HC Deb 20 May 1938 vol 336 cc757-71

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

12.18 p.m.

Mr. Spens

It would be very discourteous, after the kindness of the House in allowing this Bill to have its Second Reading without a Division, if one did not attempt to explain as shortly and concisely as possible the main changes of substantial importance which we are making in the law of evidence. All hon. and learned Members and most hon. Members who have had anything to do with the administration of justice, either on the Bench or otherwise, know how limited our law is at present as regards the admissibility of documents recording transactions which are made at the time and which, if they can be got into evidence, really assist the court to come to a quick and cheap determination of the matter in issue. As our law stands to-day certain documents are admissible if the maker of them has died, but in many cases where the maker of the document is alive it is impossible, apart from agreement, to get the document into evidence at all. The limitation comes down as part of the history of our law and the enormous importance given to the oath of a witness in the Middle Ages. We are at present the only country in Europe which refuses to admit in evidence documents made by a person who is still living, if that person cannot be called and cross-examined.

The object of Clause 1 of the Bill, which is the major Clause of the Bill, is to enable us to make the very substantial alteration in our law of evidence that documents which are made before there is any question of litigation, made at the time of the acts which subsequently become the subject of litigation, made by someone who knows all about them, shall be allowed to be put into evidence if the court thinks fit, even though the person who made them be still alive, and it may be extremely difficult or expensive to produce that person in court for examination and cross-examination. Of course, in a great majority of civil cases, and in commercial cases in particular, by agreement the great mass of these documents are admitted every day in our courts without objection by either party, and any counsel who objected to the admission of a document of that sort, which was obviously made at the time when the maker had no motive whatever except to record a particular fact truly and not to fabricate a document—anyone who refused to admit that document would be regarded with severe anger.

But, none the less, there is case after case in our experience in the courts, when the only real defence the person has in a claim is to prevent a material document finding its way into evidence; and if the person happens to be in South Africa or in Scotland or in the Services, or something of that sort, the wretched plaintiff has to go to all the expense of getting a commission to travel abroad and take the formal evidence of that person by commission, or else has to delay his case month after month, and sometimes indeed, year after year—I have known of such cases—until such time as that person comes back within the jurisdiction and can be brought formally before the court. Constantly, when you have him there and have him available to be cross-examined, the other side do not want to cross-examine him at all. The document will speak for itself. I cannot believe that in these modern times we ought to be the only country in Europe which for these historical reasons takes the strict view of evidence in a matter which causes enormous expense and very often great delay. The cases which this Bill will benefit are really the cases of people in more humble circumstances who cannot afford the additional expense of getting this necessary evidence as our law now stands.

If hon. Members will look at the Clause they will see that it is drafted in a truly legalistic manner. Not only does it set out and describe the type of document, but there is the second condition: If the maker of the statement is called as a witness in the proceedings. If hon. Members stop at the bottom of the first page of the Bill they may think we are not altering the law at all. The substance of the change of the law is to be found in the proviso at the top of page 2, which states: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. None the less, the document, provided it comes within the class of document mentioned in Sub-section (1), can be allowed to be put in as evidence and admitted for what it is worth. This main change in our law originates in a need for changes that have been desired for a very long time. It has been approved by a meeting of judges, by the Peel Commission, by the Law Society and by the Bar Council. The author of this Bill, who introduced it in another place, was my noble Friend the present Lord Chancellor, who introduced it before he became Lord Chancellor. I hope that the Committee will accept the Bill, supported by that authority of legal willingness for this important alteration to be made in our law. In a great number of cases it will, I believe, make decisions very much quicker, and in many cases much cheaper. While we have provided means for enabling people to come within the poor persons' rule and get their cases tried, the existing law imposes no tremendous obligation upon a very rich company or individual, and I am certain that in common practice the existing law has deprived people of moderate means times without number of justice in their cases. I, therefore, hope that, in this year 1938, the Committee will take the view that this is a proper change to be made in our law.

12.27. p.m.

Mr. K. Griffith

When I first heard of this Bill and was informed as to its contents with very great accuracy, I thought for one dreadful moment that their lordships, in a fit of madness, were proposing to alter the law in such a way as to admit as evidence what the soldier said. It does not appear, however, to go as far as that, but only as far as what the soldier wrote, which may, in certain circumstances, be evidence. That is a very welcome amendment of the law. Of the Bill in general I would say that it is a plain man's Bill. It makes admissable as evidence documents which any of us, if we were undertaking some inquiry to find out facts, would instinctively think ought to be admitted and to be given such weight as they seemed to deserve.

