HC Deb 15 June 1934 vol 290 cc2111-22

Order for Second Reading read.

2.53 p.m.

The SOLICITOR-GENERAL (Sir Donald Somervell)

I beg to move, That the Bill be now read a Second time. In moving the Second Reading of this Bill, which I shall do as briefly as possible, I would like to say a word or two as to its origin. On the 10th January of this year the Lord Chancellor appointed a Committee to consider how far, having regard to the statute law and judicial decisions such legal maxims and doctrines as the Lord Chancellor may from time to time refer to them require revision in modern conditions and to report specially on certain matters which are set out in the terms of reference. I think I am speaking not only for myself but for the whole House when I say that we would like to express our appreciation of the great public service that is being done by the members of that Committee. They are giving much time to and taking great care over the examination of matters which will, no doubt, affect improvements in our law, and we can also congratulate them—at least if the House gives a Second Reading to this Bill—on having produced in so short a time two unanimous reports which have resulted in this Bill. The Bill deals with two matters, the first and most important of which is an old maxim of English law which is referred to in Latin as Actio personalis moritur cum personá. I am afraid that I cannot follow the example of the right hon. Gentleman the Member for Sparkbrook (Mr. Amery) a day or two ago and give a vernacular translation which would create general laughter. The translation is "Personal actions die with the person." The origin of this maxim is shrouded in mediaeval mystery. The common sense of it is very difficult to understand, and many incursions on it have already been made by Statute law and by judicial decision.

It involves three points, which I will put before the House. The first is that, if a wrongdoer dies, a claim cannot be made by the injured person against his estate. The second is that if an injured person dies, his estate can have no claim against the wrongdoer. There is a third and a different heading comprised in this maxim, namely, that the death of an individual cannot, at Common Law, give a right of action to those who are dependent upon him and who may have suffered serious pecuniary injury by the death. In some sense those matters have been dealt with by Statute. I do not wish to weary the House with the particular provisions that have been made but I will take a broad case under each heading, in order to show what the position is and what the Bill does.

Take, first, the principle that if a wrongdoer dies his estate cannot be sued by the injured person. An unfortunately common case is that which occurs in street accidents; the real urgency for the Bill is in order to deal with the matter so far as street accidents are concerned. Under the law as it is at present, if a negligent motorist injures another and the motorist has the misfortune to be killed in the accident, the injured person can make no claim against his estate and claims, therefore, cannot be covered by insurance. The object and the intention of other Acts which this House has passed is defeated in that class of case. The Bill will put that right, because it will provide that there shall be a legal claim that can, of course, be covered by insurance. The injured person will have the same rights in the case where the negligent motorist is killed as he has in cases at present where the motorist survives. I think every hon. Member will agree that that should be done, and that there is no reason in logic or common sense why the existing position should be allowed to continue.

The second case is where a person has been injured and subsequently dies. It is not a case which raises any matter of particular public interest, and there is no special case where there is any great grievance. Nevertheless, there does not seem to be any logic for it, and, subject to exceptions and safeguards, that class of case is to be brought under the general principle that there shall be a cause of action. The third case covered by the maxim is dealt with by the Fatal Accidents Act. It was an old principle of common law that, if negligence resulted in death, the fact of death could not be made a basis of a claim, although the death had been caused by the negligence of another party and although the dependants in the household might be deprived by death of the support and mainstay of the house. That matter was dealt with many years ago in what was called Lord Campbell's Act and is now referred to as the Fatal Accidents Act. It gives dependants a right to claim. It is necessary for me only to mention it, because it is part of the old maxim of which we are disposing and because in the Bill there are one or two Amendments to Lord Campbell's Act. Under Lord Campbell's Act, for example, a dependant could not recover funeral expenses incurred as a result of the accident. That very small matter has been put right.

I will go very shortly through the Clauses in the Bill. Clause 1 (1) lays down the general principle that all causes of action subsisting against or vested in the deceased person, except causes of action for defamation or seduction, shall survive against or for the benefit of his estate. Defamation and seduction are excepted because the Committee recommended that they should be excepted, and for two reasons. One is that in a sense they are peculiarly personal and the other is that there may be cases in which it is difficult to do justice if both parties are not able to appear in the witness box. I do not think that the evils and illogicalities which can be urged against the maxim as a whole apply to those two classes of action. There are certainly difficulties about saying that actions of this kind shall survive the death of one party or another and the Committee unanimously recommended that they should be excepted. It is no doubt susceptible of argument, but the object of the Bill as far as possible is to keep away from controversial areas, and to get through with expedition changes which will command the general assent of laymen and of lawyers.

