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Supreme Court (Procedure)

Volume 530: debated on Thursday 15 July 1954

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10.0 p.m.

I beg to move,

That an humble Address be presented to Her Majesty, praying that the Rules of the Supreme Court (Summons for Directions, etc.), 1954 (S.I., 1954, No. 761), dated 8th June, 1954, a copy of which was laid before this House on 14th June, be annulled.
The subject matter of the Prayer and of the Rules which we seek to annul is highly technical in its content and can only be explained in terms which are either intelligible to those who are not lawyers or of the smallest interest to them against a rather wide background which it will be my purpose in my opening remarks to explore.

The Rules embody in part certain recommendations made by a body of which I had the honour to be a member, the Committee on Supreme Court Practice and Procedure, which was appointed in 1947 by the then Lord Chancellor. The Committee sat for six years under the chairmanship of the Master of the Rolls, as he became in the course of the Committee's deliberations.

The main item of the Committee's terms of reference was:
"To inquire into the present practice and procedure of the Supreme Court (excluding the practice and procedure in actions for the infringement of patents and under the Patents and Designs Acts, 1907 to 1946, and in matrimonial proceedings in the Probate, Divorce and Admiralty Division of the High Court, but including the practice and procedure on appeals from that Division), and to consider what reforms of such practice and procedure should now be introduced, whether by legislation or otherwise, for the purpose of reducing the costs of litigation and securing greater efficiency and expedition in the despatch of business."
Four other paragraphs are set out in the terms of reference, but I need not trouble the House with them at the moment. The main purpose of the Committee's deliberations during the six years was to reduce the cost of litigation and to secure greater efficiency and expedition in the despatch of business.

The Committee was composed equally of lawyers and laymen. It included certain hon. Members. I should like to pay tribute to the hon. Member for Stockport, South (Sir A. Gridley), who is a layman but was an example to us all not only because of the diligence with which he attended to our business but also because of the constructiveness and open-mindedness which he applied to the various proposals which from time to time were made to the Committee.

It is one part of my happy recollections of the long period of service on the Committee that, when the Bar Council came to give evidence before the Committee in the House of Lords and this important occasion coincided with a critical moment in the Test Match between England and Australia, the hon. Member for Stockport, South showed an admirable sense of proportion by bringing a receiving set to the deliberations of the Committee, so that the Committee, while being informed of the views of the Bar Council, were not unaware of the important proceedings taking place outside.

This Committee, under its distinguished Chairman the Master of the Rolls, produced as a result of six years' deliberations no fewer than 229 specific recommendations. These recommendations require, in some cases, legislation by Parliament; in others, delegated legislation, such as the Instrument which is before us tonight; in other cases, administrative action; while in others the recommendations were negative and required no action at all.

It would clearly be out of order for me to pursue tonight any of the lines of action recommended by the Committee that lie outside the scope of delegated legislation; to embark, for instance, on the question whether it is intended or not to proceed with the codification of the law of evidence, which was one of the not unimportant recommendations which they made. The purpose for which my right hon. and hon. Friends and myself have put down this Motion was partly to ascertain the intentions of the Government with regard to the recommendations of the Committee that require delegated legislation, and partly to comment upon the partial acceptance of the Committee's recommendations in the ground actually covered by this Instrument. The first question which immediately poses itself in connection with this point is whether this embodies all the recommendations that the Government and the Rules Committee propose to accept out of the 229 recommendations which the Supreme Court Committee made.

Turning to the Instrument itself, its title, significantly, is "The Rules of the Supreme Court (Summons for Directions, etc.) 1954." If one turns to the recommendations of the Committee, set out in detail at the end of the Report on page 319, under the heading of "Complete Summary of Recommendations and Conclusions," the first section is given the heading "The ' New Approach'." We there set out our recommendations. Firstly to
"encourage a 'new approach' towards less costly litigation,"
we suggested that there should be an originating summons procedure and that the powers of the Master on the summons for directions should be considerably strengthened.

