court costs follow, because there is an order of the court to say that it is proper that the case should go to the High Court.
What is the position of the plaintiff under the provisions of this quite fantastic Clause? In the case of the plaintiff, if the judge says that the appropriate amount to be recovered is £74 19s. 11d. he will get no costs, no court fees or witnesses' expenses. He will be penalised to the extent of being fined the whole of the cost of preparing the case, of medical expenses and witnesses' expenses, and for what reason? Because it will be said, "Your doctors have given evidence today which is quite different from the evidence with which they provided you." Counsel will be told, "Your client has made a rapid recovery."
There is no provision whatever in the Clause which permits for any justice to be done to a claimant in the High Court who recovers less than £75. The words are:… this section shall not affect any question as to costs if it appears to the High Court 1002 or a judge thereof … that there was reasonable ground for supposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in the county court.In other words, one has to satisfy the judge to have any costs at all on any scale. But when one went to the High Court one had reasonable cause to believe that one would obtain over £400, although one recovered less, in fact, than £75.
There is more than one reason for going to the High Court, and one reason which I have exercised in a case has been that I did not trust the judgment of the county court judge who would be called upon to deal with the case. This is a right which litigants have and in which they should not be fettered. I yield to no one in my admiration of the general sense of honour and of the conduct of county court judges, but everybody knows that there comes a time when one has a county court judge who is defendant-minded or plaintiff-minded. Everyone knows the county court judge who is landlord-minded or tenant-minded. One finds such cases constantly.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Will the hon. Member be good enough to explain why, in that case, he wants to insert the figure £40 instead of £75 in the Clause?
§ Mr. Hale
The only reason is that that is a figure which the Government have selected. If there is to be a limit, we suggest that it should operate equally for defendant and plaintiff, but the general body of litigation is between injured people and insurance companies. As the Bill stands, the Clause will give the overwhelming advantage to the insurance companies. It will give rights to defendants and impose penalties on plaintiffs who cannot afford to bear them. The penalties are of a very serious nature.
The motive of the Clause, as expressed by the Attorney-General, is not directed against the defendant but against the defendant's solicitor, to ensure that more and more cases are tried in the county court. It is the wrong way of doing it. I quite agree with my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). I do not believe that solicitors normally want to go to the High Court if they can avoid it. I do not believe that it pays them to go to the High 1003 Court today. It is true that county court costs are not very high, but the advantages of a speedy trial outweigh that consideration, in the light of going to assizes and having days of waiting in the corridors for listed cases to be called. I can see no reason for incorporating this peculiarly punitive subsection in the Clause.
§ Mr. Weitzman
I should like to support my hon. Friend the Member for Oldham, West (Mr. Hale). At present, if a plaintiff brings a general action in the High Court to recover £75 he is entitled to High Court costs. In this Clause not only is that right taken away, but, in giving him county court costs, the Government are not giving any costs at all. That is manifestly unfair.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I have listened with great attention to all that hon. Members have been saying and particularly to what has been said by the hon. Member for Oldham, West (Mr. Hale), about the delays in civil actions at assizes and the cost of keeping, for instance, doctors there for more than one or two days at a time. When he asks the reason for this part of the Clause, I would answer that it is in part to avoid delays of that kind to unload the burden, so far as it can be properly unloaded, from the High Court to the county court.
There has always been a provision of this kind as to a limit below which the plaintiff, if he has adopted the course of proceeding in the High Court when he might have proceeded in the county court, cannot recover the costs of the action. The change here involved is, first, merely one of amount. It looks as if we have done no more about the amount than about keeping pace with the change in the value of money.
Now I want to make a point against the argument I am advancing. The Evershed Committee did not, in fact, re- commend an increase in the relevant figures below which a litigant would get no costs, but was relying, of course, not only on economic sanctions, as it were, but on what my right hon. and learned Friend called the Draconian power in the Master, to transfer cases to the county court against the will of the parties. If we do not propose to rely on that power, as we do not for the reason my right 1004 hon. and learned Friend gave on Second Reading, it becomes essential that the economic sanctions should be sufficient in themselves for the purpose of unloading, so far as it can properly be unloaded, the burden from the High Court to the county court.
I would ask hon. Members to consider how well covered by these provisions is the exceptional case. It would be a very odd case where the plaintiff, having started in the High Court, got less than £75 when he believed that he was going to get more than £400. It is rather difficult to see what kind of a case it would be in which it would not be possible to make it appear to a High Court judge that a litigant had no reasonable grounds forsupposing the amount recoverable in respect of the plaintiff's claim to be in excess of the amount recoverable in an action commenced in the county court.I suppose there might be a case in addition to those that this Committee has already discussed. There may be one, for instance, where on the final hearing of the evidence it turned out that the plaintiff's injuries or illness were only in part due to the cause for which the defendant was responsible. In that case, the judge would quite easily allow it to be made to appear to him that this was a case for reasonably supposing that the amount recoverable was going to be in excess of the amount recoverable in an action begun in the county court.
§ 5.45 p.m.
§ Mr. S. Silverman
I am not quite clear about this and I may have it all wrong. The Clause as drafted gives a judge power to award High Court costs where less than £300 is recovered, but when the judge is satisfied that there was reasonable ground for believing that when the case was brought the plaintiff would recover more than £400. If the plaintiff recovered less than £75, is the judge then to be invited to lighten the penalty and to exercise his discretion in the plaintiff's favour if the plaintiff says there was reasonable grounds to expect more than £75 or more than £400? If the plaintiff has to show, as I believe is the proper construction of the Clause, that in such a case there was reasonable ground to believe he would get more than £400 where he recovered less than £75, then I should regard such a task as hopeless.
§ The Solicitor-General
I agree with the hon. Gentleman's interpretation of the Clause, and I was trying to illustrate by a supposed case where it might be reasonable.
Let us take the case of a man who suffers serious injury to his knee while at work. It is thought at first that all the trouble with the knee is due to the accident at work. Anybody looking at the case on that footing will expect that he will get £400. It then turns out, as the defence gets down to its task with all its usual ingenuity, X-rays and the like, that the actual results of the accident to the knee are quite small, and that, unknown to the man, he has had a congenital complaint in that knee which turns out to be the principal cause of his disability.
Anyone who has practised in the courts in these matters would not be at all surprised to find a case like that. I am sure that hon. Members who practise would know of that kind of case, and I submit it is a fair illustration of an instance in which a man might properly recover from the defendant less than £75 whereas, at an early stage of the action, he was justified, in believing that he would recover more than £400.
§ Mr. Hale rose—
§ The Solicitor-General
Let me deal with this one matter and then I will give way.
I do not think that in the course of our discussions, the matter has been stated quite accurately, because in this instance the position would be that once it appeared to the judge that that was the position, then these provisions restricting costs would not apply at all and they would come right out of the picture.
§ Mr. Hale
Would the Solicitor-General deal with this case, because it seems to me that he is introducing a new doctrine into the administration of justice? As I understand his argument, it is that if a plaintiff establishes that he has a case for £60 and he thought he had, which he has not, a case for another £200 or £300, if the judge thought he had a case, which he has not, and if he decides that the defendant was right and the plaintiff wrong, he will then award the plaintiff the costs against the action. If that is so, I submit to the Committee that we are getting into a position of some difficulty.
§ The Solicitor-General
The hon. Member has not yet appreciated the value of this provision. Perhaps some of his criticisms of it would not have been made if he considered what it says. The question is: does it appear to the High Court judge that there was reasonable grounds for supposing—that is, the time when it is decided whether there is to be a High Court or county court action—that the amount recoverable in respect of the plaintiff's claim would be in excess of the amount recoverable in an action commenced in the county court? That is the first protection against the supposed injustice which this, I submit, necessary provision would effect.
It is not the only one, however. There is also the provision, already referred to, in Section 47 (3) of the principal Act, which still stands. If the plaintiff can say to the High Court judge, whether his action be founded on contract or tort, that there was sufficient reason for bringing the action in the High Court, and the judge is of that opinion, once again he would suffer no penalty under the words that are here complained about by the hon. Gentleman.
§ Mr. Weitzman
Does the hon. and learned Gentleman anticipate that this difficulty might arise, that a month or so after the action had been brought and the learned judge was discussing the question of exercising his discretion, he might say, "You ought to have realised the position a month or two afterwards. You ought to have applied to transfer the matter to the county court or to have discontinued it"? Where then does the real exercise of discretion by the learned county court judge come in?
§ The Solicitor-General
He is invited to consider it at that moment when he has to deal with costs and he is asked to consider was there ground for commencing the action in the county court—I am telescoping the words.
§ The Solicitor-General
I submit to the Committee that is the view, that there was reasonable ground for supposing it at the antecedent time, but I will not argue matters of construction with the hon. and learned Gentleman. The whole of this substituted subsection deals with an action commenced in the High Court which could have been commenced in 1007 the county court, and "commencing" is the clue word in each part.
I would like to be more concessionary but I cannot, and I would be misleading the Committee if I said that I could. Having considered these difficulties, what we feel basically is that not to retain a provision on these lines would be to thwart the main purpose of this Bill, which is common to all sides of the Committee, namely, to induce the passing to the county court of matters that could properly and safely go there.