Sub-section (2) deals with certain matters which are not to go down to the estate of the deceased person. Paragraph (a) covers vindictive damages; paragraph (b) relates to actions for breach of promise to marry, in which case damages against the estate of the deceased plaintiff are limited to pecuniary damage; and paragraph (c) deals with funeral expenses which up to now have not been included. Sub-section (3) deals with the limitation to six months. Subsection (4) deals with a very special cause of action about which I do not think I need trouble the House at this stage. Sub-section (5) preserves rights under Lord Campbell's Act, and Sub-section (6) deals with estates which are insolvent. Clause 2 brings in an Amendment of Lord Campbell's Act with regard to illegitimate and adopted children, so that they can claim as if they were descendants of the deceased. The rest of the Clause defines the expression "adopted person." This, I think, disposes of the first part of the Bill, dealing with that old and much criticised maxim, Actio personalis moritur cum persona.

Clause 3 is based on the Second Report of the Committee. It deals with another matter which had got into an anomalous condition in our law. The old principle of our law was that, when a sum of money was claimed in a court of law, the plaintiff could not recover interest; that is to say, although the debt or damages ought to have been paid one year or two years previously, according to the law's delays, he only got the principal sum of money, and could not claim interest. Here again Acts of Parliament and judicial decisions have impinged on the principle, and the position at present is very curious and entirely anomalous. In certain causes of action you can get interest, while in certain causes you cannot, and the House of Lords has, I think, more than once commented in appeals on the desirability of amending the law in this respect. The House will see that the fact that in many cases interest cannot be claimed is a very real motive for delay. If the sum of money is at all large, a defendant who can find methods of delaying the proceedings is putting into his own pocket month by month and week by week interest on money which, if he lost the case, the court would have decided should be in the plaintiff's pocket and earning interest for him.

This Clause, while preserving in the main the special cases dealt with by Statute, and while preserving, of course, the terms of any contract between the parties making special provision for interest, gives the court in its discretion a power to award interest in all cases. It is necessary that the court should have a discretion, because in some cases it is reasonable that interest should not be paid for the whole period. For instance, in insurance cases, where interest can be awarded, no one contemplates that, if he takes out a policy of insurance, he will get his money the day after the accident. It is a complicated matter. In the case of a claim on a ship or cargo, necessarily a certain amount of time must be spent in investigating the case, and the court makes a reasonable allowance for such delay in the settlement of the claim. There are other cases where the same reasons might be adduced for holding that the interest should not cover the full period. It is a discretion which in certain matters jests with the courts already, and I do not think that any real difficulty will be found by judges in dealing satisfactorily with the matter. I commend the Bill to the House as the result of the two unanimous opinions of this very distinguished Committee, and as a Measure which will effect important improvements in the law.

3.9 p.m.


I should like to offer, on behalf of Members on these benches, a few words of general commendation of the provisions of this Bill. We should like to associate ourselves with all that the Solicitor-General has said as to the extremely useful work which the Standing Committee are doing. This is entirely a non-party matter, and we think the Committee are fulfilling a most useful function in dealing with the drafting, as I presume they are, of necessary alterations in the law, such as those set out in the Bill, in cases where the law is not in accord with our modern views, or where, for one reason or another, alterations are required. I think the House is also indebted to the Solicitor-General for the very lucid way in which he has explained the provisions of the Bill.

I think that every provision in the Bill will be most useful. The fact that motoring has become so common in the last 10 or 20 years has, as we all know, resulted in a great number of fatal accidents. There have been many hard cases, particularly where a driver has perhaps driven recklessly and not only killed other people but himself as well. In those cases it has hitherto not been possible to recover damages by the relatives of a person who has been injured or killed, and the Bill will be most useful in dealing with that defect in our law. There are one or two other extremely useful provisions upon which the Solicitor-General did not dilate. It is most useful that a person who is only related illegitimately to a deceased person should have the same rights as if he had been legitimate, and that an adopted son or daughter should have similar rights. There are also excellent safeguards in respect of time limits and so on which ensure that prompt action has to be taken if a claim is to succeed. Obviously, it would be undesirable that a claim by the relatives of a person who has been killed, or a claim against the estate of a person who has been killed, should be held over indefinitely.

