Clause 1. — (Appeals from decisions of official referees.)

– in the House of Commons on 15th November 1932.

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Photo of Mr Reginald Croom-Johnson Mr Reginald Croom-Johnson , Bridgwater

I beg to move, in page 1, line 14, to leave out the words "by special case."

Clause 1 of this Bill is aimed at removing something which has for some time been occupying the attention of those who practise in the courts. I am not sure that it is quite understood by the Committee that official referees are, as it were, assistant judges to decide matters of considerable complexity and great importance, which are considered to have too much detail in them to merit the attention of a High Court judge. Hitherto it has been the practice for appeals from them to go, first of all, to a Division Court of the King's Bench Division, from that to the Court of Appeal, and, if the party is still dissatisfied, from the Court of Appeal the matter can go still further to the House of Lords. It has been thought for a long time that this system is expensive and unnecessary and that it is desirable that the proceedings should be shortened. In so far as this Clause proposes to shorten matters by cutting out the Divisional Court, as it has been cut out in other matters in recent years, the Clause is on the right lines. But the Clause goes further and proposes that the appeal shall be only an appeal on a question of law. Speaking for myself, and having regard to the way in which the official referees discharge their duties, the long time which these cases take and the expense, I am not averse to such a provision.

The Clause as drafted, however, contains what is a very serious blot, namely, that the appeal shall only be an appeal in the form of a case stated which shall go to the Court of Appeal. Those of us who have had experience of cases stated by various courts know that it very often means considerable delay, often adds enormously to the expense, and that it not infrequently happens that through some mistake or some omission in the statement of the case the point of law cannot be raised properly. It seems to us that to limit appeals on matters which come before the official referees, very often involving matters of great complexity and considerable sums, to appeals on a case stated is not on the right lines. The Amendment, therefore, is one which will leave the appeal still an appeal on a question of law, but which will not oblige the official referee, whose duties are already onerous if properly discharged, to state his finding in the form of a special case. Therefore, what is proposed is that the words "by special case" shall be left out of the Clause, thus leaving parties who desire to appeal to the Court of Appeal untramelled by having the matter raised in the form of a special case. As the matter has already been considered and having regard to the lateness of the hour, I do not desire to dilate upon it further.

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

I propose to ask the Committee to accept the Amendment. In doing so, may I make it perfectly clear that it is upon the understanding that the appeal is to be on a point of law only, and, if Amendments are moved to delete those words, I shall be compelled to oppose them.

Amendment agreed to.

Photo of Mr Linton Thorp Mr Linton Thorp , Nelson and Colne

I beg to move, in page 1, line 16, to leave out the words "on a point of law."

I move this Amendment in spite of the menace of the Solicitor-Generales. I think I am right in saying that this provision will introduce an entirely new principle into the law of this country. I know of no court of unlimited jurisdiction from which there is no general right of appeal. It is all very well to say that it is an advantage if there are not many appeals but that argument can be used both ways. If there are many appeals from the official referee, then the importance of those appeals being allowed to remain is shown by the value of the right of appeal; if there are not many appeals from the official referee, then the courts cannot be overloaded by allowing persons who consider themselves aggrieved to question the decision of the official referee. In my opinion, this proposal puts the official referee into an extraordinary position as compared with that of a judge of the High Court. We are all accustomed to the idea that the judgment of a judge of the High Court is subject to an appeal on a point of law or fact. But, as my hon. and learned Friend who just spoke has pointed out, the official referees, who are a part of the High Court of Justice, have unlimited jurisdiction. It is an absurd provision by which you can have a case involving £50 tried by a judge of the High Court and you can appeal to the Court of Appeal with or without his leave and from thence to the House of Lords, whereas you may have a case before the official referee involving £5,000 and yet have less right of appeal from his decision than from that of a High Court judge.