Since this Instrument deals with the summons for directions, it is not inappropriate for me to try shortly to explain to those Members of the House who have the good fortune not to be lawyers what a summons for directions is. It is a stage in civil litigation at which an officer, a master of the court, gives an order as to the mode of trial: whether the action shall be tried with or without a jury, whether with consent appeal to the House of Lords shall be excluded, and a number of other matters of that kind.

It was one of the strongest findings of the Committee that, in order to save the cost of litigation, a determined effort should be made in the course of the proceedings, before an action is brought to trial, to define and to narrow the issues, so that when the heavy costs that are incurred by actual trial in court have to be faced they shall at least be undertaken in relation only to issues the immediate and forceful relevance of which to the action that is to be tried have been tested and, so to speak, put through a sieve by an experienced officer of the court. He would have to make an effort to bring the parties, through their legal advisers, to agree what the most important issues are and to cut out the unimportant issues.

The summons for directions takes place, under the present procedure of the court, very shortly after the parties have completed those preliminary statements of their case which are known to lawyers as "pleadings". It was our view that at that early stage it would be unrealistic to hope that any officer of the court, however determined and however strong his personality, could properly persuade the parties to restrict the issues which they proposed to examine and to commit themselves in advance to treat certain matters as agreed, and, for example, to agreeing to save the cost of bringing witnesses to the court by arranging that the evidence of certain witnesses should be given on affidavit, that there shall be no dispute as to the admissibility of certain documents, and so forth.

I think we all felt that at this early stage it would be unrealistic to hope that economies of that sort and scale in the trial of an action could be achieved. Therefore, it was one of the fundamental recommendations that the summons for directions, instead of being taken at its present stage, should be taken at a much later one. Our recommendations are set out, for those who are interested in following this matter, in paragraph 225 on page 75 of our Report, and under the heading:
"Proposals for strengthening the summons for directions,"
we say:
"Having thus considered and rejected possible alternatives, we now proceed to set out our conclusions with regard to the summons for directions. We think that except in the case of personal injuries actions (with which we deal in Section V of this Report), the hearing of the summons for directions should take place after the time limited for discovery, which should be dealt with by Rule, as proposed in Section II, paragraph 135. As to its office and utility, we emphasise that education is required to achieve the kind of stocktaking which the Peel Commission strongly advocated, i.e. with the co-operation of the Bench, the Bar Council and the Law Society."
Thus, if I may interject for a moment, the Committee were traversing ground which to some extent had been explored before by the Peel Commission in the 1930s. It is a feature of other systems of jurisprudence, notably in certain American courts, that at an early stage of the action, long before the time for trial approaches, there shall be a full-dress attempt by the tribunal to define the issues which the court shall ultimately have to hear and determine.

The Committee rejected the more advanced proposals that were made in this regard for the reasons that I have read out, that we thought that more education was required, and we also felt convinced that there was a danger that, by having a very elaborate kind of attempt to determine the issues before the trial, we might run the risk of increasing the costs by having two trials rather than one trial. Therefore, we were very moderate and very restrained, and, I think, very practical. That being so, it is with some disappointment that one finds in the Instrument which is before the House tonight that the summons for directions remains where it is, namely, shortly after the close of the pleadings.

The Report recommended that:
"Order XXX, Rule 2 of the Rules of the Supreme Court should be redrafted, so that the summons for directions may be made more effective, the issues limited and better defined and the trial expedited and facilitated."
It is with some regret that one finds that this fundamental proposal for the alteration in timing of the summons for directions has not been proceeded with. There are other points arising on the summons for directions on which our Committee made specific recommendations but about which the amended Rules which are set out in the Instrument before the House are silent.

In a Committee of this sort there cannot fail to be different views about different matters and about the weight which attaches to different proposals, but I think that it would be germane to ask the Attorney-General whether he can give the House any information as to why the Rules Committee discarded—or at any rate did not proceed with—the recommendation that the master, on hearing the summons for directions, should decide whether the case was proper to be argued on each side by two counsel or whether one would suffice.