§ Mr. S. Silverman
The concluding words of the hon. and learned Gentleman were that for him to make any concession on this point would be to defeat the purpose of the Bill, which is to force as many cases as possible into the county court. The Solicitor General appears to have overlooked the fact that this was not the view of the Evershed Committee which, as he himself frankly told us, did not make that recommendation. It made another recommendation which the Government have discarded, and we all agree with their discarding it, namely, the giving of the Master an absolute right to send a case to the county court if he thought fit.
If, however, in rejecting that proposal the Government were intending to substitute this one for it, they might have left the Committee the opportunity of choosing between the two. To many of us it seems that the proposal of the Government is more Draconian and not less Draconian than that of the Evershed Committee, and if we had to choose between the two, we would rather give some discretion in the matter to an experienced Master in the High Court than to leave the unfortunate plaintiff to persist in his error until all the costs of a High Court action had been incurred and then have the judge say, "You had no right to come here at all. You are here at your peril and you shall have no costs on coming here, even though this means that, so far from recovering the damages which the court thinks you ought to have, you will be worse off at the end of the action than before you issued your writ."
How the Government have persuaded themselves that the second of these proposals is less severe than to allow a Master at an early stage to order the matter to be transferred to the county 1008 court, I cannot understand. I hope sincerely that the hon. and learned Gentleman will consult his right hon. and learned Friend and see whether the Government really mean this.
It is a long time since I saw anything so anomalous as the proposal which the Government are now recommending to us. Apparently, in this one class of case the plaintiff is to get High Court costs or no costs. There is no provision for the perfectly possible case where a man might be able to satisfy the judge that, although he has recovered less than £75 and although he never had, and could not reasonably ever have had, any hope of recovering more than £400, he nevertheless had a hope of recovering more than £75 or more than £100.
§ Mr. Silverman
I would rather not be diverted.
There are various ways in which the argument can be put, more and less favourably, but the point I want to make is the anomaly that a man who might satisfy the judge that he has reasonable cause to expect more than would have enabled the defendant to take it out of the county court into the High Court but, nevertheless, not more than £400, is deprived not merely of the High Court costs but of any costs. How can that be justified? I do not know whether the hon. and learned Gentleman has thought of it, whether it has come into the discussions, but he certainly did not mention it and it seems to me an obvious anomaly.
Let us compare this anomaly that a man cannot recover any costs because he began in the wrong court with the comparable case of which my hon. Friend reminded the Committee in his argument. Supposing such a man in such a case as I have been suggesting had been of the mind of the Government, that all cases capable of being tried in the county court must necessarily be commenced and tried there, and he commences in the county court and wins £50 of damages or, as was pointed out by my hon. Friend, £75. If he does, the defendant can go to the county court judge and say, "I am prepared to provide security for damages and costs. I can satisfy you that there is something fit to be tried in the High 1009 Court or more fit to be tried in the High Court than here, and the damages that are sought are more than £40," and he can then get it transferred to the High Court.
If one is to have those two provisions existing side by side in one's legislation, surely the criterion ought to be the same in each case. One might well have a case where a man had started in the county court and was taken by the defendent into the High Court where he recovered less than £75, and then the judge might deprive him of any costs on the ground that he had to give the plaintiff High Court costs or nothing, and, as there was no case for High Court costs, he would get nothing.
Unless the Government are very careful in their enthusiasm for crowding as many cases as possible into the county court they will end up by establishing a double system of justice. I am sure that is certainly not their intention. However, if they are not going to look at anomalies of this kind and take precautions to avoid them, the result will be one kind of judge, one kind of court, one kind of procedure and one standard of costs if one is poor, and another if one is rich. I am certain that no one on the Evershed Committee, no one on the Government benches and certainly no one on the Opposition benches, would wish to lend his support to any such result, but unless we are careful that is where we shall end up.
§ 6.0 p.m.
§ Mr. Weitzman
I should like to put this to the Solicitor-General. I take it that if a plaintiff brings an action in the High Court and recovers £300, now that the cushion principle has been conceded he will get High Court costs, but if a plaintiff brings an action, and recovers less than £75, the criterion on which the judge will consider whether he is entitled to any costs at all will be in relation not to £300 but to £400.
§ Sir L. Ungoed-Thomas
I cannot sympathise with the approach of the Government towards the object of the Bill, which is emerging more and more clearly as the debate goes on. It emerged to some extent on Second Reading, it was emphasised more in the debate on the last Amendment, and it is emerging again now.
The Government seem to consider that the whole purpose of the Bill is to push 1010 litigation into the county courts. The Solicitor-General even suggested that the Opposition share his view. I do not share it. I do not consider that this is a Bill to achieve administrative convenience in the working of the courts. I consider it to be a Bill which extends county court jurisdiction commensurate with changes in the value of money in the interests of the convenience of and justice for litigants who resort to the county courts.
Our approach is from the litigant's point of view. The Government's approach is from the point of view of administrative convenience. All the issues and points of detail that have been discussed upon our Amendments have been discussed from those two points of view. I do not share the view that it is a Bill—if it is so conceived, I do not agree with the object —to achieve administrative convenience by pushing cases from the High Court into the county courts.
It therefore follows in our case that all these provisions should be regarded not on the test "Will it, or will it not, achieve the transfer of litigation from the High Court to the county courts?" but on the test, "Is it, or is it not, just in relation to the poor person who frequents the county courts?" Those two tests represent the cleavage separating the two sides of the Committee on the Amendments that we have been discussing.
I now want to talk about the sanction to push cases from the High Court into the county courts. The Solicitor-General will appreciate that there is already a sanction for that in the case of the recovery of sums under £300, where nothing more than the county court scale of costs can be recovered. We are now considering applying the sanction of granting no costs at all although the litigant succeeds on the question of liability and merely fails on the quantum of damages, which everybody knows to be an extremely questionable, and sometimes extremely speculative, factor.
I will not repeat the very forcible considerations put forward by my hon. Friends. I hope it will never be thought in this Committee or in this House that if one does not repeat an argument already put forward one does not agree with it. I merely want to put another test, as mathematical tests are becoming very fashionable in these debates, and that is 1011 the reasonableness of the figure suggested by my hon. Friend the Member for Oldham, West (Mr. Hale).
As things are now, no costs can be recovered if less than £10 is awarded in the High Court in tort or £40 in contract. In the case of tort, £10 is one-twentieth of the county court £200 limit. In the case of contract, the £40 is one-fifth of the present county court limit. We are doubling the limit of the county court jurisdiction. If we similarly doubled the limits of £10 for tort and £40 for contract, we should get £20 for tort and £80 for contract. The Government are proposing a £75 limit for both, which is nearly the contract limit.
We all know that the distinctions between tort and contract were made because of the great difficulty of assessing damages in tort. That distinction is being abolished, and, if that is so, we ought to lean towards the tort proportion rather than the contract proportion. What the Government are substantially doing is adopting the contract proportion for tort as well. What my hon. Friend proposes is, in effect, that the difference should be split in half and that there should be a limit of one-tenth for both contract and tort instead of one-fifth for contract and one-twentieth for tort. It seems to us to be an eminently reasonable provision. It is another way of arriving at the figure of £40 which is included in my hon. Friend's Amendment, and it is one which I should certainly commend to my hon, Friends.
I appreciate that one can argue about figures, and in relation to quantum one can invariably be cheese-paring here, there and everywhere, but it does not get one far. Nevertheless, a substantial difference in amount is involved. We can test the amount, as my hon. Friends have done, by reference to the provision for the defendant transferring to the High Court, and we can also test it by means of the figures which are already in operation and splitting the difference between contract and tort.
The figure of £40 is justifiable from more than one angle, and the fundamental approaches which lead the Opposition to the figure of £40 and the Government to the figure of £75 represent an extremely important difference. If one finds behind the two figures such a difference in 1012 approach which is fundamental to the purpose of the Bill, then the difference between £40 and £75 cannot be brushed aside as being without significance. I believe it to be a difference of very substantial significance, and I certainly hope that my hon. Friend will press his Amendment to a Division.
§ Mr. Rees-Davies
This Amendment is one with which I cannot agree in its present form. But I wish to make a few brief observations on this matter, because I share certain anxieties about the Clause. The hon. Member for Nelson and Colne (Mr. S. Silverman) and other hon. Members were manifestly correct when they said—and I say this as one of many of us who have had a good deal of experience of these courts—that either High Court costs will be awarded or nothing. That is correct.
I was interested to hear the graceful way in which the Solicitor-General tried to pose a theoretical case where someone might get less than £75 and still persuade the judge that he ought to have got more than £400. But those of us with a wide experience of these courts know that that would not be the case. What is absent in this Clause is any proviso where a person gets under £75, and it seems to me that this Amendment could be obviated were the Government to look at the matter from this point of view.
They wish to raise the figure by seven-and-a-half times. If at present a person receives more than £10 in tort he would, none the less, be able to get county court costs. Now the figure is to be raised to £75, and even in these days, that is a good deal more than the cost of living has risen between now and the pre-war period. It is also a great deal more than jurisdiction has been expanded which is only from £200 to £400.
I do not think that that leads us to the argument that £40, or any other figure, is necessarily right. Therefore, I should like hon. Gentlemen opposite, and the Government—because they are both affected by this—to consider this reasonable compromise: whether the proviso, which says that the High Court judge shall consider whether there is reasonable ground for supposing that the amount recoverable should be in excess of the amount recoverable by action in the county court, should apply to paragraph (a).
