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Clause 13—(Rules Of Court)

Volume 465: debated on Tuesday 31 May 1949

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 14, line 11, to leave out from the beginning, to the end of line 16, and to insert:

"(3) The Court may, by act of adjournal or act of sederunt, as the case may be, restrict to such proportion of the fees for the time being applicable as may be provided therein the fees to be paid to auditors of court, messengers-at-arms, sheriff officers and shorthand writers in any case where such fees are payable in the first instance by or on behalf of a person receiving legal aid:
Provided that the imposition of any restriction under this subsection shall not affect the sums recoverable by virtue of an award of expenses in favour of a person who has received legal aid, or of an agreement as to expenses in favour of such a person which provides for taxation.
(4) The Court may, by act of adjournal or act of sederunt, as the case may be, make provision for the taxation by the Auditor of the Court of Session or the auditor of the sheriff court of accounts of expenses incurred in connection with the giving of legal aid and with respect to the remuneration to be paid to auditors in respect of the taxation of such accounts."
This Amendment falls into three parts. In the first place we provide that the court may either by act of adjournal or act of sederunt restrict to a proportion which they think requisite the fees normally payable to auditors of court, messengers-at-arms, sheriff officers and shorthand writers. The reason for this is that we feel that when counsel and solicitors are giving their services on a restricted fee basis, the court may think it desirable that these other officers of the court should do likewise. The question whether or not there should be such restriction is left to the court to decide. By the proviso we suggest that in taking into account these restrictive fees, we are only doing so in respect of the obligation by the assisted person to make payments to these officers of court in the first instance, but should the assisted person be successful in his litigation and come to tax an account against the unsuccessful party, that restriction would be ignored in the taxation of the account.

The new Subsection (4), which gives rise to the third point, provides for the court, by act of adjournal or act of sederunt, to make provision for the taxation by the appropriate auditor, either of the court of session or of the sheriff court, of the account of expenses which will be submitted by the solicitor to the Law Society in respect of the work which the solicitor has done in connection with the legally assisted person's case. At the present time the provision is only made for the taxation of accounts as between party and party, but manifestly there may have to be a taxation of accounts between the solicitors and the Law Society in respect of the fees due to the solicitor, and we take advantage of this provision to make it statutory that the court can enact by act of sederunt or act of adjournal that such accounts will be taxed by the appropriate auditors.

We have listened with interest to the Lord Advocate moving this Amendment. When I saw the Amendment on the Order Paper, I was a little mystified as to why it could be necessary to restrict the fees of these officers of the court and the shorthand writers. After all, the work which they are to do is to be the same whether they are employed in the case of an assisted litigant or an independent person, and it seems strange that there should be provision for this differentiation in their remuneration. In drawing up this Clause, which deals with an internal matter concerning the machinery and the administrative arrangements of the courts, did the Lord Advocate have consultations about it with members of the legal profession and those who are concerned in the administration of the courts? Will he tell us whether this meets with their approval?

I support what has been said by my hon. and gallant Friend the Member for West Edinburgh (Lieut.-Commander Hutchison). No doubt what was specially in his mind was the fees to be paid in respect of certain officials of the court. Representing as he does one of the Edinburgh divisions, it is natural that matters affecting those employed by the High Court of Justiciary in Scotland would concern him most of all. I am concerned especially with those who work in the sheriff courts of Scotland. I know a little about the immense amount of work they now have to perform. I can assure the Lord Advocate that a great amount of drudgery is entailed for those who work in the sheriff courts of Scotland, particularly the shorthand writers. I know one very well indeed. He is a very old personal friend of mine. I have not consulted him about the Amendment because I did not know that it would be on the Order Paper until I arrived this afternoon. However, I know that if he were here he would bear out what was said by my hon. and gallant Friend in general and he would also testify to the accuracy of what I am saying, in particular with regard to the work done in the sheriff courts of Scotland in this respect.