For my own part, I confess that in any event I see certain difficulties and disadvantages in the proposal, but whatever these may be I certainly would understand why the Rules Committee would not place upon the master the burden of determining whether the cost of two counsel should be allowed if the summons for directions is heard, as it is apparently still to be heard, only immediately after the close of pleadings.

I should like to ask the Attorney-General whether it is the intention to give effect to paragraph 246 (13) of the Committee's Report by appointing more masters. There we recommend:
"If necessary more Masters should be appointed so that adequate time may be spent on the hearing of the summonses for directions and on the other means proposed for limiting the issues to be tried and the expenses of proof and for otherwise achieving a 'new approach'."
In other words, the question I am really asking is, does the Attorney-General accept or reject in general the proposals which the Committee formulated and classified under the heading of the "new approach"? Looking at this Instrument as it stands, one would be inclined to say—but one says it with some diffidence—that the Rules Committee rejected the "new approach."

On another point, apparently of detail, if we turn to paragraph 8 of the Instrument, at the bottom of page 7, we find amendments proposed to Rules 1 and 2 of the Rules of the Supreme Court Order XXXVII relating to evidence. So far as these proposals go, those who are in agreement with the general philosophy with which the Committee set out its Report will be in agreement with and will welcome most of these proposals; certainly I, for my part, welcome them. But again I doubt the effectiveness of many of these proposals when the summons for directions is to be taken at the very early stage of the action at which it is now taken, instead of the later stage. It seems to me probably a very grave responsibility for a master and a grave responsibility for the legal advisers of the parties at this early stage to commit themselves to accepting evidence by affidavit, or whatever it may be.

Coming to one other point of detail with which the Instrument deals, and that is the third party notice. I should like to explain, very shortly, to those hon. Members who have not the disadvantage of being lawyers what the third party notice is. It is this. When A sues B, to put it in its shortest way, and B says that C is the person really at fault, B before he starts stating his position as against C issues a third party notice. It was one of the quite small detailed proposals which we made with a view to saving costs, that instead of a party having, as at present, to obtain leave to issue a third party notice, he could do so without leave.

I do not propose to traverse in any further detail the actual contents of this Instrument, but may I just put the matter in this way? This Instrument deals simply with the matters which I have mentioned and certain other points of detail. So far as the changes involved carry out the recommendations of the Committee, naturally I, as a member of the Committee, and we on this side of the House, being concerned with the cost of litigation, welcome them. But what is left out of the Instrument that would properly be the subject of it?

In the recommendations of the Committee at page 319 there are changes in originating summons procedure.

At page 320 there is a recommendation for simplifying the procedure as to pleadings; at pages 329 to 331 there are recommendations as to the execution of judgments; at page 331 there are recommendations as to rights of appeals—some of them very important and fundamental; at page 334 there are recommendations as to the procedure on appeal; at page 337 there are recommendations as to the limitation and assessment of costs, and at page 339 there are recommendations as to counsel's fees.

One can well understand that differences of view exist upon all these matters. If I may deal very shortly with the question of counsel's fees, I think that few Members of the Committee were not aware that their proposals were controversial in their nature, certainly in their effect upon junior counsel, and I am sure that those who, like myself, are Members of the Junior Bar, now that the 1922 Committee has taken to itself the place of a wage-fixing tribunal—

I regret to have to interrupt the hon. Member, but this is very wide of the question of a summons for directions.

I naturally accept your Ruling, Mr. Speaker. All I was trying to do was to find out from the Government whether this Instrument represents the last word of the Rule Committee and the Government on what are generally called the Evershed Committee's findings, or whether it is merely a preliminary approach. It seems to me that that is a proper question to ask in connection with this Instrument.

As to the question with which I was dealing, I would only say that this was a matter which had occasioned great anxiety within the legal profession, and I was anxious to say that I would prefer no action on the Committee's recommendations about counsel's fees than action that was not accompanied by definite proposals to improve those fees. That is all I wish to say about what is left out of the Instrument. We have not moved this Motion in any controversial or critical spirit.