I do not wish to draw invidious comparisons—it would not be right for me to do so—but is there any ground for supposing that the official referee is less likely to make a mistake than a judge of the High Court? Of course, that seems to follow quite naturally, but, in my submission, this point is put forward on an entirely wrong conception of an official referee. The official referees are sometimes regarded as being in the nature of arbitrators, because, if the parties like to consent to a case being sent to them they can do so, or, if they like to consent to a case being sent to an arbitrator, they can do that. If the parties choose to refer their disputes to a particular tribunal, they are not in a position to complain if they happen to be dissatisfied with the decision, but the majority of cases that go to an official referee go in spite of the wishes of one or other, and sometimes both, of the parties. It may quite easily happen that a case comes before a judge of the High Court who says: "This will involve a long inquiry, and, therefore, whether you like it or not, I am going to send it to an official referee." The moment he does that, in comes this Clause, the result of which is that the litigant has no right of appeal. That judge has it in his power to send the case to the official referee and debar the litigant from any right of appeal on questions of fact.

Again, it may be said that the position of the official referee is somewhat analogous to the position of a county court judge, but there is a very great difference. It is true that there is no right of appeal on questions of fact from a county court judge, but, at the same time, the county court judge, at the time that that provision was made had jurisdiction only under £20 in small debt cases, and that has been increased until, in certain cases, they have unlimited jurisdiction. But that answer cannot be put forward. The real answer is that the proper course is to adopt the general right of appeal from a county court judge instead of limiting the general right of appeal from an official referee. It is now very late, and the same observations apply in regard to this Bill as applied to the last Bill. At the same time, I do ask the Committee to hesitate before denying to people the right of appeal in this light-hearted manner. Many of us consider that inroads are being made in this class of legislation on rights and privileges that people have had in the past, and I ask the Committee not to reject my Amendment, in order that people may have a general right of appeal from an official referee just as they would have from a judge of the High Court.

Photo of Dr Sidney Peters Dr Sidney Peters , Huntingdonshire

I want to support the Amendment. Not only are you by this Bill going to place an official referee in a superior position to that of a high court judge, who may have appointed him, but you are actually going to deprive the ordinary litigant of his right of appeal on points of fact. That seems to me to be an entirely new principle, and I want to know on what grounds we in this House can assume to place, as the final arbiter of fact, responsibility on any one in- dividual. I want to suggest that there may very well be cases, especially coming under Section 89 of the Act of 1925, where not the whole matter is referred to an official referee but only a part of some special issue. Assuming, then, there is some misdirection of the official referee, or a wrong construing of facts, or even some new facts arising after he has dealt with the matter, how can you get a new trial, or correct in any way the misdirection, if there is to be no appeal, either to a divisional court or to an appeal court? We are here depriving litigants of the right of appeal. As a solicitor engaged in these matters from time to time, I know that it makes the position exceedingly difficult for any lawyer to advise his clients What to do if a judge, as he can under Section 89 of the Act, compel the case under statute to be sent to an official referee. One would possibly, in certain circumstances, even withdraw the case and then go to arbitration under the Arbitration Act. I do strongly protest not only against a Measure of this kind being brought in at this late hour, but also to its being put in such an innocent fashion into a Bill wrapped up with other things which will actually deprive the litigants of this country of their right of appeal on points of fact. I am certain that it is not doing justice to our people.

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

The hon. and learned Member for Nelson and Colne (Mr. Thorp) and the hon. Member for Huntingdon (Dr. Peters) are., of course, quite right in saying that this proposal is making a change in the law, but I would like the Committee to understand that the scope within which it is made is very limited indeed.

Photo of Major Abraham Lyons Major Abraham Lyons , Leicester East

The same explanation as last time—"only a little one!"

1.0 p.m.

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

I was just going to say that this involved the risk of being accused of making the same excuse. But, nevertheless, it is quite valid. We are dealing here, first of all, not with arbitration generally, or even with a case where a matter is sent by the court to a special referee, but simply with a particular class of case sent to one of the three official referees of the court—cases which are sent under a, single Section of the Act of 1925. Now, the cases dealt with under that Section, roughly speaking, come under two headings. First of all, there are those which can be sent compulsorily, and next there are those which can be sent by consent of the parties. Those which can be sent compulsorily are types of cases where there are elaborate accounts to be examined for which the ordinary court has not the machinery, or where a prolonged examination of documents or matters of scientific investigation is necessary. As the Act itself says, they are referred because the court is not qualified to deal with them. Of course, it is obvious to Members of the Committee that if they are sent by the judge of the first instance to an official referee because the judge thinks he is unable to deal with the matter owing to its technicalities, or to the mass of detail, the court of appeal would be in precisely the same difficulty as the judge. As to the rest, apart from that very special type of case which is sent to the official referee by order, the other matters which go to the official referee are by consent of the parties.