I hope that the Lord Advocate will be in a position to tell us with regard to both the Court of Session and—if I may use the word without disrespect—the inferior courts, of which the sheriff court is the most ancient of all, whether there were full consultations with the very hard working and responsible people concerned about this desire to limit the fees or remuneration which they receive in these specially aided cases. I know just as well as my hon. and gallant Friend knows that the work which they will have to undertake in this sort of case will be none the less onerous and may indeed be more onerous than the work in the cases which at present come before them in the usual way. I hope the Lord Advocate can enlighten us further on this very important point.

7.30 p.m.

There seems to be a certain misconception with regard to the purpose of this Clause, because it merely makes it permissive for the court to restrict the fees payable to the various people mentioned in the Amendment, namely, the auditors of court, messengers-at-arms, sheriff officers and shorthand writers. So the question of restricting the fees does not arise at this juncture, and it will only arise if the court thinks fit to do so. I explained earlier that the court may think fit to do so, because other people who give even more service than those mentioned in the Amendment, are doing so on a scale slightly less than the full scale. The final decision will rest with the court and not with the Government, and therefore I did not think it desirable to consult the representatives of these bodies at this stage. However, I consulted the legal profession in connection with this and the other Amendments.

No, only the Lord President of the Court of Session who is the titular head of the court in Scotland. It will be the Court of Session which will pass the acts of sederunt and of adjournal. It will be the appropriate time for these bodies to be consulted, if necessary, as and when the Court decides to pass the acts of sederunt and of adjournal restricting the fees. On the broad general policy, we thought it desirable to confer that power on the Court of restricting the fees to bring these people, if need be, into line with the other members of the profession who are giving their services on that restricted basis.

The learned Lord Advocate brings forward a rather difficult point here. He is quite entitled to speak for himself and the profession, and for those who were consulted in the matter, but this touches the rights of entirely different people—shorthand writers, for instance. Here is an example of the difficulties one gets into in regard to reduced fees. In the analogous case of the medical profession, the great surgeons and physicians gave their services free in the hospitals, but it was never suggested that the ancillary servants of the hospitals should give service at a reduced rate, and it is a dangerous precedent that we are setting here. The great lawyers, of course, give their services at a reduced rate, but, as the learned Lord Advocate will readily concede, they are acquiring skill in the practice of their profession. It is part of the responsibility and duty which they have taken on, but it also carries with it certain advantages. A young lawyer who has appeared in a great case is a man of greater stature at the end of it than he was at the beginning. The same cannot be said of the shorthand writer who has taken down a long and difficult case. The work of the technicians is of an entirely different kind from that of the high specialists who prepare and plead the cases.

Is this to extend to the printers who set up the recounts of the cases? Is it to extend to the typists who translate the shorthand into the documents from which the printers work? Where is this to stop? The right hon. and learned Gentleman said that the time to discuss this is not now but when the court has passed the acts to which reference was made.

Well, is considering passing, but that again puts the courts in a difficult quandary. The discretion then is put upon the court to negotiate one of the most difficult of all things, a cut rate for the job.

Does the right hon. and gallant Gentleman wish us to take this from the courts and accept the responsibility ourselves?

It is not a responsibility which should be put on the courts. At any rate the suggested Amendment might leave out the shorthand writers, the people directly employed in courts—the auditors of court, the messengers-at-arms, the sheriff officers. I am not one to dogmatise upon that, but the right hon. and learned Gentleman is venturing on to difficult ground in asking the court to do so. Nothing is more difficult than negotiation as to proper rates of wages, and the clerical unions concerned might find themselves in a difficult position when asked to accept a reduced fee in this matter.

I do not think that the Committee is being well advised in this matter by the right hon. and learned Gentleman and by the Secretary of State for Scotland, and I trust they will look further at this point. It is true that it arose in the discussion upstairs, but the Debate then turned largely upon the remuneration to be paid to the legal profession, and a strong case was made out by the right hon. and learned Gentleman in favour of the rate of 85 per cent. which occurs in the Schedule and to which reference is made in what is now Clause 6 of the Bill but which was originally Clause 5.