1013 The judge would then consider this. If a person got more than £300, he would get High Court costs. If he got just under £300, there would be discretion, but I think that the High Court judge would say that he would still get High Court costs. But, under paragraph (b), if a person recovered a sum less than £75, he would not be entitled to any costs of the action, unless the judge thought that in all the circumstances it was reasonable for him to get county court costs. That is to say, the judge would have a quite simple function. First, he would decide whether he would grant High Court costs, and a person would get it if the figure was £300 or over with the discretion there; and if a person got less than £75 there would also be a discretion to award county court costs—but no other discretion—if the judge thought fit.
I have not had time to give deep consideration to this, and it may well be that my proposal is unsuitable or wrong. I put it forward in nothing but complete humility in an endeavour to arrive at a determination. It seems to me wrong for a litigant to start in the High Court in an action of tort and then to get, say, £65 eventually, but to have no discretion at all, and, therefore, get no costs at all. We should try to remedy that in some way, but I do not think that the Amendment does so. In any event, it is raising the figure by as much as seven-and-a-half times the previous figure, which is not in accordance with the principle.
I wish to say a word about the Government's attitude on this matter. I do not think that the Government are seeking to press these cases into the county courts for the convenience of administration. Hon. Gentlemen must recognise that we have the Legal Aid and Advice Act and
§ there must be some protection for defendants. I think that this Clause was drafted primarily for the purpose of assisting defendants and I merely mention that, of course, a defendant does have certain rights to apply for remit from the High Court to the county court in all the circumstances of the case. But in cases of tort it is difficult to remit if the plaintiff's solicitor or counsel says that he really believes that his client will get more than £400.
§ I do not think that the Government need be ashamed of their attitude in this matter. Nothing they have done could lead us to suppose that they are doing this solely for administrative purposes. I consider that the Government are trying to hold the scales of justice evenly balanced between the plaintiff and the defendant. If the Government would undertake to look at this matter between now and the Report stage, not only in the light of what I have said, but to see whether it be possible to find a solution, perhaps hon. Gentlemen opposite might not wish to press this Amendment to a Division.
§ The Solicitor-General
I rise merely in courtesy to the Committee, because were I to address the Committee again I should be guilty of what the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has warned me against, namely, repeating arguments. Of course, everything which has been said on this point will be considered between now and Report stage, but I have said that I cannot accept this Amendment and I must adhere to that.
§ Question put, That the words proposed to be left out stand part of the Clause:—
§ The Committee divided: Ayes 232, Noes 183.1017
|Division No. 16.]||AYES||[6.17 p.m.|
|Agnew, Cmdr. P. G.||Bevins, J. R. (Toxteth)||Carr, Robert|
|Aitken, W. T.||Bidgood, J. C.||Cary, Sir Robert|
|Allan, R. A. (Paddington, s.)||Bishop, F. P.||Chichester-Clark, R.|
|Amery, Julian (Preston, N.)||Black, C. W.||Clarke, Brig. Terence (Portsmth, W.)|
|Anstruther-Gray, Major W. J.||Body, R. F.||Cole, Norman|
|Arbuthnot, John||Bossom, Sir A. C.||Cooper-Key, E. M.|
|Armstrong, C. W.||Boyle, Sir Edward||Corfield, Capt. F. V.|
|Ashton, H.||Braine, B. R.||Craddock, Beresford (Spelthorne)|
|Atkins, H. E.||Braithwaite, Sir Albert (Harrow, W.)||Crookshank, Capt. Rt. Hn. H. F. C.|
|Baldock, Lt.-Comdr. J. M.||Brooke, Rt. Hon. Henry||Crouch, R. F.|
|Balniel, Lord||Brooman-White, R. C.||Crowder, Sir John (Finchley)|
|Banks, Col. C.||Browne, J. Nixon (Craigton)||Crowder, Petre (Rulslip—Northwood)|
|Barber, Anthony||Bryan, P.||Cunningham, S. K.|
|Barter, John||Bullus, Wing Commander E. E.||Currie, G. B. H.|
|Baxter, Sir Beverley||Burden, F. F. A.||Dance, J. C. G.|
|Bell, Ronald (Bucks, S.)||Butcher, Sir Herbert||D'Avigdor-Goldsmid, Sir Henry|
|Deedes, W. F.||Johnson, Dr. Donald (Carlisle)||Price, Henry (Lewisham, W.)|
|Digby, S. Wingfield||Johnson, Eric (Blackley)||Prior-Palmer, Brig. O. L.|
|Donaldson, Cmdr. C. E. McA.||Jones, A. (Hall Green)||Raikes, Sir Victor|
|Doughty, C. J. A.||Joynson-Hicks, Hon. L. W.||Rawlinson, P. A. G.|
|Drayson, G. B.||Kaberry, D.||Redmayne, M.|
|Dugdale, Rt. Hn. Sir T. (Richmond)||Kerby, Capt. H. B.||Rees-Davies, W. R.|
|Duncan, Capt. J. A. L.||Kerr, H. W.||Renton, D. L. M.|
|Elliot, Rt. Hon. W. E.||Kershaw, J. A.||Ridsdale, J. E.|
|Emmet, Hon. Mrs. Evelyn||Kirk, P. M.||Rippon, A. G. F.|
|Errington, Sir Eric||Lagden, G. W.||Roberts, Peter (Heeley)|
|Erroll, F. J.||Lancaster, Col. C. G.||Robinson, Sir Roland (Blackpool, S.)|
|Fell, A.||Langford-Holt, J. A.||Robson-Brown, W.|
|Finlay, Graeme||Leavey, J. A.||Roper, Sir Harold|
|Fleetwood-Hesketh, R. F.||Leburn, W. G.||Sandys, Rt. Hon. D.|
|Fort, R.||Legge-Bourke, Maj. E. A. H.||Schofield, Lt.-Col. W.|
|Fraser, Hon. Hugh (Stone)||Legh, Hon. Peter (Petersfield)||Scott-Miller, Cmdr. R.|
|Fraser, Sir Ian (M'cmbe & Lonsdale)||Lindsay, Martin (Solihull)||Simon, J. E. S. (Middlesbrough, W.)|
|Freeth, D. K.||Linstead, Sir H. N.||Soames, Capt. C.|
|Galbraith, Hon. T. G. D.||Lloyd, Maj. Sir Guy (Renfrew, E.)||Spearman, A. C. M.|
|Gammans, L. D.||Lloyd, Rt. Hon. Selwyn (Wirral)||Speir, R. M.|
|Glover, D.||Lloyd-George, Maj. Rt. Hon. G.||Spence, H. R. (Aberdeen, W.)|
|Gomme-Duncan, Col. A.||Longden, Gilbert||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)|
|Gough, C. F. H.||Lucas, Sir Jocelyn (Portsmouth, S.)||Stanley, Capt. Hon. Richard|
|Gower, H. R.||Lucas-Tooth, Sir Hugh||Steward, Harold (Stockport, S.)|
|Graham, Sir Fergus||McCallum, Major Sir Duncan||Steward, Sir William(Woolwich, W.)|
|Grant, W. (Woodside)||Macdonald, Sir Peter||Stewart, Henderson (Fife, E.)|
|Green, A.||Mackeson, Brig. Sir Harry||Storey, S.|
|Gresham Cooke, R.||McKibbin, A. J.||Studholme, H. G.|
|Grimond, J.||Mackie, J. H. (Galloway)||Summers, G. S. (Aylesbury)|
|Grimston, Sir Robert (Westbury)||McLaughlin, Mrs. P.||Sumner, W. D. M. (Orpington)|
|Gurden, Harold||Maclean, Fitzroy (Lancaster)||Teeling, W.|
|Hall, John (Wycombe)||McLean, Neil (Inverness)||Thomas, Rt. Hn. J. P. L. (Hereford)|
|Hare, Hon. J. H.||Macleod, Rt. Hn. Iain (Enfield, W.)||Thomas, Leslie (Canterbury)|
|Harris, Frederic (Croydon, N. W.)||MacLeod, John (Ross & Cromarty)||Thomas, P. J. M. (Conway)|
|Harris, Reader (Heston)||Macpherson, Niall (Dumfries)||Thompson, Kenneth (Walton)|
|Harrison, A. B. C. (Maldon)||Maddan, Martin||Thornton-Kemsley, C. N.|
|Harvey, Air Cdre. A. V. (Maccisfd)||Maitland, Comdr. J. F. W. (Horncastle)||Tiley, A. (Bradford, W.)|
|Harvey, Ian (Harrow, E.)||Maitland, Hon. Patrick (Lanark)||Tilney, John (Wavertree)|
|Harvey, John (Walthamstow, E.)||Manningham-Buller, Rt. Hn. Sir R.||Touche, Sir Gordon|
|Harvie-Watt, Sir George||Markham, Major Sir Frank||Turner, H. F. L.|
