§ 7.0 p.m.
§ Mr. Dingle Foot
I beg to move, in page 12, line 34, to leave out "one year" and to insert "two years."
Hon. Members know that as the law stands the period within which an action may be brought against a defendant in the ordinary way is six years, but in a case in which a public authority is the defendant, the period is only six months and in fatal cases 12 months. It is well known to those who are familiar with the subject that that state of the law leads to great and undeniable injustice. Even those hon. Members who opposed us in Committee upon this matter did not attempt to deny that that was so, and that there are cases, though I do not say a great number, in which plaintiffs have been deprived of their rights by the operation of the Public Authorities' Protection Act. I give one example. It is a case reported in the Law Reports, of 1955 Freeborn versus Leeming. I read the head note as showing the sort of thing that happens as a result of the Public Authorities' Protection Act:The plaintiff being injured in an accident was taken to the workhouse infirmary and placed in the care of the defendant, the medical officer. The defendant negligently failed to diagnose the nature of the plaintiff's injury and made no attempt to give him the treatment which, if given at the time, would effectually have cured him. On 15th October, 1923, the plaintiff left the infirmary and from that time ceased to be under the defendant's care. He consulted another doctor who discovered that his hip was dislocated. As it was then too late to apply the necessary remedy, the plaintiff's injury was permanent. On 25th April, some six months after he had ceased to be under the defendant's care, he brought his action claiming damages for negligence:Held: That the action was barred by Section 1 of the Public Authorities Protection Act, not having been brought within six months next after the act, neglect or default complained of.I need only add that the report of the case shows that it was the fact that the plaintiff was to some extent disabled, that his wage-earning power was impaired and that the results of the defendant's negligence were undoubtedly grave. Is there anyone who would defend that state of the law or say that it was not a gross injustice of the kind which this House exists to remedy? It will be said that this Bill effects an improvement, because it raises the period from six to 12 months and, naturally, we welcome that proposal, but I think it is the unanimous verdict of hon. Members who are familiar with these matters that the period of 12 months is not enough. As I have said, there is already a period of 12 months in cases where negligence results in death. There was before the courts towards the end of last year a case which received considerable publicity and which showed that the 12 months period was not enough. Sometimes a plaintiff may be under a misapprehension; the wrong defendant may be sued, and by the time the mistake is discovered, the statutory period has elapsed and it is impossible to sue the public authority which is the real defendant. Is there any reason, in logic or justice, why that state of affairs should exist?
Let me take, as an example, the position of the London Passenger Transport Board. A few years ago they took over the various transport undertakings in 1956 London and by Section I of the Act then passed the Board was declared to be a public authority. What is the result? If any hon. Member going out of this House has the misfortune to have been knocked down and injured through the negligent driving of the servant of a private firm, he has six years in which to bring his action for damages. If he is knocked down by a vehicle driven by an employé of the London Passenger Transport Board, he has only six months, and if this Bill becomes law in its present form he will have only 12 months in which to bring his action. Thus we have this fantastic result. Supposing that someone had been injured by the negligent driving of an omnibus driver in the employment of Tilling's company on the day before the London Passenger Transport Board took over its duties, he would have had six years in which to bring his action, but if he had been injured on the following day he would have had only six months. In Committee we proposed to put public authorities on precisely the same basis as ordinary defendants, but that proposal was turned down and I am now proposing a limitation of two years.
§ Mr. Foot
There were two proposals. The first was to give the judge power to extend the time, and the second was to put public authorities in the same position as any other defendants and make the period six years. I wish to make it clear that I am not in any way attacking public authorities, and in particular I am not attacking local authorities. I think there was some misapprehension about that during the Second Reading Debate. I think the House ought to express admiration for those who, without any tangible reward, give their services to local authorities and this Amendment is not brought forward as a criticism of them. But what is the position supposing an action is brought against a public authority after 1957 the statutory time has expired? The members of that authority are, it seems to me, in a real difficulty because they know, and they must be advised that this defence under the Public Authorities Protection Act is open to them, and they have to decide whether to avail themselves of it or not. A private defendant might say, "I could avail myself of this defence but it would be shabby to do so and I prefer not to do so." But the member of a public authority is in a different position. He is not dealing with money which belongs to him. He is dealing with money for somebody else and for the administration of which he is responsible, and it is a difficult question for him to decide, whether this defence is to be used and the plaintiff deprived of his rights.
I wish to deal with some of the arguments advanced on the other side. It is fair to say, without any disrespect to any other hon. Member, that the principal opponent of the Amendments which we suggested on Second Reading and in Committee, has been the hon. Member for Brightside (Mr. Marshall). In the Committee he used one of the most remarkable arguments I have heard since I have been a Member of this House. This is what he said:I was about to say that when a claim comes before a local authority it is not decided by the town clerk as the hon. and learned Member seems to think but by a committee. You could get no more if you went to court where a jury sits round a table in order to do justice to the individual."—[OFFICIAL REPORT (Standing Committee C), 21st February, 1939; col. 26.]The obvious point is that the committee which is deciding the matter is itself a party to the dispute. It is bound to act on the advice of its servants. In a great many cases of this kind such a committee will probably act on the advice of a city engineer. Probably it is the conduct of the city engineer's department which is being called in question and however anxious he may be to be fair, one can understand the city engineer wishing to defend his own subordinates. No one will dispute that it is a fundamental principle of justice that no man should be judge in his own cause, but according to the argument of the hon. Member for Bright-side, the local authority is the judge in its own cause. The members of the public authority may honestly take the view that they are not liable. If they do, and if the statutory period of limitation has run 1958 out there is no impartial tribunal to which the injured person can appeal.
There came before the courts a few months ago a case which, although it is not a case in which this defence was applied, I give as an example of the kind of action which is brought against a local authority. A corporal in the Army was cycling through the streets of a city and was killed by falling off his bicycle on to the road. His widow had reason to believe that the cause of the accident was the state of the tramlines and that the tramway authority, which was also the local authority, had failed to carry out its statutory duty by making the road level with the tops of the tramlines with the result that the rails stood out an inch or two above the road level. The widow had the good sense to consult solicitors at once and they communicated with the town clerk. The town clerk was advised that the road had been in a perfect state of repair at the time of the accident and refused to make any offer. He told the widow's legal representatives and no doubt advised his own committee that the corporation were under no liability. The widow availed herself of the Poor Persons rule and went to the Assizes. On the morning when the case was due to be tried, the local authority settled for a substantial sum. Supposing she had not been aware of her rights or had been dissuaded, as people sometimes are, from taking legal advice in time, what would have happened? The corporation would probably have accepted the advice of their own servant and said, "We are not liable," and instead of receiving a substantial sum, she and her six small children would have been left penniless, apart from a widow's pension.
That is the kind of thing which happens not in a large number of cases but in some cases. I do not know whether any hon. Member is prepared to defend that state of the law. I have said that this Amendment is not intended as an attack on local authorities but I think it is well-known that there are cases, fortunately rare, in which those representing the public authority have led the injured party to believe that they intended to settle, and have, so to speak, played out time. It happens occasionally that the representative of the public authority deliberately prolongs the negotiations until the statutory time has expired. As soon 1959 as the six months or 12 months period has elapsed his tone changes.
§ Mr. Foot
It is a little difficult to give actual instances, because one has to quote them from one's own experience. However, I may tell the hon. Member, without mentioning any names, that only three days ago I was given an example of such conduct by a public authority by a Member of the party above the Gangway.
§ Mr. Marshall
I think I know the case which the hon. Member has in mind. It was not deliberate; it may have been a mistake. The hon. Member has made a charge that these acts are deliberate, and I challenge him to give an instance.
§ Mr. Foot
When there is a case where negotiations are spun out and there is a prolonged correspondence between the parties, as in the case which the hon. Member and I have in mind, and then as soon as the time is up, the representatives of the public authorities point out that they can now avail themselves of the Public Authorities Protection Act, one is entitled to assume a deliberate course of conduct. Are we really to suppose that they never think of that Act until after the six months are up? These may be rare occurrences, but they do take place. There are public authorities, very occasionally, which take advantage of their own misconduct in this way. I would like again to refer to the argument used by the hon. Member for Brightside in the Standing Committee. He said:While a couple of cases may be quoted to the contrary, there are hundreds of thousands of cases settled in. this country over a number of years by local authorities; they never see the court and they are settled amicably and justly. Members of this Committee should take that fact into consideration in adjudging this matter."—OFFICIAL REPORT (Standing Committee C), 21st February, 1939; cols. 26–27.]I entirely agree with the hon. Member, but I do not think that argument in any way affects the merit of the Amendment. I am concerned with the one or two cases the existence of which the hon. Member 1960 admits, and if the Amendment is adopted, and the period is made two years instead of one year, it will not prevent those hundreds of thousands of cases from being settled amicably and justly. A public authority such as that on which the hon. Member has served, which wishes to deal fairly with claims and to settle them out of court, will be just as free to do so if the Amendment is carried. Their position will not be prejudiced in any way. The only public authority that will be prejudiced is that which wants to avail itself of this special defence in order that the case shall not go before an impartial tribunal. No doubt we shall be told that the period of 12 months was recommended by the Statute Law Revision Committee. That is true, but I will quote to the House what that committee said:We have carefully considered how far it is advisable to interfere with the policy of the Public Authorities Protection Act. That policy is quite clear, namely, to protect absolutely the acts of public officials, after a very short lapse of time, from challenge in the courts. It may well be that such a policy is justifiable in the case of important administrative Acts, and that serious consequences might ensue if such Acts could be impugned after a long lapse of time. But the vast majority of cases in which the Act has been relied upon are cases of negligence of municipal tram drivers or medical officers and the like, and there seems no very good reason why such cases should be given special treatment merely because the wrongdoer is paid from public funds.I ask hon. Members to note those words. The committee went on to say:We do not suggest that the Act should be dispensed with altogether, but we think its effects in two respects should be mitigated.I need not deal with the second of these.We recommend that in cases of civil actions the period of limitation should be extended to 12 months.The Committee gave no reason for choosing that particular period of 12 months, but I think it is clear that their reasoning could be used just as well to support a period of two years. The Committee made it clear, as I think it must be clear to every hon. Member, that in these cases where there is negligence by a municipal tramdriver, and so on, there is really no foundation for this distinction. I want to say two things about the Committee's report. First, clearly it is a compromise. Certainly, when I look at the names of those who sat on the Committee and signed the report, I should be very surprised to learn that some of these eminent gentlemen were against the Amendment now 1961 under discussion. If they could be asked, we should probably find that they would be strongly in favour of it. Secondly, the Committee was merely one to codify the law and to deal with certain minor Amendments. It was not going back to the first principles upon which these things rest. For example, it did not touch on the period of limitation of six years. I agree with the statement made by the hon. Member for Oxford (Mr. Hogg) in the Second Reading Debate that the six-year period is too long; but the Committee did not really deal with that matter, because they were not going down to the foundations of our law, but merely making certain minor amendments and endeavouring to codify the Statute Law. Therefore, I do not think it is fair to say that the period of 12 months is recommended in the Committee's report. I will make one more quotation, because I want to deal fairly with the arguments against an Amendment of this sort. I know that some hon. Members receive a great many circulars and memoranda from various associations of public authorities. A typical passage from one of those memoranda was read in the Standing Committee. I will quote it to the House:Public authorities administer public funds and are more subject to speculative actions than private individuals. It is, therefore, in the interests of the public and the authorities themselves that there should be a statutory deterrent to the bringing of actions which are often instituted in the belief, either that it will be difficult for the authority concerned to rebut the claim owing to lack of evidence, or that the authority, although not liable, may prefer to settle the claim out of the public funds at their disposal rather than to contest it."—[OFFICIAL REPORT (Standing Committee C), 21st February, 1939; col. 19.]There may be a certain amount of truth in that statement, but if it be true, it applies to a great many other bodies besides public authorities. All sorts of large firms are affected in precisely the same way. The public authorities are not in any special difficulty in this respect. We are also referred to the old bogy of speculative actions and told that it is difficult for the public authorities to rebut claims. As regards speculative actions, I would say that the man who is caught by the Public Authorities' Protection Act is not the plaintiff who goes to the speculative solicitor. The speculative solicitor who wants litigation immediately issues a writ. Where the Act 1962 comes into operation is in cases where the solicitor prolongs the negotiations and does not issue a writ in time, or where the party has not taken legal advice within the statutory period. One does not rule out speculative actions by having this particular provision.
It is then said that after a long period of time it is difficult for public authorities to rebut a claim. That may be true, but a private defendant is in no different position. It is equally difficult for a private firm or a private employer, or any private defendant, to rebut a claim after a period of years. I should have thought that, on the whole, it would be easier for a public authority to do this. In their case, there is greater continuity of employment, and the witnesses coming before the court generally would be employés; and it would also be much easier in most cases for the public authority to look back to see what happened a year or two previously than it would be for a private firm. Another argument that was put forward in the Committee upstairs referred to school authorities. Particular emphasis was laid on this matter. It is true that if an action is brought against a public authority in respect of an accident to school children, after some years it may be very difficult for it to find evidence to rebut the claim. That argument might apply if we were proposing to make the period six years, but I do not think it has very much application in respect of this Amendment, in which we are asking for a two-year period.
I have read some of the memoranda that have been sent in from associations of public authorities. Their chief argument is that we ought not to interfere with what has been the settled policy of Parliament since 1893. I know that this matter will be dealt with by my hon. Friend the Member for Nelson and Colne (Mr. Silverman) and I do not propose to go into details, but I have been at some pains to go through the records of the House and find out the way in which this Statute came into being. Prior to 1893, these periods of limitation were put into certain Statutes, certain private Acts and also in Public Health Acts, but there was no general period of limitation regarding actions against public authorities. In 1892 and 1893, in two Bills—one in each Parliament—it was proposed, for the first time, that this protection should be 1963 made general, and from the records of the House it is clear that Parliament passed that Act under a complete misapprehension. There was scarcely any discussion on the matter either in 1892 or 1893. On each occasion the House was assured that it was purely a consolidating Measure and made no actual difference to the law. We know now that that was not correct.
§ Mr. Foot
It altered the law in this respect, that previously a limitation was attached only to specific administrative duties imposed upon public authorities. In 1893, for the first time, the protection became general. The protection under the 1893 Act applied not only to those duties which had already been imposed upon public authorities, but to any duties that might afterwards be imposed upon them. The general principle of limitation was established for the first time in 1893, and Parliament was assured that it was a purely consolidating Measure.
§ Mr. Foot
The hon. Member is not quite correct. It was first introduced by a Conservative Government in 1892, and that Government gave those assurances. It is true that it was taken over after the General Election by the Liberal Government, and that shows how dangerous it is for the Liberal party at any time to take over its opponents' Measures. Therefore, this evening is the first occasion on which the House has ever considered the principle in its general application. Is it really to be said that because the House passed this Act under a mistaken impression in 1893, we must not interfere with the principle now? Is there any hon. Member who argues, as apparently some public authorities do, that we are bound to perpetuate an injustice simply because it is hallowed by the lapse of time?