That, however, was an entirely different matter. Here we move out of the realms of learned professional men giving their services at a reduced rate in recognition of the duty they owe to the community and the admitted improvement in their skill gained from the practice of their art. This is a matter affecting people who are working upon well-recognised rates and who will be put in a difficult position if asked to reduce those rates, while those who are asking them to do so will be put in a still more difficult position. I beg the learned Lord Advocate to consider whether in the case of these technical people, he is wedded to the proposal now before the Committee. I hope he will say that he can meet us in this matter; otherwise we shall have to take the opinion of the Committee upon it.

May I try to get the Lord Advocate to clarify this by taking a case in which one of the litigants is aided and the other is not? If I understand this correctly, the officers referred to in this Amendment are doing the same job whatever is the result of the case, but if the aided litigant wins his case, these officers will be paid their full normal rates while, if the other wins, it appears that this Amendment makes it possible that the officers will not be paid their full rates. That is a peculiar situation to put before the Committee, for it seems to give the officers a vested interest in one side or the other winning the case. It is a most amazing proposition, and I would ask the Lord Advocate to think about it again.

I am afraid the right hon. and gallant Gentleman has forgotten that during the earlier stages of the Bill we had already agreed in principle to the court fixing the fees to be paid to these people, including the shorthand writers.

If the right hon. and gallant Gentleman looks at Clause 13 (3), he will find that that power is already vested in the court; and no opposition was put forward during the Committee stage to that proposal. All we are doing in the Amendment is making it clear that in fixing these fees the court can, for the purposes of the legal aid provisions, make a restricted fee if it thinks fit. Accordingly, I do not think there is any point at all in the major objection put forward by the right hon. and gallant Gentleman that we are investing the court with the responsibility of fixing these fees.

The reason for giving this permissive power to the court is that which I have already explained; that if the court thinks it equitable that these people also should give their services at an abated rate, having regard to the fact that counsel and solicitors are already doing so, the court may decide to abate the rate payable to these various people. That is the beginning and end of the Amendment so far as that is concerned.

The hon. Member for Dumfries (Mr. N. Macpherson) asked what would be the effect. I thought I had explained that, although perhaps jejunely, in my introductory remarks on the Amendment. The position is simply this. If the court were to restrict the fees payable to a shorthand writer in the case of a legally assisted person, that person's solicitor would pay the restricted amount at the appropriate time to the shorthand writer—at the time, say, when the proof or jury trial was to take place. If at the end of the day the assisted person was successful, in putting in his account of expenses he would be entitled to charge the full rate, and not the abated rate, against the other party. There is nothing revolutionary in that, because we have already accepted this in principle with regard to the abated rate of fees for counsel and solicitors in Clause 6 (7); so that here we are only extending to shorthand writers and others the principle we have already accepted for solicitors and counsel. If, on the other hand, the unassisted litigant were successful, then in his account of expenses he would put in the amount which he had expended himself, which would be the full amount because he did not get the benefit of the provisions of the Amendment. He would put into his account of expenses the full amount which he had to pay to, say, the shorthand writer as his share of the shorthand writer's fees.

There is a difference, however, in that in the one case the counsel and solicitor for the aided litigant are, in a sense, getting a success bonus if finally the assisted litigant is successful and the fees are taxed at the full amount against the opponent. That is not the case with the officers of the court, who are completely impartial.

The hon. Gentleman is entirely wrong. The solicitor and counsel do not get any special bonus; they get only the 85 per cent. fee. If the full fee is recovered the balance will go to the Legal Aid Fund and not to the solicitor or counsel.

I quite see that point, and I think I did my best to indicate to the Committee that I accepted the decision which the Committee upstairs had come to upon the question of the 85 per cent. We argued against it, as the right hon. and learned Gentleman will remember, but it was finally decided against us and we accepted that decision. But this really is quite a different matter, and I would call the attention of the Committee to Clause 13 (3), to which the right hon. and learned Gentleman referred:

"Without prejudice to the generality of the foregoing provisions of this section, the Court may, by act of adjournal or act of sederunt, as the case may be, fix the fees to be paid to messengers-at-arms, sheriff officers and shorthand writers in connection with proceedings to which a person receiving legal aid is a party."
7.45 p.m.