|Heald, Rt. Hon. Sir Lione||Marlowe, A. A. H.||Vane, W. M. F.|
|Heath, Edward||Marples, A. E.||Vaughan-Morgan, J. K.|
|Henderson, John (Cathcart)||Maude, Angus||Vickers, Miss J. H.|
|Hill, Mrs. E. (Wythenshawe)||Mawby, R. L.||Wade, D. W.|
|Hill, John (S. Norfolk)||Medlicott, Sir Frank||Wakefield, Edward (Derbyshire, W.)|
|Hinchingbrooke, Viscount||Milligan, Rt. Hon. W. R.||Walker-Smith, D. C.|
|Holt, A. F.||Molson, A. H. E.||Wall, Major Patrick|
|Hornsby-Smith, Miss M. P.||Nabarro, G. D. N.||Ward, Hon. George (Worcester)|
|Horobin, Sir Ian||Nairn, D. L. S.||Ward, Miss I. (Tynemouth)|
|Horsbrugh, Rt. Hon. Dame Florence||Neave, Airey||Waterhouse, Capt. Rt. Hon. C.|
|Howard, Hon. Greville (St. Ives)||O'Neill,Hn. Phelim (Co. Antrim, N.)||Webbe, Sir H.|
|Howard, John (Test)||Orr-Ewing, Charles Ian (Hendon, N.)||Williams, Rt. Hn. Charles (Torquay)|
|Hudson, Sir Austin (Lewisham, N.)||Osborne, C.||Williams, Gerald (Tonbridge)|
|Hughes Hallett, Vice-Admiral J.||Page, R. G.||Williams, Paul (Sunderland, S.)|
|Hughes-Young, M. H. C.||Pannell, N. A. (Kirkdale)||Wills, G. (Bridgwater)|
|Hutchison, Sir Ian Clark (E'b'gh.W.)||Peake, Rt. Hon. O.||Wilson, Geoffrey (Truro)|
|Hyde, Montgomery||Peyton, J. W. W,||Woollam, John Victor|
|Hylton Foster, Sir H. B. H.||Pickthorn, K. W. M.||Yates, William (The Wrekin)|
|Iremonger, T. L.||Pitman, I. J.|
|Irvine, Bryant Godman (Rye)||Pott, H. P.||TELLERS FOR THE AYES:|
|Jenkins, Robert (Dulwich)||Powell, J. Enoch||Mr. R. Thompson and|
|Jennings, J. C. (Burton)||Price, David (Eastleigh)||Colonel J. H. Harrison.|
|Ainsley, J. W.||Brockway, A. F.||Daines, P.|
|Allaun, F. (Salford, E.)||Brown, Thomas (Ince)||Dalton, Rt. Hon. H.|
|Allen, Scholefield (Crewe)||Burke, W. A.||Darling, George (Hillsborough)|
|Anderson, Frank||Butler, Herbert (Hackney, C.)||Davies, Ernest (Enfield, E.)|
|Awbery, S. S.||Butler, Mrs. Joyce (Wood Green)||Davies, Harold (Leek)|
|Bacon, Miss Alice||Callaghan, L. J.||Davies, Stephen (Merthyr)|
|Bartley, P.||Carmichael, J.||Delargy, H. J.|
|Benn, Hn. Wedgwood (Bristol, S. E.)||Champion, A. J.||Dodds, N. N.|
|Benson, G.||Clunie, J.||Donnelly, D. L.|
|Blackburn, F.||Coldrick, W.||Dye, S.|
|Blenkinsop, A.||Collick, P. H. (Birkenhead)||Edelman, M.|
|Boardman, H.||Corbet, Mrs. Freda||Edwards, Rt. Hon. Ness (Caerphilly)|
|Bottomley, Rt. Hon. A. G.||Cove, W. G.||Edwards, Robert (Bilston)|
|Bowden, H. W. (Leicester, S. W.)||Craddock, George (Bradford, S.)||Edwards, W. J. (Stepney)|
|Bowles, F. G.||Cronin, J. D.||Evans, Edward (Lowestoft)|
|Boyd, T. C.||Crossman, R. H. S.||Evans, Stanley (Wednesbury)|
|Braddock, Mrs. Elizabeth||Cullen, Mrs. A.||Fernyhough, E.|
|Fletcher, Eric||Lee, Frederick (Newton)||Roberts, Goronwy (Caernarvon)|
|Forman, J. C.||Lever, Leslie (Ardwick)||Ross, William|
|Fraser, Thomas (Hamilton)||Lewis, Arthur||Shinwell, Rt. Hon. E.|
|Freeman, Peter||Lindgren, G. S.||Silverman, Julius (Aston)|
|Gaitskell, Rt. Hon. H. T. N.||Lipton, Lt.-Col. M.||Silverman, Sydney (Nelson)|
|Gibson, C. w.||Logan, D. G.||Simmons, C. J. (Brierley Hill)|
|Greenwood, Anthony||McGhee, H. G.||Skeffington, A. M.|
|Grey, C. F.||Mclnnes, J.||Slater, Mrs. H. (Stoke, N.)|
|Griffiths, David (Rother Valley)||McKay, John (Wallsend)||Slater, J. (Sedgefield)|
|Griffiths. Rt. Hon. James (Llanelly)||McLeavy, F.||Snow, J. W.|
|Griffiths, William (Exchange)||MacPherson, Malcolm (Stirling)||Sorensen, R. W.|
|Hale, Leslie||Mahon, S.||Sparks, J. A.|
|Hall, Rt. Hn. Glenvil (Colne Valley)||Mallalieu, E. L. (Brigg)||Steele, T.|
|Hall, John T. (Gateshead, W.)||Marquand, Rt. Hon. H. A.||Stewart, Michael (Fulham)|
|Hamilton, W. W.||Mayhew, C. P.||Stokes, Rt. Hon. R. R. (Ipswich)|
|Hannan, W.||Mikardo, Ian||Stones, W. (Consett)|
|Hastings, S.||Mitchison, G. R.||Strauss, Rt. Hon. George (Vauxhall)|
|Hayman, F. H.||Monslow, W.||Summerskill, Rt. Hon. E.|
|Henderson, Rt. Hn. A. (Rwly Regis)||Moody, A. S.||Swingler, S. T.|
|Herbison, Miss M.||Morris, Percy (Swansea, W.)||Taylor, John (West Lothian)|
|Hewitson, Capt. M.||Mort, D. L.||Thomas, Iorwerth (Rhondda, W.)|
|Hobson, C. R.||Moss, R.||Ungoed-Thomas, Sir Lynn|
|Holman, P.||Moyle, A.||Usborne, H. C.|
|Holmes, Horaoe||Neal, Harold (Bolsover)||Viant, S. P.|
|Houghton, Douglas||Oliver, G. H.||Warbey, W. N.|
|Howell, Charles (Perry Barr)||Oram, A. E.||Watkins, T. E.|
|Howell, Denis (All Saints)||Orbach, M.||Weitzman, D.|
|Hubbard, T. F.||Oswald, T.||Wells, Percy (Faversham)|
|Hughes, Cledwyn (Anglesey)||Owen, W. J.||West, D. G.|
|Hughes, Emrys (S. Ayrshire)||Padley, W. E.||Wheeldon, W. E.|
|Hughes, Hector (Aberdeen, N.)||Paling, Rt. Hon. W. (Dearns Valley)||White, Mrs. Eirene (E. Flint)|
|Hunter, A. E.||Palmer, A. M. F.||Williams, Rev. Llywelyn (Ab'tillery)|
|Hynd, H. (Accrington)||Panned, Charles (Leeds, W.)||Williams, Ronald (Wigan)|
|Hynd, J. B. (Attercliffe)||Pargiter, G. A.||Williams, Rt. Hon. T. (Don Valley)|
|Irving, S. (Dartford)||Parkin, B. T.||Williams, W. T. (Barons Court)|
|Isaacs, Rt. Hon. G. A.||Paton, J.||Willis, E. G. (Edinburgh, E.)|
|Jay, Rt. Hon. D. P. T.||Pearson, A.||Wilson, Rt. Hon. Harold (Huyton)|
|Johnson, James (Rugby)||Peart, T. F.||Winterbottom, Richard|
|Johnston, Douglas (Paisley)||Probert, A. R.||Woodburn, Rt. Hon. A.|
|Jones, Jack (Rotherham)||Prootor, W. T.||Yates, V. (Ladywood)|
|Jones, J. Idwal (Wrexham)||Pursey, Cmdr. H.||Younger, Rt. Hon. K.|
|Key, Rt. Hon. C. W.||Rankin, John||Zilliacus, K.|
|King, Dr. H. M.||Reid, William|
|Lawson, G. M.||Rhodes, H.||TELLERS FOR THE NOES:|
|Ledger, R. J.||Roberts, Albert (Normanton)||Mr. Short and Mr. J. T. Price.|
§ Mr. E. Fletcher
I beg to move, in page 2, line 36, to leave out subsection (5).
This was a point to which I referred in the Second Reading debate, and I am bound to say that my reasons for desiring the omission of this subsection have been considerably reinforced by the fact that the Attorney-General has since put down two Amendments to the subsection which, so far as I can see, are completely meaningless. I am further reinforced in my desire to omit the subsection by the very curious reference which the Attorney-General made to it a few moments ago, I gathered that he was telling the Committee that, in his opinion, it might be necessary to implement the subsection at an early date.
I should like, first, to deal with the proposed Amendments to the subsection. because it may be that the Solicitor-General will be able to make clear, for the edification of the Committee, the intentions behind them. If these two 1018 Government Amendments were carried the subsection would read:If Her Majesty by Order in Council so directs, this section and Part I of the First Schedule to this Act shall have effect with the substitution for the references to three hundred pounds to four hundred pounds and to four hundred and fifty pounds of references to four hundred pounds to five hundred pounds and to five hundred and fifty pounds ֵI do not know whether other hon. Members can make sense of that, but I certainly cannot. It is beyond me to know what those words can possibly mean. The Attorney-General is suggesting that Her Majesty, by Order in Council, shall have the power to substitute for the references to £300, £400 and £450 references to £400, £500 and £550. It may be that it is possible to understand it with elucidation, but it is certainly not apparent at first or second sight.