There is one other ground of opposition, based not entirely on argument, but rather upon prejudice. In the Second Reading Debate there were some hon. Members who felt suspicious about the objections on the ground that the objectors were nearly all lawyers. I am not going to embark upon a general defence 1964 of the legal profession, but I will make one or two observations on this matter. First, those who want to see this Amendment adopted are by no means confined to the legal profession, as hon. Members will see if they look at the proceedings of the Standing Committee. Secondly, even lawyers are not always united, but this Amendment is supported by lawyers in all parties. I am not trying to make a party matter of this, but I would remind hon. Members above the Gangway that the Haldane Society has declared itself in favour of getting rid of the Public Authorities' Protection Act. I would like also to say that the reason members of the legal profession, in particular, dislike the Public Authorities' Protection Act is that in their practical experience they have seen the hardships which that Act has created.
May I remind hon. Members of something which happened last Session? A Bill was introduced by the hon. Member for Wednesbury (Mr. Banfield) to deal with night baking. He carried that Bill, not perhaps in its original form, as Members in all parties voted for it because the hon. Member spoke from a wealth of practical experience of grievances with which he was actually acquainted in his own working life—and he was able to make a deep impression on the House, The legal profession may not be quite so popular as that to which the hon. Member belongs, but I suggest that the same thing should apply in this case. Members of the legal profession are raising these objections because we know the very hard cases which have occurred as a result of this legislative accident in 1893. There is no power here to extend the time as there is in the Workmen's Compensation Acts. Once the year is up there is nothing to look forward to. May I make one more comparison? Hon. Members with trade union experience know that a considerable number of actions are brought against employers for negligence or breaches of statutory duty under the Factory Acts. In every one of these cases the injured man has six years in which to bring his action. Suppose it was proposed that the period should be reduced to 12 months, hon. Members would rise up and oppose it.
But what is the difference? A man is injured in a colliery or shipyard and has six years in which to bring his action, but a man who is injured in an accident 1965 on the roads, who may be just as seriously affected in his earning capacity as the man employed in the mines, is in a different position. Is there any reason why they should be in two different categories? We are considering here, not technicalities, but a very important principle. It is true that if my Amendment is passed it might mean a certain amount of inconvenience to public authorities but, on the other side, we have considerations of justice. This House has to decide whether it is more important to secure justice to the individual than to consider the administrative convenience of public authorities. I should have thought that there was only one way of deciding that question. One of the principles which we always seek to realise in our legislation is that of equality before the law. We all learned at school that everyone in this country is subject to the ordinary law of the land administered in the ordinary courts. We have been taught that if a Minister of the Crown exceeds his authority he is as liable to the ordinary processes of the law as any other citizen. This is an exception to the general principle of equality before the law. Here is a special privilege given to one particular class of people, and on grounds of theory and practice I suggest that there is no good reason for resisting the Amendment, which I ask the House to accept.
§ 7.34 p.m.
§ Mr. Silverman
I beg to second the Amendment.
I should like, as my first point, to echo something which the hon. Member has said. I appeal to hon. Members, and particularly to hon. Members of my own party, not to regard this as a legal point. It is true that lawyers have contributed most to the argument upon it, but in this Amendment we are not concerned with the interests of lawyers. If on a fair view of the facts the House can bring itself to believe that there is no injustice done to ordinary people, and particularly to the working classes, then we shall find that the Amendment will be defeated, but I do ask hon. Members not to be prejudiced in any way by the fact that so many lawyers appear to be interested in it any more than I myself would like the House to be prejudiced by the fact that the interests of local authorities may be involved.
1966 I want to give an instance within my own experience, and I invite hon. Members to consider it carefully and to say whether the law which permitted it should remain or should be amended. I am not going to mention any names, but it is a case of which I have a personal knowledge. It is the case of a small boy, aged two, treated in a city hospital. The nurse quite properly put that child into the electric blanket. There is no complaint about that; it was the proper treatment to be adopted. But, having put that child into the electric blanket, she went away and, perhaps under the pre-sure of other duties, or perhaps in a moment of forgetfulness, did not come back until the child was very dreadfully burned—so dreadfully burned that the position is that the child will have to undergo an operation every 12 or 18 months during the period of growth, and when mature the best that can be hoped for is that the child will have a permanently deformed, shortened, twisted and maimed right leg. These are facts not to be controverted; I know them. The child's guardians went to a councillor representing the ward on the city council in which he resides and said, "I think I had better consult a solicitor about this." The councillor replied, "If the facts are as you say there is no need for any litigation. I cannot imagine this city, if these facts are correct, refusing to do the right thing. You leave the matter in my hands. Do not go to a solicitor; do not start any litigation. I will look after it for you."
I am certain that the councillor meant that; it was not a trap. He was honestly and conscientiously trying to help his constituent. He went to the hospital and ascertained that the facts were as stated. He went to the town clerk, who himself verified that the facts were as I have stated, and the town clerk said to the councillor, "You are perfectly right; no one would dream of repudiating liability here, or of not doing the right thing by the child. It is only a question of how much." The councillor went back to the parent and said, "I told you it would be all right. How foolish you would have been to have gone to a solicitor. Do not take any steps at all, leave it to me, and I will negotiate this matter to a successful issue, and there will be no trouble about it." The parent, of course, was quite right in accepting that assurance and 1967 doing nothing, and the councillor was right in accepting what the town clerk had said. This is a big public authority and the town clerk had a great many things to do, and the councillor had a great many things to do, and it so happened that time passed until one fine day when the councillor went to the town clerk he said, "I am very sorry, this is not at all what I intended, but, in fact, the six months have gone by. We have not agreed, we have not paid, no writ has been issued, and we are now debarred by law from paying one penny of damages to that child."
I am not saying for a moment that there was conscious and deliberate fraud in that case—certainly not. Indeed, I think I am right in saying that if we could have proved there was deliberate fraud on the part of the local authority we might have got outside the Act. But let it be granted what I am sure is the case, that no fraud was intended or designed, that it was an honest and reasonable course to take by both parties. It is no good hon. Members saying that no public authority would take advantage of its rights under the Act in circumstances of that kind. A public authority has no right to do other. It is administering public funds, and it has no right to make a payment out of its public funds which it is not obliged by law or entitled by law to make. They are bound to plead it; and if hon. Members want a recent and extremely interesting example they have one in the case of Croydon. A little while ago there was an outbreak of typhoid fever in Croydon which lasted a long time, caused a lot of damage and many deaths. It took a long time before it was decided whether or not the local authority was or was not at fault. Ultimately it was decided in a friendly action—the authority was not acting in any way improperly in taking the friendly action—in the High Court that the epidemic was due to faults on the part of the authority, and damages were awarded.
But by the time that had been established it was a long way outside the period of six months. The Croydon authority wanted to do the right thing and to pay appropriate damages, but in order to do it they had to come to this House and present a private Bill, which is now before the House, to enable them to do what under the Public Authorities Protection 1968 Act, and under this Bill as it is now, they would not be entitled to do. I know that many of my hon. Friends are particularly concerned with local authorities as I am myself. I was a member for nine years of a local authority, and I am a member of the political movement which is represented on these benches. It is part of our policy that the rights and duties of local authorities should be extended to cover a great many things which they are not now allowed to do. I believe that, because I think in that way greater justice is done to the population. We do not want less justice but more justice to be done. Therefore, I put this question to my hon. Friends who are doubtful about the position of local authorities. Take the case of that child of two years. Is it right or wrong that because of this perfectly arbitrary time limit that child should have to go through life with a permanently deformed leg, unable to perform ordinary work and earn its living, without a penny of compensation merely because the hospital in which the injury was sustained happened to be owned by the city instead of being a voluntary organisation?
My hon. Friends would like to see hospitals run by the State or the local authority. If that came about and there was no amendment of the law in this respect the result might be that a child, as a result of a perfectly natural but certainly a careless act, would have less right to be compensated for what had occurred than if the voluntary hospitals had remained. I cannot see that the local authority has any interest in allowing injustice to persist which it could prevent. It is said that the local authority is vulnerable. Certainly it is vulnerable, but, as has already been pointed out, it is not the unjustified claim, or the fraudulent claim, or the try-on claim that is prevented by a period of limitation. Any period of limitation would protect you from that.
I hope I am not in my professional practice more unscrupulous than other people, but I do assure this House that the very first thing I do in my own office, if I am consulted in any case in which any public authority might possibly be a defendant, is to issue my writ. I cannot afford to take any risk. I do not say that, after doing that, negotiations may not proceed in a perfectly friendly way. They can then proceed in a friendly 1969 way. Then, if I am not satisfied that justice is being done, there is nobody who can prevent me from going to the court and asking the court to determine what is and is not in that case the right thing to do. The existence of a period of limitation, so far from preventing litigation, encourages it, because but for that period of limitation it would not be necessary to issue the writ before you had first ascertained whether you could get justice for your client without litigation at all.
Then it is said that the local authority is in a worse position than others. Really I do not understand that. If I go outside from here and am knocked down by a taxi I have six years to bring my action; but if I am knocked down by the London Passenger Transport Board's bus I have to do it within six months. It is difficult to understand why. If I go to my native city of Liverpool, the position is reversed. There the buses are a private undertaking, and the trams belong to the local authority. If in Liverpool I am knocked down by a bus I have six years to bring my action, but if I am knocked down by a corporation tram I must do it in six months. I do think this protection was not meant for that kind of case at all. The report, quite clearly, says that where a public authority is performing an administrative act of importance, that is one thing, but where a public authority is performing, not a public administrative act, but exactly the same kind of act which I perform myself when I drive my motor car home at night, then that is quite another thing; and, whereas in the first case I am entitled to full protection, in the other I ought to be in exactly the same position as other people are.
I am sorry I have been a little long. This is a matter on which I feel strongly. I would say this. When you find, as I suggest is found here, that the only defenders of a privilege are those who profit by it, I think there is a case for considering carefully whether that privilege ought to be retained, ought to be limited, or ought to be abolished; and I suggest that there is nobody to-day who defends the privileged position of the public authority before the courts except where it is performing an administratvie act of importance, except the public authorities themselves. Where that is so, one ought to be very careful to see that it really is the will of the legislature that that privilege should still exist.
1970 Finally, I do a little regret that the Amendment designed to take the protection out altogether should not have been debated. I say that for this reason that, so far as I can make out, although this privilege in its present form has been enjoyed for nearly half a century and in some forms for a longer period than that, so far as I can trace there has never been an occasion when the principle of it has been debated and discussed in either House of Parliament, or when deliberately, after full discussion, investigation and analysis, the House has determined that the principle is a right one. This, I think, is the first occasion on which the House has considered it deeply at all, and I think it might have been advisable if we could possibly have considered the whole principle. We cannot do that. We may consider one or two of the applications of it, and this is one of them. But I do urge hon. Members, considering the case as a whole as it has been presented, to say that if we cannot abolish it altogether, if we cannot limit it altogether as we would like to do, at any rate if we can extend the period from one year to two years we shall go some way, perhaps a considerable way, towards removing what is, I venture to suggest, an injustice which cannot be founded on reason or truth.
§ 7.52 p.m.
§ Mr. Macquisten
An hon. Member has said that this is a matter in which the legal profession was taking a great interest. Well, I am no longer a practising lawyer and I have no personal interest in it, but I am interested in the cause of fair play and justice to the citizens. My contention is that from the time this Act was passed in 1893 which made this free of universal application and permitted it to be put forward in all actions against public authorities, there has been hardly a year that has passed when some of His Majesty's judges, especially in Scotland, have not fulminated against the injustice of the Act. Lord Salvesen, a very great judge, has time and again animadverted on it in the gravest possible terms.
I well remember the Act being passed, and there really was no discussion on it. It was assumed it was a mere codification of the law. No one had the slightest suspicion that this monstrosity of cutting off from his legal rights a man who had been wronged was being brought into being. I was a very juvenile practitioner 1971 then, and the deputy town clerk of Glasgow, who was the then Lord Advocate and was the cause of it being enacted, was a very dear friend of mine, and he and I frequently discussed it. The profession in Scotland did not know of the Act when it was passed, it had got through so quietly, and they and their clients suffered severely by its being put up to them after it had become law. The practice was to negotiate till the time was up, and then to interview the plaintiff lawyer, or pursuer lawyer as we call him, being nearer the primitive, and when he saw that, he was so shocked that he had not been aware of it, that he took whatever sum was offered then ex gratia. Many members of the legal profession could not believe that such an Act had been passed. They did not think that this great Imperial Parliament could possibly pass an Act so unjust.
Now it has been suggested that public authorities are not bound to plead the Act, but I say this must be wrong. They are there in a fiduciary capacity, and they are bound to plead every defence that is open to them; and if anybody criticises them, their answer is that if there is an injustice in it then the blame must be put on the Parliament that passed it. I do not mind admitting that lawyers are a little different from normal citizens. Many of them are more delighted at winning a bad case than a good one. Anyone can win a good case, but it takes a clever lawyer to win a bad one, and to get off a guilty man is a much greater forensic triumph than to get off a man who is plainly innocent.
Now you have all legal men advising these authorities, and it is their duty to do their best for their clients, and to get away with the minimum sum of damages. If you take the different associations which have sent in representations about this Bill, every one of them is composed of members of the legal profession, and, as I have said, it is up to them to get the maximum for their clients, the local authorities. But it is for us as Members of Parliament to see that justice is done to the citizens, and not to pay any attention to the representations of interested parties.
§ Mr. Kirkwood
Will the hon. and learned Member tell the House why this particular Lord Advocate who introduced this question got this power to do so?
§ Mr. Macquisten
I think he was the standing counsel to the Glasgow Corporation. One gives a great deal of attention to one's client.
§ Mr. Kirkwood
I would like to ask the hon. and learned Member, does he mean that a corporation like the Glasgow Corporation would use its influence for the public authorities to that extent?
§ Mr. Macquisten
Oh, yes, and I have no doubt that the Lord Advocate thought it was perfectly just, because the attitude of the Glasgow Corporation in those days was that anybody who served an action on the Glasgow Corporation did a public wrong, because the Glasgow Corporation was so just itself that it could never do a wrong to anybody, and I remember one time the town clerk took me to task, when I had acted in two or three cases against the corporation, and I said to him, "Here John, the only way you can prevent my being against the corporation is to take me into every case, and then I cannot be against them." I do not think I was firmly appointed, but I had most of the cases. In tram accident cases the corporation used to get particulars from the drivers and conductors and the names of the witnesses, and for years after 1868 they objected to producing them. I had a case in which I disputed that this evidence was confidential and the High Court eventually came to the conclusion that I was right. After that we always got the names and addresses of the witnesses, although they tried in every way to prevent us getting them.
§ Mr. McGovern
May I draw the hon. and learned Gentleman's attention to the fact that Glasgow Corporation did not own the trams in 1868?
