HL Deb 25 February 1982 vol 427 cc1032-41

4.32 p.m.

Report received.

Clause 5[Recognition and enforcement of maintenance orders]:

The Lord Chancellor (Lord Hailsham of Saint Marylebone) moved Amendment No. 1:

Page 3, line 38, leave out subsection (1) and insert— ("( ) The function of transmitting to the appropriate court an application under Article 31 for the recognition or enforce- ment in the United Kingdom of a maintenance order shall be discharged—

  1. (a) as respects England and Wales and Scotland, by the Secretary of State;
  2. (b) as respects Northern Ireland, by the Lord Chancellor.
In this subsection "the appropriate court" means the magistrates' court or sheriff court having jurisdiction in the matter in accordance with the second paragraph of Article 32. ( ) Such an application shall be determined in the first instance by the prescribed officer of that court.").

The noble and learned Lord said: My Lords, I propose, if I may, while rising to move Amendment No. 1, to speak to Amendments Nos. 10, 12, 13 and 20 at the same time. This is really an amendment consequential on the Transfer of Functions (Legal Aid and Maintenance Orders) (Northern Ireland) Order 1982 which was made on 10th February last and which transfers the functions of the Secretary of State for Northern Ireland relating to maintenance and legal aid to the Lord Chancellor. The purpose of these amendments is to ensure that certain functions under the Bill relating to these matters which are at present expressed to be conferred on the Secretary of State are also discharged by the Lord Chancellor. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 2:

Page 4, line 21, leave out subsection (6) and insert— ("(6) The payer under a maintenance order registered under this section in a magistrates' court in England and Wales or Northern Ireland shall give notice of any change of address to the clerk of that court.").

The noble and learned Lord said: My Lords, with Amendment No. 2 I propose to speak, with the permission of the House, also to Amendment No. 19. This amendment is designed to alter the obligation which is imposed upon the payer under a maintenance order to notify a change of address to the clerk of the relevant magistrates' court. Under the present draft the obligation arises only if the payer is domiciled within the particular commission area. This seems illogical, and the purpose of the amendment is to remove the restriction on that limitation. I beg to move.

On Question, amendment agreed to.

Clause 16 [Allocation within U.K. of jurisdiction in certain civil proceedings]:

The Lord Chancellor moved Amendment No. 3:

Page 9, line 18, at end insert— ("( ) proceedings for the winding up of a company under the Companies Act 1948 or the Companies Act (Northern Ireland) 1960 or proceedings relating to a company as respects which jurisdiction is conferred on the court having winding up jurisdiction under either of those Acts;").

The noble and learned Lord said: My Lords, I beg to move that Amendment No. 3 be agreed to. With this I propose to speak, if I may, to Amendments Nos. 14, 15 and 16. The purpose of these amendments is to achieve three changes. All the amendments are in fact confined to jurisdiction within the United Kingdom, so they do not contravene the provisions of the convention.

The first purpose achieved by them is that, if solvent, unregistered companies having their seat in the United Kingdom are to be wound up in that part of the United Kingdom—that is to say Northern Ireland, Scotland, or England and Wales—where the company has its principal place of business and not, as pre- viously contemplated, where they have their central management and control. The position will therefore be the same as for jurisdiction on insolvency, which is outside the scope of the convention and this Bill. The second purpose is related to it, and it is that there are about 50 types of application which must be made to the court having jurisdiction to wind the company up, and the most obvious one is an application for the reduction in share capital. The amendment preserves the present position and so has the same result as the first of the changes to which I have just referred.

The third deals with proceedings concerned with the decisions of the organs—not a word which I normally use in connection with law—of a company or an association. These are taken out of Article 16(2) of Schedule 4, so that the proceedings can be brought in a part of the United Kingdom other than that in which the company has its seat. I think I can best deal with that by giving an example. Suppose you have a trade union which is an association of natural persons and it has its seat in London, and somebody in Edinburgh is complaining of an action by the local committee of his union in Edinburgh. He is entitled, if the amendment is passed, to have the option either of proceeding in London or of proceeding in Edinburgh. I do not think that there is really any more that I need say in support of these amendments, although I notice that I have been given a 7-page speech to deliver if I am challenged. I beg to move.