The right hon. and learned Gentleman is stretching it a bit when he says that, having accepted that in principle, we have thereby conceded this new point which he is making that a reduced proportion should be fixed. I am sure that anybody connected with making trade arrangements who read that would take it for granted that what was being fixed was, to use a jargon phrase, a rate for the job; that it would be fixed having regard to the ordinary fees and so on which were being paid elsewhere. Nobody would consider that we had in any way conceded the principle that a cut rate should be fixed for clerical employees like shorthand writers. The position of the professional man, whom we have discussed and whose position has been agreed, is something quite different from the position of the clerical employee. The right hon. and learned Gentleman went

Division No. 159.]

AYES

[7.50 p.m.

Agnew, Cmdr. P. G.Foster, J. G. (Northwich)McFarlane, C. S.
Amory, D. HeathcoatFraser, H. C. P. (Stone)Mackeson, Brig. H. R.
Baldwin, A. E.Fyfe, Rt. Hon Sir D. P. M.McKie, J. H. (Galloway)
Beamish, Maj. T. V. H.Gage, C.Macmillan, Rt. Hon. Harold (Bromley)
Birch, NigelGalbraith, Cmdr. T. D. (Pollok)Macpherson, N. (Dumfries)
Bower, N.Galbraith, T. G. D. (Hillhead)Maitland, Comdr. J. W.
Boyd-Carpenter, J. A.George, Maj. Rt. Hn. G. Lloyd (P'ke)Manningham-Buller, R. E.
Braithwaite, Lt.-Comdr. J. G.Harris, F. W. (Croydon, N.)Marshall, D. (Bodmin)
Bromley-Davenport, Lt-Col. W.Haughton, Colonel S. G. (Antrim)Maude, J. C.
Buchan-Hepburn, P. G. T.Headlam, Lieut.-Col. Rt. Hon. Sir C.Morrison, Rt. Hon. W. S. (Cirencester)
Challen, C.Henderson, John (Cathcart)Neven-Spence, Sir B.
Channon, H.Hollis, M. C.Nicholson, G.
Cooper-Key, E. M.Hope, Lord J.Odey, G. W.
Corbett, Lieut.-Col. U. (Ludlow)Howard, Hon. A.O'Neill, Rt. Hon. Sir H.
Crosthwaite-Eyre, Col. O. E.Hutchison, Lt-Cdr. Clark (Edin'gh, W.)Orr-Ewing, I. L.
Digby, Simon WingfieldLambert, Hon. G.Peto, Brig. C. H. M.
Dodds-Parker, A. D.Langford-Holt, J.Ponsonby, Col. C. E.
Drewe, C.Law, Rt. Hon. R. K.Raikes, H. V.
Dugdale, Maj. Sir T. (Richmond)Legge-Bourke, Maj. E. A. H.Renton, D.
Duthie, W. S.Lloyd, Maj. Guy (Renfrew, E.)Roberts, H. (Handsworth)
Elliot, Lieut.-Col. Rt. Hon. WalterLloyd, Selwyn (Wirral)Robinson, Roland (Blackpool, S.)
Fletcher, W. (Bury)Lucas, Major Sir J.Ropner, Col. L.

on to say that the clerical employee would be in a different position from the legal people employed, in that if the legal people won the case, they did not get any increase upon the 85 per cent. but that the shorthand writer would get an increase on that figure.

I may be wrong, but I understood the right hon. and learned Gentleman to say that the restriction should not affect sums recoverable by virtue of an award in favour of a person who had received legal aid.

That makes the position more difficult than ever. The clerical employee who happens to be engaged may suffer an arbitrary deduction from his hard-earned wages, which is thereupon contributed to a fund for legal aid. I do not see any justice in that. I certainly see no reason why that principle should not equally be extended, as I have said, to the typist who types the shorthand report of the proceedings and to the printer who subsequently sets it up. The Lord Advocate is leading us to a difficult position, which I would not recommend my hon. Friends on this side to accept, and we shall be forced to divide the Committee on this point.

Question put, "That the words proposed to be left out stand part of the Clause."

The Committee divided: Ayes, 89; Noes, 226.