§ Mr. Macquisten
It does not matter whether they were privately-owned. The point is that one could not get the report of an employé to his employer because it was said to be confidential. I said it was not and I got that plea upset. The result was that I was struck off the roll of the council. Then I afflicted them for years. Some time afterwards after a case I was taken back to their list of pleaders. Glasgow Corporation were a first-class corporation but they took themselves far too seriously. They took the attitude that anyone who raised an action against them was a blackmailer. There is 1973 another injustice in this Act in a Section which provides that if the plaintiff loses his case he can be mulcted in double expenses, that is to say expenses as between agent and client. That is a most unjust thing and it leads to the lawyer of an ordinary small man having to give the advice that as there was a risk of judgment going against him and he would have to pay heavy expenses, he should not pursue the case but accept a sum much less than he would get on a trial. We hear very much about the speculative lawyer but I think he is very much nonexistent. I have often taken a case for a poor man because I thought his case was just. I have never asked a man for money if his case was just. The speculative agent was not affected by this provision because his client did not pay anything, anyway.
I ask the House to get back to fundamentals. Can it be just that, simply because damage is caused through negligence by a public authority, they should not be liable for the ordinary results that affect other great corporations and private individuals? Great wrongs are done every now and again because of this protection, and I maintain that if we leave this weapon in the hands of public authorities they are bound to perpetrate injustices for they are bound to use it. Conclusive evidence of that is seen in what happened in Croydon. One man got damages because his solicitor got off the mark at once, and the rest have been done down. So the corporation come to the House and ask for leave to act honestly. I believe that practically all members of public authorities are against this protection, and I am sure that if we put it to each one in his private capacity he would be ashamed of it. I do not believe that if it were put to them on a vote, with all the facts, they would support it. A corporation, however, has no body to be kicked and no soul to be damned. These authorities do in a public capacity what their members would never do in an individual capacity. If we extended this period it would not lead to more litigation, but would lead to far more settlements because nobody in his senses ever enters into litigation if he can possibly get out of it. As long as we keep this Act standing we are asking for trouble. It may be said that six years is too long, but if it were extended to two years it would greatly mitigate the 1974 hardships that occur again and again in many cases that we never hear of. I am sure that every one of the authorities really wants an opportunity of dealing justly towards those whom they may happen to have injured.
§ 8.9 p.m.
§ Mr. Silkin
The hon. Member for Nelson and Colne (Mr. Silverman) wound up his remarks by inviting the House to be suspicious of those who oppose the Amendment, because the only people who would oppose it were members of public authorities. I suppose that as I come within that category he is inviting the House to be suspicious of me. I would assure the House, however, that in opposing the Amendment, although I am a member of a local authority, I have no greater personal interest than have those who are supporting it.
§ Mr. Silverman
I did not invite the House to be suspicious of those who opposed the Amendment. I said the House would be rightly suspicious of the continuance of a privilege where the only defenders of the privilege were those who profited by it.
§ Mr. Silkin
And those were the public authorities. I happen to be a member of a public authority and the hon. Member must therefore be suspicious of me.
§ Mr. Macquisten
Does not the hon. Member appreciate that there is a vast difference between an authority itself and the individual members? No individual member would ever dream of using this privilege himself.
§ Mr. Silkin
I was under the impression that a public authority consisted of its members and that without the members there would be no public authority at all, but I do not press the point. Those who supported the Amendment have made a great point of suggesting that the Public Authorities Protection Act, 1893, got through the House only by a sort of accident and that members did not realise what they were doing. I do not know what time of the night it went through, but when the hon. Member for Dundee (Mr. Foot) was asked in what respect the previous law differed from the Public Authorities Protection Act,. 1893, he was not able to give the House a satisfactory answer.
§ Mr. Silkin
I have carefully read the Debate which took place upstairs, and having heard the reply of the hon. Member for Dundee, I still find difficulty in understanding in what way, so far as the ordinary public are concerned, the Public Authorities' Protection Act took away any right which they had previously held. This protection which the public authorities have has continued for centuries, and I submit that what we are not debating now is whether it is right that they should continue to have it; the issue on this Amendment is, it having been conceded that they ought to have the protection, whether it should be limited to one year or two years. That is the only question before the House, and I propose to direct myself to it. It may be that hon. Members would have liked another Amendment, but they have not moved it, and although the House does sometimes wander from the proper course I am not going to wander but shall discuss the Amendment which is on the Paper. I invite the House to say whether there is any justification for extending the protection to two years instead of one. The hon. Member who moved the Amendment quite fairly admitted that only a few cases suffered under the existing limit of six months. I recognise that those cases may be serious, but he admitted that they were few in number. He quoted one case. I did not quite follow the dates he gave, but my impression was that in that case the difficulty would have been met by an extension from six months to one year. So that if the law had been what it is proposed it should be, he would not have been able to quote it in justification of his argument. The case quoted by my hon. Friend the Member for Nelson and Colne (Mr. Silverman) was one in which a person had a perfectly good cause of action, but, instead of going to a solicitor, went to a member of the council, and asked that member to intervene for him, and that councillor actually conducted negotiations with the town clerk. I submit that that is most improper procedure and that we should not defend it or justify it. [HON. MEMBERS: "It is often done."] It is none the less irregular.
§ Mr. Silverman
The case made against this Amendment in Committee by my hon. Friend the Member for the Brightside Division (Mr. Marshall) was that where public authorities are concerned one need not bother with lawyers and litigation, because a committee sitting round a table was a much better jury than you would get in court, and that we ought to leave it to that kind of procedure which my hon. Friend the Member for Peckham (Mr. Silkin) is now saying is highly irregular and improper.
§ Mr. Marshall
I cannot allow that to pass unchallenged. I never said anything of the kind. I never advocated that all these cases should be dealt with without lawyers. What I did was to make a statement of the facts and I said that many cases were settled without lawyers.
§ Mr. Silkin
Nevertheless, I am sure the House will agree that it is highly irregular for a councillor to conduct negotiations with the town clerk on behalf of an aggrieved member of the public, and if that aggrieved member chooses to take that course instead of taking the normal course of seeking the benefit of the advice of a lawyer—
§ Mr. Silkin
If you want me to explain I will explain. A town clerk negotiating with a member of the council is at a distinct disadvantage, because the councillor is in a position of authority over the town clerk. In certain circumstances he can influence his salary, can influence his status, can influence his position in all sorts of ways.
§ Mr. McGovern
Is the hon. Member aware that there are many cases in which a lawyer is also a councillor, and in which his firm negotiates with the town clerk?
§ Mr. Silkin
In the case of the authority with which I am associated it is not permitted for members of the council to act as lawyers, or in any other capacity, against the council—
§ Mr. Silkin
—and I think that is a very proper procedure. But I am endeavouring to deal with an individual case which has been quoted by an hon. Member and I feel that it is not a good case in support of his argument, because the aggrieved party deliberately chose a course which was ill advised and ought to take the consequences. I submit that even the few cases which the hon. Member referred to as being hard cases would be met by the extension of the period from six months to one year.
§ Mr. Foot
I also referred to a case which was before the courts a few months ago and obtained a great deal of publicity, in which the period of 12 months proved not to be long enough. It was a fatal case and the judge said he would have given the widow £2,500 damages, but because of this Act she does not get a penny.
§ Mr. Silkin
That may be, but if the period were extended to two years no doubt cases would come along in which it would be possible to say that if the period had been made three years certain people would be in a better position.
§ Mr. Silkin
And there is less likelihood of hardships arising if the period is extended from six months to 12 months. I submit that it is a reasonable extension and would meet the large majority of cases—I am not suggesting every case—with which local authorities are concerned. Hon. Members supporting the Amendment have referred to the disadvantages of individual members of the public, but the general public have to be considered. After all, public authorities are only bodies which represent the general public, and we must not lose sight of the fact that while we may be helping individual members of the public we may be injuring the public as a whole. What this House has to do is to endeavour to hold the scales evenly between individual members of the public and the public as a whole. It seems to me that by extending the period from six months to 12 months a reasonable attempt has been made to hold the scales fairly, because while we shall not be causing public authorities to suffer to any great extent individual members of the public will have 1978 a better opportunity of making their case than they had before.
It is as difficult to say that one year is right as to say that two years are wrong, but at any rate I have the authority of the Law Revision Committee, which considered this very carefully indeed, for the view I am taking. Hon. Members have quoted various portions of that report to suit their case, and I could quote other portions to suit my case, but all I want to do is to quote their conclusion. It was a conclusion which these eminent lawyers—for they are eminent—arrived at after very careful consideration of all the circumstances. From the quotations given by the hon. Member for Dundee we realise that they were very much alive to the problem which he is putting before the House, and at the end of their report they stated in specific terms, after having given the matter every consideration, that the case would be met by extending the period from six months to 12 months. I think the House would be well advised to accept the conclusions of that Committee.
Hon. Members who support the Amendment have endeavoured to make a lot of the special and peculiar difficulties which public authorities suffer from in connection with actions which are brought against them. I do not think that they are particularly alarmed by the speculative solicitor. He is not necessarily their worst enemy. I quite agree with what has been said by the hon. Member for Dundee and the hon. Member for Nelson and Colne, that the speculative solicitor can look after himself every time and that he will undoubtedly take action within the proper time, whether it is six months or 12 months.
The difficulty of the local authorities is in obtaining evidence to repudiate improper claims after too long a period. Anyone who is associated with a large public authority will agree that that is a real difficulty. I have been endeavouring to enumerate the duties of a large local authority in respect of which claims might be brought. I got as far as 15 when you, Mr. Deputy-Speaker, called upon me to address the House. There is undoubtedly a considerable number more, but in respect of any one of those duties 1979 the local authority is likely to be shot at. When a person claims damages from a local authority he is not required to give notice of his claim and under the law, even as it is proposed to be amended, the first intimation that a local authority would have would be the writ issued against them, perhaps 11 months after.
§ Mr. Silverman
I am sure that my hon. Friend does not want to mislead the House. He is himself a lawyer and he has probably read the Public Authorities Protection Act which clearly lays down that unless a plaintiff against a local authority gives the local authority an opportunity to treat and tender amends before his action, he cannot recover in that action. The issue of the writ cannot therefore be the first intimation that the local authority gets, and with that position nobody is proposing in any way to interfere.
§ Mr. Silkin
The real point is that a long time may elapse, practically the greater part of the 12 months, before the local authority even hears of the claim. A claimant may easily come within the law if he has waited for nearly nine months and then has given notice of his claim and issued his writ within the two years—if the period is extended to two years as is proposed. I submit that a local authority is very greatly handicapped in meeting such claims, which may be made a long time after the event.
§ Mr. Silkin
I can give the answer, which may not please my hon. and gallant Friend. It is that a large variety of different kinds of claim may be made against the local authority and that the authority operates on so much larger a scale that the difficulties are increased.
§ Mr. Silkin
It means that the local authority has to be specially protected. With that principle I think nobody in this House is in dispute, because there is no question of giving to local authorities a period extending to six years. The difference is between one year or two 1980 years, and I cannot too strongly emphasise that the principle is thereby conceded that public authorities are entitled to special protection by reason of their special difficulties. I submit that they have special difficulties and are entitled to this special protection. Having regard to the existing period of six months, which it is proposed to extend to 12 months, I submit that no substantial hardship will be caused to members of the public. The protection to which I refer is reasonable and necessary in order to safeguard the interests of a wider public who, after all, are entitled to be considered at least as much as any individual member of the public. For the reasons I have given I shall oppose the Amendment and accept the Clause as it stands.
§ 8.31 p.m.
§ Mr. Maxwell Fyfe
The House must approach this subject with due regard to the limitation under which we work, namely, that we are not considering the matter of principle as to whether local authorities should have the same period of limitation. We are considering the very limited question indeed as to whether the proper period is 12 months or two years. I cannot pass one of the interruptions of the last speaker without a meed of correction. The hon. Member for Nelson and Colne (Mr. Silverman) said that if the plaintiff against a local authority did not give an opportunity to the local authority to make amends, he lost his cause of action; in fact, he is penalised only in costs. That was a slip on the part of the hon. Member, and I am sure that he will be glad to see it corrected.
§ Mr. Silverman
I am very much obliged to the hon. and learned Member. I do see that it was a slip to say that the plaintiff would lose his cause of action altogether. What is the case, especially when so much has been said about speculative solicitors, is that unless that opportunity of amends is given before the action commences, the plaintiff, even though he win his case, cannot recover any costs.
§ Mr. Silkin
The point I was putting was that a local authority might not hear of a case until the very last moment before the time-limit expired.
§ Mr. Fyfe
The point is, of course, quite good. The first question to which we have to give consideration is whether there is 1981 anything magical at all in any period of limitation in the law of this country. As I understand the position, there is nothing magical in the period of six years, except that it has existed for some 300 years. I cannot imagine anyone who supports the Amendment being particularly enamoured with that argument for the basis of the period. We have to consider one general question: Is this period that we now suggest going to avert injustice? There is no injustice in it being a different period from that of the private individual, if there is any basis, in principle, in the period which the private individual enjoys.
With regard to the period of 12 months, I ask hon. Gentlemen who have considered it at all from the point of view of legal practice, or of the approach of the ordinary citizen to the problem, in how many cases is it going to be difficult to decide in 12 months whether you should issue a. writ or not? The case that springs to our mind is where the plaintiff is very badly injured and is still in hospital. Obviously he would have a writ issued and would stake out his claim, but the fact that he is in hospital does not put a difficulty in his way, as every hon. Member knows. The authorities in the hospital are always ready to place before him the position in which he is situated, and the necessity for staking out his claim in the field of litigation. As far as the solicitor is concerned, I cannot imagine a case, and I speak with absolute sincerity, in which a solicitor cannot decide, within 12 months of an accident or of some claim of a different kind, whether he should issue a writ. In what difficulty is he or his client placed by the issue of a writ? It costs, if my recollection is right, about 30s., and it is not going to prejudice the position of the client or make the position of the solicitor more difficult. Therefore, when we come to consider the actualities of the case, we are not seeking to perpetuate an injustice, but are providing the litigant with a reasonable opportunity for presenting his case and a reasonable time in which to make up his mind. The only remnant of argument to which the Mover of the Amendment can then cling is, why should there be a difference at all between a private individual and a local authority?
§ Mr. Foot
If the hon. and learned Member will allow me to interrupt him, 1982 he has not met a very important part of the case which we sought to put before the House, and that is that it sometimes happens that the plaintiff does not discover within the limited time that he has a claim against a public authority. There are other cases, as the hon. and learned Member knows, in which the plaintiff is under a misapprehension and brings an action against some other defendant, only finding out when it is too late that the real defendant is a public authority.
§ Mr. Fyfe
The position in which the plaintiff does not know that the defendant is a public authority arose in a well-known case against the London Passenger Transport Board, and the matter had to be litigated before the point was cleared up. But I would ask the hon. Member to try to envisage any similar case in the future where that difficulty is likely to recur.
§ Mr. Silverman
The hon. and learned Member knows, I think, of a case in Liverpool where that precise position arose. I do not want to go into details, but it was a case in connection with a school.
§ Mr. Fyfe
Unfortunately, the hon. Member has chosen a case in one portion of which I appeared as counsel. I would only say that, if at every stage of that case the plaintiff had taken the precaution of joining the local authority, as in fact the solicitor for whom I appeared had done, that difficulty would not have arisen; and if those who prepared the case had considered it necessary to join all the parties, no difficulty would have arisen at all. There must be cases where people choose the wrong parties. That must arise sometimes, and they must be penalised for it. The mistakes of lawyers must be penalised, just as the mistakes of everyone else are penalised. These cases are bound to arise. I am sorry that I cannot remember for the moment the second point that the hon. Member put to me; perhaps he would be kind enough to repeat it.