The Chairman

I must remind the hon. Member that we are not discussing the Bill as a whole, but only Clause 1.

Mr. Griffith

I did not intend to go beyond Clause 1. This is a remarkably intelligible Bill. It is easy and obvious to anyone, merely by reading the words of the Bill, to find out what it means, even without the assistance of the Attorney-General. It makes formally admissible things which all reasonable counsel appearing on behalf of reasonable clients endeavour to make allowable by agreement, but there are always people who try to take advantage of the technicalities of the law to the detriment of their opponents. The Bill is a substantial contribution to the fairness, and in many respects to the cheapness of the administration of justice, and, therefore, I welcome the Clause, which is probably the most important of all the Clauses of the Bill, as embodying the spirit of the whole Measure.

12.29 P.m.

Mr. Goldie

I believe it was a Chancery Judge who remarked that truth will out even in an affidavit. It is appropriate that the Bill should have been entrusted, in its passage through this House, to my hon. and learned Friend, who is a most distinguished Chancery leader. I do not wish to detain the Committee for more than a few minutes, but I am a little troubled about the wording of this Clause. Those of us who practise, particularly on circuits, spend a great part of our lives dealing with personal injury cases, and the difficulty now-a-days is as to how far confidential reports made in the case of an accident in which, say, a corporation is involved—made, for example, by drivers and conductors of vehicles—are evidence; and also not what the soldier said, but what was written by the policeman involved. One has great difficulty in getting hold of that evidence and, under the present law, still more difficulty in getting into evidence what are commonly known as police reports.

I trust I am not starting a hare, but I am not certain how far the proviso to this Clause covers the whole Clause. If it does, there is nothing in what I am going to say. Let us assume that you want to put in either a police report or the report of a corporation employé The Bill says: In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—

  1. (i) if the maker of the statement either—
  2. (a) had personal knowledge of the matters dealt with by the statement."
Following the wording strictly, I see no reason why you should not be entitled, instead of calling either the police officer or the corporation driver or conductor, to put in their statements which were made to their superior officers as employers. Sub-section (3) states: Nothing in this section, shall render admissible as evidence any statement made at a time when any dispute was pending involving controversy as to any fact which the statement might tend to establish. Sub-section (4) says: For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible. That is exactly what happens in the case of every confidential report made as a police report or as a report by a corporation official. That difficulty is that you cannot say that the police constable or the driver or conductor of a tramcar has a personal interest in the proceedings. This matter requires consideration between now and the Report stage or the Third Read- ing. As a humble admirer of the Attorney-General I have, with great respect, drawn attention to a point which I think is worthy of some consideration.

12.34 P.m.

Mr. H. G. Williams

Everybody who has spoken up to now is a lawyer. They know what it is all about, but the rest of us do not necessarily know yet, and I want to ask a few questions in order to clear my mind and possibly help to clear the minds of other hon. Members. I happen to be mixed up with the electrical supply industry, and I want to know whether the reading of an electricity supply meter or a gas meter can be brought under the Bill. As hon. Members may know, a man goes round and does what is called "read the meter." He enters the reading upon a card in your house and enters a record in a book which he takes back to the office of the corporation or company. Is that the kind of thing contemplated in the Bill? It is the duty of certain people, as it is in the telephone room in this building, to keep a record of telephone calls and the time at which those calls were made. Evidence of that kind might be of the utmost importance in some proceedings.

The remarks of my hon. and learned Friend the Member for Warrington (Mr. Goldie) attracted me, because I had already made a note of the time that Bus No. 43A leaves its garage, and I imagine that that is automatically recorded by an employ6 of the London Passenger Transport Board; and I think, from observing the inspectors' entries on their bills, that the times at which buses pass certain important points on their routes are also noted. I am not quite clear as to the kind of evidence that we are dealing with. It speaks of a record purporting to be a continuous record—not taken every instant, perhaps only once a year, but nevertheless continuous. These are some questions which I would like answered.

Then, as the Bill has been drafted and supported by lawyers, I would like to express a little innocent surprise at the terms of the proviso to Sub-section (1). It speaks of the condition that the maker of the statement shall be called, and it goes on to say that this condition need not be satisfied if he is dead. Superficially, I should hardly have thought it was necessary to put that into an Act of Parliament. The proviso also states that he need not be called if he is already in a lunatic asylum, and that, too, seems rather obvious. The other two exceptions are reasonable. They would apply if the maker of the statement was a long way away, or if he was very busy, or perhaps was about to get married, and it would not be reasonably practical for him to attend.