I understood the hon. and learned Member for Nelson and Colne to say that that was a very small minority, and that the vast bulk of matters came under the other head. My information is exactly opposite. It is that the great majority of the cases which go to the official referee are by order at the consent of the parties. If that be so, the parties have the remedy in their own bands. It will still be the case that references to the official referee, except in technical matters, will be by consent of the parties. If this Clause goes through, they will be consenting with their eyes open to a reference to a particular tribunal, one of three men, with regard to whom they know there will be an appeal on law and no appeal on fact. They need not go to him. They can ask the court to appoint a special referee, and then this Act will not apply. They are free to go before an arbitrator on whom they both can rely. Except for technical cases, it is only in the case where the parties have themselves consented that the court shall make an order for it to go to the official referee, that they voluntarily debar themselves from the right of appeal except upon points of law. It is a change which is designed to have one particular object, which is to save judicial time and to introduce at any rate one element of economy into litigation.

Photo of Major Abraham Lyons Major Abraham Lyons , Leicester East

Has anybody ever asked for this change?

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

I can assure the hon. Gentleman that this certainly has not been done out of the blue. There has been a very definite demand for it in certain quarters, not least, I think, among some of His Majesty's Judges.

Photo of Mr Linton Thorp Mr Linton Thorp , Nelson and Colne

From unsuccessful litigants?

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

I really cannot say one way or the other. After all, we have certain responsibilities in this matter, and if we are convinced in our minds that it will effect an economy for litigants, surely we can exercise our own discretion. At present, both on law and on fact, there is an appeal from the official referee, first to the Divisional Court, and from that to the Court, of Appeal, and from that to the House of Lords. This proposes to abolish the appeal to the Divisional Court altogether and to substitute for that an appeal only to the Court of Appeal, and, in sending the appeal only to the Court of Appeal, to rely on this special tribunal to decide the facts properly. In the majority of cases it is acting with the consent of the parties and the court can limit the appeal to a question of law. I say quite frankly that if the proposal were reversed and the Court of Appeal were to be made an appeal in the first instance on questions of fact, it would be impossible to go on with the Bill. A great deal of judicial time at present is taken in the Divisional Court with these appeals. If that time were transferred from the Divisional Court to the Court of Appeal the thing would be unworkable. I therefore ask the Committee to reject the Amendment.

Photo of Mr Barnett Janner Mr Barnett Janner , Stepney Whitechapel and St George's

Perhaps the Solicitor-General would consider, in view of the fact that in his opinion most of the cases to be considered under this particular Clause would be those that go to the referee by consent, introducing at a later stage an Amendment which would incorporate merely these cases. When questions of fact have to be decided and they are taken to experts, it is known that it is the customary practice of the courts, that at least on occasions the opinions of the experts are over-ruled by the courts themselves after having received those expert decisions. I have in mind a case in which two referees gave opinions on professional lines, and when this matter came before the courts other professional evidence was produced. It is a matter for the litigants themselves to decide whether they want an appeal on a matter of fact as well as whether they want an appeal on a question of law. If they both consented that a question of fact should be decided by a referee, it would be obvious that they would be expected to accept the opinion of the referee. I submit that the Clause should be amended so as to include merely those who consent, so as to give the other litigants the opportunity—having deprived them of an intermediate course—to put their cases again before the Court of Appeal.