Lord Mishcon

My Lords, the noble and learned Lord moved the amendment in his customary humorous but nevertheless lucid manner. I am tempted to rise only with the possible excuse in advance that I hope the House will not regard me as childish, but I am somewhat encouraged to make the point I do by the noble and learned Lord having said that he would not normally use the term "the organ of a company". In Amendment No. 15, to which the noble and learned Lord spoke, a new Article 5A is proposed, and I am anxious to talk about the question of terminology in our legislation in the hope that any intelligent fifth former of a school reading our legislation will not be tempted to burst into laughter.

I say that because Schedule 1 contains the language in full of the 1968 Convention, as amended; and Schedule 4, the one with which we are now dealing, is a modification of that convention—and therefore, as I understand it, the language is substantially in our hands—which is caused by this Bill. Hence, the new Article 5A is in language (this is my understanding of the situation and I will be corrected if I am wrong) for which we are responsible. I ask your Lordships to bear with me—and I really am not being facetious—when I ask the House to imagine, as I said, an intelligent fifth former seeing the language that we now use in our English Parliament as a result of foreign conventions. This is the wording and in quoting it I am asking the noble and learned Lord whether at a later stage he may find it possible to alter the language: Proceedings which have as their object a decision of an organ of a company, or other legal person or of an association of natural or legal persons may "— and I leave out some words that do not matter— be brought in the courts of the part of the United Kingdom in which that company, legal person or association has its seat". The combination of language of that kind in an English Act of Parliament is, I should have thought, likely to cause ribald laughter in some circles, and, if there is any opportunity of our keeping our dignity and propriety without causing such laughter in intelligent schoolrooms, I should like to do it. I therefore urge the noble and learned Lord not to regard my point as being too facetious when he looks at the language that we are now seeking to employ.

The Lord Chancellor

The last thing I would seek to do, my Lords, is to suggest that the noble Lord, Lord Mishcon, is being facetious. I take on board his point, but there are two rather serious considerations. One is that one must preserve consistency in the articles, and that of course means that one must use the same language to describe the things which are confined to the United Kingdom as one uses when they are not confined to the United Kingdom; and as noble Lords will appreciate, the native language of the convention is not only English.

The second consideration is that one must find a word which will cover the secretary of a limited company, the district committee or area committee of a trade union, an employers' association, a board of directors or central management. Therefore the word "organ", although it raised a smile on my face when I first read it, is a word for which it is difficult to find a substitute. Although I take on board the point made by the noble Lord and will consult with those who advise me on such matters, I am not sure that we can expect the sixth or fifth forms of schools to which he referred when, as I am sure they will, they peruse this measure, not occasionally to burst into laughter. Indeed, it will do them no harm if they do.

Lord Mishcon

My Lords, I am grateful to the noble and learned Lord for those remarks. If only he could divorce the words "organ" and "seat" from any revised amendment I should be grateful.

On Question, amendment agreed to.

4.45 p.m.

The Lord Chancellor moved Amendment No. 4:

Page 9, line 21, leave out ("or") and insert— ("( ) proceedings under section 6 of the Protection of Trading Interests Act 1980 (recovery of sums paid or obtained pursuant to a judgment for multiple damages);").

The noble and learned Lord said: My Lords, this is a slightly more important amendment. Amendment No. 5, to which I shall speak at the same time, is a Scottish amendment and therefore I shall expect my noble and learned friend formally to move it if No. 4 is accepted. I shall also, with permission, speak to Amendment No. 11, although it raises a slightly different point.

Your Lordships will recollect that in 1980 we passed the Protection of Trading Interests Act. The reason was that some American legislatures—and I think the evil is mainly confined to the United States—have pursued in recent years what I regard as an obsolete 18th century practice of providing in civil proceedings for what are called multiple damages; that is to say, you first of all ascertain the amount the plaintiff has lost and then multiply it by a factor of two or three and possibly even more. That is considered by this country to be oppressive.

Accordingly, in 1980 we passed the Protection of Trading Interests Act, Section 6 of which was designed, if the wicked plaintiffs in the country concerned got multiple damages, to enable one to pursue the assets, if any, in this country of such a plaintiff company to recover that part of the damages which was in excess of the straightforward damages which would have been awarded. I think it was an uncontroversial Act in this country, and the only purpose of Amendment No. 4 is to preserve the present position as to jurisdiction in proceedings against persons domiciled, within the meaning of the Act, in any part of the United Kingdom, so that, if a person is domiciled in England, proceedings under Section 6 may nevertheless be brought in Scotland or Northern Ireland, and vice versa.