The lawyers always tell me that unnecessary words ought never to be inserted in an Act of Parliament, because, when the Act comes before a court, the judges may say, "If we had written this Act, we should not have thought these words necessary, but, since Parliament put them in, Parliament must have had something in mind, and we have to find out what Parliament meant." They may then proceed to give a reading which was never intended by Parliament at all. Therefore, it is always as well to find out why apparently unnecessary words are put into a Bill.

Passing to a point of perhaps greater substance, it seems to me that paragraph (a) of Sub-section (2), with the words which precede it, is very significant. Subsection (1) provides that in general the witness should be called, unless the difficulties set out in the proviso are established; but, according to paragraph (a), which follows, the court, if it thinks fit, can dispense with the presence of a witness. In these circumstances, I rather wonder whether a great deal of Subsection (1) is not unnecessary, unless Subsection (1) is intended to be a broad hint to the court somewhat to this effect: "This is what you should do in the ordinary way, but if, after all, you are satisfied that the document produced to you is a sound document, and you can take it on its own merits, it is not necessary to call the author of the document to prove that he wrote it." I am wondering how far paragraph (a) is intended to be the dominant paragraph—whether, for example, if counsel on one side says, "Here is the official meter reading," and hands it in, the court in those circumstances can say that there is no need to call anyone to prove it, because it is obvious on the face of it that it is all right. I am wondering whether that is really what my hon. and learned Friend has in mind in asking us to support this Bill, and whether paragraph (a) is not, perhaps, in the long run, much more important than a good deal of the rest of the Clause. I hope that these questions are not frivolous and unreasonable. They seem to be questions of some substance, and I think that answers to them would help to clarify the minds of hon. Members.

12.41 p.m.

Mr. Tinker

I feel inclined to move the rejection of this Clause, because, as a Member of Parliament, I like to know what I am voting upon, and I am specially reinforced in that opinion because even the hon. Member for South Croydon (Mr. H. G. Williams), who knows everything, is not quite clear as to what it means. If that be so, surely Members on this side, who are not given credit for understanding much, are justified in opposing this Measure. Another point is that we have no love for the House of Lords, and this Measure has come from them. Now that it has been brought here to this enlightened place, it gives me pleasure to say that I take some objection to it.

I, also, was impressed by the fact that it is not necessary for a witness to be present if he is dead. I wondered why that provision was put in; perhaps the hon. and learned Member will be able to explain it. Surely, even the ordinary man, apart from a Member of Parliament, would know that a dead man is of no use for purposes of giving evidence. I feel that, unless some clear and satisfactory statement can be made by the representative of the Government, the Attorney-General, I must ask my colleagues to object to giving sanction to this Clause. I like to think, when I am explaining to other people outside my position in connection with the work of Parliament, I have a clear understanding of the Acts which have been passed. Sometimes I get out of it by saying I was not present, but, having been present this morning, and having heard the speeches, I feel that I must vote against the Clause.

12.43 p.m.

Mr. Errington

There is one point which I should like to touch upon, and which, I think was perhaps not fully dealt with by my hon. and learned Friend the Member for Warrington (Mr. Goldie). There is a well known rule that certain statements by agents are excluded. For instance, an agent has no right to make an admission. I do not quite know what the effect of this Clause will be, but it seems to me that it may well be to make all admissions by agents evidence. For example, if a motor driver, driving during a collision, makes a statement afterwards, either to a police officer or to somebody else, it does not follow that that statement is evidence; but, as I read the Clause, its effect will be that it would now become evidence against the owner of the car or the master of the chauffeur. If that be the case, I am not sure that it is generally realised.

12.44 p m.

Mr. Holmes

I want to put a point which may affect my own profession. We chartered accountants are accustomed to act as auditors to companies, but, in addition, in many cases we act as accountants for the purpose of giving the directors, or the managing director, periodical reports of the progress of the business. Taking the case where such a report is made monthly, it cannot be guaranteed as accurate. Probably the stock 'is not taken every month, and estimates have to be made. But, nevertheless, it would appear that such a statement made by the auditor each month would be made by him as a person who had personal knowledge of the matters dealt with by the statement, and it would be part of a record purporting to be a continuous record ; while he will also have made the statement in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters. When we have to render these monthly statements, we find at the end of the year that they never exactly tally with the audited set of accounts at the end of the year. It appears to me that if monthly statements of this sort, made in good faith, could be used in evidence, evidence might be accepted by the court which would not be accurate.