I desire to omit this subsection for reasons of principle. I am convinced that in matters of any constitutional importance it is desirable not to give the 1019 Government power to legislate by Order in Council. Here we are dealing with a matter of jurisdiction, and the object of this subsection is to enable the Crown, with Parliamentary approval but without any opportunity of Parliamentary discussion, except the very attenuated form of Parliamentary discussion that is possible by a Prayer, to limit still further the jurisdiction of the High Court by extending the jurisdiction of the county court.
That seems to me to be quite a wrong principle. It is a very long time since the Executive has sought the power to confer private jurisdiction on anyone. For many centuries Parliament has been very jealous of its rights of jurisdiction in all matters affecting the judiciary. It seems to me undesirable, constitutionally, that there should be any innovation in the hitherto accepted doctrine that if there is to be any jurisdiction conferred on any court or any limitations of the existing jurisdiction of any court, that is a matter for Parliament and not for the Executive.
I would reinforce that argument in this way. The matter is obviously a far more complicated one than the Law Officers of the Crown thought when this subsection was inserted in Clause 1. It is not as though this will be a trivial matter when the Attorney-General wants to increase the jurisdiction from £400 to £500, and produces an Order in Council to that effect. It is obvious from the discussions which we have had in Committee on the Bill that all kinds of consequential matters of considerable concern are cropping up.
It seems to me, therefore, very desirable if, as the Attorney-General apparently thinks it may be necessary in the not distant future to ask Parliament to increase the county court jurisdiction still further to £500, that this should be done by Parliament so that we may have all the opportunities of Parliamentary debate and the House may consider what consequential changes are required as regards the cushion, the rights of defendants to apply for a remit, and all the other matters which are only now emerging, and which will continue to emerge during the Committee stage of the Bill. This shows how important it is that the proposals of the Government in this matter should be minutely and carefully examined to ensure that benefit to legislation eventually results.
1020 I hope that the Attorney-General will accept the view that if, in the future, he finds it necessary to ask the House still further to review the appropriate limits of jurisdiction in the county court, with all the attendant consequences that flow from it, that should be done Parliament as a whole, with full opportunities of Parliamentary discussion, and not done in the form of an Order in Council.
§ Mr. S. Silverman
I should like to say a word in support of the Amendment of my hon. Friend the Member for Islington, East (Mr. E. Fletcher). I hope to do so without repeating any of his arguments, not that I disagree with any of them but because he stated a very powerful argument very fully, and it would be a mistake to try to add to it.
There is one other point which my hon. Friend has not mentioned with which I should like to deal. It was said by my hon. and learned Friend the Member for Leicester, North-East (Sir L. UngoedThomas) that the Government seemed to be seeking to carry out the object of the Bill for reasons of administrative convenience rather than having regard to the justice of the case. I do not think he meant that as a sweeping generalisation applying to all the Bill, but as influencing their thinking on a number of disputed points. I think this is one of them.
The subsection which my hon. Friend wishes to leave out begins:If Her Majesty by Order in Council so directs, …That obviously means: if Her Majesty is so advised; and that, I suppose, means: is advised by the responsible Minister. That might be by the Attorney-General or the Lord Chancellor, or it might be by a decision of the Cabinet. What we are not told is what kind of consideration would lead them to tender that advice. In what circumstances would they think it right to alter again the jurisdiction of the county court by raising it —to put it in its simplest form—from £400 fixed by this Bill to £500—£100 more, or another 25 per cent.? What will make them wish to do that?
I can conceive of no reasons which would make them want to alter it by so small a proportion, other than a further deterioration in the value of money. I think that one of their main arguments in favour of the Bill is that it does little more than adjust the actual jurisdiction of 1021 the county court by the rise in the cost of living since 1938. Whether it actually does that or not is a matter of some doubt. If that kind of consideration is in their minds on this proposal, why stop at £500? The logical thing would be to have a kind of escalator so that by Order in Council the Government could, at any time they thought fit, alter the jurisdiction of the county court up or down according to the Minister of Labour's index of the cost of living, or a statistical assessment of wholesale prices. The Government are not proposing to do that. I cannot imagine that they ever would propose to do that.
If the Government are not proposing to do that, what is the purpose of having this subsection? If we are not to apply a sliding scale and raise it according to the changes in the cost of living or lower it accordingly if the cost of living goes the other way, and adopt that as a principle, why put this subsection in the Bill with the one purpose of raising the limit, not from £400 to £450 or £550, but from £400 to £500? When we have done that, we have no further power, no matter what other changes may take place in the index of the cost of living or in the value of money or anything else.
This seems to me to be a new proposal. I do not think that any Government at any previous time has sought powers to "muck about" with the jurisdiction of a court by Order in Council. This is proposed to be done, not in the case of the courts generally, but in the case of the county court for this one limited purpose. I hope that the right hon. and learned Gentleman will again think about this. It gives him no power of any substance, because he raises the limit in one operation from £400 to £500, and leaves it there. It has no value in social purposes, such as might lie behind keeping the limit of jurisdiction in tune with the changes in the cost of living.
It does not enable him to do that. He does not want to do it. Therefore why do it at all? If £500 is the right limit, put it in now. Will £500 be the right limit in six months', two years', five years' time, or when? Suppose the cost of living goes the other way. Why have the Government not the power to reduce the jurisdiction of the county courts accordingly? This is a totally new principle to introduce in this kind of 1022 legislation. It does not seem to have any useful or practical purpose. The Government will be well advised to accept the Amendment.
§ Lieut.-Colonel Marcus Lipton (Brixton)
I gladly associate myself with what has been said by my hon. Friends the Members for Islington, East (Mr. E. Fletcher) and Nelson and Colne (Mr. S. Silverman). To the best of my recollecdon I was one of the very few present for the Second Reading debate who specifically drew attention to this subsection. I then asked the Solicitor-General to consider excluding it altogether from the Bill either by making the necessary Amendment to subsection (1) or otherwise as he might think desirable. The Solicitor-General did not think fit to deal with the point when he wound up that debate.
Nevertheless, the Law Officers have had notice on this matter, and I hope that they will be able to provide evidence and reasoning for retaining the subsection. I have tried to work it out for myself, but I think the only argument that can he advanced in favour of the subsection is that the Law Officers do not know how the Bill will work and whether or not it will lead to a diminution of pressure on the High Court and a substantial increase in the number of cases in the county court.
There is the possibility that the Bill as it stands, without this subsection, will not sufficiently divert litigation from the High Court to the county court. If that is so, there is an argument for retaining this kind of discretionary power to enable the Government to raise the limit by Order in Council. In that way they would reduce the number of cases going to the High Court and would bring more cases into the county court.
It strikes me as odd that there should be doubt in the mind of the Attorney-General whether the Bill will serve the purpose for which it is primarily intended. Evidence of that doubt which obviously lurks in his mind is the existence of the subsection, and if he insists upon retaining it the only interpretation must be that he believes that in the not too distant future the Bill will fail in its primary object and that it will be necessary to raise the limit so as to bring more work to the county court.
1023 If that is so, the Attorney-General should make up his mind now and put the higher limit into the Bill, not wait for twelve months or two years and then, by Order in Council, try to achieve the object for which the Bill has been introduced.
There is the other argument, about the undesirability of creating more delegated legislation by Order in Council and that sort of thing, which I will not stress as it has already been dealt with.
Now that the Government have had time to consider the matter which was raised on the Second Reading, I hope that they will come to the conclusion either to introduce on the Report stage the appropriate limits into subsection (1), which will settle the matter, or to abandon this subsection altogether.
§ 6.45 p.m.
§ The Attorney-General
In our view, the case for the subsection is a strong one. As I said in my Second Reading speech, nobody can tell at present precisely what increase of work will result from the operation of legal aid in the county court, or how largely the work will increase as the result of recent legislation.
As I said on the Second Reading, the one thing one does not want to do is to transfer congestion from the High Court to the county court. I repeat again, as the hon. and gallant Member for Brixton (Lieut.-Colonel Lipton) obviously has not heard me, that it is necessary to fix a line and highly desirable that one should do so with a certain measure of flexibility. If the increase to £400 compensated fully for the depreciation in the value of money since 1938 there would be a lot more force in the argument advanced by the hon. Member for Islington, East (Mr. E. Fletcher), but that is not the case.
After listening to the arguments, I think it is most desirable to preserve flexibility to make the increase to £500 by Order in Council. One has to remember that the Order in Council has to be approved by Resolution of each House of Parliament, with ample opportunity for debate. If it is thought that the increase is being made too soon or will result in overloading the county court, one can express those views as well as if a Bill to effect that increase were under discussion.
1024 I gathered that the hon. Member for Islington, East found difficulty in construing this subsection, in the light of the Amendment which is now being moved into it. If he will read in the words where they should appear, he will find that his comments were based upon a misconstruction. He will read it as follows:This section and Part I of the First Schedule to this Act shall have effect with the substitution for the references to four hundred pounds and to four hundred and fifty pounds of references to five hundred pounds and to five hundred and fifty pounds.