There is one matter as to which it seems to me some provision might be inserted. I believe at present a parent has no claim whatever even for funeral expenses in respect of a young child, who is not an asset to the family, who has been run down. Many insurance companies—credit is due to them for the fact—make ex gratia payments, perhaps £10 or less or a little more. It frequently happens that in these days of unemployment the parents are unable even to find the funeral expenses. If it were possible to include some provision enabling in appropriate cases even bare funeral expenses to be recovered, that would be of very great benefit to many who not only have to suffer bereavement but have also to endeavour to find money which very frequently they can ill afford, or, alternatively, the child has to be buried at the public expense, which, of course, no parent desires.

The provision in Clause 3 with regard to interest is also most useful. It might even pay a man to put in a defence to a claim and to delay the claim as long as possible, thereby retaining the use of money which he ought properly to pay to the person to whom he owes it. For example, a man owes £2,000 and perhaps an indulgent creditor gives a good many months' time before he puts on any pressure, the payment is not made, a writ is issued, delays in the claim take place for one reason or another, such as a long vacation, and the result may be that the debtor may have the use for many months or possibly a year of £2,000 which is properly the property of the creditor. Five per cent. interest on £2,000 for a year is £100, and the costs eventually may amount to less than that sum, if payment is eventually made before the actual hearing. This is a most useful provision, and there is no reason in equity or justice why, if the debt is eventually properly found to be due, the debtor, who has had the use of the money for an extended time, should not, at the discretion of the court, and in appropriate cases, make some payment for the use of the money. We on these benches approve of the principle of the Bill, and hope that this Committee may go on with its useful work and that other Bills from time to time may come before the House dealing with similar points in our law which require alteration or amendment.

3.16 p.m.


I wish to express satisfaction at the salutary changes in the law which this Bill effects, and I join with my hon. Friend the Member for South East Leeds (Major Milner) in thanking the learned Solicitor-General for the very clear and succinct way in which he explained its provisions, which, frankly, on paper, are not clear to everybody who reads them. It is a very great advantage that these matters should be explained in the way in which the learned Solicitor-General has explained them to-day. It is often said outside this House that this Assembly is indifferent to changes in the law, and this Bill will in part remove that reproach. The reproach arises largely from demands for changes in the law from outside which do not receive the assistance here that some people would wish, but in the main this Parliament—and I rise to say this—has shown itself ready to bring about necessary changes in the law which have been delayed by the inattention of previous Parliaments.

It was a very great advantage to this Parliament that there should be a Lord Chancellor on the Woolsack who appreciated these difficulties and took early steps to see that they were dealt with. The general work of Lord Hanworth's Committee will commend itself not only to Parliament, but to a very large number of people outside. It is a considerable public satisfaction that these necessary changes in the law should be reviewed by an expert Committee, and there is every likelihood that before this Parliament ends the activities of this Committee will have been carried out to very great public advantage. I only want to point to one matter which is dealt with in this Bill to show how the law comes under the influence of the extension of more humane notions. In Clause 2 we are proposing still further to remove the bar which has been partly removed from children so that the sins of the Parents shall not be visited upon the children. We have come to a new, better and more humane view in that we consider the position of the child, and that that position shall not be worsened by the defects of ill conduct of the parents. It is a great satisfaction that in this Bill further extension is given to that view. It will cause much satisfaction outside, and I very cordially support the Second Reading of the Bill.

3.20 p.m.


I should like to pay my tribute to the labours of the Committee upon whose Report the Bill is based. I am not sure that I agree with my hon. and learned Friend the Member for Nottingham, South (Mr. Knight), that this House takes a vast interest in legal reform.


I did not say "vast."


Or that it takes a substantial measure of interest in legal reform. I am only sorry that there are not more Members interested in this Bill. I was very sorry, too, that when the County Courts Amendment Bill came up it was difficult to find a quorum for the Committee dealing with the Measure on the first day on which it sat. Those hon. Members who are always saying that the law is behind the times might well come to the House when good legal changes are being made, and when we have presented to us the effects of the Report of a Committee which is doing much to bring our legal procedure and our laws up-to-date.