§ Mr. Foot
It sometimes happens—it happened quite recently—that the plaintiff sues the wrong defendant. In a recent case the plaintiff sued contractors, who, he thought, were in charge of a building at the material time, but, when he brought his action more than 12 months afterwards, he found that the 1983 building had in fact passed into the occupation of a public authority. That is an actual case which arose in the courts a few months ago.
§ Mr. Fyfe
There again I would ask the House closely to examine the facts. At a point of time the building passed from the contractor to the local authority, and, somewhere about that point of time, injury was occasioned to someone by the works, or as a result of the works. Does the House seriously think that an ordinary wide-awake plaintiff and wide-awake solicitor cannot discover within 12 months whether the contractor or the corporation was then in charge of the building?
§ Mr. Foot
In the case I have in mind the solicitors communicated with the local authority in order to find out who was in occupation of the building, and the local authority informed them that the contractor was in occupation, but actually it turned out that the local authority themselves were in occupation. I do not say that they meant to mislead, but in fact they did mislead, the plaintiff, and, as a result, he lost his right of action.
§ Mr. Fyfe
The hon. Member has certainly quoted a very extreme case where a local authority does not know whether it is in occupation or not, but I would remind him of the provisions of the Rules of Court by which anyone can, when there is any doubt at all, join parties and is safeguarded in costs. The hon. Member will recollect that the test is not whether he succeeds against the parties joined, but whether it is reasonable in the circumstances to join them. I submit that there is an answer to both the points which the hon. Member put to me, and I have endeavoured to give it in what I hope is a detached and fair way.
I should like to follow the hon. Member for Peckham (Mr. Silkin) on the wider aspect of this matter as it affects local authorities. We are too apt to consider the local authorities simply from the point of view of their trading powers—from the point of view, for example, of their running tramways or omnibus services, or carrying on similar activities. I would, however, ask the House to look at other aspects of the matter. Take, for example, the watch committee of a local authority, 1984 who have to deal, among other matters, with appeals of police constables from the decision of the chief constable under the various Acts which govern our police forces. That is one case in which members of local authorities have to sit and act in a quasi-judicial and quasi-administrative capacity. In other capacities they have to take administrative decisions of great difficulty, which may have far-reaching results. Not only does the constitution of the council change with each November election, but every member of the old and of the new council has a host of new duties, and I think there is a great hardship on members of these bodies who are challenged with delayed actions a long time later. Their case is different from that of the individual, who is concerned with actions connected with the affairs of his own life which are well in his own mind. The members of a committee of a local authority, on the other hand, are dealing with the affairs of countless numbers of their fellow-citizens, and, in view of their duties, which are not trading duties or anything of that kind, I think they are entitled to the consideration which we are suggesting.
As regards the period of 12 months, if we were perpetrating an injustice we should be ready to change it, but when the question is examined from that point of view, and it is found that no injustice or difficulty is caused to the litigant and his solicitor, and when we consider that public authorities are concerned with the welfare of their fellow-citizens in innumerable aspects I think we should maintain something that has existed since 1893, but something which goes back for nearly 100 years beyond that—to the time when public opinion recognised that there was a difference between the acts of persons acting merely on their own behalf and the acts which they might perform when they were acting either for the community or for large bodies of their fellow-citizens. For these reasons, I ask the House to reject this Amendment.
§ 8.46 p.m.
§ Mr. McGovern
I desire to support the Amendment. I regard two years as a very moderate limit to impose. I have listened to the Debate as a layman, with no legal knowledge, and I have learned—as I often do from Debates in this House—many things that it is good for me, as a public representative, to know. 1985 But I hear from time to time of the difficulties of people who may be the victims of accidents in consequence of which they have claims against local authorities. Considering the arguments which have been advanced in the light of my own experience, I am compelled to vote for the Amendment. Has the hon. and learned Member for West Derby (Mr. Fyfe) ever known of cases in which after an accident it took a certain time for the effect to be felt? I know of a case in Glasgow where a man died one year and eight months after the accident. He had injured his back and spine, but he decided to take no action, because he thought that it was only a matter of bruising and that the effects would disappear. Thirteen months after the accident grievous consequences developed, but he was debarred from taking action. His friends came to me and I endeavoured to get something done, but it was too late; and one year and eight months after the accident the man died, as a result of the accident. I have known cases in Glasgow where people have suffered from the effects of accidents and have not taken action for a certain time, and then have gone to a solicitor. The solicitor has been negligent and has failed to take action within a reasonable time, and his clients have been debarred from obtaining compensation as a result of his negligence.
The hon. Member for Peckham (Mr. Silkin) maintained that it was most irregular for a councillor to have to negotiate with the town clerk in order to get a settlement for people whom he represented. I asked him whether he was aware that there are members of councils who are solicitors and who themselves negotiate settlements. I had an example only this morning of a case against the Glasgow Corporation, in which the agent, who was a solicitor, was the convenor of the police committee, and was actually in charge of a case against the police committee for a policeman who, it was claimed, died as the result of an accident. I am not saying that it is improper—because I do not believe that it is improper—but if it is not improper for a solicitor who is a councillor to negotiate a settlement for a client with the town clerk, surely a layman who is a councillor is as much entitled to do so. But I understand that on the legal side there is always an objection to a councillor or a 1986 Member of Parliament negotiating a settlement, because if he does so he is doing the solicitor out of a job.
§ Mr. Silkin
My contention is that in both cases it is wrong: that a member of a council has an undue influence over a town clerk, and is in a position to extort a better settlement than might be the case if the other was a free agent.
§ Mr. McGovern
In most cases, what happens is that the town clerk comes to the appropriate committee, reports the claim and intimates that an action is proposed; and he puts before the committee the question as to whether a settlement should be made. The town clerk is not the person who completes the settlement, but very often the members of the committee themselves appoint a sub-committee to meet the other person's agent and come to a conclusion. I am just as much alive as any person in this House to any avenues of impropriety in regard to public authorities, but I do not look at this as the hon. Member for Peckham looks at it. I look at it from the point of view of an ordinary layman who has the right to expect justice and decent treatment if he or she suffers from the negligence of a public authority. The hon. Member for Dundee (Mr. Foot) says that you have the right to sue an ordinary individual or private firm during a period of six years. I can conceive that some people might say that that is too long a period. If there had been a suggestion that there should be a three years' period to apply all round I could have seen the force of that. No one could deny that 12 months is better than six months, but two years would be very much better indeed.
The case stated by the hon. Member for Dundee was an extreme case, and surely we are entitled to deal with extreme cases and to make the law sufficiently elastic so to give an opportunity for action by those who may at present be debarred on account of being extreme cases. The hon. Member mentioned that the judge said that he would have awarded £2,500, which means that that family were denied the redress that they ought to have had if there had been the two years' limitation in this case. The hon. Member for Dundee dealt with one or two such cases, but there are cases all over the country that never come to light. They come before private individuals. Last night there was a suggestion that we were overdoing the question of the 1987 10s. payment to old age pensioners when we were considering putting taxation on motor bicycles, but surely we are entitled to argue, for example, that the case of the poor woman whose husband may have died as the result of an accident, and who may have to go through life without receiving the compensation which, but for this limitation, would have been taken into account. If it only means a few cases, there is all the greater reason for elasticity.
I would like to hear the argument—I have not heard it yet—on the justification for the difference of six years in respect of a private firm and of six months in respect of a public authority. The hon. Member argued that the public authority ought to have protection. Public authorities can protect themselves; at least that is my experience. I recognise the dangers to ordinary individuals. The right hon. Gentleman the Member for South Hackney (Mr. H. Morrison) has become the custodian of a public authority. I do not object to his defending the interests of the public authority, but I am entitled to ask that the people who sent him to the public authority should receive some consideration also. I am keeping in mind both the public authority and the people who send me to express their difficulties on the Floor of this House. I try to keep that in view, and that is why my Socialism is sometimes more prominent than that of hon. Members above the Gangway. [An HON. MEMBER: "Do not apologise."] I do not need to apologise. I do not require to assure anybody of my Socialism. When a man has to go on to the platform and assure people that he is a Socialist, it is a sign that he is not a Socialist.
In dealing with this matter purely from the point of view of the ordinary layman and taking all the difficulties into account, my experience leads me along the avenue of attempting to protect these extreme cases. If it was only a question of half a dozen cases being protected, I should still consider the Amendment justified. Therefore, looking at these difficulties, having had experience of a number of such cases in the past, knowing that they can be multiplied all over the country, and that solicitors may sometimes fail in their duty, I am in favour of this two years' protection. I support it, because there is justifiable reason behind it.
§ 9.0 p.m.
§ Mr. Marshall
I said on the Second Reading that there was a remarkable unanimity on the part of the lawyers on this particular matter. It has not been quite as evident to-night. I think that the legal gentlemen who have spoken are about evenly divided, and that fact constitutes a reason why I should stick to the local authorities. The hon. Gentleman the Member for Dundee (Mr. Foot) went to some pains to-night to prove that he was not making an attack upon local authorities, and he was supported in that argument by my hon. Friend the Member for Nelson and Colne (Mr. Silverman). However, it appeared to me to be an attack, or an endeavour to render local authorities liable to extensive litigation to which they have not hitherto been subjected. The hon. Gentleman is in very bad company. He quoted me on the Committee stage of the Bill, and as I happen to have a copy of the OFFICIAL REPORT of the Committee, I want to quote part of the speech of the hon. and learned Gentleman the Member for Argyllshire (Mr. Macquisten). The hon. and learned Gentleman was talking about the local authorities and said:They want to escape the law courts. They do not want the light of day to enter upon them. That is the one thing they want to avoid. All this talk about speculative actions is 'bunkum,' for no man raises an action unless he has a prima facie case. Any public authority rejoices in litigation.In the first place, hon. Members will notice that they want to avoid the law courts, and in the second place that they rejoice in litigation.Why should they not? They arc not litigating with their own money. It is the ratepayers' money."—[OFFICIAL REPORT (Standing Committee C), 21st February, 1939; col. 21.]If that does not constitute an attack upon local authorities I have never heard one, and I congratulate the hon. Member for Dundee and my hon. Friend the Member for Nelson and Colne on the company they are keeping to-night. I had to point out to the hon. and learned Member for Argyllshire in Committee that when we on this side of the House had submitted a Bill or Bills to improve the law with regard to Workmen's Compensation and to do away with some of the anomalies in the Act, we always found the hon. and learned Gentleman in the other lobby. I am amazed at the sentiments which have been expressed by the hon. Member for 1989 Shettleston (Mr. McGovern), and I am going to challenge him to tell the House whether there has been any demand for this drastic alteration in the law as it relates to local authorities? He may have had some experience, and, at any rate, I can say that I have had 19 years' experience of a local authority and have never yet known one case where a person has come forward and told the council or any councillors or aldermen that he has suffered any hardship as a consequence of the Public Authorities' Protection Act.
§ Mr. Foot
Let us get this perfectly clear. The hon. Member says that he has been 19 years on one local authority. Has that local authority pleaded the defence of the Public Authorities' Protection Act, or has it not?
§ Mr. Marshall
I have never heard of it pleading that Act. As a matter of fact, had the town clerk attempted to plead that Act, the council would have taken exception to it.
§ Mr. Marshall
I stated in Committee that I know of no demand for this proposal and of no cases of hardship in consequence of it. This appears to me to be a try-on by the lawyers in order to widen the area for the exploitation of local authorities.
§ Mr. Marshall
It seems to me that I am interrupting somebody else's speech. The case which the hon. Member quoted would have been dealt with under the proposed amendment of the law. The case which my hon. Friend the Member for Nelson and Colne (Mr. Silverman) quoted is a most peculiar one. It almost reads like a fairy story, from some points of view. That case needed, first of all, a fool for a councilor—and they appear to have found one—and a knave for a town clerk, and these two people apparently were in an atmosphere of ignorance. That case could not have been consummated unless you had those 1990 elements present. For my part, I should want to know a good deal more about the cases that have been quoted.
The hon. Member for Nelson and Colne said that he had been nine years on a local authority. He did not, however, bring forward one case in which, during that period, hardship had occurred through the operation of the Local Authorities Protection Act. He seemed to have an entirely wrong idea of what a local authority is. He seemed to have the idea that a local authority is something apart altogether from the citizens of the community. This protection is not for a few councillors or aldermen, the town clerk or the lord mayor. It is protection given to the citizens of Glasgow, Sheffield, London and other communities. What I do not like about the legal profession in this matter is that they seem to think that the Parliamentary and Law Committee of a public authority, which may be comprised of 21 individuals, are engaged in a conspiracy to deprive injured parties of their rights. That is not only incorrect but it is a vicious travesty of the position. It is an insult to the honesty, decency and intelligence of members of local authorities.
I have already spoken about the views expressed by the hon. and learned Member for Argyll, and I say that the charge that he makes against local authorities, that they are always wanting to enter into liquidation and then they try to avoid it, is a charge that is not only untrue but unworthy. It only shows how a mind can become warped when it misunderstands people who are doing a really important job. This protection has been given to local authorities in one form for the last 300 years. It is true that the hon. Member for Dundee questioned that in Committee, but I think it is agreed that this protection was given in some degree for 300 years. It has not been given without some good cause. I do not profess to be a lawyer, thank goodness, but I do not imagine that something has been given to these great public bodies for 300 years without good cause.
My second point is that the local authorities have considered this matter very carefully and seriously, and they tell us honestly and frankly that if this matter is extended to a point any further than the Bill proposes to extend it, it will open them to a vast area of litigation that is 1991 not open to them to-day, unfair litigation, and it will place them in a very parlous condition. My third point is that this is a consolidation Bill, and if we are to use Bills of this character to introduce far-reaching changes into the law which will open up these vast new fields of litigation to local authorities, those authorities will have to look at the matter very seriously. I say again that there has been no general demand for this change.
Hon. Members seem to suggest that local authorities are in the same position as private individuals. They are not. The local authority has many administrative acts to perform. It literally looks after the individual from the cradle to the grave, in some form of administrative compulsion or other, and I contend, and I think the House will contend, that in that capacity local authorities ought to be protected. I know of certain hospitals where the local authorities are practically performing modern miracles. They are taking the limbs of crippled little children and straightening them. They are taking feet which have turned backwards and turning them into the proper position. They are curing curvature of the spine. It is possible that here and there mistakes are made. It would be almost a miracle if that was not the case. You cannot find individuals who are doing this work in the same sense as our local authorities, or who are compelled to do it. Nearly every person who does it, other than a local authority, is doing it for profit.
There is a vast difference between local authorities and private individuals. Take the case of the fever hospitals. They are compelled to do their work, they have no option, and I am sure the House will feel that while local authorities are performing these great administrative acts they are entitled to special protection. That is why protection has been given. The local authorities have agreed to the period of limitation being doubled and to certain modifications in a later Clause. I sincerely hope the Attorney-General will stand firm and will protect these great public institutions, which are doing enormous work, possibly even more precious work than this House is doing. I ask the Attorney-General to protect the local authorities from the speculative lawyer and from the new area of litigation that will place upon them dangers that they have not hitherto had to face.