§ The Attorney-General
I will see whether the meaning would be made clearer by the insertion of that extra word.
§ Mr. Fletcher
Could the Attorney-General tell us where and what would be the cushion figure in the event of county court jurisdiction being raised to £500?
§ The Attorney-General
I did say, when I moved the original Amendment, that it would be between £400 and £500.
§ The Attorney-General
By reason of the Amendments. If the Order in Council is brought in these consequential Amendments make provision for precisely the same cushion, that is to say, £100 if the limit is raised to £500.
§ Mr. S. Silverman
But would not that require that. in this Clause, there should be power to make an Order in Council not merely to raise the maximum limit of jurisdiction but also to raise the figure of £300?
§ The Attorney-General
The power is there, and if the hon. Gentleman will study it he will see that it is done by the substitution of these references to amounts of other figures. I can assure the hon. Gentleman that it is effectively secured by substitution of those figures—that the main cushion of £100 is preserved. I can assure the Committee that, in moving the Amendment. I would not have said that we were giving a similar cushion unless I was quite sure that we were doing so.
§ Mr. Silverman
I am very much obliged—I was wrong. It is quite clear that the subsequent Amendments do give 1025 power for that, but is not the consequence that if the powers are then used to make this Order in Council, the cushion is preserved at £100 but the proportion is reduced from 25 per cent. to 20 per cent.'?
§ The Attorney-General
Having regard to the retention of the other safeguards to which I have referred, I think that it is a satisfactory margin.
§ Mr. Silverman
I do not want to make another speech, but the right hon. and learned Gentleman satisfied a majority of the Committee that a reasonable margin was 25 per cent. He now wants power, by Order in Council, to reduce it to 20 per cent., and appears to regard that as a reasonable thing to do. If it is a reasonable thing to do, he will have to persuade some of us a good deal more convincingly than he has done so far.
§ The Attorney-General
I base my argument in support on the grounds that it was a margin of £100, and we are preserving the same margin here if we increase the amount. My hon. and learned Friend drew attention to the fact that it was 25 per cent. Here, I agree, it is a little less mathematically, but really, in my belief, the £100 is an adequate margin.
§ The Attorney-General
I am not dealing with hypothetical cases, but I think the amount is adequate to provide a satisfactory cushion.
There is one reason in favour of this flexibility which, again, I indicated earlier. It is that if the effect of providing this cushion is to mean only enlarging the jurisdiction of the county court effectively to £300 then the time might come—and come more speedily than otherwise would be the case—when it would he desirable to make this Order in Council so as to raise the effective jurisdiction of the county courts to £400.
§ Mr. E. Fletcher
The Attorney-General talks of flexibility. Supposing that, as a 1026 result of two or three years' experiment in the working of this Act, it is found desirable to raise the limit of county court jurisdiction to £500 but to have a cushion of £150, he would not be able to do that by Order in Council, would he?
§ The Attorney-General
No. That can only be done by moving an Amendment making variations in the figures here. The hon. Member is quite right. If the jurisdiction is increased to £500 this subsection fixes the cushion. I thought I had made it clear and I am sorry if I did not.
§ Sir L. Ungoed-Thomas
I think that the right hon. and learned Gentleman's explanations of this Clause are most unsatisfactory. He is arguing on the ground of flexibility, but he is proposing a Clause which is, in itself, the most inflexible instrument one could possibly conceive. He is producing this Clause in order to deal with circumstances which he is now attempting to forsee. We do not quite know how this will work out, how the cushion will work out, how the raising of the limits will work out or how other provisions in the Bill will work out.
We shall get experience of this, but the Government are seeking to say now that one thing which they may decide after having experience of the working of the Bill. It is a most extraordinary approach. If the Government believe that they may have to make alterations in the Bill as a result of the experience of working it the proper method, of course, is then to bring another Bill before the House, so that the House may have an opportunity of debating it, amending it and dealing with it in a way in which we cannot deal with an Order. It is quite inappropriate to use an Order for legislating ahead for circumstances which may be as variable as the circumstances which the Government are trying to foresee in this case.
In addition, there is the important matter raised by my hon. Friend the Member for Islington, East (Mr. E. Fletcher). Here, we are dealing with the jurisdiction of courts. We are not dealing with a parcel of food, or a piece of fish, or something of that kind, which may be dealt with properly by an executive order which the House can accept or reject and be done with. We are dealing with the administration of the courts, which affects 1027 the ordinary people in their daily lives. That is not a matter to be dealt with by an Order of this kind. The House should not now be put in the straitjacket of an Order, as though it had no discretion when coming to deal with the circumstances in which this Bill will operate. It seems to us, both on principle and as a matter of common sense that this is a
§ thoroughly pernicious proposal to apply to our courts, and I hope that my hon. Friend will press his Amendment to a Division.
§ Question put, That the words proposed to be left out, to "to," in line 38, stand part of the Clause:—
§ The Committee divided: Ayes 213, Noes 174.1029
|Division No. 17.]||AYES||[6.56 p.m.|
|Agnew, Cmdr. P. G.||Green, A.||Manningham-Buller, Rt. Hn. Sir R.|
|Altken, W. T.||Grimond, J.||Markham, Major Sir Frank|
|Allan, R. A. (Paddington, S.)||Grimston, Sir Robert (Westbury)||Marlowe, A. A. H.|
|Amery, Julian (Preston, N.)||Gurden, Harold||Marples, A. E.|
|Anstruther-Gray, Major W. J.||Hare, Hon. J. H.||Maude, Angus|
|Arbuthnot, John||Harris, Frederic (Croydon, N.W.)||Mawby, R. L.|
|Ashton, H.||Harrison, A. B. C. (Maldon)||Medlicott, Sir Frank|
|Atkins, H. E.||Harrison, Col. J. H. (Eye)||Milligan, Rt. Hon. W. R.|
|Baldock, Lt.-Cmdr. J. M.||Harvey, Air Cdre. A. V. (Maccesfd)||Nabarro, G. D. N.|
|Balniel, Lord||Harvey, Ian (Harrow, E.)||Nairn, D. L. S.|
|Banks, Col. C.||Harvey, John (Walthamstow, E.)||Neave, Airey|
|Barber, Anthony||Harvie-Watt, Sir George||O'Neill, Hn. Phelim (Co. Antrim, N.)|
|Barter, John||Heald, Rt. Hon. Sir Lionel||Ormsby-Gore, Hon. W. D.|
|Baxter, Sir Beverley||Heath, Edward||Orr-Ewing, Charles Ian (Hendon, N.)|
|Bell, Ronald (Bucks, S.)||Henderson, John (Cathcart)||Osborne, C.|
|Bevins, J. R. (Toxteth)||Hill, Mrs. E. (Wythenshawe)||Page, R. G.|
|Bidgood, J. C.||Hill, John (S. Norfolk)||Pannell, N. A. (Kirkdale)|
|Bishop, F. P.||Hinchingbrooke, Viscount||Peake, Rt. Hon. O.|
|Black, C. W.||Holt, A. F.||Peyton, J. W. W.|
|Body, R. F.||Hornsby-Smith, Miss M. P.||Pickthorn, K. W. M.|
|Braine, B. R.||Horobin, Sir Ian||Pitman, I. J.|