The important thing that strikes any reader before he finishes reading the Instrument is that its signatories include the Master of the Rolls, Mr. Justice Lynskey and Mr. Charles Norton—a very distinguished solicitor and a Member of the Council of the Law Society—and it would certainly be an impertinence for me to attempt to express the confidence that I feel in the mental processes of the Master of the Rolls, Mr. Justice Lynskey or Mr. Norton.

I am perfectly convinced that there must have been very serious reasons that led to this Instrument appearing in this form. My object in moving the Motion is to find out from the Government what those reasons were so far as they are a matter which comes within the Government's knowledge and responsibility. The question of cheapness of litigation and efficiency of the courts is directly involved in the Instrument, and it is one that I am sure is dear to the hearts of both sides of the House. We on this side of the House move the Motion because we feel it our duty to explore the situation and find out what are the reasons for the Instrument appearing in this form, what are the Government's intentions and, so far as the Government know, what are the Rule Committee's intentions regarding the remainder of the Evershed Committee's recommendations.

10.36 p.m.

I beg to second the Motion.

I do not propose to detain the House for more than a few minutes in limiting myself to one or two observations on Order XXX, which is the important part of this matter. I, and I am sure everyone in the House, would like to join with my hon. Friend the Member for Walsall (Mr. W. Wells) in welcoming the Report of that very strong Evershed Committee. I was a member of a perhaps less distinguished committee which sat concurrently and which produced a report on county court procedure. Most of that committee's recommendations have been long in practice, because our deliberations lasted rather less time than did those of the Evershed Committee.

In view of the curious popular view of lawyers held in this House rather more strongly than anywhere else, except in the theatre, it is as well to say that in the last few years the Bar Council and the Law Society have been engaged in endeavouring to cheapen litigation and, in theory, limit their own profits and livelihoods and bring in a measure of reform. In the last few years the Law Society has been a singularly enlightened body which has given great attention to helping the poor and has borne the tremendous burden of introducing a legal aid scheme, which is a matter of great importance, though I am not sure that we should not be examining the working of that scheme at the present time.

It is the belief of the average citizen that the courts are perfect until he receives a writ, and then he becomes full of doubts and anxiety. It has been always our job to keep people out of litigation, to reduce litigation and to bring about settlements, and particularly to prevent foolish waste of money, which so often happens in courts. This point is vital.

Few of us are competent to judge how some of these recommendations will work. They will depend largely on the individual Master and Registrar. One of the tremendous difficulties is the difference between litigation in London and in the country, and a complete difference in practice, is that what is popularly known as the "bear garden" in London is more the haunt of junior counsel than of practising solicitors, whereas Registrar's rooms in the provinces are the resort of practising solicitors and not of junior counsel.

I remember when I first started practice 31 years ago. Those were the days of litigation when George V, by the Grace of God, etc., addressed William Jones, witness Frederick Edwin, Viscount Birkenhead, and told him that he must enter an appearance and in due course he entered an appearance. The next step was then the summons for directions. The Registrar then orders that a statement of claim be delivered in 14 days and the defence in 14 days. If it were a motor car accident case the plaintiff claimed that the driver was driving at an excessive speed, without lights on the wrong side of the road without giving any warning of approach, and the defence denied it all. We finally reached a position where the proceedings were closed and no one was any the wiser. That, regarded from the solicitor's point of view may have been an eminently satisfactory procedure, but whether it was as satisfactory from the point of view of the clients is a matter of some doubt.

I think that on the whole this is an important advance. When I found myself in London grappling with a case in which there were eight plaintiffs and 300 defendants living in different parts of the world, some companies in liquidation where the writ had been issued eight years previously, and nearly every judge in the Chancery Division had when at the Bar, advised on the case, I found myself grappling with a quite different kind of case which demanded some different approach and a different method of handling. Fortunately at that stage the party opposite introduced their "No pairing" scheme of 1950 and 1951 and I had to retire from practice and leave it to a more energetic solicitor. Since then I have been able to devote my full time to this House. I am grateful for the additional time, but ungrateful for the lack of money.

