HC Deb 10 March 1915 vol 70 cc1495-8

(1) Leave may be given to issue a writ of summons in the High Court for service on an enemy out of the jurisdiction or of which notice is to be given to an enemy out of the jurisdiction if the court or judge is satisfied that the case is a case to which this Section applies, and the court or a judge may, on an application made at the time leave is so given or at any subsequent time, if satisfied that the writ cannot promptly be served or brought to the notice of the enemy defendant by any of the usual means, make an order (in this Act referred to as an enemy service order) directing substituted or other service of the writ or the substitution of notice for service by means of advertisement or otherwise; and on that order being complied with, all proceedings may be taken on the claim as if the writ had been served on the enemy defendant by the usual means.

(2) The Lord Chief Justice shall give directions for expediting proceedings and regulating procedure generally in a case where an enemy service order has been made and the enemy defendant does not appear; and any directions so given shall have effect as if they were included in the rules of court for the time being in force.

(3) The court or judge, where an enemy service order has been made and it appears not to be practicable to obtain the best evidence of any document which is, in the opinion of the court or judge, material to the case, may admit such other evidence thereof as appears proper in the circumstances.

(4) The court or judge shall have power, where an enemy service order has been made and the enemy defendant does not appear, to order the plaintiff, though successful, to pay the whole or any part of the costs of the proceedings, if he considers that it is just to do so in the special circumstances of the case.

(5) The fact that, for the purpose of obtaining the benefit of this Section, a writ of summons has been indorsed only with a claim for a declaration in accordance therewith shall not prevent any other declaration or any consequential or other relief being claimed in other proceedings, or prevent the case being dealt with, although no such other declaration or consequential or other relief is claimed.

(6) This Section applies to cases where—

  1. (a) the plaintiff is a British subject and is entitled for the time being to bring an action in the High Court; and
  2. (b) the defendant or one of the defendants is an enemy; and
  3. (c) the writ is indorsed only with a claim for a declaration as to the effect of the present war on rights or liabilities of the plaintiff or defendant under a contract entered into before the outbreak thereof; and
  4. (d) there is written evidence of the contract.

Amendment made: In Sub-section (4), leave out the words "he considers" and insert instead thereof the words "the Court or judge consider."—[Sir J. Simon.]


I beg to move, in Subsection (6), paragraph (c), after the word "on," to insert the words "present or future."

A deputation which came to me from the London Chamber of Commerce seemed to think this Amendment was necessary, although I am not quite sure that these words are necessary. I think that the insertion of the word "the" might be sufficient. The deputation, however, are anxious that the Government should give them some assurance that their future rights or liabilities, as well as their present rights, should be declared by the Government. If the Attorney-General thinks these words are unnecessary I shall be glad to withdraw my Amendment.


I thank the hon. Member for mentioning this matter, although his Amendment is not on the Paper, and I have not had an opportunity of considering it. It does not seem to me that putting in the words "present or future" would add to the matter at all, and I rather think the hon. Member is of the same opinion. It is quite right that the question should be asked, and I am glad to be fortified by the hon. Member's own opinion on this point. If we speak of rights or liabilities under the contract, I cannot doubt that such an expression covers all rights and liabilities.


After the Attorney-General's explanation, I beg to withdraw my Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."


I wish now to ask whether or not the defendant would have any right of appeal against an order of this kind made under Clause 1, or whether the order would be made by the High Court without an appeal.


Nobody knows better than the hon. and learned Gentleman what are the ordinary principles which apply to a case where the defendant does not appear. I do not see why the procedure should be different in this case from what it is in any other case, and it appears to me that a great deal of the value of this Clause would go, if after you had fulfilled the whole of the conditions laid down you were still exposed to the possibility of finding the decision that has been given upset by some superior tribunal. The hon. and learned Gentleman will have in mind the provision made in Clause 3, that the Court, when it is dealing with one of these cases is to have the power, if it thinks right, to say that it is a case which cannot be properly dealt with under the Act, and consequently can dismiss the case without prejudice to subsequent proceedings. I think we may be satisfied that the Court will not pronounce a final determination in the absence of the German debtor, unless the documents before the Court are such as to enable them to do so justly and fairly. I think we should be depriving our own merchants and subjects of the real value of this Bill if we did not make their determination final.


I am quite satisfied with that explanation, and I only wish to have it made clear that there is no means of appealing.


The right hon. Gentleman will remember that a short time ago he accepted some Amendments of mine in another Bill to enable an action to be brought against enemies where those enemies had property and money in this country. He will remember the case I mentioned of an action against Krupp's where they had a considerable property here, and owed a very large sum of undoubted liabilities, and yet we could not sue them here, and could not prevent them taking their property out of the jurisdiction of the Court. On that occasion Clauses were introduced with the intention of partially meeting that difficulty, but they were subject to rules to be made with regard to the service of a writ. No rules have been made, and this Bill has been introduced to meet this difficulty, but it does not apply to cases such as the one I have mentioned. In the case of an enemy owing money in this country and having property here, the enemy can take it out of our jurisdiction and leave his English creditors unsatisfied. I think this Bill was intended to get over that difficulty.


In reply to my hon. and learned Friend I should like to explain that we had originally intended to have another Clause which would have dealt with the class of case to which the hon. and learned Member referred. But it was felt in passing this Clause about declaratory judgments it would be better to pass a simple Bill containing that Clause because the matter is very difficult to arrange. It is in a very advanced stage of preparation, and I should be very glad if I could have an opportunity of showing the hon. and learned Member our proposal. It would, I think, meet the point he puts, and we hope to have a further opportunity of making a proposal in that sense. In the meantime, I do not quite agree with him that a German debtor who has assets in this country can carry them out of this country. I hope that is not so. I think that the Trading with the Enemy Act has made certain, at any rate, that those assets will be kept here, but I quite agree that they are not made available at all for execution of a judgment against such a person until we have proper machinery for serving such a person with a writ demanding a judgment of that sort. The reason we limit it at the moment is because we thought we might ask the House of Commons for this simple declaratory proposal now, and we hope to supplement it by another proposal as soon as the opportunity arises.

Question put, and agreed to.