12.45 p.m.

Mr. Spens

May I answer some of the conundrums which have been put? As to the provision concerning documents where direct oral evidence of a fact would be admissible, this does not admit documents in circumstances where the persons who made them would not have been proper persons to give evidence. I would also call attention to the concluding words of Subsection (5) under which, even if counsel is able to persuade the court that all the conditions of the Clause have been observed, the court is entitled, none the less, to exclude the document, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted. In those circumstances, I do not think there is any possibility of a written statement signed by anybody ever finding its way in evidence, except in circumstances where that person could himself properly be called and give evidence as to the facts of which he has written. I think that is a complete answer to any suggestion that we are, so to speak, extending the range of evidence that can be obtained from documents. The Clause is only intended to enable documents to be used as evidence instead of the oral evidence of the person who made the statement contained in the document. Perhaps I did not explain the Clause at sufficient length. I am sorry, but I did not want to keep the Committee unduly.

Under Sub-section (1) in cases where my learned friend and myself are advising our clients as to how they are to prove their case we would look at Sub-section (1) and say, "You want evidence from A, B, C and D," and if the client should then say, "C and D cannot be got," we would then say "Did C and D make any statement which would come within Sub-section (1)?" Then comes Sub-section (2), under which where the witness is available, you, none the less, can go to the court at any stage of the proceedings and ask for an order to dispense with the witness. It may be worth while in some circumstances to go to the court and make such an application. I think that that really covers the points raised, except the actual form of drafting, on which my hon. Friend the Member for South Croydon (Mr. H. G. Williams)—

Mr. K. Griffith

Will the hon. and learned Gentleman deal with the question of the dead man?

Mr. Spens

The situation at present is this. Admissible evidence, under our rules of evidence to-day, includes state- ments of two kinds made by persons before their death: namely, statements made during their lifetime which are either against their own interests or have been made in the course of their duty. Sub-section (1) extends this substantially beyond statements made either against their own interests or statements made in the course of their duty, therefore, to make it quite clear that in that respect we are extending the law, it is specifically stated that, in spite of the fact that a man is dead, it may be possible to accept as evidence statements made by him before his death. I am not the father of the drafting, but I submit to the Committee, now that I have really given the substance of the Clause, that it will be a useful reform; and I hope the hon. Member who threatened to divide the Committee—or so I suppose—against it, will not do so.

12.52 p.m.

The Attorney-General

I would like to say a word or two on this Clause, which has been so clearly explained by my hon. and learned Friend the Member for Ashford (Mr. Spens). I would also like to try to allay the fears of the hon. Member for Leigh (Mr. Tinker). Anyone who has had cause, from time to time, to consider whether improvements could be introduced into our legal procedure, particularly in order to simplify it or to mitigate the burden of costs, has come up against the very strict rules of evidence which we have inherited from our forefathers. They go back to the Middle Ages, when a statement made on oath was put into a wholly different category from any other form of evidence, and, with one or two minor exceptions, unless you got the evidence on oath you could not prove it in court. That has created defects in our procedure of two quite different kinds, and the provisions of this Clause are directed to providing a remedy for each.

It has resulted, on the one hand, in witnesses having to be called quite unnecessarily. Let us assume that in some case it is necessary to prove what the rainfall was, for instance, a year ago to-day at Kew. Technically, under our rules, you cannot prove that unless you have in court the man who made the records. I agree that often the records will be admitted by consent, but, under our rules at present, you cannot prove them without calling the man. It is often quite useless, because all he can say is,

" I do not remember the day a year ago, and all I have is this bit of paper; but I have no doubt that the record I then made was accurate." I admit that that is a somewhat extreme example, but that class of document has been referred to. The Committee will see that there is a whole category of documents of memoranda of that kind made in the course of business, and there is no conceivable suggestion that the man would not have put down what he believed to be accurate; and in many cases he cannot tell the court anything about it, except that he put down what he believed to be accurate.

This Bill is directed to see that in that class of case the parties should not be put to the unnecessary expense of calling a person, and that the document, which is the real source of evidence, may be treated as such without calling the person who drew it up. That is one class of case. The Bill extends, with all due caution and safeguards and formalities, to cases in which documents of that sort can be admitted without the necessity of calling the witness. There is quite a different defect which arises under our present rules. Although there may be a document which is of value, you cannot look at it because either the man who wrote it is dead, or is beyond the seas, or has become of unsound mind. Therefore, you cannot call the man to give evidence of what he saw, you cannot get the document, which is only secondary evidence, and you cannot cross-examine.