§ 9.12 p.m.
§ Mr. Quintin Hogg
With great respect to the hon. Member who has just addressed the House, with such vigour, I rise to support the Amendment of the hon. Member for Dundee (Mr. Foot). I cannot follow the arguments that have been put forward against it. The principal point which was raised by those who spoke against the Amendment appeared to be that the House was not concerned with any general objection to privileges given to local authorities and, therefore, certain hon. Members appeared to attach weight to that point. It was a good debating point, but I submit that there is not the smallest substance in it. The House will ask itself three questions: (1) Has there been injustice under the existing law; (2) under the law as it is proposed, without the Amendment, is it possible or likely that injustice will continue to any degree; and (3) if the answers to the first two questions are, as I believe, in the affirmative, does the proposed Amendment do anything to alleviate the injustice which would otherwise be caused? When hon. Members, in supporting the Amendment, say that they are convinced that the local authority ought not to be given any privilege at all, then, in my submission, they are justified in doing so and in asking the House to support the Amendment, because they are satisfied that the Amendment, inadequate as it may be, will reduce the amount of injustice which they have proved to exist in existing practice, and under the law as it is proposed in the Bill as it stands.
Why are we asked to reject the Amendment? We are asked to do so, first of all, by the hon. Member for the Bright-side Division of Sheffield (Mr. Marshall) on the ground that no injustice has been caused under the existing law. He asks us to reject the Amendment because he says that in his large experience as a member of a local authority no injustice has been caused. If that is so, why has this Bill been introduced? Why has the six months' period been extended to a year? There is not a barrister practising at the Common Law Bar who does not realise that grievous injustice has been caused to litigants, and to poor litigants who cannot afford a good solicitor by the existing law. We have been asked by an hon. Member to reject the Amendment on the ground that the injustices 1993 will be few. I cannot follow that argument at all. Why should any injustice be caused by law unless it can be justified on the grounds of absolute necessity? No such justification has been suggested. Why are we to be comforted by the thought that injustice will be caused only in a relatively small proportion of cases, unless it can be shown that it is absolutely justified?
§ Mr. Hogg
I am sure, having heard what has been said in support of the Amendment, he will support it as being in accordance with true Socialist principles. Has any necessity been shown why these injustices should continue? In my submission no such necessity has been put forward at all. Hon. Members who have opposed the Amendment have, without exception, spoken as if the only type of authority which is covered by the Public Authorities' Protection Act is a local authority. That is not the case. We are concerned here just as much with the Departments of State. I can speak out of my own experience—it was not a case in which I was personally concerned, but it occurred in the Chambers which I occupy—of a case where one of the great Departments of State deliberately led the litigants in negotiations until the period of protection had expired and then proceeded to put forward the Public Authorities' Protection Act as a bar to the claim. The member of the Bar who was concerned in that case, with very great courage indeed, and, I think, with technical impropriety, put forward the plea of fraud on the record, and the result was that the Department of State immediately compromised and paid a sum of, I think £2,000 by way of damages. It is absurd to talk as if an attack is being made on local authorities alone. It is inevitable that the official mind should make every use it can of official privilege, and official privilege is a thing which this House has always very jealously regarded. If it can be shown, as it has been, that it has been abused in the past, then surely it is right to limit its use for the future.
1994 It has been suggested by hon. and learned Members that litigants have only themselves or their solicitors to blame if they do not issue their writs in proper time. I confess that again I fail to see the force of that argument. It is, as I conceive it, the purpose of good legislation to limit the scope of negligence in lawyers and the public, not to extend it, and if it can be shown that the law is already so complicated and difficult that members of the legal profesion habitually make mistakes in not issuing writs in proper time, then I submit that the hon. Member has made out his case for a simplification of the law and for approximation to a general standard. An hon. Member has also suggested that the difference in principle between a local authority and a private litigant lies in the fact that the constitution of a local authority changes from time to time in accordance with democratic practice. The answer to that is that a local authority has a very efficient permanent staff, and that one of the duties of that permanent staff lies in the investigation and settlement of claims made by parties who are aggrieved by the action of the local authority. I fail to see why that permanent staff is there at all if it is not there in order to inform the changing members of the council of the state of affairs which exists.
Two hon. Members have said that the general public have an interest, and that these priviliges are put in for the purpose of protecting members of the general public. I have not understood, and I still fail to understand, what possible interest the general public can have in inflicting injustice on its individual members, and I fail to understand why the general public should be supposed to desire to bar poor litigants, who for one reason or another have allowed six months or a year to elapse before issuing their writs, from getting the justice which they would otherwise obtain. That is another of the objections to the Amendment which has no substance in it at all. It is said that local authorities experience difficulty in getting evidence to rebut claims. Where is the reason for supposing that local authorities find it more difficult to obtain evidence than an ordinary litigant? On the contrary. My experience has been that a local authority, as soon as an accident takes place, prepares a very careful and 1995 adequate report showing all the names of possible witnesses, with the fullest report from their own servants, which is filed against a future contingency, whereas a private litigant has no such system at his disposal, no such experience of previous cases and, in fact, is very much more embarrassed than a public authority in obtaining the evidence necessary to resist a claim.
I have taken note, I think, of every single objection which has been put forward in the course of the Debate to the Amendment. I have attempted to deal with each one of them. I have not the slightest prejudice against local authorities. I have no great desire, as the hon. Member for the Brightside Division seems to think, as a lawyer to extend the number of cases for litigation, because in the last resort—I hope he will accept it from me—members of the legal profession, whether they belong to that branch graced by the hon. Member for Nelson and Colne (Mr. Silverman) or that to which I myself belong, have one great object at heart, and that is justice. They have learned to study justice and to love it. In this matter it is love of justice and a desire for justice which leads me to support an Amendment, which has been moved by hon. Members who do not support the party to which I belong. I hope the House will accept it. I ask the House to answer the three questions I have put in the affirmative, and if they do so, then the Amendment will be passed by an overwhelming majority.
§ 9.25 p.m.
§ Major Milner
I think it would be desirable to clear away one or two preliminary points. May I say, with due modesty, that I do not give way to my hon. Friend the Member for Brightside (Mr. Marshall) in my support, after a good many years' experience, of local authorities and their work. I had the honour to be vice-president of the Association of Municipal Corporations for many years. I made my first speech in this House in support of the extension of the powers of local authorities, and I do not think that I have on any previous occasion found it necessary or desirable to oppose anything which was considered to be in their interest. Therefore, I start off with, if anything, a prejudice in favour of local authorities.
1996 A good deal has been said about lawyers. I ask my hon. Friends to believe that lawyers in this matter are personally disinterested. To-day the only safeguard for the individual who suffers injury by the neglect of a local authority or its servants, is to go at once to a lawyer and to have his interests protected, whereas, if this period is extended, it will be possible for the claimant to have greater opportunities of arriving at a settlement with the local authority, without the intervention of a lawyer. Thus, if anything, the prolongation of the period would be contrary to the interests of the legal profession as far as employment and remuneration are concerned. But our interest in this matter arises from the fact that we know that great hardships are suffered as a result of the law as it stands. I would like to put this point to my hon. Friends on these benches. When miners' representatives bring forward questions affecting the interests of miners, on which I cannot claim the same knowledge as some of my hon. Friends possess, or when my hon. Friend the Member for Brightside brings forward something affecting the general workers, for whom he can speak with greater knowledge than I possess, I willingly accept and support the views thus expressed. On this matter of claims, mostly in respect of accidents against local authorities, I submit that members of the legal profession have greater knowledge of the hardships caused by the existing law than hon. Gentlemen who are not lawyers can have. I assure my hon. Friends that it is not a matter of one or two cases but of hundred of cases in a year in which hardships are suffered and people are penalised for life by a law which discriminates between the rights of local authorities and the rights of private individuals.
Frankly, I should like equality before the law. I should like the six-year period of limitation to apply to local authorities as to individuals. The hon. Member for Dundee (Mr. Foot) suggests a two-year period which would be a great improvement on the present period of six months or the proposed period of 12 months. As I think his proposal affords a greater likelihood of justice than the proposal in the Bill, in the circumstances I accept it and support it, though, as I say, I would like local authorities to be put in the same position as private individuals. Perhaps the Attorney- 1997 General will correct me if I am wrong, but I believe that the period of one year was recommended by the Law Revision Committee, not because they thought it was the right period—they point out that there are no real grounds for discrimination—but because they were making recommendations for a Consolidation Measure, and we know how desirable it is, not to make any greater alterations than are absolutely necessary in a Consolidation Bill, so as to avoid controversy and expenditure of time in this House.
I also believe that the period of one year was suggested because the local authorities agreed to it. There is, however, no special virtue in it, and the House is competent to increase it to two years or even six years, if the House so desires. It is a curious thing that neither the hon. Member for Peckham (Mr. Silkin) nor the hon. Member for Brightside, thought fit to tell the House whether their respective local authorities turned down one claim, or 10 claims or 100 claims in a year on the ground that they had not been brought within the requisite period. I venture to suggest that if they asked their local authorities how many times a year the Public Authorities Protection Act was pleaded, they would find that it was pleaded very frequently. When I say "frequently," I speak in a comparative sense.
§ Mr. Marshall
I did say that in my 19 years' experience on a local authority I knew of no case in which that Act had been pleaded.
§ Major Milner
If that be so, then the extension for which we ask should make no difficulty whatever for, and cast no additional burden on, the local authorities. To speak of exploitation as the hon. Member did is, in those circumstances, a misuse of language.
§ Major Milner
Because I assert that there are many cases in which hardship is suffered at present. My hon. Friend speaks for a local authority which has for many years been under Labour control, and is no doubt at least as generous in its view of these things as any other authority. It may be that the Sheffield Corporation make payments in these cases, but that is not so with the great 1998 majority of other bodies, and we are dealing here with urban and rural district councils as well, and not with the great municipalities alone. It is, therefore, a striking fact that no figures have been brought forward on behalf of the local authorities and I wonder whether my hon. Friend, for whom I have the greatest personal regard and who is president of a very important trade union, has asked the legal advisers of that union how many cases of that sort have had to be dealt with by them. The fact is that my hon. Friend is working on a brief which has been supplied to him by one of the local authorities' associations and has made no independent investigation of any kind. He has asked neither his local authority nor his union about these facts, and I venture to assert that, if he made those inquiries, he would have come here in a rather more chastened spirit than he has shown.
§ Mr. Marshall
The hon. and gallant Member is saying something to which I must take exception when he suggests that I am merely working on a brief supplied by the local authorities. I have tried to put forward a proposition which, from 19 years' experience, I believe to be commonsense.
§ Major Milner
But the hon. Gentleman cannot tell us whether his local authority has pleaded the Public Authorities Protection Act once or a hundred times, although he has been a member of that authority for 19 years. There is another important point which has not yet been mentioned. Many local authorities insure themselves with insurance companies. What the Act has done in the past—and what it will continue to do if the period is not extended—has been simply to free the insurance companies of their responsibility. My hon. Friend the Member for South Tottenham (Mr. Messer), who is not now in his place, told me before he left the Chamber of an accident which occurred in a laundry belonging to the Tottenham Corporation. The accident resulted in a serious and permanent injury to a person's foot. My hon. Friend told me that it would have justified a claim for £500 or £1,000, but for some reason or other, the period of six months was allowed to elapse, and afterwards no claim could be made, and it was only with the greatest difficulty that it was possible to 1999 obtain an ex gratia payment of £150 from the insurance company which insured the local authority. That individual, according to my hon. Friend, was entitled to receive £500 or £1,000, but had to be content with £150. The insurance company had received premiums which made them responsible for paying whatever sum might be legally adjudicated, but the company was able to get away with it and need not have paid anything in law; but, as my hon. Friend said, it was a very reputable insurance company and made an ex gratia payment of about one-seventh of what the person might have received had a claim been made in time.
§ Mr. Fleming
May I ask the hon. and gallant Gentleman why no writ was issued within the proper period in that case?
§ Major Milner
I cannot answer that question. I am sure that hon. Members appreciate the position. It is something which we come across almost every day in the case of constituents who have accidents.
§ Mr. Fleming
The hon. and gallant Gentleman quoted one particular case, and I asked him a simple question in connection with that case. Why was not a writ issued in time?
§ Major Milner
Frankly, I cannot answer that question, although I have no doubt that my hon. Friend the Member for South Tottenham could answer it. The fact is that people do not know the law. They do what is the reasonable thing. They go to hospital. If it is a case of an accident to a child, the parents do their best to look after the child and to repair the injury if possible, and the question of making a claim is a secondary and later consideration; but eventually it arises, and when it does arise, frequently the period has elapsed and the child, although perhaps maimed for life, has no claim of any kind. I submit that this question of relieving the insurance companies from a liability which they would otherwise have is a very important one.
It seems to me that no justification has been made for any differentiation between a local authority and an individual in this matter. My hon. Friend the Member for Peckham and my hon. Friend the Member for Brightside spoke about the 2000 multiplicity of departments in a local authority, and said that for that reason the local authority is entitled to special protection. But the railways have a multiplicity of departments; Imperial Chemical Industries and the Yorkshire Electric Power Company, a great public utility corporation employing many thousands of men, have a multiplicity of departments. [An HON. MEMBER: "What about the London Passenger Transport Board?"] By Act of Parliament, the London Passenger Transport Board was made a public authority for this purpose, although in fact it pays dividends to private individuals and is not, in the real sense of the term, a public authority as we are discussing them to-night. Why should there be any differentiation on grounds of complexity or multiplicity of duties between local authorities and the great railway companies, the Yorkshire Electric Power Company or Imperial Chemical Industries? My hon. Friends and I stand for an extension of municipal enterprise. Little by little the position is becoming more and more difficult. The local authorities are taking on fresh duties and responsibilities—with which I entirely agree—and more and more this Act is becoming important, and it is being increasingly brought to the notice of the public that it causes hardships.
When the Act was brought in 300 years ago, it was brought in for entirely different reasons. In 1623, it was introduced for the purpose of preventing actions concerning estates and so on from being carried on ad infinitum, for scores of years, if not for hundreds of years. In those days, it had no application to the cases for which we are pleading to-day. Therefore, it is quite beside the point to say that the Act has been in existence for 300 years. I submit to the House that at the present time it causes great hardship to a constantly increasing number of our constituents. I am sure that if any of us were consulted, as ordinary members of the public, as to whether it would not be a great hardship if our son or daughter or some relative were involved in an accident as a result of the negligence of a local authority or its servant and was unable to make a claim—as would be the case if the accident had been caused by a private individual—by reason of this Act of Parliament, we should agree that there was reason to complain of such a state of 2001 affairs. Is there a single member of the general public who would object to a claim being brought against a local authority? We are merely asking for the ordinary law, as it affects the ordinary individual, to be applied to local authorities, and even if the Amendment were accepted, there would be in the case of a local authority a period of only two years, whereas in the case of an ordinary individual the period is one of six years. I sincerely hope that the House will pass this Amendment, which at any rate would give a greater likelihood of justice and go a long way in removing hardships.