|Brooke, Rt. Hon, Henry||Horsbrugh, Rt. Hon. Dame Florence||Pott, H. P.|
|Brooman-White, R. C.||Howard, Hon. Greville (St. Ives)||Powell, J, Enoch|
|Browne, J. Nixon (Craigton)||Howard, John (Test)||Price, David (Eastleigh)|
|Bryan, P.||Hudson, Sir Austin (Lewisham, N.)||Price, Henry (Lewisham, w.)|
|Bullus, Wing Commander E. E.||Hughes, Hallett, Vice-Admiral J.||Prior-Palmer, Brig. O. L.|
|Burden, F. F. A.||Hughes-Young, M. H. C.||Raikes, Sir Victor|
|Butcher, Sir Herbert||Hutchison, Sir Ian Clark (E'b'gh, W.)||Rawlinson, P. A. G.|
|Carr, Robert||Hyde, Montgomery||Redmayne, M.|
|Cary, Sir Robert||Hylton-Foster, Sir H. B. H.||Rees-Davies, W. R.|
|Chichester-Clark, R.||Iremonger, T. L.||Renton, D. L. M.|
|Clarke, Brig. Terence (Portsmth, W.)||Irvine, Bryant Godman (Rye)||Ridsdale, J. E.|
|Cole, Norman||Jenkins, Robert (Dulwich)||Rippon, A. G. F.|
|Cooper-Key, E. M.||Jennings, J. C. (Burton)||Roberts, Peter (Heeley)|
|Corfield, Capt. F. V.||Johnson, Dr. Donald (Carlisle)||Robinson, Sir Roland (Blackpool, S.)|
|Crouch, R. F.||Johnson, Eric (Blackley)||Robson-Brown, W.|
|Crowder, Sir John (Finohley)||Jones, A (Hall Green)||Roper, Sir Harold|
|Crowder, Petre (Ruislip—Northwood)||Joynson-Hicks, Hon. L. W.||Schofield, Lt.-Col. W.|
|Cunningham, S. K.||Kaberry, D.||Scott-Miller, Cmdr. R.|
|Currie, G. B. H.||Kerby, Capt. H. B.||Shepherd, William|
|Dance, J. C. G.||Kerr, H. W.||Simon, J. E. S. (Middlesbrough, W.|
|Davies,Rt.Hon.Clement(Montgomery)||Kershaw, J. A.||Soames, Capt. C.|
|D'Avigdor-Goldsmid, Sir Henry||Kirk, P. M.||Spearman, A. C. M.|
|Deedes, W. F.||Lagden, G. w.||Speir, R. M.|
|Donaldson, Cmdr. C. E. McA.||Lancaster, Col. C. G.||Spens, Rt. Hn. Sir P. (Kens'gt'n, S.)|
|Doughty, C. J. A.||Leavey, J. A.||Stanley, Capt. Hon. Richard|
|Drayson, G. B.||Leburn, W. G.||Steward, Harold (Stockport, S.)|
|Dugdale, Rt. Hn. Sir T. (Richmond)||Legge-Bourke, Maj. E. A. H.||Steward, Sir William (Woolwich, W.)|
|Duncan, Capt. J. A. L.||Legh, Hon. Peter (Petersfield)||Stewart, Henderson (Fife, E.)|
|Elliot, Rt. Hon. W. E.||Lindsay, Martin (Solihull)||Storey, S.|
|Emmet, Hon. Mrs. Evelyn||Linstead, Sir H. N.||Studholme, H. G.|
|Errington, Sir Eric||Lloyd, Maj. Sir Guy (Renfrew, E.)||Summers, G. S. (Aylesbury)|
|Fell, A.||Lloyd, R. Hon. Selwyn (Wirral)||Sumner, W. D. M. (Orpington)|
|Finlay, Graeme||Longden, Gilbert||Teeling, W.|
|Fleetwood-Hesketh, R. F.||McCallum, Major Sir Duncan||Thomas, Rt. Hn. J. P. L. (Hereford)|
|Fort, R.||Macdonald, Sir Peter||Thomas, Leslie (Canterbury)|
|Fraser, Hon. Hugh (Stone)||Mackeson, Brig. Sir Harry||Thomas, P. J. M. (Conway)|
|Freeth, D. K.||McKibbin, A. J.||Thompson, Kenneth (Walton)|
|Galbraith, Hon, T. G. D.||Mackie, J. H. (Galloway)||Thornton-Kemsley, C. N.|
|Gammans, L. D.||McLaughlin, Mrs. P.||Tiley, A. (Bradford, W.)|
|Glover, D.||Maclean, Fitzroy (Lancaster)||Tilney, John (Wavertree)|
|Gomme-Duncan, Col. A.||McLean, Neil (Inverness)||Touche, Sir Gordon|
|Gough, C. F. H,||Macleod, Rt. Hn. Iain (Enfield, W.)||Turner, H. F. L.|
|Cower, H. R.||MacLeod, John (Ross & Cromarty)||Vane, W. M. F.|
|Graham, Sir Fergus||Maddan, Martin||Vaughan-Morgan, J. K.|
|Grant, W. (Woodside)||Maitland, Hon. Patrick (Lanark)||Vickers, Miss J. H.|
|Wade, D. w.||Webbe, Sir H.||Wilson, Geoffrey (Truro)|
|Walker-Smith, D. C.||Whitelaw, W.S.I.(Penrith & Border)||Woollam, John Victor|
|Wall, Major Patrick||Williams, Rt. Hn. Charles (Torquay)||Yates, William (The Wrekin)|
|Ward, Hon. George (Worcester)||Williams, Gerald (Tonbridge)|
|Ward, Miss I. (Tynemouth)||Williams, Paul (Sunderland, S.)||TELLERS FOR THE AYES:|
|Waterhouse, Capt. Rt. Hon. C.||Wills, G. (Bridgwater)||Mr. R. Thompson and|
|Mr. E. Wakefield.|
|Ainsley, J. W.||Hale, Leslie||Oswald, T.|
|Allaun, F. (Salford, E.)||Hall, Rt. Hn. Glenvil (Colne Valley)||Owen, W. J.|
|Allen, Scholefield (Crewe)||Hall, John T. (Gateshead, W.)||Padley, W. E.|
|Anderson, Frank||Hamilton, W. W.||Paling, Rt. Hon. W. (Dearne Valley)|
|Awbery, S. S.||Hannan, W.||Palmer, A. M. F.|
|Bacon, Miss Alice||Hastings, S.||Pannell, Charles (Leeds, W.)|
|Bartley, P.||Hayman, F. H.||Pargiter, G. A.|
|Benn, Hn. Wedgwood (Bristol, S.E.)||Henderson, Rt. Hn. A. (Rwly Regis)||Parkin, B. T.|
|Benson, G.||Herbison, Miss M.||Paton, J.|
|Bevan, Rt. Hon. A. (Ebbw Vale)||Hewitson, Capt. M.||Pearson, A.|
|Blackburn, F.||Hobson, C. R.||Price, J. T. (Westhoughton)|
|Blenkinsop, A.||Holman, P.||Probert, A. R.|
|Boardman, H.||Holmes, Horace||Proctor, W. T.|
|Bottomley, Rt. Hon. A. G.||Houghton, Douglas||Pursey, Cmdr, H.|
|Bowden, H. W. (Leicester, S. W.)||Howell, Charles (Perry Barr)||Rankin, John|
|Bowles, F. C.||Howell, Denis (All Saints)||Reid, William|
|Boyd, T. C.||Hubbard, T. F,||Rhodes, H.|
|Braddock, Mrs. Elizabeth||Hughes, Cledwyn (Anglesey)||Roberts, Albert (Normanton)|
|Brockway, A. F.||Hughes, Emrys (S. Ayrshire)||Roberts, Goronwy (Caernarvon)|
|Brown, Thomas (Ince)||Hughes, Hector (Aberdeen, N.)||Ross, William|
|Burke, W. A.||Hunter, A. E.||Silverman, Julius (Aston)|
|Butler, Herbert (Hackney, C.)||Hynd, H. (Accrington)||Silverman, Sydney (Nelson)|
|Butler, Mrs. Joyce (Wood Green)||Hynd, J. B. (Attercliffe)||Simmons, C. J. (Brierley Hill)|
|Callaghan, L. J.||Irvine, A. J. (Edge Hill)||Skefington, A. M.|
|Carmichael, J.||Irving, S. (Dartford)||Slater, Mrs. H. (Stoke, N.)|
|Champion, A. J.||Isaacs, Rt. Hon. G. A.||Slater, J. (Sedgefield)|
|Clunie, J.||Johnson, James (Rugby)||Snow, J. W.|
|Coldrick, W.||Jones, Jack (Rotherham)||Sorensen, R. W.|
|Collick, P. H. (Birkenhead)||Jones, J. Idwal (Wrexham)||Sparks, J. A.|
|Corbet, Mrs. Freda||Key, Rt. Hon. C. W.||Steele, T.|
|Cove, W. G.||King, Dr. H. M.||Stewart, Michael (Fulham)|
|Craddook, George (Bradford, S.)||Lawson, G. M.||Stones, W. (Consett)|
|Cronin, J. D.||Ledger, R. J.||Strauss, Rt. Hon. George (Vauxhall)|
|Crossman, R. H. S.||Lee, Frederick (Newton)||Summerskill, Rt. Hon. E.|
|Cullen, Mrs. A.||Lever, Leslie (Ardwick)||Thomas, Iorwerth (Rhondda, W.)|
|Daines, P.||Lewis, Arthur||Ungoed-Thomas, Sir Lynn|
|Davies, Ernest (Enfield, E.)||Lindgren, G. S.||Usborne, H. C.|
|Davies, Harold (Leek)||Lipton, Lt.-Col. M.||Viant, S. P.|
|Davies, Stephen (Merthyr)||Logan, D. G.||Warbey, W. N.|
|Delargy, H. J.||McGhee, H. C.||Watkins, T. E.|
|Dodds, N. N.||Mcinnes, J.||Weitzman, D.|
|Dye, S.||McKay, John (Wallsend)||Wells, Percy (Faversham)|
|Edelman, M.||McLeavy, F.||West, D. G.|
|Edwards, Rt. Hon. Ness (Caerphilly)||Mahon, S.||Wheeldon, W. E.|
|Edwards, Robert (Bilston)||Mallalieu, E. L. (Brigg)||White, Mrs. Eirene (E. Flint)|
|Edwards, W. J. (Stepney)||Marquand, Rt. Hon. H. A.||Williams, Rev. Llywelyn (Ab'tillery)|
|Evans, Edward (Lowestoft)||Mayhew, C. P.||Williams, Ronald (Wigan)|
|Evans, Stanley (Wednesbury)||Mikardo, Ian||Williams, Rt. Hon. T. (Don Valley)|
|Fernyhough, E.||Mitchison, G. R.||Williams, W. T. (Barons Court)|
|Fletcher, Eric||Monslow, W.||Willis, E. G. (Edinburgh, E.)|
|Forman, J. C.||Moody, A. S.||Wilson, Rt. Hon. Harold (Huyton)|
|Fraser, Thomas (Hamilton)||Morris, Percy (Swansea, W.)||Winterbottom, Richard|
|Gaitskell, Rt. Hon. H. T. N.||Mort, D. L.||Woodburn, Rt. Hon. A.|
|Gibson, C. W.||Moss, R.||Yates, V. (Ladywood)|
|Greenwood, Anthony||Moyle, A.||Younger, Rt. Hon. K.|
|Grey, C. F.||Neal, Harold (Bolsover)||Zilllacus, K.|
|Griffiths, David (Rother Valley)||Oliver, G. H.|
|Griffiths, Rt. Hon. James (Lianelly)||Oram, A. E.||TELLERS FOR THE NOES:|
|Griffiths, William (Exchange)||Orbach, M.||Mr. J. Taylor and Mr. Short.|
Question put and agreed to.
