HC Deb 19 July 1938 vol 338 cc2148-54

Order for Second Reading read.

11.56 p.m.

The Solicitor-General (Sir Terence O'Connor)

I beg to move, "That the Bill be now read a Second time."

It is my misfortune at this late hour to have the duty, and indeed the privilege, of introducing a Bill of very great complexity and of not inconsiderable importance. I shall be as brief as possible but it is necessary that the Bill should be properly explained. It is not a simple Bill and I feel to some extent a parental responsibility because I served on the Law Revision Committee upon whose report it is based. The maxim is as old as Justinian, that it is in the interests of the State that there should be an end of action, that a period should be set beyond which the right of action shall not be in force. The trouble is that at the present time the Statute Book is literally bespattered with different Acts allowing different periods of limitation in respect of different causes of action. It was in these circumstances that in 1934 the Law Revision Committee was asked to consider and report whether the Statutes and Rules of Law relating to limitation of action required amendment. They reported in 1936 and their report was laid before Parliament in December, 1936, and this Bill was introduced in another place last month in order to do something to clear up the confusion which was found to exist in the law. It concerns no fewer than 20 different Acts, six of which are repealed, and, as the committee reported, they found the law in a state of almost unbelievable chaos and confusion. It is not so much the fault of lawyers because many of these Acts date back to the time of James I, and Parliament has from time to time passed Acts dealing with limitation.

When one adds to that that in addition to having these different periods of limitation for actions there are also different types of disability which enable people to prolong the period within which they are able to bring an action—for example, lunatics, people oversea and people in prison, who can postpone the moment when they have to commence their action to the date when the disability ends, it will be realised that this confusion of circumstances results in a situation of great difficulty. If you take the Real Property Limitation Act of 1833, and the Civil Procedure Act, 1833, relating to Common Law actions, and two Acts of 1833 and 1874 relating to real property, the absurdities which result from the present state of the law can be illustrated by two examples. An action for slander can only be brought within a period of two years, but within six years if the words are actionable, per se. An action for one kind of trespass can be brought within four years, but there are other types of trespass which can be brought within six. There are cases, for example, of the law of conversion of property where successive conversions expand the period of time in which it is possible to bring an action in respect of different conversion. The law relating to specialty is different as between different forms of specialty, and there again there is considerable confusion.

I will try to telescope within a short space what the different portions of the Bill attempt to do. By Clauses 1 and 2, we are endeavouring to impose a uniform period of six years in respect of ordinary Common Law actions, but for specialties a uniform period of 12 years, and there are necessarily exceptions, such, for example, as penalties, where there is to be a uniform period of two years. Clause 3 deals with the conversion point which I have mentioned, and Clauses 4 to 7 deal with a limitation of actions in respect of land, and they consist mainly of tidying up provisions. Within those Clauses will be found not so much new law as a codification of the existing laws, so that, at any rate, it is possible to find out what the law is within the limits of one Bill. I will not say that there are no alterations in the law, but perhaps the main alteration to which it is necessary to call attention is that in Crown actions and actions by eleemosynary corporations, the period of limitation is reduced from 60 year to 30 years, except in the case of the foreshore, where the period remains at 60 years.

Major Milner

Against the Crown or for the Crown?

The Solicitor-General

In favour of the Crown and in the interests of the public. A right which is conferred in the Crown to sustain an action for 60 years in the case of the foreshore is a right which could be exercised only in the interests of the general public. All other actions are ceased at 12 years, and there are very few changes in that part of the Bill. Clause 18 deals with mortgage debts, and the chief change made there is that it extends the limitation period of 12 years applicable to mortgage debts to mortgages on personalty, whereas at present mortgages on personalty enjoy an unlimited period. Clauses 19 and 20 extend the general exclusion from all limitations to actions to recover money from trustees and executors, and in the case of personal estates, make a similar exemption. They make a limitation of 12 years in the case of claims on personal estate, whereas at present there is a limitation of 12 years for legacies and six years for intestacies.

Clause 21 is one which may perhaps excite a certain amount of interest and controversy. As the House probably knows, at the present time an action against a public authority can in general be brought only within six months. It is proposed to extend that period to 12 months, but that is subject to the provisions of Clause 22, which deals with disabilities, to which I will refer in a moment. The combined effect of the new Clauses will be to extend the period within which actions may be taken against a public authority from six months to 12 months, and for the first time to allow the disabilities period to run against the public authority.

Part II deals with disabilities. Disabilities, of course, afford extensions of time for bringing an action, as in such cases as infancy, lunacy and so on. By the Bill we propose to abolish an existing disability in the present law which is the subject of a great deal of most confusing case law, as any lawyer who has looked into the point will testify. That is the disability which arises from the plaintiff being beyond the seas. There is a tremendous amount of learning as to what exactly constitutes being beyond the seas, and that particular disability will be abolished by the Bill.