The two points which seem to be of real importance are paragraphs 2 and 4 of Order XXX. The first gives the Master power to postpone the hearing of the summons for directions until some other steps are taken, such as discovery, so that the summons for directions and the methods of evidence and the use of documentary evidence and so on can be considered. I think we would welcome that as an important advance. Discovery can frequently place a case in a quite different light.

The second point which is of very great importance, and I do not know how it will work out in practice, is paragraph 4, which provides that:
At the hearing of the summons, the court or judge shall endeavour to secure that the parties make all admissions and all agreements as to the conduct of the proceedings which ought reasonably to be made by them and may cause the order on the summons to record any admissions or agreements so made and (with a view to such special order, if any, as to costs as may be just being made at the trial) any refusal to make any admission or agreement.
This is a very important innovation. It gives the Master and the Registrar wide powers and responsibilities. It is made on the recommendation of one of the strongest committees which has ever sat on the reform of the law. It is made and brought before the House by a Rule Committee consisting of the most distinguished men in both branches of the profession, mostly distinguished judges. The House may have confidence in their judgment and hope the innovation may bring about the sort of things they desire. It is an experiment which might quite substantially affect the whole course of litigation, and certainly if it carries out the intentions of those who drafted it it will be a very beneficial change. I think it will need the appointment of additional Masters in some cases, because it will add very heavy responsibilities and will mean, in the case of summons for directions, a little private trial on a number of issues.

A very eminent counsel once said that the litigant needed seven things in order to be comfortable about litigation. He needed a good case, good witnesses, a good counsel, a good solicitor, a good judge, a good jury and good luck. I think that is the spirit in which we ought to approach litigation. On the whole, we have put this Prayer forward in the hope that we can have a discussion on matters of some importance in litigation and not with the idea of praying against the Regulations, but to try to find out from the Attorney-General what are the intentions in regard to the other recommendations of the Committee.

10.45 p.m.

I shall say only a very few words as the hour is getting late and attendance in the Chamber is getting small. It was the late Mr. Justice Smith who started this new procedure, and it has drifted, if I may say so with respect, into rather a muddle. This is a very long Report, and it is sufficient to say that it is a learned and lengthy document which practitioners are still discussing and about which they are still disagreeing. Some disagree with it in part, and some almost completely. So far as the summons of direction is concerned, which this Instrument intends to bring back to the basis which Mr. Justice Smith sought many years ago, this is a very excellent document, but, it does mean that one will start off with a private hearing before a Master and there will have to be more delay before one gets a case heard at all.

One of the things we have been fighting hardest against is delay. People have trouble which they want settled within their lifetime, and one of the greatest troubles of all is delay. I am not going to say that it is entirely the fault of the courts or of procedure. One of the things we want is more judges. We have increased their salaries, but six or eight more judges, certainly on the Queen's Bench side, are vital. The cost would be trifling in comparison. This is not a political question. All parties are in agreement with that particular plea.

I do not agree with the last speaker about paragraph 2 (4) on page 3, that the Master cannot make a date for the trial until all the matters required to be considered have been completed. It is going to mean delay. If one cannot get a hearing one is going to have further delay. With reference to paragraph 2 (7), which says that if it seems at an early stage that the case is suitable for the commercial list, the judge can adjourn the summons, how can he say at that stage what ought to be done? I do not want to refer to all the matters, but in 7 (7) on page 7 one can see pleadings within pleadings. One will serve documents on the one side and they will serve documents on the other—or you have two trials instead of one. There is more expense, and the expense of the trial is nothing compared with the costs if one is going to have two trials instead of one. There will be very much increased expenditure unless the delay is cut down.

I come to detail. On page 8 it states that evidence may be given in a trial
"in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact."
That is a form of regulation which is strangely foreign to lawyers. What is a fact
"…which is or was a matter of common knowledge either generally or in a particular district."?
Is it a matter of fact between two parties that one has libelled another? Is it a matter of fact that a person is of a good or a bad reputation? If we are to have a newspaper to prove that fact are we to have an alternative newspaper which reports the facts differently? I have not the faintest idea what this means, and I am sure that most barristers will say exactly the same.