§ The Solicitor-General
I beg to move, in page 2, line 38, after "references" to insert "to three hundred pounds."
This Amendment, and the following one, to line 39, were dealt with in the opening observations of my right hon. and learned Friend.
§ Amendment agreed to.1030
§ Further Amendment made: In page 2, line 39, after "references" insert "to four hundred pounds."
§ Motion made, and Question proposed, That the Clause, as amended, stand part of the Bill.
§ Sir Lionel Heald (Chertsey)
Before we part with the Clause, which extends 1031 the jurisdiction of the county courts, there is one matter upon which I should like to ask for the assistance of the Solicitor-General.
It relates to the difficulties that county court judges have in relation to law reports and text-books. At the present time, as many hon. Members will know, the county court judges in many parts of the country find that supplies of these necessary things are very deficient. While it is, of course, quite impossible to imagine that every county court in the country should be completely supplied with a library, it is the fact, as many hon. and learned Members will know, that county court judges have very great difficulties in that respect.
Now that we are extending the jurisdiction of the county courts, we shall be putting a greater burden on the judges. I believe it is the fact that some county courts may have one or two copies of text-books, but if they are dated "1923," they are not very helpful.
§ The Temporary Chairman (Sir Norman Hulbert)
I am not quite clear how the right hon. and learned Gentleman can bring books into the discussion on the Clause.
§ Sir L. Heald
With great respect, Sir Norman, if we are asking that the jurisdiction of the county courts should be extended, surely, before we do that, we want to make quite certain that the judges who will carry out that jurisdiction are fully equipped for the task. I should have thought that if they have to do the job, we should make sure that the tools of their trade are in order. This is quite a serious matter, and it is one that is very well known to members of the Bar and solicitors—
§ The Temporary Chairman
Order. I am afraid that I must remind the right hon. and learned Gentleman that this is a matter of administration, which is not referred to in the Clause.
§ Mr. S. Silverman
Further to that point of order. With great respect, Sir Norman, the Committee is now being asked whether it will in fact adopt Clause 1. If we adopt Clause 1, then the jurisdiction of the county courts will be increased. What the right hon. and learned Member for Chertsey (Sir L. Heald) is seeking to argue, as I understand it, is 1032 that before he makes up his mind whether he wants to agree to that or not, he wants to know whether the people who will have to do the job will be provided with the tools with which to do it. The answer to that may be a matter of administration, but, nevertheless, I should have thought that we are entitled to have it.
§ The Temporary Chairman
It may or may not be desirable for learned judges to read books, but that does not happen to be a matter dealt with in the Clause.
§ Mr. Hale
Further to that point of order. With great respect, the Question is whether Clause 1, as amended, should stand part of the Bill or not. It is a long, detailed Clause and this suggestion appears to be a very important consideration. If we are to add Clause 1 to the Bill, increase the number of judges and increase their jurisdiction, are they to be in a position in which they can competently perform the duties imposed upon them? I submit that it is amply within the rules of order to apply one's mind, and to ask the Committee to apply its mind, to whether Clause 1 should stand part of the Bill or not.
Before we agree to the Clause we want to be satisfied that county court judges will not be charged with the duty of interpreting the law without having the necessary instruments to ascertain and interpret it and without having access to books. In most county courts in which I have practised there was not a book of any kind. It is well within our knowledge, certainly within my knowledge, that county courts have no law books—[An HON. MEMBER: "They do better without them."] I do not want to discuss whether they do better or not without them, but I submit that it is necessary to consider whether this provision should be made.
§ Mr. Silverman
Before you give a final Ruling, Sir Norman, may I suggest an analogy? Suppose the Committee was considering, not the increase of the jurisdiction of county courts, but the raising of the school-leaving age. Would it not be competent, on a Question "That the Clause stand part of the Bill," for hon. Members to discuss whether school buildings were available before deciding whether the school-leaving age should be increased, or to discuss whether there 1033 were sufficient teachers? Is not that a complete analogy to what the right hon. and learned Member for Chertsey (Sir L. Heald) is seeking to discuss here?
§ The Temporary Chairman
I think it would be in order in such a case to refer to school buildings and to say that the provision was not adequate, but it would not be in order to go into the details of the matter.
§ Sir L. Heald
I do not wish to delay the Committee, but I submit with the very greatest respect that I am entitled to ask my hon. and learned Friend if he will look into the matter before we finally dispose of this Bill. I am not asking him to do anything about it today, but to take into account a matter which, in the opinion of many qualified to judge, is hampering the administration of justice and which, if the jurisdiction of county courts is increased, will hamper that administration still more.
§ Mr. Scholefield Allen (Crewe)
I should like to support what the right hon. and learned Member for Chertsey (Sir L. Heald) has said. All with experience of county court judges know how handicapped they are in this respect. Many of them provide their own books by expenditure from their own pockets. They should not be called upon to do that. We are extending the jurisdiction by 100 per cent. and have not increased the salaries of these judges in the same proportion, although I have no doubt that someone will propose that that might be done with advantage. They should be provided with the necessary equipment. If we agree to this Clause it might be considered very unfair. They might say in words similar to those used by a very famous statesman, "You should give us the tools if you want us to do the job." I am sure the Solicitor-General knows quite well the conditions which exist in most county courts and it is very necessary to have this provision.
As I had not an opportunity earlier and we are now considering the Question, "That the Clause stand part of the Bill," I wish to deplore the fact that the cushion is to be as low as £100. Arguments were put forward that the Clause should be amended. Any of us who has had experience of practice, especially in 1034 running-down cases and personal injury cases, is convinced that although a concession was made by the Government this Clause will work serious injustice in many cases where litigants will be called upon to suffer a diminution of their costs, because of the chances and changes of litigation. We know that behind the scenes judges have very differing views about the amount of damages.
I recall a case in which a very distinguished member of the present High Court was against me at Manchester Assizes. He was appearing for the plaintiff and I was appearing nominally for the defendant, but, in fact, for an insurance company. I offered £495, which was thought to be an adequate amount, but counsel for the plaintiff, after a good hour of argument with his client, supported by his junior and his solicitor, was informed that his client would not budge. The client said, "No, I want the award of the judge," and he got it. He got £975 in a case in which his two advisers thought the amount should be under £500. That is the kind of problem we shall be up against day after day.
On a technical Bill, which does not involve party questions, it is a great pity that when the Division bell rings a great many hon. Members come in from outside the Chamber, not having listened to the argument, and vote down a very reasonable Amendment. I have no doubt that when we divide on this Question hon. Members will again come in and vote that the Clause should stand part of the Bill, with a cushion of only £100.
§ Mr. Scholefield Allen
Although this Clause may be passed now, I hope there will be second thoughts about it as there will be still further opportunities to ease the burden.
Another point which occurred to me during the discussion is the power of insurance companies, who really are the defendants in the majority of these cases. If in a case in which one is very perplexed as to the amount of damages which should be asked an insurance company offers an amount which will just carry High Court costs, or offer to pay High Court costs, the pressure of this Clause may cause a professional adviser to accept an amount which, as in the case I have mentioned, is less than the 1035 case is thought to be worth. The company may offer £390 and costs, or £400 and costs, whereas in the illustration I gave if there had been a larger cushion the client could have got £975. I am sure that as a result of this too small cushion many of the poorest people will suffer—not only the trade unions; they have money.
Two hon. Friends sitting in front of me, my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) and my hon. Friend the Member for Oldham, West (Mr. Hale), are very knowledgeable about this kind of case. Many times they must have taken on cases and won them when they were not financed by a trade union or by legal aid but they went on because they felt the justice of the case. If they take all those risks to ensure that justice is done a further burden would be added by this chancy process, which is governed by medical opinion, or the opinion of a High Court judge. In my submission, the cushion ought to be greater.
§ The Solicitor-General
I hope that the hon. and learned Member for Crewe (Mr. Scholefield Allen) will forgive me if I do not follow him in the last part of his observations, because the Committee has decided those matters. He referred to hon. Members coming in suddenly in a rush to vote, but they have the advantage of not having heard the repetition of the same arguments again and again.
The hon. and learned Member rose to support my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) in the case he made for the supply of books for county court judges. I do not know when my right hon. and learned Friend was last in a county court, but I suspect that it was in a case in which the plaintiff expected to recover more than the sum which he could recover under county court jurisdiction. I do not know. I think that if my right hon. and learned Friend went to a county court now he would find that such things as the supply of books are better than they used to be in those days when he went there.
One cannot, of course, guarantee a county court judge out in the hills or elsewhere in the provinces a first-class library. The endeavour which is made is to see that on each circuit there is what I may call a reasonably decent library 1036 for his use. The object is to go on building that up, one for each circuit, and we try to meet any specific requests which a judge makes for a new book or a new edition of a book at any time. My right hon. and learned Friend's point is important, and the Committee will be obliged to him for having mentioned it.
§ Clause, as amended, ordered to stand part of the Bill.