§ Mr. T. Johnston
Can my hon. and gallant Friend tell me why, in the case of the accident to which he referred, no writ was served within a period of 12 months?
§ Major Milner
It is not everybody who consults a solicitor to begin with. A great many of the people who have accidents consult their friends, their councillors or their Members of Parliament, or they consult no one. If they consulted a solicitor, in a great majority of cases the matter would be in order, but I have been speaking for those who do not do so, either because of a lack of funds or a lack of knowledge.
§ Major Milner
As the hon. and learned Member says, there are many cases where the injury continues over a period of 12 months, or even does not become apparent until after 12 months have elapsed. It is essential that the longest possible period should be given. A solicitor is consulted, and the only safeguard, with the law as it is, is that a writ should be issued, but a writ costs money. It is not every poor man who has even the 30s. which it costs to issue a writ. But the real reason for this Amendment is that the majority of people do not consult a lawyer early enough, and do not know their rights, and in some cases an injury is not apparent until after the 12 months. I sincerely hope that the House will pass this Amendment.
§ 9.46 p.m.
§ Sir George Jones
I have great pleasure in supporting the Amendment. The only 2002 complaint I have to make is that it does not go far enough. The Sub-section says:No action shall be brought against any person for any act done in pursuance, of execution, or intended execution of any Act of Parliament, or of any public authority, or in respect of any neglect or default in the execution of any such Act, duty or authority, unless it is commenced before the expiration of one year from the date on which the cause of action accrued.The result of that is that anyone affected in a variety of ways is entitled to the protection of this Act, and this ought to be borne in mind, that we are getting an ever-increasing number of services performed by statutory bodies, of which, of course, there was no idea when the Act of 1893 was passed. For instance, in London the omnibuses formerly were owned by private companies, now they are owned by the London Passenger Transport Board, and in their case only six months is allowed for the commencement of an action. I have never heard it suggested that the old companies suffered because they were subject to a six years' limitation. The old companies managed quite well, and I quite agree with the hon. Member for Oxford City (Mr. Hogg) that if there is one class, body, or institution that is able to look after itself in litigation it is the public authority. Unlike the private citizens, local authorities can investigate a claim immediately, they tabulate the evidence, and they have the advice of their lawyers. If there should be any differentiation it is the private citizen who needs the longer period.
I have listened to most of this Debate and I have not heard a single argument why a private person should be subjected to a six years' limitation and public authorities are to have only six months or 12 months. If the private person should be liable for six years, it is surely right that the public authorities, who are much better able to look after themselves, should have a similar limit. Several speakers have said that if this Amendment is passed, there will be all sorts of actions sprung upon the public authorities, which will place them at a great disadvantage. I venture to suggest that that is quite imaginary. There will be some cases, but not many, and they will be cases which will not be taken up unless there is a really good cause of action, because it generally means in 2003 those cases that the plaintiff has no money. Somebody has to find it, or take a risk, and that is not done unless there is a belief in the genuineness of the case.
I heard an hon. Gentleman ask my hon. Friend who spoke last why a writ was not issued in the particular case he was referring to. A very frequent reason why a writ is not issued is this: Negotiations are opened with a view to a settlement, the correspondence goes on and on, and it is when the correspondence ceases that the public authority says, "We plead the Act." The first case under the 1893 Act was a London County Council case, and the facts were these: There was correspondence as to the amount of compensation, six months elapsed, and then the London County Council pleaded the Act. It was held they were entitled to it. I think the learned judge saw them afterwards and there was some sort of compromise. There was a London County Council case in which three claims were entered. In two cases there was no dispute and payment was made. In the third case only the amount was in dispute. One doctor said one thing and another doctor said something else. The parents agreed with the London County Council that they would wait for some months, when it would be possible to say which of the doctors was right and then there should be a certain amount paid. In that particular case the insurance companies later pleaded the Act. They went down on another legal point but that was not their fault; it was their misfortune.
If a person has a good case for action he ought not to be barred by this sort of technicality. The person who can afford legal advice is in no danger, but there are persons who do not know about the Poor Persons' Defence Act. There is another class of person, often overlooked, who ought to be considered. That is the person who is too well off to take advantage of the Poor Persons' Defence Rules a man with means over £50 or an income of £2 a week. If he is over that limit he cannot get free defence, and perhaps cannot afford to obtain legal advice. He muddles on, having correspondence, and the six months expires, and the public authorities set up the Act.
2004 Hon. Members say, in how many cases is this defence pleaded? That is not the point. In how many cases are claims never started, because directly people go to a solicitor they are told "It is too late, nothing can be done"? We are getting legislation ever more complicated because of the multiplicity of authorities, and it is almost impossible in many cases to find out the right defendant. If you happen to pick the wrong one you are too late to find out the truth. The hon. Member for one of the divisions of Liverpool said "But you can join the various people to the action." Of course you can, if you have a solicitor to advise you, and if you do not mind spending a lot of money. If a man is injured he ought not to be deprived of a remedy which he would have against a private person simply because the body responsible comes within the definition of this Act. I venture to hope that the House will do something to restore some measure of justice to a class of litigants who have been deprived of their rights far too long through this antiquated provision.
§ 9.55 p.m.
§ Mr. R. Gibson
One cannot help thinking that if there had been this Debate before the Public Authorities Protection Act was passed in 1893, there would have been no such Act passed at all. It must be evident to Members on both sides of the House that Members from Scotland have taken a deep interest in this Bill. It is a Bill designed to apply, not to Scotland or to Northern Ireland, yet in Clause 21, which is intended to extend only to England, an Act of Parliament which extends to the whole of the United Kingdom is sought to be amended, and one asks what will happen in Scotland if this Bill is passed. There will be a diversity of the law as affecting public authorities in England from what will appertain in Scotland. Accordingly, it seems to me that there has been a lamentable lack of departmental co-ordination in the framing of the Bill, and the result will be that the legislative machinery in Westminster will produce an unfortunate diversity and confusion in this branch of law as between Scotland and England. It may be that there is to be introduced another Bill affecting Scotland, and I hope that if such a Bill does come before the House, Members from England will attend and give us the benefit of their 2005 assistance. On the other hand, one result may be that this diversity of the law as between the two countries may give a great impetus to the movement that is strong in Scotland for a separate Legislature in Edinburgh to look after our own Scottish legislative affairs.
It may interest Members representing English constituencies to know that it sounds strange in the ears of a lawyer coming from Scotland to hear of a six years' limitation in connection with an action grounded on negligence against an individual. There is no such limitation in Scotland, where the only defence, in regard to time, to an action of this sort is the defence of Mora, taciturnity and acquiescence. There is no time limitation. The hon. Member for Oxford City (Mr. Hogg) was speaking about a case in his chambers in which negotiations were carried beyond the time limit, and another example was given from his own practice by the last speaker. In my own experience, I remember a case that was closely akin to these, but the facts of the case were so very unfortunate that I have never forgotten them. The injured person was a lady, a graduate of a Scottish university, and was seriously injured. The liability of the public authority was clear, but the local authority's solicitor, who was in the town clerk's department, asked the pursuer's solicitors—I use the Scottish term—not to serve the summons because he wanted an examination of the lady who was injured by a medical specialist on behalf of the authority. There was one examination, and there was another, and then deliberately, apparently, there was a still further examination, arranged for a date beyond the six months' limitation. In view of the previous correspondence, the summons in the action was not served, and that examination of the injured lady by the medical specialist, instructed on behalf of the local authority, took place. Then the summons was served, and immediately the Public Authorities Protection Act was pleaded, and it was impossible to get over that plea. The action was thrown out, because of the six months' limitation. I know of other cases too.
Some hon. Members on this side seem to be under the impression that a local authority may at its own hand waive the protection that is provided by this Act, but I do not see how they can do that at all, and in practice they do not do it. 2006 Suppose the six months had passed, and it was sought to settle an action, what would happen if the accounts of the local authority were carefully scrutinised by the auditor? He would be bound to look into that payment and to say, "Why was it made?" There is in the Public Authorities Act a right given to a public authority, and that right following the rule of the Bishop of Oxford's case must be exercised. The auditor is bound to look into the matter; and if a sum is paid, I cannot understand how he would not have the public authority surcharged for that payment made without legal justification and in the face of the provisions of the Act.
I do not want to repeat what was said by the hon. and gallant Member for South-East Leeds (Major Milner) with regard to insurance companies. We know that with regard to most local authorities the risk in this connection is taken up by an insurance company, but the Act goes far beyond local authorities, as the last speaker pointed out. In Scotland the Public Authorities' Protection Act applies to an officer in the Army who is in the execution of his public duty, and he may plead the Act. The Amendment before us is to extend the period of one year which appears in the Bill. That period of one year is a certain relaxation as against the restrictions of the Act, which in itself fixes the time limitation at six months. A year is not long enough, and two years is better than one year, though two years is not, I submit, enough. In so far as the issue in this Amendment is two years as against one year, I have no hesitation in supporting the Amendment.
§ 10.3 p.m.
§ Mr. Arthur Henderson
The House will have realised that the subject which we are discussing cuts across party divisions, and consequently hon. Members who are sitting behind me will be taking their own line and will vote according to their own particular point of view. Anything that I say will represent my own point of view and will certainly not bind my right hon. Friend the Member for South Hackney (Mr. H. Morrison) and others who take his point of view. At the same time, although I propose to vote for the Amendment, I disagree with a great deal that has been said by some of those who have spoken in its support. I strongly 2007 disagree with the view put forward by the hon. and gallant Member for South-East Leeds (Major Milner), that there is no case for differentiation between local authorities and individual citizens. I should have thought that, in so far as administration is concerned, in a case where the members of a local authority were not acting on their own behalf but were acting in their official capacity and controlling the affairs of their particular locality, they were definitely in a different position from that of the individual who was, for example, looking after his own business.
That being so, it does seem that in the case of personal injury a different consideration might arise. When this Act was first passed in 1893 local authorities were not responsible for the great concerns which come under their care to-day, and the great transport undertakings which are being operated by them to-day were then on a much smaller scale. Therefore, the background has changed, and I think there is a case for suggesting that where private citizens have suffered personal injury as the result of the negligence of a servant of a local authority the protection of the Act should operate. What we are discussing to-night is not a question of principle. There has been a good deal of heat engendered by some of the speakers, but I do not understand why that should be so. The question we are discussing on this Amendment is simply whether local authorities should be given 12 months' protection or whether that protection should be for two years. The fundamental question does not arise on this Amendment. I would go further and say that I believe this increase from six to 12 months is an improvement and an extension of time which is to be welcomed. I believe that the extra six months provided for by the Bill will be out of all proportion to the apparent face value of the extension, and that a great number of cases which were prejudiced by the existence of the six months limit will be brought within the purview of legal remedy as the result of the extension to 12 months.
There, again, however, I cannot understand why there should be any real violent opposition to the extension from 12 months to two years. One might argue, why not extend it to three of four years, but from the practical point of view I 2008 think it almost beyond expectation that any case would operate as to necessitate action being taken in the third, fourth or fifth year after an accident. There are, however, many cases where it might operate so that action could not be taken until the second year, and there is a practical reason for extending the period from 12 months to two years which would not necessarily operate if the proposal were to extend it to three or four years. Therefore, I suggest, apart from the fact that the local authorities themselves have agreed to increase the period from six months to 12 months, that in view of the fact that there is a limited number of cases which would still be barred by restricting the period to 12 months, there is a case for asking the Government to accept the Amendment and extend the period from 12 months to two years.
§ 10.9 p.m.
§ The Attorney-General
We have had an interesting discussion, which has gone on for three hours and more. It has shown some variety of view in various quarters of the House. As the hon. and learned Member for Kingswinford (Mr. A. Henderson) said, what we are discussing is whether one year or two years is the appropriate time limit. Of course, it is obvious that whether we are discussing whether one or two years is the appropriate period, either for a limitation of action or for some other purposes, arguments can be produced for a shorter or for a longer period. I should like to make one or two observations on the principle that lies behind a special period of protection for local authorities. The hon. Gentleman who moved the Amendment, did not, I think, do justice to the Liberal Government of 1893 or to the Parliament which passed that Act.
§ The Attorney-General
I know, but a Government that takes over a Bill from another Government takes the responsibility for telling the House what it does. If a Conservative Government had remained, there would no doubt have been a fuller and more lucid explanation. The position before that was that in public health matters there was a general legal limitation, applying to all local authorities, of six months. Other activities of public authorities were dealt with by a series of Statutes, nearly 100 in number, 2009 some of them public and some of them private, but in all of them Parliament had put a short period of limitation on all statutory undertakings performing a statutory duty. This is not something that went through the House inadvertently, for there was a large number of separate Acts.
§ The Attorney-General
I am not talking about the Act of 1893. That Act consolidated the principle involved in 100 Statutes, and I have a greater respect for my predecessors than to suppose that 100 Statutes went through without anybody noticing that they involved this particular principle. The principle is that the bodies which might be made liable for actions were being placed under a duty by this House. The principle may be a good one or a bad one, but there was an obvious duty. If I am driving my motor car for pleasure in the country or driving it as a private individual, earning my living, and I injure someone, I am in a different position from somebody on whom Parliament has placed a duty. There may or may not be a good reason for making the differentiation—
§ The Attorney-General
I do not say it is a logical differentiation, but it is a principle which has been kept on by this House in a 100 cases and in the Statute of 1893. Without exaggerating the effect of that, I thought it was worth pointing it out as what seems to me a reason for the distinction. There is another point, and I do not want to exaggerate it or any other point. It is in the interest of justice that claims should be brought promptly. It is, of course, in the interest of justice that a reasonable time should be allowed for claims to be brought, but it is also in the interest of justice that claims should be brought promptly. The necessity for bringing claims promptly will occasionally involve exceptionally hard cases of claims being cut out by a period of limitation.
Earlier in the Debate somebody quoted a case in which it was alleged that an accident was due to the improper state of some tram lines. The lines were not level with the road, as they should have been, or there was some other defect which 2010 caused the accident. Obviously, it is in the interests of justice that in such a case the claim should be brought promptly, while the tram lines can, if necessary, be looked at, while those who have driven the trams are available, and the full facts can be investigated. Some Members seemed to suggest that unless a longer period was allowed all the injustices would be on one side, but they do not, I think, sufficiently recognise the importance of claims being brought promptly in the interests of justice as a whole. Then we come down to the actual provisions of the Bill. The Law Revision Committee were faced with the fact that the special period of limitation in the case of public authorities had been on the Statute Book for 50 years, and, in the form which I tried to describe, had been in existence for at least 100 years. I do not go back to the time of Queen Elizabeth. I think that may be rather far.
§ The Attorney-General
Broadly speaking the public authorities were those defined in the Public Authorities Act, 1893, but before that Act they had, under their own special Acts, a limited period of protection, which was usually six months, and that special protection had been sanctioned by this House for a great many years. The Law Revision Committee came to the conclusion that six months was too short and recommended an extension to a year. They also recommended, what I do not think has been referred to, that the disability period during which time does not run should apply to actions against local authorities, whereas it had not applied under the Public Authorities' Protection Act.