This provision merely conveys a discretionary power. It is a power to be exercised by people of great experience. It will relate to the kind of facts going back into the dim past which will require a great deal of proof and which will not seriously be contested by either side. If a Master happens to be so ignorant of his job—and I have never come across such a Master—that he admits by these Rules something which is controversial in a high degree, or which was related to the kind of matter with which the hon. and learned Member is dealing, I have not the smallest doubt that the order would at once be reversed by the judge in chambers.

I am obliged. If in fact this means a matter of the historical past, why does not the Instrument say so? There is nothing in these words which can mean that. They say:

"in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact."
It may be that in the end this Rule will depend on the common sense of those who administer it. I maintain that it deserves to become a dead letter. If that is so, it never ought to have been introduced.

I have made these few general criticisms or what is otherwise a very good and necessary Instrument which, however, requires a great deal of tidying up. I hope that it will not delay litigation. With those observations I give the Instrument my personal blessing and express the hope that it will work out in practice to the advantage of those who are obliged to litigate in this way.

10.54 p.m.

The hon. and learned Member for Surrey, East (Mr. Doughty) spoke feelingly as counsel about the delays in litigation. I am sure that all solicitors can speak much more feelingly about the delays which take place in litigation than can the comparatively protected members of the Bar who are, more or less, at arm's length from the general body of the laity. I speak with nearly 30 years experience of my profession. During the whole of that period there never was a time, within my knowledge, when litigation in the High Court was so much delayed as it is today.

I speak particularly of the situation in Manchester, and I pay tribute to the expeditious way in which Her Majesty's judges endeavour to cope with the large list at every assize, of which there are five in the city. It is absolutely beyond their present capacity. We want not only now procedures through the media of the summons for directions but more judges and more courts. Day by day, cases are put off from one assize to the other—

The hon. Member is going a little wide of the Instrument, which relates to the summons for directions.

I am glad that the summons for directions is to be a means of expediting litigation, and I hope that it will help not only the harassed solicitor but the public, and that it will be adopted by Her Majesty's Government. Even though I am precluded by the narrow limits within which one might speak feelingly on this subject, I am sure the Attorney-General will take note of what we have in mind and will act accordingly. We hope some improvement will be achieved to make the wheels of litigation run more smoothly to the satisfaction of the public. Very often all that a defendant needs to do is to deny liability and so compel a plaintiff to go to court and wait years for the damages that he would otherwise have got. This compels the plaintiff to take a less amount than he would be entitled to.

10.58 p.m.

I am sure the House would like first of all that I should thank those members of the so-called "Evershed Committee" who laboured over a period of six years in this very difficult field. We have been glad to hear a few intimate words about it from the hon. Member for Walsall (Mr. W. Wells), who has given a great deal of time to this subject.

The hon. Member went back rather farther than I intend to do. I do not think we need go back to 1922; 1954 is quite sufficient a period to deal with. I will try to put the matter in perspective by making it clear that we are dealing tonight with only the first instalment. It is difficult to take practical action and carry out the recommendations of a Committee which has made such a very careful and voluminous Report. I believe that the final Report contains 380 pages. I am sure that the hon. Member for Walsall would be the first to agree that we must be careful in trying to put into operation the final ideas of the Committee. I will try to state briefly what this Instrument attempts to do.

This is really a first instalment. I think the hon. Member for Walsall fairly recognised that, and also the hon. Member for Oldham, West (Mr. Hale), who is interested in this matter from the point of view of the other branch of the legal profession and is able to help us very much in that way. This is a first step towards improvement of our legal procedure. It has been described as "the robust summons for directions." Whether that is a good or a bad expression, those of us who have been concerned in legal proceedings know what is meant.

The idea is, at an early stage in the proceedings, as early as possible, to make the parties determine what their case is, and how they are going to fight it. Those of us who have been concerned in these things in our daily life will know that that is something that a lawyer does not like to be made to do. He likes to say," Well, I would like to wait and see, and I would like to have alternatives of 1 (a), 1 (b), and 1 (c), and of 2 (a), 2 (b), 2 (c), and 2 (d). If on any of the alternatives someone says something, I would like to say something else, and would like time to consider it." I would ask the House to support this Instrument, which runs contrary to that point of view.