Sanderson, Sir F.Thomas, Ivor (Keighley)Webbe, Sir H. (Abbey)
Smiles, Lt.-Col. Sir W.Thorneycroft, G. E. P. (Monmouth)White, Sir D. (Fareham)
Smithers, Sir W.Thornton-Kemsley, C. N.Williams, Gerald (Tonbridge)
Spearman, A. C. M.Touche, G. C.Willoughby de Eresby, Lord
Stanley, Rt. Hon O.Turton, R. H.Young, Sir A. S. L. (Partick)
Stuart, Rt. Hon J. (Moray)Tweedsmuir, Lady
Studholme, H. G.Vane, W. M. F.TELLERS FOR THE AYES:
Sutcliffe, H.Wakefield, Sir W. W.Major Conant and Colonel Wheatley.
Teeling, WilliamWard, Hon G. R.

NOES

Acland, Sir RichardGrey, C. F.Nally, W.
Adams, Richard (Balham)Grierson, E.Neal, H. (Claycross)
Allen, A. C. (Bosworth)Griffiths, D. (Rother Valley)Noel-Baker, Capt F. E. (Brentford)
Allen, Scholefield (Crewe)Griffiths, Rt. Hon. J. (Llanelly)Oldfield, W. H.
Alpass, J. H.Guest, Dr. L. HadenOliver, G. H.
Anderson, A. (Motherwell)Hale, LesliePaget, R. T.
Attewell, H. C.Hall, Rt. Hon (Glenvil)Paling, Rt. Hon. Wilfred (Wentworth)
Awbery, S. S.Hamilton, Lieut.-Col. R.Paling, Will T. (Dewsbury)
Ayrton Gould, Mrs B.Hannan, W. (Maryhill)Palmer, A. M. F.
Bacon, Miss A.Hardman, D. R.Pargiter, G. A.
Baird, J.Hardy, E. A.Parker, J.
Balfour, A.Harrison, J.Parkin, B. T.
Barnes Rt. Hon A. J.Haworth, J.Paton, Mrs. F. (Rushcliffe)
Battley J. R.Henderson, Rt. Hn. A. (Kingswinford)Paton, J. (Norwich)
Benson, G.Henderson, Joseph (Ardwick)Popplewell, E.
Bing, G. H. C.Herbison, Miss M.Porter, E. (Warrington)
Binns, J.Hobson, C. R.Porter, G. (Leeds)
Blenkinsop, A.Holmes, H. E. (Hemsworth)Proctor, W. T.
Blyton, W. R.Horabin, T. L.Pryde, D. J.
Boardman, H.Houghton, A. L. N. D. (Sowerby)Pursey, Comdr. H.
Bottomley, A. G.Hubbard, T.Randall, H. E.
Bowden, Flg. Offr. H. W.Hudson, J. H. (Ealing, W.)Ranger, J.
Bowen, R.Hughes, Emrys (S. Ayr)Reid, T. (Swindon)
Braddock, Mrs. E. M. (L'pl Exch'ge)Hughes, Hector (Aberdeen N)Rhodes, H.
Brook, D. (Halifax)Hynd, H. (Hackney, C.)Ridealgh, Mrs. M.
Brooks, T. J. (Rothwell)Hynd, J. B. (Attercliffe)Roberts, Goronwy (Caernarvonshire)
Broughton, Dr. A. D. D.Irving, W. J. (Tottenham, N)Robertson, J. J. (Berwick)
Brown, T. J. (Ince)Janner, B.Rogers, G. H. R.
Bruce, Maj. D. W. T.Jay, D. P. T.Royle, C.
Burden, T. W.Jeger, G. (Winchester)Scollan, T.
Burke, W. A.Jones, D. T. (Hartlepool)Segal, Dr. S.
Callaghan, JamesKendall, W. D.Shackleton, E. A. A.
Champion, A. J.Kenyon, C.Sharp, Granville
Cobb, F. A.Kinghorn, Sqn.-Ldr. E.Silverman, J. (Erdington)
Cocks, F. S.Kinley, J.Simmons, C. J.
Collick, P.Kirby, B. V.Smith, C. (Colchester)