Mr. Foot

Does that mean that in future the time will run against the person who is beyond the seas as if he were in the United Kingdom?

The Solicitor-General

Six years.

Mr. Pritt

The question is more important in the case of a plaintiff than in the case of a defendant because it prevents a plaintiff serving a writ on him. Is it intended to abolish that?

The Solicitor-General

I think not. The hon. and learned Gentleman will appreciate that it will be impossible on a Bill of this complexity for me to deal with Committee points at the present stage.

Mr. Pritt

I was only asking the hon. and learned Gentleman to deal with something which he himself mentioned. I was not bringing forward any new point.

The Solicitor-General

I plead guilty to perhaps greater elaboration in dealing with the Clauses than either the hour or a Second Reading speech perhaps justify, but what I really wished to do was, in relation to what I think is the only Clause which is of any contentious character, to explain the effect that the extension of the disability period or of the codification and alteration of the law as to disabilities would have upon a public authority. For the first time persons under a disability will be able to bring actions against a public authority within 12 months of the cesser of the disability. There is one exception, which will be found in Clause 22, paragraph (d). That is in the case of a child or lunatic which is in the custody of its parents, in which case the limitation will run only from the accrual of the right of action, that is to say, it will not be able to count an extension of the period from the date of the cesser of the disability, the reason being that in such cases the parent who has the custody might be expected to bring the action.

Clause 23 deals with the knotty subject of acknowledgment and part payment. Among other things it makes an alteration in the law as regards the implied promise to pay. Clause 24 allows an acknowledgment to be made by an agent or to an agent. At present it is permissible in some cases and not in others. Clause 25 mainly reproduces the existing law, except Sub-section (5) dealing with acknowledgment of debt, where there is a slight alteration of the law. Clause 26 deals with fraud. At the present time in fraud cases where there has been fraudulent concealment of a cause of action the time does not run until the fraud has been discovered. Where the action itself is based on fraud, the possibility is—and I say no more than that—that, in equity actions the time does not run, and, in actions which derive from the Common Law, the time does run. That may or may not be the case. There is a good deal of learning on both sides, but in the Bill both cases have been assimilated and the distinction has been abolished. Similarly, the distinction in regard to mistake between equity actions and common law actions has been abolished.

Clause 27 re-enacts the Arbitration Act, and Clauses 28 and 29 reproduce existing provisions. Clause 30 may be of interest to hon. Members and especially to hon. and learned Members who have frequently wished that actions by and against the Crown should be put on the same footing as actions between subjects. It will be seen that in the Bill we have gone some way to meet that point of view. Under the Bill, proceedings by and against the Crown are to be treated in exactly the same way as other actions, the only exceptions being actions in respect of Customs and Revenue duties. Those exceptions are not of as much importance as might appear, because in the case of Customs duties most of the remedies are by penalty, where there is a fixed period and in the case of Revenue duties the assessment period is limited.

I think that covers, in substance, the whole framework of this very complicated and difficult Bill. The Bill represents years of work by the Law Revision Committee and, now that I no longer grace the proceedings of that body I may be permitted to express the great debt of gratitude that we owe to the committee for the entirely gratuitous work which people of distinction and of very full lives devote to the task of law revision. In this instance I may be permitted to add, and I am sure the Committee themselves would be the first to acknowledge it, that a great deal of the scholarship and learning which appear in this Bill and have made this Bill possible is due to the researches of a young gentleman in the Parliamentary Counsel's office, Mr. Kent, without whose labours the Law Revision Committee would have been at a great loss to find time in which to get through the work. It that work he went far beyond the ordinary functions allotted to him. I hope the House may feel that the result, if it is a monument which requires a good deal of understanding, is a monument to his labours that will do something to clarify the law and to bring light where at present light is needed.

12.15 a.m.

Major Milner

I am sure the House is grateful to the hon. and learned Gentleman for the way in which he has expounded this Bill. I hope the majority of hon. Members understood his rather technical disquisition, but they must have found it extremely difficult to do so. While expressing our indebtedness to the Solicitor-General for his explanation, I wish to add a protest against the bringing in of a Bill of this complicated, important and far-reaching description at this stage in the Session and at this hour. There cannot be any particular hurry about dealing with this matter. The Committee, on whose deliberations the Bill is founded, reported in December, 1936, and the Government, presumably, have been sitting on the Bill ever since that date.

12.16 a.m.

The Parliamentary Secretary to the Treasury (Captain Margesson)

Perhaps the hon. and gallant Member will allow me to intervene. It appears to me from some consultations which I have been able to make, that this Bill, if it did receive a Second Reading, might prove highly controversial and that the Committee stage might occupy a great deal of time which, it is clear, the Government have not at their disposal at this period of the Session. It would not be fair to pretend that there is any particular urgency for passing this Measure now, and I think the right course to adopt would be to adjourn the Debate. I, therefore, move, "That the Debate be now adjourned."

Debate to be resumed To-morrow.