I agree with the hon. and gallant Member for Leeds, South-East (Major Milner), that it would probably be right to include, if it were possible, in this Bill a provision whereby parents could get funeral expenses in recpect of their children, although they were in no way supporting their parents. I would only support his proposal with this one slight warning that when one gets a Bill of this sort, emanating from a Committee which has gone fully into the matter, the hon. and gallant Member knows as well as I do, because we served together on a Local Government Committee, that if you have large Amendments sought to be made you have a difficulty in getting the Bill eventually brought into law. What we want is a Measure of this sort, when once this good Committee—we all agree that it is a good Committee—has come to its decision, is to commend it generally to the House and get it passed into law with a minimum of delay.

With regard to that part of the Bill which deals with the Fatal Accidents Act, I notice that the Committee reported that medical expenses should be included, but the Bill only deals with funeral expenses. There may be some very good reason for that. Perhaps the Solicitor-General will look into the reason why the Report was altered when it came to drafting the Bill. I always thought—I may be wrong—that the date of the Fatal Accidents Act was 1846 but I see that in the Bill, in three places, the date is 1843. It may be that there was some Act before that which we generally know as the Fatal Accidents Act. However, Lord Han worth's Committee refers to "different date.

With regard to one further point, it is right that we should have extended the provisions as to the payment of interest on debts due, but it would be difficult to extend that payment to interest on damages. It will probably be found that the Rules of Court as to the question of payments of money out of court or the procedure when money has been paid into court, will have to be amended to say whether the payment in order to save one party or the other from costs is to cover merely the damages, or the damages plus the amount that the judge may have awarded on the top of them, for interest. We are giving power to the judge in a jury case to increase the jury's verdict for damages where he thinks they are not sufficient, and, possibly, to deprive the plaintiff of interest in cases where he thinks the jury has given too much. We are leaving it absolutely to the discretion of the judge to order the interest or not as he thinks fit. That is a proper thing to do, but the Solicitor-General, I think, ought to consider how that may affect cases where money has been paid into court. I give the Bill my wholehearted support.

3.26 p.m.


I do not think it would be right for a Bill of this kind to pass without a word or two from a layman All the speakers so far have been members of the legal profession, and I do not want it to go out to the world that there is no intelligence in the lay mind on this issue. Let me thank the Solicitor-General sincerely for his explanation of a very complicated Measure. I rise to emphasise the interesting point raised by the hon. Member for South-East Leeds (Major Milner). We shall look into that problem and if it is possible try by amendment to cover cases where children are killed in the streets. I have had knowledge of at least two cases recently, one case in which the child of a widow was killed and in which she had to bear the expenses not only of the funeral but the hospital costs as well. I have never been able to understand why the owners of huge lorries which pass through the streets of our towns and who are paying insurance premiums to cover every sort of accident never come to the help of poor people in those cases. On occasions they make an ex gratia payment, but that is not enough, and I hope the Solicitor-General will look into this point and see that it is covered in the Bill.

I am delighted to see that under the Bill the injured party is to have a claim on the estate of the wrongdoer when he is dead. That suits me very well. I regard this Government as a wrongdoer and, consequently, the electors of the country when the Government passes away will be able to claim compensation against their estate. Indeed, we shall have the estate to ourselves soon. I was rather astonished to hear the Solicitor-General say that interest was to be paid in future on debts accruing in the hands of somebody and I began to wonder why the words, "This Act shall not extend to Scotland" were in the Bill. If there is any part of this island which should be included for such a purpose it is Scotland. Quite sincerely and seriously I hope the Measure will become law. The Government will be doing a good turn to thousands upon thousands of cases if the Bill is amended so as to cover cases of the injured children of poor people in order to enable the expenses of funerals or of hospitals to be met.

Question put, and agreed to.

Bill read a Second time, and committed to a Standing Committee.

The remaining Orders were read, and postponed.

Whereupon Mr. SPEAKER adjourned the House, without Question put, pursuant to Standing Order No. 2.

Adjourned at Half after Three o'Clock until Monday next, 18th June.