I would like to take up at once what the hon. Member for Oldham, West said about paragraph 4 of this Order. He said that it was really the guts of the Instrument. I do not think that he used the words "guts," but he usually uses words like that which would be appropriate. The idea is first to make the parties come to a determination, at an early stage in the case, on what they are fighting about. If we can arrive at that we have got something. As hon. Members who have been concerned in these matters will know, that can only be done by means of a determined approach well supported by those who have to deal with these matters and, above all, by the Masters of the Supreme Court. It is necessary that there should be plenty of support. They have to say to those representing one party or the other, "Is there anything in this point? I would like you to tell me how you are going to prove this." Or they have to say, "Are you serious about this, or is it something you are holding up your sleeve in case it is necessary?"

Hon. Members opposite who are members of the Bar, or of the solicitors' profession, will know from experience that to give up one's traditional approach and to say, "I am going to tell you what our case is," will require a little determination. I believe it can be done. I would appeal to both branches of the profession to support the Masters and the Judges in carrying out this rule. After the Evershed Committee had struggled for six years with this problem of avoiding unnecessary expense in litigation, it concluded that the most practical first step towards its solution was to try to get the parties down to real issues at the earliest possible moment.

That brings me to the question of the moment at which the summons should be heard. It has been suggested that it would have been wiser to wait until discovery was complete and the matter comes before the court; but after a great deal of consideration with the Masters of the Queen's Bench Division, who are more experienced in this subject than anyone else, I think that that would be a mistake.

I can only say that, after having consulted all the Masters, we arrived at the view that in order to keep costs down to a minimum, all actions, whether commenced by ordinary writ or by specially endorsed writ, should be brought under the control and supervision of the court at the earliest possible moment in the proceedings. I think that is probably right. It is hoped that by this means a lot of actions would be settled at an early stage which will otherwise drag on for a great length of time. What we really need, as I have said already, is that the solicitors, members of the bar and those who employ them should all have some degree of faith in this new approach.

One or two particular points have been raised. My hon. and learned Friend the Member for Surrey, East dealt with one or two particular aspects of the matter. He said that we had already had some of this new procedure and it had not got us very far, and he rather criticised individual points. The sort of thing he said was, "What is the good of saying that matters of common knowledge can be proved by reference to newspapers?" I should like to take that as one example of the new approach. Suppose we wanted to have evidence of a very important fact in comparatively modern times—for example, the election to Parliament of my hon. and learned Friend the Member for Surrey, East. That will have been reported in an appropriate way in the Press. Is it not easier to be able to produce the newspaper than to have to prove that fact in solemn form? That is the kind of thing we have in mind there.

There is a real desire in this matter that we should approach these legal questions in the way that the ordinary man in the street approaches them. That is the idea at the back of this whole new approach—that instead of having all this sparring and clever argument, and one thing and another, in preparation for a trial, we may try and approach the matter in a common sense way. Some of my friends at the bar have said to me, "It is no good doing that. We have tried to do that before, and it does not work." I would ask the House to have a little faith. Let us try to make it work.

Let me just try to describe what is the background of this Order. The summons for directions was regarded by the Evershed Committee as one of the most important matters in the whole of litigation. After all, we must remember surely that that Committee, which sat for six years, was a really important and well qualified body. They said that A great deal could be done—possibly more than in any other way—towards reducing the cost of litigation if the summons for directions could be used by the Masters as an occasion for a thorough review and stocktaking of the position of the action, and if the rules were framed in such a way as to encourage the Masters to use their powers robustly as far as might be necessary for preventing unnecessary expense and an unnecessary expansion of the issues to be tried in the case.