Photo of Mr Arthur Caporn Mr Arthur Caporn , Nottingham West

I would like to appeal to the Solicitor-General to give this matter a little further consideration, especially for the reason of the saving of judicial time. At the present moment, official referees are not overworked but His Majesty's judges are. I understand that one of the objects of the Bill is to relieve the High Court and to encourage litigants to go to the official referee. In my view, if this Amendment is not accepted, this Bill will have exactly the opposite effect. At the present time one can advise a client to consent to the taking of a case of considerable responsibility and value to the official referee with the knowledge that if the official referee makes a mistake one has exactly the same right of appeal one would have if the ease were tried by a High Court judge. If this Bill is passed as it now stands, one would be bound to advise clients that if they voluntarily consented to go to the official referee they would be giving up an important right of appeal. I venture to suggest that it would be defeating the very object of the Bill if the Government refused to accept the Amendment. In future it would be better to leave the case before the High Court judge and have all your rights of appeal rather than to transfer it to the official referee, where you lose an important right of appeal. I cannot conceive of a client with litigation of any importance agreeing to transfer his case voluntarily to the official referee.

Amendment negatived.

Photo of Mr Linton Thorp Mr Linton Thorp , Nelson and Colne

I beg to move, in page 1, line 16, at the end, to insert the words: and with leave of the official referee or of the Court of Appeal on questions of fact. I do not propose, in moving this Amendment, to repeat the argument which I put before the Committee unsuccessfully when I moved the previous Amendment. This Amendment is a halfway house between the absolute right of the litigant to appeal and the absolute slamming of the door in his face when he desires to appeal, as is proposed in the Bill. As I understand the argument of the Solicitor-General, it is that in the interests of economy he is prepared to go to the extent of denying people that to which they are entitled. In other words, one of the first measures the Government are going to take, with these economical ideas in their mind, is to deprive litigants of rights which they have at the present moment. When it is pointed out that this is admittedly a great alteration in the law of this country, the Solicitor-General says: "It is a negation of the rights of litigants, but it is only a little one," That is the way in which these rights are being whittled down. That is why I move the insertion of these words, so that the dissatisfied litigant may have leave to appeal if he obtains the leave either of the official referee or of the Court of Appeal. It is easy for the Court of Appeal to say that the case is too big or too important or too complicated and that they will not bother to try it. I cannot understand the Court of Appeal saying anything of the kind, but that was one of the arguments put forward by the Solicitor-General for shutting out the right to appeal.

Photo of Sir Frank Merriman Sir Frank Merriman , Manchester Rusholme

The Committee have already decided that the appeal shall be limited to appeals on points of law. I appeal to the Committee to stick to that decision and to reject the Amendment.

Photo of Mr Clement Davies Mr Clement Davies , Montgomeryshire

I would appeal to the Solicitor-General whether, if he cannot accept the first Amendment, he cannot really accept this Amendment. The position is rather curious. You have a High Court judge who receives a very high salary and from whose decisions there is an appeal on fact and on law to the Court of Appeal and to the House of Lords. On the other hand, you have the official referee, who occupies a minor position as compared with a High Court judge and yet who is to be an absolute judge of fact and from whom there is to be no appeal on facts whatsoever no matter what mistakes he makes. The learned Solicitor-General and I have had many experiences of official referees, and I hope he will agree that, should the official referee perchance make a mistake which is perfectly obvious to the litigants, the matter shall come up before the Court of Appeal. It would not occupy much time. The Court of Appeal would not allow any counsel to go into all the details but would ask him to confine himself to the particular point on which he or they thought that a mistake had been made by the official referee. If they thought, after having heard him, that a mistake had been made, they would then grant leave to appeal. I should have thought that that would have protected the rights of everyone, especially where the parties had been compulsorily forced to go to an official referee by an order of the court. In those circumstances I hope that the Solicitor-General will accept the Amendment, since it is an Amendment which will protect the litigant, the court, and everyone connected with the administration of justice.

Amendment negatived.

Clauses 2 (Power to grant probate or administration where no estate), 3 (Amendment of s. 152 of the principal Act), 4 (Amendment of s. 174 of the principal Act), 5 (Amendment of 22 & 23 Geo. 5. c. 37, s. 38), 6 (Costs of applications under 15 & 16 Geo. 5. c. 20, s. 84) and 7 (Short title) ordered to stand part of the Bill.

Bill reported, with an Amendment; as amended, considered; read the Third time, and passed, with an Amendment.