Amendment No. 11, which is related to it, is based on the fact that, although it has not yet happened, a number of countries may introduce provisions for recovery back similar, but not necessarily identical, to ours—I believe Australia is the most likely candidate in this queue at the moment. Amendment No. 11 is designed to ensure that we can give them reciprocal treatment for the enforcement of their judgments should their legislation come into force. Having put the matter as simply as I can, I beg to move.

On Question, amendment agreed to.

Clause 20 [Continuance of certain existing jurisdictions]:

The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 5:

Page 14, line 6, at end insert— ("( ) proceedings under section 6 of the Protection of Trading Interests Act 1980 (recovery of sums paid or obtained pursuant to a judgment for multiple damages); ").

The noble and learned Lord said: My Lords, my noble and learned friend explained the purpose of this amendment, which I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 6: Before Clause 23, insert the following new clause:

(" Interim relief and protective measures in cases of doubtful jurisdiction.

.—(1) Any power of a court in England and Wales or Northern Ireland to grant interim relief pending trial or pending the determination of an appeal shall extend to a case where—

  1. (a) the issue to be tried, or which is the subject of the appeal, relates to the jurisdiction of the court to entertain the proceedings; or
  2. (b) the proceedings involve the reference of any matter to the European Court under the 1971 Protocol.

(2) Any power of a court in Scotland to grant protective measures pending the decision of any hearing shall apply to a case where—

  1. (a) the subject of the proceedings includes a question as to the jurisdiction of the court to entertain them; or
  2. (b) the proceedings involve the reference of a matter to the European Court under the 1971 Protocol.

(3) Subsections (1) and (2) shall not be construed as restricting any power to grant interim relief or protective measures which a court may have apart from this section.").

The noble and learned Lord said: My Lords, your Lordships will remember that both at Second Reading and in Committee there was an exchange between myself and the noble Viscount, Lord Bledisloe, who was concerned to preserve the jurisdiction in quia timet actions. We did not differ from one another very deeply, except about the pronunciation of legal Latin. We both put in amendments at the Committee stage; mine was carried, Viscount Bledisloe's was not, and he went away not wholly persuaded that mine would do the trick.

I then wrote to the noble Viscount (who has asked me to apologise for his not being here this afternoon) and invited him to discuss the matter with my officials. Between them, they managed to hit on Amendment No. 6, which puts to rest the doubts of the noble Viscount, and I am authorised by him to say that he agrees with what I now propose. I therefore beg to move Amendment No. 6.

On Question, amendment agreed to.

Clause 24 [Provisional and protective measures in Scotland]:

Lord Mackay of Clashfern moved Amendment No.7:

Page 16, line 39, at end insert— ("(d) in relation to subsection (1)(c) or section 25, proceedings which are to be commenced otherwise than in a Contracting State.").

The noble and learned Lord said: My Lords, this amendment parallels amendments that were made in Committee for England and Wales to enable provisional and protective measures to be granted in connection with future proceedings elsewhere in the United Kingdom or in another contracting state. I beg to move.

On Question, amendment agreed to.

Clause 29 [Overseas judgments given against states, etc.]:

The Lord Chancellor moved Amendment No. 8: Page 17, line 39, leave out Clause 29 and insert—

(" Overseas judgments given against states, etc.

29.—(1) A judgment given by a court of an overseas country against a state other than the United Kingdom or the state to which that court belongs shall be recognised and enforced in the United Kingdom if, and only if—

  1. (a) it would be so recognised and enforced if it had not been given against a state; and
  2. (b) that court would have had jurisdiction in the matter if it had applied rules corresponding to those applicable to such matters in the United Kingdom in accordance with sections 2 to 11 of the State Immunity Act 1978.

(2) References in subsection (1) to a judgment given against a state include references to judgments of any of the following descriptions given in relation to a state—

  1. (a) judgments against the government, or a department of the government, of the state but not judgments against an entity which is distinct from the executive organs of government;
  2. (b) judgments against the sovereign or head of state in his public capacity;
  3. (c) judgments against any such separate entity as is mentioned in paragraph (a) given in proceedings relating to anything done by it in the exercise of the sovereign authority of the state.

(3) Nothing in subsection (1) shall affect the recognition or enforcement in the United Kingdom of a judgment to which Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933 applies by virtue of section 4 of the Carriage of Goods by Road Act 1965, section 17(4) of the Nuclear Installations Act 1965, section 13(3) of the Merchant Shipping (Oil Pollution) Act 1971, section 5 of the Carriage by Railway Act 1972 or section 5 of the Carriage of Passengers by Road Act 1974.