Some comments have been made on the proviso referring to a dead man. The Committee will see that it is a defect to say that a court can in no circumstances look at statements of fact which have been drawn up by a man now dead except in the class of cases to which my hon. and learned Friend referred. There has been caution, naturally, in this matter. The Committee will notice that this applies only to civil proceedings. Any lawyer will tell you that, again and again, he comes across cases in which he is bound to say, "If I were investigating this matter myself and wanted to find out the truth, I should look at this document." It is not permissible in our present procedure.

Let me give one example to the Committee. Take the case of a bill of lading giving the amount of the cargo that has been shipped, say, at some port overseas. That document, doubtless, will have been scrutinised by two persons with opposite interests. I am assuming that the price to be paid is the amount shown by the bill of lading. The man who is sailing the ship is going to take very good care that that figure is not too low, and that it represents what has been put on the ship and what he is entitled to be paid for. The man who is buying is going to take extremely good care that the figure is not too high. If anybody wants to know how much of a particular commodity has been shipped in a particular case, the bill of lading is as good evidence as anybody can want. It is tested by both sides who have every interest to see that as accurate a figure as possible is given. That document cannot be produced in a court of law at present without calling the person who drew it up. That is quite an unnecessary application of the rule.

My hon. and learned Friend the Member for Ashford, who knows more than I do about these matters, says that in practice the rigid rules have been relaxed, but that is not satisfactory, because an unreasonable person, by taking objection, can exclude from the court documents which ought to be looked at. I will make one comment on this remarkable statement which appears at the top of page 2 of the Bill. But is it so remarkable after what I have said? If Members of the Committee will look at page 1 of the Bill they will see that the sub-section begins by laying down the ordinary rule that applies to-day, namely, that a document itself is not evidence unless the maker of the statement is called as a witness. That is the ordinary present rule in which the proviso makes a change. Under the ordinary present rules if a man is dead, you cannot produce the document because you cannot call him as a witness. Therefore, I think it is essential, though it strikes one as a little odd, that the draftsmen should have made the position clear in the plainest possible way. I believe that the reason that the statement appears to be particularly extraordinary is because it starts a new page, but if hon. Members relate it to Subsection (2) they will see that all that the proviso says is that this will not prevent the court seeing the document if the man is dead or beyond the seas.

As my hon. and learned Friend says, this Bill was introduced in another place by my noble Friend the Lord Chancellor before he came to his present office, and perhaps I may be allowed, on behalf of the Government, to express the gratitude, which, I believe, the whole of the legal profession and the Government owe to him for the immense trouble which he took, with others, to draft this Bill. There is no more touchy and sensitive subject among lawyers than the Rules of Evidence. Lord Maugham, with very great skill and patience, succeeded in introducing a Bill which commands general support, and which brings about a real improvement in the Rules of Evidence.

1.4 p.m.

Mr. Batey

I do not object to the Bill because it has come from another place, as I imagine that it is possible for a good Bill to come from another place, but the Attorney-General does not seem to have met one of the arguments made by the hon. and learned Member for Spens. [Laughter.] That remark is no worse than the experience I have had. I was introduced at a meeting not long ago as "Mr. Spennymoor," and I received a letter this week addressing me as "Your Majesty."

I can understand the attitude of the Attorney-General regarding any statement made before a ship sails and that that statement not be accepted, but he rather unsettled me when he referred to a statement made by somebody just before death. Many accidents occur to-day as a result of motor cars. If a motor car driver was involved in an accident and was injured and died two days later, it would be possible for a smart solicitor to have got a written statement from that driver and that written statement could be put in as evidence. That is the kind of case that frightens me, and it seems to me that this Clause is so wide that it would admit of a case like that.

1.6 p.m.

Mr. Spens

That very point has not escaped the attention of my noble Friend, and if the hon. Member will look at Subsection (3) he will find that that type of statement is expressly excluded. That subsection provides: Nothing in this section shall render admissible as evidence any statement made at a time when any dispute was pending involving controversy as to any fact which the statement might tend to establish.

Mr. Batey

I am satisfied on that point.

Question, "That the Clause stand part of the Bill," put, and agreed to.