§ The Attorney-General
I do not agree. If the hon. Member will look at Clause 22 he will see that, broadly speaking, it applies the disability period to public authorities, and it draws no distinction. In paragraph (d) it applies it to everybody.
§ The Attorney-General
No, what I was saying they recommended, and what is carried out by this Bill, is that the disability period which applies to private persons should also apply to local authorities, and that is carried out by this Bill. I agree that there is an alteration which we may or may not discuss, but the principle that the disability period should apply to public authorities as to private persons is in the Bill. I agree very much with the hon. and learned Member for Kingswinford—although he is going to vote for the Amendment and I shall vote against it and also recommend the House to do so—that six months is really a much larger extension than would appear on its face value. For this purpose 12 months is really a great deal more than twice six months. It is the early weeks which go by so very easily without people realising that they have passed, and I suggest to the House that a year is a fair and reasonable period for claims of this kind which have enjoyed in the past this special protection.
It may be said, "Why do you have the much longer period of six years for private persons?" This is a Bill, not simply to codify, but to codify with minor Amendments, the law as it was found on the Statute Book, so that we should have the great convenience of finding the whole of this law in one Act. I think there is a lot to be said for the view that six years is an unnecessarily long period, but it has been sanctioned for many hundreds of years—going back to the seventeenth century—and the Law Revision Committee did not feel there was sufficient evidence of grievances arising from that long period to justify an alteration in a Bill of this kind. They might have taken the same line with regard to public authorities, but although they came to the conclusion that six months was too short they felt that an extension to one year, coupled with other provisions, was a reasonable compromise.
§ The Attorney-General
No, I do not know that it was a bargain. A committee could not make a bargain to bind anybody.
§ The Attorney-General
There is no mystery concealed about this. As I understand it, those who represent the local authorities' organisation and the associations of municipal authorities and others agree that the recommendation of the Committee was a reasonable one. There is no controversy about these extensions. In a Bill of this kind one sets out to avoid controversy and to put the law into a convenient form.
§ Mr. R. Gibson
How does the right hon. and learned Gentleman distinguish between that agreement and a bargain?
§ The Attorney-General
I have not referred to any agreement. I said that I understood that those representing local authorities agree that this is a reasonable proposal. That is not a bargain.
They agree with themselves. The hon. and learned Gentleman is not doing himself justice. If I say that I am agreeing with something that he said in his speech just now I am not making a bargain. The public authorities who agree with a proposal before this House are not making a bargain but are expressing an opinion.
§ Mr. Silverman
When the right hon. and learned Gentleman says that they agreed I take it that he means that at some time or other and with somebody or other they stated their agreement. I am wondering whether anyone else whose interest was not in the preservation of this period was asked for his agreement or stated his agreement?
§ The Attorney-General
That was the object of this Debate as of other Debates in this House. When proposals are put before the House of Commons everybody can state his views and say whether he agrees or disagrees with the proposals brought forward, and he can vote accordingly.
§ The Attorney-General
The alteration of the law embodied in the Bill is a reasonable one. I believe it will meet the vast majority, if not all, of the hard cases. I also say that, however hon. 2013 Members may vote, this discussion and the publicity which has arisen from it will play a very useful purpose in making the public realise the existence of this limitation, and will make local authorities realise that if, with this extended period of time, there are still cases of injustice, this House will jealously watch and see that under the new provisions injustice such as has occurred in the past will not occur again.
§ 10.25 p.m.
§ Mr. Pritt
With regard to the Attorney-General's repudiation of the idea of a bargain, I would point out that, while no bargain can bind this House, it is well known that interests, quite legitimately, often talk over matters with the Government, the interest agrees with itself, say, that a year would be a reasonable compromise, the Government agrees with itself that possibly a year would be all right, by some means each of them knows that the other has agreed with itself, and the Whips are put on. To pretend that such things do not happen really qualifies the Attorney-General to answer questions on foreign policy. I invite him to prove that there is no bargain in the simplest possible way, by saying that there shall be a free vote on this not wholly unimportant matter. On the merits of the matter I heartily support the Amendment, for reasons which have been given from both sides of the House. Experience, though it is true that it only applies to the period of six months, has shown in case after case that such a short period of limitation has worked the gravest injustice, and, although I agree that 12 months is three or four times as good, it is not enough.
The Attorney-General put forward two or three specific arguments with which I should like to deal. The first was that in a good many cases public authorities figuring as defendants are in that position because Parliament has compelled them to carry on the activity which has led to the litigation. That undoubtedly is an important point, but we are not discussing, as the Attorney-General himself pointed out, a proposal to put public authorities on the same basis as ordinary defendants. If the Amendment is carried, they will be, so to speak, three or four times as well off as ordinary defendants. It is not a question of theory, but of practical common sense, and I am 2014 sure the Attorney-General would agree that, even against a public authority, plaintiffs ought to have a reasonable and proper chance to sue. We all know that many potential litigants are poor and bewildered and ignorant, and that many will not come forward with their claims.
The second argument will be seen, on examination, to be utterly irrelevant. The Attorney-General said that claims ought to be promptly brought, in the general interests of litigation, and at the same time he said that litigants must have given a reasonable time to sue. Everyone agrees with that, but the argument that claims should be promptly brought is an argument for reducing the general level of limitation. We are dealing with a specific limitation to one year in place of a general limitation to six years, and, if claims should be promptly brought, every claim should be given a limitation of about three or four years. That point is utterly irrelevant to the question whether this particular and very short limitation should be made a little less short. The Attorney-General's illustration is very useful to show how completely inapposite that point is. He said that surely, if a local authority is old-fashioned enough to have a tramline, and is unfortunate enough to have one that is out of order and is sued for an accident arising out of the defective tramline, it is vital that the action should be brought pretty early by people who can really gather evidence about the condition of the tramline. Exactly the same thing happens if you get a defective railway line; and yet in the one case the period is to be six years, and in the other case one year. That shows, in my submission, that that point is really not relevant to this Amendment.
Cases are not exceptional which will be cut out by even the 12 months' limitation, especially when one remembers, for example, that the Poor Persons' Department, when people get to it, often keeps them waiting 12 months, because it is so congested with work, before it can tell them that they can issue a writ under its aegis. They are, perhaps, not the great mass of the general run of cases, but they are fairly numerous; and this House ought not lightly to deprive anyone of the chance of bringing an action within a reasonable time. The hon. and learned Gentleman pointed out that the committee said that a reasonable time to bring an action is six years. There is a general view in the 2015 legal profession that four years is enough for anyone, but the same committee that advanced that opinion is referred to by the hon. and gallant Gentleman in support of his case on this point. I do not want to keep the House any longer on a matter which has been fully discussed, but I urge that the Whips should be taken off and a free vote allowed.
§ 10.32 p.m.
§ Mr. Tomlinson
I have listened to the whole of this Debate, and I remembered quite early in the Debate that when I was a youngster my mother suggested to me, speaking from experience, that I should have as little as possible to do with the law. I never dreamed at that time that I should be taking part in a Debate of this kind so many years later. The principal argument I have heard put forward has been concerned with solicitors' expenses. All the arguments used by hon. and learned Gentlemen have convinced me that the principal reason for this extension which is proposed from one year to two years, is that there would be more time for them to get going. If there is to be an amendment of the law every time lawyers want an increase in their fees, this House will always be discussing Limitation Bills. We heard of the experiences of the hon. and learned Member for Argyll (Mr. Macquisten) with local authorities. They were interesting, no doubt. He convinced the House that in his young days it was the custom for the local authorities to throw sprats to catch mackerel, and that he and his professional colleagues intended to be mackerel and not sprats—although they developed into sharks afterwards; because he admitted that the local authorities engaged him on every occasion, to prevent him from being on the other side.
He suggested that no argument had been put up for this limitation; but three or four hon. and learned Members, after saying that no argument had been put up for it, proceeded to deal with the arguments that had been put up for it. They said it was no more difficult for a local authority to bring evidence than for an individual. I submit that it is, and it will be, particularly if this time is extended. An ordinary individual may be interested in a particular branch of business and may spend more of his time dealing with 2016 a particular subject than he devotes to any other subjects, but a local authority, in spite of the fact that it has been pooh-poohed, has a multiplicity of interests, and, therefore, a multiplicity of liabilities. If a case is allowed to be brought under the Amendment many months after the local authority has learned of it for the first time, it may be impossible for the local authority to gather any evidence to rebut it. I am not prepared to accept the estimate of the honesty and high purpose of the legal profession to which testimony has been given in this House. That is not the opinion held by the common people in the country. There are many members of the profession for whom I have the greatest respect, but as regards the profession as a profession, I believe that my mother's advice was good. I am not sure that my hon. Friend the Member for Brightside (Mr. Marshall) was not right when he suggested that, even if that was not the motive, it would extend the period during which exploitation could take place for another 12 months.
The hon. and learned Gentleman who spoke from below the Gangway opposite put his finger on the pulse of this question when he suggested that the only cases which were not brought were those of poor people. There is no difficulty concerning the people who have money. They always make their claim within the first six months, he said. That is true. They know the ropes, and the poor people do not. That is the best argument of which I know for making the law available to the poorer people in a shorter time, and not for extending the period during which claims could be brought. If poverty is the reason why they do not come within six months, will not that poverty exclude them from coming in 20 months? That is an argument which shows conclusively that it is simply extending the period of exploitation.
§ Mr. Macquisten
There is a poor persons' committee in existence in connection with which solicitors take cases on behalf of the poor without any fee or charge, and they are crowded out with cases just now, and that causes delay.
§ Mr. Tomlinson
The interruption of the hon. and learned Member reinforces my argument. If poor persons' solicitors are crowded out with cases, we do not want an extension of the period to two years, 2017 but an increase in the number of people who will take cases for nothing. They will all come in the first six months if you do that. The experience of members of local authorities is just as valuable on a question of this kind as the experience of solicitors in the courts themselves. Where is this mythical army about which we have heard so much this evening? Hon. and learned Gentlemen have spoken of numerous cases of which they know. We have been given illustrations of three cases, all of which would have come under the 12 months had the period been 12 months at the present time. One case was mentioned—I do not know whether it was a real or a hypothetical case—where a man could be knocked out for 12 months. The assumption was that an individual who was knocked out by an accident might have no relatives, friends or anybody to take any action for him, and that if it were 12 months before he came round, the period would have expired. Are you going to legislate for cases of that kind?
§ Mr. Foot
I gave an actual case which occurred in the courts where the 12-month period was not enough and the widow was penalised and deprived of the compensation which she and her children would have otherwise received. Does the hon. Member think that that is a small matter which should not be altered by this House?
§ Mr. Tomlinson
No. I do not think it is a small matter. That was a case where if the widow had not been left poor and if her husband had been in such a position that she could pay for legal advice, the probabilities are that the case would have been met earlier. Without knowing the case I feel that I can make that statement. I cannot understand an accident taking place and having that effect and anything other than poverty preventing the case being taken. I said that the experience of those on local authorities were worth something. I am only a young man, but I have spent 28 years in connection with three local authorities, one small, one fairly large and one very large. If these cases to which hon. Members have referred are happening constantly and local authorities are pleading this Limitation Act, surely one would have heard disgruntled people in these areas saying something about it. During the whole of my 28 years' experience I have not come across a single case in connection with the local authorities with which I have been associated. I hope that the 12 months will remain, in order that justice may be done, as I believe justice will be done.
§ Question put, "That the words proposed to be left out stand part of the Bill."