That is the basis of this new Instrument. I am not going to delay the House with it now, but there will shortly be available a model form of summons for directions, and I would draw the attention of the House to the kind of thing that is included in it. One of them is that the evidence can be ordered to be given by affidavit, and provision can be made that unless demand is made for cross-examination, that should be an end to the matter on those particular points. As hon. Members will know, there are many occasions under the present procedure when evidence is given and proceedings are held up for quite a long time by an unnecessary amount of cross-examination and discussion. An affidavit, however, can be read out in two or three minutes and the matter quickly disposed of.

Another important aspect is the question of expert evidence. Provision is made for a medical report to be agreed, and, if there is no agreement, that it should be limited. Reports by engineers and surveyors should be agreed if possible, and if not the expert evidence should be limited. In addition to that, it is also provided that the briefs of evidence and expert evidence should be exchanged before the hearing. If that kind of thing is done, I think we can save a good deal of time and money. Again, photographs, plans and so forth should be limited and agreed.

In the past these things have been the subject of a great deal of discussion and argument, and I regret to say that in many cases they have caused a great deal of expense. That again is the kind of thing we can avoid. I could multiply these things at great length, but I will not weary the House. I think it is desirable to say that those who are concerned with these matters, particularly my noble and learned Friend the Lord Chancellor, are very anxious that it should be appreciated that the whole question of the cost of litigation is being carefully considered. It is a very serious element in our life and the Evershed Report must, if possible, be carried into effect.

This is only the first instalment. I would ask the House to give it a chance. Do not let us expect too much of it at once, but at the same time if we are able to make a start and to bring the law a little more into accordance with our ordinary daily life, and the ordinary outlook of the average citizen, I think we shall get a great deal more confidence in it.

There are a number of detailed matters which have been raised this evening. We have not been able to carry out completely the recommendations of the Evershed Committee. For example, one matter which has only just been mentioned in passing is the question of fixing days for the hearing. The Committee thought that an important matter, and I should not like it to be thought that we have overlooked it; but I am sure the House will realise that you can only have fixed days if you have a judge waiting to try a case which happens to become available at a particular moment. At present we have a system in the courts known by the rather inelegant term of "floaters." A list is kept of cases ready for trial, if a judge happens to become available, but in the end we shall only be able to deal with the situation if we can afford the luxury of one or two judges in waiting ready to take the cases. They have to have somewhere to sit and accommodation is limited in the courts.

It has unfortunately not been possible to complete the plans for the extension of the Law Courts because, even in these days of the Welfare State when we are providing so many good things, we have to have some limit to what we can afford. Although we lawyers would like to see the Courts rebuilt with all modern conveniences unfortunately that cannot be done. In the end, I think the solution of our troubles would be if we could have such a system of judges and courts as would enable anyone at any time to go into court and have his case tried. That would be a magnificent thing, but if we tried to do that we should have the Chancellor of the Exchequer and other people having something strong to say about it.

While the Chancellor might complain about the cost, from anything we could do to expedite litigation he would derive corresponding benefit on the other side.

I should be the last person to enter into any discussion about that, but I do not think that it would be profitable for me to discuss this matter at any greater length.

I wish to offer a word of thanks to the hon. Member for Walsall and to the hon. Member for Oldham, West for the way in which they have approached the matter. I think that the way in which I should like to answer them is in the words which were used, I believe, by Sam Weller when he referred to the man who had been condemned to be hanged, drawn and quartered, and when he said, "One thing at a time."

I think that is really the explanation of this Instrument. It is the first attempt, and a very fundamental approach. I think that those who will say, as they may say, that it does not go far enough, ought to talk to some of the solicitors and barristers affected, because some of them will say that this is a dreadful departure, really the beginning of the end, and something revolutionary and highly dangerous.

I do not think that we ought to approach it in that way, but that, instead, we ought to give the Masters the opportunity and the power to control the action at the earliest possible stage. Whether it will be necessary to increase their numbers, which was a matter referred to, will, of course, be carefully borne in mind, but the most important thing is to give this Instrument a reasonable start and fair support, and to try and see if we can adopt the new approach recommended by the Evershed Committee.

Motion, by leave, withdrawn.