Costs of Proceedings Commenced in High Court Which Could Have Been Commenced in County Court

Part of Clause 4 – in the House of Commons am 12:00 am ar 20 Hydref 1969.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Sir Arthur Irvine Sir Arthur Irvine , Liverpool Edge Hill 12:00, 20 Hydref 1969

I am grateful to the hon. and learned Member for Southport (Mr. Percival) for the care which he has, to my knowledge, applied to this question. I am always cautious—I am sure that he will understand and, perhaps, share the same disposition—before expressing my understanding of the law in terms which are merely confirmatory of something which an hon. or hon. and learned Member has said. I propose, therefore, to deal with the point rather in my own way, although I am grateful to the hon. and learned Gentleman for his consideration of the question.

I am anxious also, about the nightmarish possibility which opens before us if the course is too widely adopted, as he recommended it, of spelling out in a statute the effect of an authority which is not widely known. That process calls for somewhat cautious application.

The object of the Amendment appears to be to ensure that the limitations imposed by Section 47(1) of the County Courts Act, 1959 that the costs of a plaintiff who brings in the High Court an action which he could have brought in the county court shall apply only to the costs incurred up to judgment and not to the costs of executing the judgment.

Under Section 47(1) the plaintiff is not entitled to any costs of the action if he recovers less than £75 and he is entitled only to county court costs of the action if he recovers less than £400. Clause 4(1)(b) provides that £500 be substituted for the figure of £400 and under the Government Amendment £100 will be substituted for the figure of £75. It is to be expected, therefore, that most of the debt-collecting actions for sums between £100 and £500 will continue to be brought in the High Court.

The Under Sheriffs' Association has questioned, however, whether this will be the case if the plaintiff is not to be able to recover the costs of executing his judgment in the High Court. Section 47(4) provides, by way of an exception to subsection (1), that the plaintiff in a debt-collecting action in the High Court who recovers £40 or more shall be entitled to costs or such scale as may be prescribed by the rules of the Supreme Court. Among the costs prescribed by Appendix 3 to the Rules of the Supreme Court Order 62 for this purpose is an item of £3 9s. for the costs of issuing execution.

The under-sheriffs fear that if Section 47(4) is repealed in accordance with Clause 4(2), a plaintiff in the High Court who, under Section 47(1), is entitled only to county court costs will no longer be able to recover the costs of enforcing his judgment in the High Court but only to the corresponding county court costs.

We believe that this fear is unfounded, and this is where we come to the case of Armitage v. Jessop to which the hon. and learned Member referred. I agree with him that it is desirable that this case should be more widely known than it is. It was held in that case that although under the County Courts Acts then in force a plaintiff who recovered a debt not exceeding £20 in the High Court was not entitled to the costs of the action, he was still entitled to the costs of execution.

The Chief Justice, Erle C.J., said quite specifically that the costs of execution are not costs of the action. That is the law today. This is the expression used in Section 41(1) of the present County Courts Act and there can be little doubt that, even if subsection (4) is repealed, the costs sanctions imposed by Section 47(1) will not apply to the plaintiff's costs of enforcing his judgment in the High Court.

My noble Friend the Lord Chancellor intends to recommend to the Supreme Court Rule Committee, when the Bill is passed, that it should again prescribe fixed costs for undefended cases in which only county court costs are recoverable under Section 47(1) and that these should, where appropriate, include the usual costs of execution in the High Court. Notwithstanding the repeal of subsection (4), the Rule Committee will clearly have power to do this under the provision in Section 99(1)(e) of the Supreme Court of Judicature (Consolidation) Act, 1925 which enables them to make rules regulating any matters relating to the costs of the proceedings.

The first part of the Amendment, which provides that "costs of the action" means "the costs incurred up to" judgment and does not include the costs of execution is therefore, in our view, unnecessary. The second part, which provides that a plaintiff who executes his judgment in the High Court shall be entitled to High Court costs of execution goes too far, for while it is right that a plaintiff who is entitled to the costs of the action, albeit on the county court scale, should also be entitled to the cost of executing his judgment in the High Court, it cannot be right that a plaintiff who is not entitled to any costs of the action should, nevertheless, be able to execute his judgment in the High Court at the expense of the defendant.

In accordance with a recommendation in paragraph 393(b) of the Final Report of the Evershed Committee on Supreme Court Practice and Procedure—Cmnd. 8878—Rules of Supreme Court Order 47, Rule 4, provides that a writ of fi.fa. to enforce a judgment for less than £40 which does not entitle the plaintiff to costs shall not authorise the sheriff to levy any fees, poundage or other costs of execution. In such a case the plaintiff is expected to enforce his judgment by issuing a warrant of execution in the county court under the powers conferred by Section 139 of the County Courts Act, 1959.

The sum of £40 is the amount below which a plaintiff in a debt-collecting action in the High Court is not at present entitled to High Court costs under Section 47(4) of the Act. When the Bill is passed it will not only be necessary to retain Rules of Supreme Court Order 47, Rule 4, but also no doubt to substitute a higher figure for £40.

I must therefore ask the House to reject the Amendment. I will give consideration to what method there is of bringing the effect of Armitage v. Jessop home to those to who will be interested and concerned.