(4) Sections 12, 13 and 14(3) and (4) of the State Immunity Act 1978 (service of process and procedural privileges) shall apply to proceedings for the recognition or enforcement in the United Kingdom of a judgment given by a court of an overseas country (whether or not that judgment is within subsection (1) of this section) as they apply to other proceedings.

(5) In this section— judgment" means any judgment or order (by whatever name called) given or made by a court in any civil proceedings; state", in the case of a federal state, includes any of its constituent territories.").

The noble and learned Lord said: My Lords, this amendment raises the question of state immunity, and the noble Lord, Lord Mishcon, will remember that we had a friendly discussion about it in Committee, and two or three of my noble and learned friends on the Cross-Benches also spoke. The question which was raised was about state immunity. I ought to have said that the City of London Solicitors' Company was also interested in the point. We entered into a learned discussion as to the wider and narrower views of state immunity and we all agreed that the narrower one was better. As drafted, the Bill would have perpetuated the old and absolute view of state immunity in relation to foreign judgments. We now propose in a new Clause 29 subsection (1) to recognise foreign judgments if the rules of immunity applied by the foreign court are similar to our own, or not less favourable, and I hope and believe that this meets the point which was raised in Committee.

The noble Lord, Lord Mishcon, also raised a question about the position of central banks, and the second purpose of the amendment, in subsection (4), is to cover that situation. I am told that the effect of it is to render their property immune from execution in respect of foreign judgments but that it will not prevent the registration of foreign judgments given against them. I hope that this will solve this problem to everyone's satisfaction. I beg to move.

Lord Mishcon

My Lords, as the noble and learned Lord the Lord Chancellor has said, the amendment deals with a most important matter, especially to the City of London, in regard to state immunity. I should like to express my gratitude—I am sure that I am doing so on behalf of all those concerned with the matter—to the noble and learned Lord for the consideration that he has given to the points made in the speeches in Committee. There was not only my own speech, as he implied, but I remember the support that was given to various points by the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord O'Brien of Lothbury. 1 believe that the noble and learned Lord, Lord Diplock, also indicated his support for the points that were then raised. I should also like to express my own gratitude, and that of the City of London Solicitors' Company, for the way in which the noble and learned Lord's department very graciously dealt with points that were raised on the suggested amendment which has now taken the form before your Lordships, and which, so far as I know, is completely satisfactory.

The Lord Chancellor

My Lords, I am very grateful for what the noble Lord has just said. I hope that the amendment will satisfy everyone, and I think we have now solved this little problem.

Lord Diplock

My Lords, I should like to be permitted to add to the welcome given to the amendment by the noble Lord, Lord Mishcon. He was much concerned about a possible loss of business to the City of London if Clause 29 went through in its original form. I should like to add my welcome in the interest of consistency in this branch of the law of England. We have been moving from being odd men out and accepting the absolute theory of state immunity, first by the courts towards the restrictive theory, and secondly by the State Immunity Act 1978. In its original form, Clause 29 represented a step backwards from the orderly progress towards a coherent system of law with respect to state immunity. In my view, the present amendment cures that and gives us the kind of coherent law that we ought to have.

The Lord Chancellor

My Lords, with the leave of the House, I ought to apologise to my noble and learned friend. I did not see him rising, otherwise I should not have intervened earlier; but I thank him, too.

On Question, amendment agreed to.

Clause 30[Overseas judgments given in breach of agreement for settlement of disputes]:

The Lord Chancellor moved Amendment No. 9: Page 19, leave out lines 20 to 33 and insert ("shall not be recognised or enforced in the United Kingdom").

The noble and learned Lord said: My Lords, I think I can conscientiously describe this amendment as a purely drafting amendment, and I do not think it requires any other commendation. I beg to move.

On Question, amendment agreed to.

Clause 35 [Minor amendments relating to maintenance orders]:

The Lord Chancellor moved Amendment No. 10: Page 22, line 45, after ("State") insert ("or the Lord Chancellor").

The noble and learned Lord said: My Lords, I have already spoken to this amendment on Amendment No. 1. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 11: After Clause 35, insert the following new clause:

(" Overseas judgments counteracting an award of multiple damages.

.—(l) Section 7 of the Protection of Trading Interests Act 1980 (which enables provision to be made by Order in Council for the enforcement in the United Kingdom on a reciprocal basis of overseas judgments directed to counteracting a judgment for multiple damages given in a third country) shall be amended as follows.

