CLAUSE 2.—(Execution of arrestment or charge by registered letter in certain cases.) (Hansard, 22 June 1926)

§ The LORD ADVOCATE (Mr. Watson)
I beg to move, in page 3, line 9, to leave out the words "or on behalf of.'
I apologise to the House for my absence. Certain distances are rather difficult to cover. In Committee I undertook to consider a similar point arising on two Sub-sections of Clause 2. The first point arises in paragraph (e), line 9, which is the subject of the Amendment which I now move. I have attempted to do what I hope will meet with the wishes expressed in Committee. We are introducing here a method of what we call the execution of diligence, that is, the enforcing of a decree in Scotland in the case of small debt processes by registered letters. It is obviously right that it should be made certain that a registered letter should be received either by the debtor himself or by somebody who was properly receiving it on his behalf. The words in the Bill as it stands are: received by or on behalf of the arrestee or the debtor. I need not go into the technical meaning of the word arrestee. The arguments that apply in the case of the execution of a debt, equally apply to the case of an arrestee. Objection was taken that the words or on behalf of the arrestee or the debtor 329 were too wide, and might include such a case as that of a landlady or a, servant who really had no right to acknowledge the receipt of a registered letter on such a serious matter. It is equally clear that if you leave it to acknowledgment by the debtor himself you would afford opportunities for evasion which should not be given to the debtor. Since the Committee sat I have been considering the matter, and I have mentioned it to several hon. Members, with the result that I have put down the present Amendment, which I hope will meet the views of the House. It is, if anything, rather stricter than what I had in my mind previously, but I have been anxious to meet what I think is a legitimate criticism. The Amendment I am proposing, which is contained in the three Amendments which stand in my name on the Paper, will make the paragraph read: receiver by the arrestee or the debtor or any person with his authority, express or necessarily implied. Whether it is "necessarily implied" or not will be settled by the Court, because this point only arises on a challenge when the matter is before the Court. Therefore it is a matter for the decision of the Court at the time the question arises.

§ Mr. JOHNSTON
I take it that the first, second and third Amendments which stand in the name of the Lord Advocate all hang together and that discussion on the first Amendment will cover all the Amendments. The point which is not clear to me is raised by the words "necessarily implied." What does that term mean? Let me give, as I sought to do in Committee, an instance of the difficulty which arises, and which will be a very common one. Take the ca-se of a family in one of the outer islands, far away from a county town and far away from a Sheriff Court. The people will never go to the Sheriff Court and will never appear at the Sheriff Court to contest any charge made under this Act. Take the case of a family where a debt has been incurred, say, by the wife, for clothing paid for on what we call the tick system: the long credit system, under which unconscionably high priors are paid. A month or two may, elapse and it may be that in consequence of bad weather or a hundred quite legitimate causes the wife cannot meet the instalment on the debt Then comes a challenge to the Court and a registered 330 envelope is sent to the husband, who is the legitimate head of the family. The challenge is sent quite legitimately to the debtor or, according to the Bill as it would be amended by the Lord Advocate's Amendment: any person with his authority, express or necessarily implied. Suppose that the envelope were accepted by the man's wife. Is authority necessarily implied there? The man may know nothing whatever about the debt. He may never have heard about it. In thousands of cases he would be the last individual who would be told of it. That is a very common practice. If the man's daughter accepts the envelope from the postman, will service have been proved in that case? His express consent cannot necessarily be implied in that case. I would like to know from the Lord Advocate what set of circumstances or relatives are covered by the phrase "necessarily implied." It is no good the Lord Advocate saying that this question would be settled by the Court. As he knows, there are thousands of cases where it is absolutely impossible for people to go to the Sheriff Court. It is impossible for them to go to the Sheriff Court to defend themselves, because the Court is so far away. The debt may be for a few shillings. There are parts of Scotland where it would cost pounds to travel to the Sheriff Court. The taking of witnesses would be absolutely impossible. In reality these cases will not be tried by the Sheriff Court. We are really trying the question now. The words put into the Bill will settle whether or not the service has been legal or otherwise. We are anxious to get from the Lord Advocate a definition of what is meant by "necessarily implied." Is it a limited term or a term capable of very wide interpretation. If it is capable of very wide interpretation, I submit that this Clause will do a very great disservice to thousands of poor men, service against whom is very difficult. It will make it easy to levy diligence upon them, and I do note think it is right that this Parliament should lightly pass legislation without Members of this House knowing what is implied.

§ Mr. BUCHANAN
I associate myself with what has been said by the hon. Member for Dundee (Mr. Johnston). I raised this point in Committee and 331 endeavoured to get the Lord Advocate to meet our point. To his credit, he has made some attempt to narrow the issue, but the words "necessarily implied," which may be clear to the mind of the Lord Advocate, who is learned in the law, are not understandable to us. The hon. Member for Dundee raised the case of a person living a long distance from the Sheriff Court. I would like to draw attention to the case of the town dweller. Take a case of moneylending. A man may be served with a summons by registered letter. That man may be employed in a shipbuilding yard. I remember once working in a shipbuilding yard when a notice was served on a certain person, although there were a number of men of the same name in the same works. I do not know whether the Lord Advocate includes in his definition, the employer of the man. In industrial towns a summons on a man is often served upon the employer. Does this Amendment necessarily mean that the employer may accept the registered letter on behalf of the man? If the man gives permission to his employer to accept any letters op his behalf consent would be necessarily implied in connection with the acceptance of a registered letter, which would not be differentiated from any other letter. If that is understood to be the case, it meets my point as far as an industrial town is concerned. The Lord Advocate has gone some way to meet the point I raised, and if I have the assurance I have asked for, I shall be perfectly satisfied.

§ The LORD ADVOCATE
I can only speak again with the consent of the House. It should be realised that at the present moment the sheriff officer, who carries out the particular process we are considering now, does not require to see the debtor at all, and, therefore, in giving an alternative method, by registered letter, the Amendments I propose are making it a far more limited matter than the ordinary method. It is true that the safeguard or protection which the debtor has at present is the not very legitimate protection of the excessive expenses which would necessarily be incurred by a creditor in recovering the money, and it should not be forgotten that the creditor who will mostly benefit by the provisions of this Bill will be the small creditor who is trying to recover small sums.I have 332 gone further than I originally felt inclined to go in the Amendment I have suggested. The words "necessarily implied "are perfectly clear as a matter of legal construction. You cannot assume that express authority is given in all these cases to acknowledge the registered letter, and, therefore, you must get something which is equivalent to an express authority before the Court will hold that there was necessarily implied authority to receive the letter. That means something different from the casual daughter, who has no authority of any kind to acknowledge that letter, or the employer, or the servant girl. It excludes all those cases, and it was with the object of meeting that suggestion that I have given what in my view was a limited restriction of the working of this provision. In a sense it is an experimental provision, and I would rather keep it tighter now than looser. I hope hon. Members will be satisfied with the proposal.

§ Sir ROBERT HAMILTON
After hearing the explanation of the Lord Advocate I am sure the House will be satisfied that the issue is narrowed down as far as possible so as to make as sure as we can that the letter is handed to the right person or to some person authorised by him.