Collins, V. J.Lang, G.Smith, S. H. (Hull, S. W.)
Colman, Miss G. M.Lee, F. (Hulme)Snow, J. W.
Comyns, Dr. L.Leslie, J. R.Sorensen, R. W.
Cook, T. F.Lewis, A. W. J. (Upton)Soskice, Rt. Hon Sir Frank
Corlett, Dr. J.Lewis, T. (Southampton)Sparks, J. A.
Cove, W. G.Lindgren, G. S.Steele, T.
Daggar, G.Lipton, Lt.-Col M.Strachey, Rt. Hon. J.
Davies, Edward (Burslem)Logan, D. G.Strauss, Rt. Hon G. R. (Lambeth)
Davies, Haydn (St. Pancras S. W.)Lyne, A. W.Stubbs, A. E.
de Freitas, GeoffreyMcAdam, W.Swingler, S.
Diamond, J.McAllister, G.Sylvester, G. O.
Dobbie, W.McEntee, V. La I.Taylor, H. B. (Mansfield)
Dodds, N. N.McGhee, H. G.Taylor, R. J. (Morpeth)
Donovan, T.Mack, J. D.Taylor, Dr. S. (Barnet)
Driberg, T. E. N.McKay, J. (Wallsend)Thomas, D. E. (Aberdare)
Ede, Rt. Hon. J. C.Mackay, R. W. G. (Hull, N. W.)Thomas, George (Cardiff)
Edwards, Rt. Hon. N. (Caerphilly)McKinlay, A. S.Thomas, John R. (Dover)
Edwards, W. J. (Whitechapel)Maclean, N. (Govan)Thurtle, Ernest
Evans, John (Ogmore)McLeavy, F.Timmons, J.
Evans, S. N. (Wednesbury)MacMillan, M. K. (Western Isles)Titterington, M. F.
Ewart, R.MacPherson, Malcolm (Stirling)Tomlinson, Rt. Hon. G.
Fairhurst, F.Macpherson, T. (Romford)Ungoed-Thomas, L.
Farthing, W. J.Mainwaring, W. H.Wallace, G. D. (Chislehurst)
Field, Capt. W. J.Mallalieu, E. L. (Brigg)Wallace, H. W. (Walthamstow, E.)
Fletcher, E. G. M. (Islington, E.)Mallalieu, J. P. W. (Huddersfield)Watkins, T. E.
Foot, M. M.Mann, Mrs. J.Webb, M. (Bradford, C)
Forman, J. C.Manning, Mrs. L. (Epping)Weitzman, D.
Freeman, J. (Watford)Medland, H. M.Wells, W. T. (Walsall)
Gaitskell, Rt. Hon. H. T. N.Messer, F.West, D. G.
Ganley, Mrs. C. S.Middleton, Mrs L.Wheatley, Rt. Hon. John (Edin'gh E)
George, Lady M. Lloyd (Anglesey)Mitchison, G. R.White, H. (Derbyshire, N. E.)
Gibbins, J.Moody, A. S.Whiteley, Rt. Hon W.
Gilzean, A.Morley, R.Wigg, George
Glanville, J. E. (Consett)Morris, Lt.-Col. H. (Sheffield, C.)Willey, F. T. (Sunderland)
Gooch, E. G.Morrison, Rt. Hon. H. (Lewisham, E.)Williams, D. J. (Neath)
Grenfell, D. R.Murray, J. D.Williams, J. L. (Kelvingrove)

Williams, Ronald (Wigan)Woodburn, Rt. Hon. A.Young, Sir R. (Newton)
Williams, W. T. (Hammersmith, S.)Woods, G. S.Younger, Hon. Kenneth
Williams, W. R. (Heston)Wyatt, W.
Wise, Major P. J.Yates, V. F.TELLERS FOR THE NOES:
Mr. Pearson and Mr. Collindridge.

Proposed words there inserted.

Clause, as amended, ordered to stand part of the Bill.

Bill reported, with Amendments; as amended (in the Standing Committee and on recommittal) considered.