(2) In subsection (1) for "judgments given under any provision of the law of that country corresponding to that section" there shall be substituted "judgments of any description specified in the Order which are given under any provision of the law of that country relating to the recovery of sums paid or obtained pursuant to a judgment for multiple damages within the meaning of section 5(3) above, whether or not that provision corresponds to section 6 above".

(3) After subsection (1) there shall be inserted— (1A) Such an Order in Council may, as respects judgments to which it relates—

  1. (a) make different provisions for different descriptions of judgment; and
    2. 1040
  2. (b) impose conditions or restrictions on the enforcement of judgments of any description.".").

The noble and learned Lord said: My Lords, I spoke to this amendment on Amendment No. 4. I cannot strictly describe it as consequential, but I earlier explained what it does. I beg to move.

On Question, amendment agreed to.

Clause 37 [Power to modify enactments relating to legal aid etc.]:

The Lord Chancellor moved Amendments Nos. 12 and 13:

Page 24, line 25, leave out ("Secretary of State") and insert ("Lord Chancellor").

Page 24, line 36, leave out ("Secretary of State") and insert ("Lord Chancellor").

The noble and learned Lord said: My Lords, Amendments Nos. 12 and 13 are both consequential on what I have already said about Amendment No. 1. Therefore I beg to move them en bloc.

On Question, amendments agreed to.

Clause 40 [Seat of corporation or association for purposes of Article 16(2) and related provisions.]:

The Lord Chancellor moved Amendments Nos. 14 to 16: Page 27, line 19, leave out ("Article") and insert ("Articles 5A and").

Schedule 4 [Title II of 1968 Convention as modified for allocation of jurisdiction within U.K.]:

Schedule 4, page 70, line 33, at end insert—

(" Article 5A

Proceedings which have as their object a decision of an organ of a company, or other legal person or of an association of natural or legal persons may, without prejudice to the other provisions of this Title, be brought in the courts of the part of the United Kingdom in which that company, legal person or association has its seat.").

Page 72, line 28, leave out ("or the decisions of their organs").

The noble and learned Lord said: My Lords, I have already spoken to these amendments and, subject to the point that was made by the noble Lord, Lord Mishcon, about organs and seats, I think the matter otherwise received approval. Therefore with the leave of the House, I beg to move the three amendments en bloc.

On Question, amendments agreed to.

5 p.m.

Schedule 7 [Rules as to jurisdiction in Scotland]:

Lord Mackay of Clashfern moved Amendment No. 17:

Page 81, line 3, leave out from ("proceedings") to ("moveable") in line 4 and insert— ("which are brought to assert, declare or determine proprietary or possessory rights, or rights of security, in or over moveable property, or to obtain authority to dispose of ").

The noble and learned Lord said: My Lords, this is a drafting amendment bringing the wording of Rule 2(9) of Schedule 7 into line with that of the equivalent provision in Schedule 4, which is Article 5(8)(b) and is in turn based on the phraseology of Article 59 of the 1968 convention. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 18: Page 82, line 41, leave out ("in Scotland").

The noble and learned Lord said: My Lords, this is a purely drafting amendment. I beg to move.

On Question, amendment agreed to.

Schedule 10 [Minor amendments relating to maintenance orders]:

The Lord Chancellor moved Amendment No. 19: Page 93, line 1, leave out from ("In") to ("duty") in line 7 and insert ("section 8(5)").

The noble and learned Lord said: My Lords, I have already spoken to this amendment, in considering Amendment No. 2. I therefore beg to move.

On Question, amendment agreed to.

The Lord Chancellormoved Amendment No. 20: Page 93, line 31, leave out ("by Secretary of State").

The noble and learned Lord said: My Lords, I have already spoken to this amendment, on Amendment No. 1. I therefore beg to move.

On Question, amendment agreed to.

Schedule 13 [Repeals]:

Lord Mackay of Clashfern moved Amendment No. 21:

Page 102, column 3, line 45, at end insert—

(" Section 9(1)(a).In section 16(2)(b)(v), the words from the beginning to "or".")

The noble and learned Lord said: My Lords, these amendments are intended to take out of the Maintenance Orders Act 1950 words which are unnecessary. We came across this in connection with the preparation of this Bill, and it seems right to give effect to this correction. I beg to move.

On Question, amendment agreed to.