§ The House divided: Ayes, 230; Noes, 58.2019
|Division No. 93.]||AYES.||[10.43 p.m.|
|Acland-Troyte, Lt.-Col. G. J.||Cazalet, Thelma (Islington, E.)||Eckersley, P. T.|
|Adamson, Jennie L. (Dartford)||Channon, H.||Ede, J. C.|
|Adamson, W. M.||Chapman, A. (Rutherglen)||Edmondson, Major Sir J.|
|Agnew, Lieut.-Comdr. P. G.||Charleton, H. C.||Edwards, Sir C. (Bedwellty)|
|Allen, Lt.-Col. Sir W. J. (Armagh)||Chater, D.||Elliot, Rt. Hon. W. E.|
|Ammon, C. G,||Cluse, W. S.||Ellis, Sir G.|
|Anderson, F. (Whitehaven)||Cobb, Captain E. C. (Preston)||Elliston, Capt. G. S.|
|Anstruther-Gray, W. J.||Collindridge, F.||Emery, J. F.|
|Aske, Sir R. W.||Colman, N. C. D.||Emrys-Evans, P. V.|
|Attlee, Rt. Hon. C. R.||Colville, Rt. Hon. John||Entwistle, Sir C. F.|
|Baldwin-Webb, Col. J.||Conant, Captain R. J. E.||Errington, E.|
|Balfour, G. (Hampstead)||Cook, Sir T. R. A. M. (Norfolk, N.)||Everard, Sir William Lindsay|
|Balfour, Capt. H. H. (Isle of Thanet)||Cooper, Rt. Hn. T. M. (E'nburgh, W.)||Fleming, E. L.|
|Barnes, A. J.||Craven-Ellis, W.||Fletcher, Lt.-Comdr. R. T. H.|
|Barr, J.||Crooke, Sir J. Smedley||Fox, Sir G. W. G.|
|Beaumont, H. (Batley)||Crookshank, Capt. Rt. Hon. H. F. C.||Frankel, D.|
|Bernays, R. H.||Cross, R. H.||Furness, S. N.|
|Clair, Sir R.||Crowder, J. F. E.||Fyfe, D. P. M.|
|Beyce, H. Leslie||Cruddas, Col. B.||Gardner, B. W.|
|Braithwaite, J. Gurney (Holderness)||Culverwell, C. T.||Gibson, Sir C. G. (Pudsey and Otley)|
|Briscoe, Capt. R. G.||Daggar, G.||Gledhill, G.|
|Broadbridge, Sir G. T.||Davies, R. J. (Westhoughton)||Gluckstein, L. H.|
|Brocklebank, Sir Edmund||Davies, S. O. (Merthyr)||Gower, Sir R. V.|
|Brown, Brig.-Gen. H. C. (Newbury)||De Chair, S. S.||Graham, D. M. (Hamilton)|
|Browne, A. C. (Belfast, W.)||Denman, Hon. R. D.||Grant-Ferris, Flight-Lieutenant R.|
|Bull, B. B.||Dodd, J. S.||Grattan-Doyle, Sir N.|
|Burgin, Rt. Hon. E. L.||Duckworth, Arthur (Shrewsbury)||Greene, W. P. C. (Worcester)|
|Burke, W. A.||Dugdale, Captain T. L.||Grenfell, D. R.|
|Butcher, H. W.||Duncan, J. A. L.||Griffiths, G. A. (Hemsworth)|
|Carver, Major W. H.||Dunglass, Lord||Grimston, R. V.|
|Cary, R. A.||Eastwood, J. F.||Guest, Hon. I. (Brecon and Radnor)|
|Guest, Maj. Hon. O. (C'mb'rw'll, N.W.)||Markham, S. F.||Snadden, W. McN.|
|Guinness, T. L. E. B.||Marshall, F.||Somerset, T.|
|Hall, G. H. (Abardare)||Mayhew, Lt.-Col. J.||Somervell, Rt. Hon. Sir Donald|
|Hannah, I. C.||Medlicott, F.||Somerville, A. A. (Windsor)|
|Hannon, Sir P. J. H.||Mills, Major J. D. (New Forest)||Sorensen, R. W.|
|Harbord, A.||Moore, Lieut.-Col. Sir T. C. R.||Southby, Commander Sir A. R. J.|
|Hayday, A.||Morgan, R. H. (Worcester, Stourbridge)||Spens, W. P.|
|Heilgers, Captain F. F. A.||Morrison, G. A. (Scottish Univ's.)||Stanley, Rt. Hon. Oliver (W'm'l'd)|
|Hepburn, P. G. T. Buchan-||Morrison, Rt. Hon. H. (Hackney, S.)||Stewart, W. J. (H'ght'n-le-Sp'ng)|
|Hepworth, J.||Morrison, R. C. (Tottenham, N.)||Storey, S.|
|Herbert, Lt.-Col. J. A. (Monmouth)||Muff, G.||Stourton, Major Hon. J. J.|
|Higgs, W. F.||Muirhead, Lt.-Col. A. J.||Strauss, H. G. (Norwich)|
|Hills, A. (Pontefract)||Munro, P.||Strickland, Captain W. F.|
|Holmes, J. S.||Nall, Sir J.||Stuart, Hon. J. (Moray and Nairn)|
|Horsbrugh, Florence||Neven-Spence, Major B. H. H.||Sutcliffe, H.|
|Hudson, Capt. A. U. M. (Hack., N.)||Orr-Ewing, I. L.||Tasker, Sir R. I.|
|Hunloke, H. P.||Paling, W.||Taylor, C. S. (Eastbourne)|
|Hunter, T.||Parkinson, J. A.||Taylor, R. J. (Morpeth)|
|Jagger, J.||Pearson, A.||Thomson, Sir J. D. W.|
|James, Wing-Commandar A. W. H.||Petherick, M.||Tinker, J. J.|
|Jarvis, Sir J. J.||Pilkington, R.||Tomlinson, G.|
|Jenkins, Sir W. (Neath)||Ponsonby, Col. C. E.||Touche, G. C.|
|Johnston, Rt. Hon. T.||Porritt, R. W.||Tufnell, Lieut.-Commander R. L.|
|Jones, A. C. (Shipley)||Price, M. P.||Wakefield, W. W.|
|Jones, L. (Swansea W.)||Procter, Major H. A.||Walker-Smith, Sir J.|
|Kerr, J. Graham (Scottish Univs.)||Quibell, D. J. K||Ward, Lieut.-Col. Sir A. L. (Hull)|
|Kimball, L.||Radford, E. A.||Ward, Irene M. B. (Wallsend)|
|Kirby, B. V.||Ramsbotham, H.||Watson, W. McL.|
|Kirkwood, D.||Rankin, Sir R.||Watt, Lt.-Col. G. S. Harvie|
|Lathan, G.||Reid, J. S. G. (Hillhead)||Wedderburn, H. J. S.|
|Law, R. K. (Hull, S.W.)||Reid, W. Allan (Derby)||Welsh, J. C.|
|Lawson, J. J.||Remer, J. R.||Westwood, J.|
|Leach, W.||Rickards, G. W. (Skipton)||Whiteley, Major J. P. (Buckingham)|
|Leighton, Major B. E. P.||Ross Taylor, W. (Woodbridge)||Wilkinson, Ellen|
|Leslie, J. R.||Ruggles-Brise, Colonel Sir E. A.||Williams, E. J. (Ogmore)|
|Liddall, W. S.||Russell, S. H. M. (Darwen)||Williams, T. (Don Valley)|
|Llewellin, Colonel J. J.||Salt, E. W.||Windsor, W. (Hull, C.)|
|Loftus, P. C.||Samuel, M. R. A.||Windsor-Clive, Lieut. Colonel G.|
|Lunn, W.||Schuster, Sir G. E.||Womersley, Sir W. J.|
|M'Connell, Sir J.||Scott, Lord William||Wood, Hon. C. I. C.|
|McEwen, Capt. J. H. F.||Selley, H. R.||Wragg, H.|
|McKie, J. H.||Shaw, Captain W. T. (Forfar)||York, C.|
|Maclean, N.||Silkin, L.||Young, A. S. L. (Partick)|
|Macmillan, H, (Stockton-on-Tees)||Simpson, F. B.|
|Makins, Brigadier-General Sir Ernest||Smith, Bracewell (Dulwich)||TELLERS FOR THE AYES.—|
|Manningham-Buller, Sir M.||Smith, Sir R. W. (Aberdeen)||Captain Waterhouse and Lieut.-|
|Margesson, Capt. Rt. Hon. H. D. R.||Smithers, Sir W.||Colonel Kerr.|
|Acland, R. T. D. (Barnstaple)||Henderson, A. (Kingswinford)||Pickthorn, K. W. M.|
|Batey, J.||Henderson, J. (Ardwick)||Pritt, D. N.|
|Beechman, N. A.||Hogg, Hon. Q. McG.||Richards, R. (Wrexham)|
|Benn, Rt. Hon. W. W.||Holdsworth, H.||Ritson, J.|
|Bevan, A.||Jones, Sir G. W. H. (S'k N'w'gt'n)||Roberts, W. (Cumberland, N.)|
|Bremfield, W.||Kennedy, Rt. Hon. T.||Ropner, Colonel L.|
|Brooke, H. (Lewisham, W.)||Leonard, W.||Rothschild, J. A. de|
|Cocks, F. S.||Lipson, D. L.||Seely, Sir H. M.|
|Cove, W. G.||McGhee, H. G.||Sexton, T. M.|
|Day, H.||McGovern, J.||Sloan, A.|
|Dower, Lieut.-Col. A. V. G.||MacLaren, A.||Smith, E. (Stoke)|
|Dunn, E. (Rother Valley)||Macquisten, F. A.||Smith, T. (Normanton)|
|Evans, D. O. (Cardigan)||Mainwaring, W. H.||Stokes, R. R.|
|Gallacher, W.||Mathers, G.||Thorneycroft, G. E. P.|
|George, Major G. Lloyd (Pembroke)||Milner, Major J.||Viant, S. P.|
|Gibson, R. (Greenock)||Morgan, J. (York, W.R., Doncaster)||White, H. Graham|
|Green, W. H. (Deptford)||Nathan, Colonel H. L.||Wilson, C. H. (Attercliffe)|
|Hall, J. H. (Whitechapel)||Naylor, T. E.||Woods, G. S. (Finsbury)|
|Harris, Sir P. A.||Oliver, G. H.|
|Harvey, T. E. (Eng. Univs.)||Parker, J.||TELLERS FOR THE NOES.—|
|Mr. Foot and Mr. Silverman.|
Question put, and agreed to.
§ 10.53 p.m.
§ Mr. Silverman
In regard to the Amendment in my name—in page 12, line 39, after "default," to insert "or the damage thereby occasioned"—I am in this difficulty, that those words ought, in order to effect the purpose intended, to be inserted after the word "default," in line 36, as well as after the word "de- 2020 fault," in line 39, so that if the Amendment were carried a consequential Amendment would be necessary.
§ Mr. Silverman
I beg to move, in page 12, line 36, after "default," to insert "or the damage thereby occasioned."
2021 If the Amendment is carried the same words will have to be inserted after "default," in line 39. The purpose of the Amendment is quite simple. It is intended to overcome a difficulty to which attention was frequently called during the Debate which has just concluded, where an injury turned out later to be more serious than was at first supposed. There are a number of cases where no action is brought and no action is threatened because the injury appears to be a trivial one, then it turns out later to be more serious than was at first thought, and perhaps the person suffers by reason of his own good feeling in not having brought his case earlier when the injury was hardly worth while making a claim for at all. A great deal of the injustice to which reference has been made during the Debate would be reduced, and some of it would disappear altogether, if the period of limitation, whatever it might be, did not begin to run while the injury caused by the default continued to exist. There was a time in the early history of litigation under the 1893 Act when it was thought that this was the case, but the matter went before the court, and, most unfortunately, in the opinion of many people—and, I think, in the opinion of the committee on whose report this legislation is founded—the court did not decide that the words of the 1893 Act were capable of the interpretation which, by this Amendment, I am now seeking to place upon them. All that is suggested in the Amendment is that while the damage continues the period of limitation shall not begin to run.
§ 10.56 p.m.
§ The Attorney-General
The hon. Member for Nelson and Colne (Mr. Silverman), in moving to insert these words at an earlier place in the Clause, has made clearer to me what his purpose is; but I am bound to say that I think it would be impossible to insert these words. There are, unhappily, many cases in which the damage thereby occasioned is permanent, and if the time of the limitation is to begin when the damage or injury has ceased, then it will never begin.
§ Mr. Silverman
It may be that my Amendment is so badly drafted that it would have that consequence, but that is not what I intend. What is intended 2022 is that the special period of limitation shall not begin to run, so that if the damage continues the action can be brought while the damage is continuing, but with the over-riding period of six years in any case. It is not pretended to go beyond that.
§ The Attorney-General
I would remind the hon. Member that this Bill is now in the last stage in the second House, and therefore, it would be difficult to reconsider words which would certainly require very drastic redrafting to effect the purpose the hon. Member has in mind. Everybody appreciates the case to which the hon. Member has referred, but I think these words would produce an impossible situation. The case he has in mind is one which it would be extremely difficult to cover by any form of words of which I can think. The hon. Member wants to provide for a case in which an injury becomes serious only some time after the accident. I do not think he wants to give a person a year from the time when the injury has ceased. What would be reasonable, if it could be defined, would be to give a period from the time when the injury became sufficiently serious to make it obvious that a claim should be made if it was thought that there would be a liability. It would be extremely difficult to find words to cover that, and at this last stage of the Bill, it is no good my attempting to look into the matter, because we should have no chance of inserting the words.
§ Mr. Silverman
Having regard to the difficulties which the Attorney-General has mentioned, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 10.59 p.m.
§ Mr. R. Gibson
I beg to move, in page 12, line 39, at the end, to insert:Provided also that this section shall not apply in the case of any act, neglect, or default unless the person entering a claim in respect of such act, neglect, or default is notified that the claim will be invalid if action is not taken within the period prescribed in this Section.The object of this Amendment is to secure that the protection provided by this time limitation shall be available to a public authority only if that public authority when the claim has been intimated, notifies the person concerned of the privilege, namely, that an action to enforce the claim will only be good if 2023 it is laid within the time mentioned in Clause 21.
I think it has been made clear in the Debate this evening that even South of the Border, this is an unusual privilege. The act or default giving rise to the action will, in general, be the act or default of some individual and the public authority will be liable in a vicarious fashion. So far as the particular act or default is concerned, there may be no difference between the person who is injured and the person who is guilty of the default or negligence causing the injury. Accordingly the ordinary law would appear to apply. The object of the Amendment is to secure that when the claim is intimated the protection will only be granted to the public authority or to the person who is protected by the Clause if the person intimating the claim is notified of the privilege provided in the Clause. In view of the argument which has taken place this is, I submit, a very necessary safeguard as the two parties are not on equal terms. If the person injured and the individual are subject to the ordinary law in Scotland the person might bring the action at any time at all. South of the Border apparently, there is a time limitation of six years, but the person who is injured, finding himself against a public authority, should have this privilege of the public authority brought specifically to his notice, in order that he may not thereby lose his right of action.
§ 11.4 p.m.
§ The Attorney-General
As far as the Amendment seeks to emphasise the desirability of members of the public realising that this period of limitation exists, everybody will sympathise with it and everybody will reprobate cases such as, it is suggested, have occurred occasionally, in which there has been a deliberate or semi-deliberate concealment of the existence of the period of limitation with a view to preventing an action being taken. But I feel that there are the same difficulties about this Amendment, as there were in the case of the last Amendment. In the first place, the local authority may take the line that they are not in any way liable. I agree that it might be possible to devise a form of words to the 2024 effect that the notification should not take the form of appearing to admit that the claim was valid, but that it should be some sort of general notification that, if any claims were made, they had to be made within a certain period. But then there would be this difficulty, that you would have to define what constituted a claim which the local authority should notify within a certain period. For instance, a local authority notified on the 364th day of the year would fulfil what is in this Amendment, but that would be futile, because it would only reach the claimant half an hour or half a day before the time expired. It would want a rather elaborate provision specifying how there was to be this general notification, and while I am in much sympathy with the idea of the Amendment, I am afraid I cannot recommend the House to adopt it as a workable scheme. I feel what is behind the Amendment, and I sincerely hope that this discussion, and the publicity that has been given to it, and the fact that it has turned our minds to the matter, may serve a useful purpose in making more generally known the existence of this period of limitation.
§ 10.59 p.m.
§ Mr. Gibson
In view of what the right hon. and learned Member has said, I look forward to his supporting a properly drafted Amendment to the Scottish Bill when it appears, but I now beg to ask leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 11.7 p.m.
§ Mr. Silverman
I beg to move, in page 13, line 2, at the end, to insert:or to any action in which the act, neglect, or default complained of is not, in the opinion of the court, of an important administrative character.I realise that the House has had a very full discussion on the first Amendment on the principle involved in this legislation, and although I am tempted to deal with what I consider to be the fallacious defences of this privilege that have been put forward, perhaps the House will forgive me if I refrain. Still, I cannot resist the temptation to say that this Amendment ought really, on the arguments that have been presented in this Debate, to receive universal approval, and I invite the Government to accept it. It satisfies every one of the arguments put forward in defence of the special 2025 privilege of the authority, it is completely in line with the report, an extract from which was read by the hon. Member who moved the first Amendment, it protects local authorities absolutely in all those activities in which those best qualified to judge have ever claimed that they ought to be protected, and it protects the public in all others.
The only possible objection that I can anticipate, though I dare say I shall find that I am not so fertile as the Attorney-General is, that he will say that the words are so vague and so general and so difficult to define. I am seeking to say that this special protection shall not apply to any action in which the act, neglect, or default complained of is not, in the opinion of the court, of an important administrative character. If I were asked to give a list of actions of that character, I dare say I could do it in a very long time, but I do not think it is necessary to do that, and I do not think there is any great force in the objection that the words are wide and general. The Amendment leaves the decision of the point to the court, and I do not think anyone will seriously contend that the High Court would be in any serious difficulty in determining whether the act complained of was or was not an important administrative act. It may not be easy to define, but it is extremely easy to recognise. On this matter the report said:It may well be that such a policy is justifiable in the case of important administrative acts and that serious consequences might ensue if such acts can be impugned after a long lapse of time.It goes on to say that the vast majority of cases are not of that kind. It was said during the Debate that the public authorities upon whom this House imposes a statutory duty is entitled to a special position in the courts in the performance of that duty. I want my hon. Friends on these benches to consider this, especially my hon. Friend the Member for Brightside (Mr. Marshall). He is president of a powerful trade union, which, like many other unions and this party as a whole, would like to see nationalised a number of activities which are now carried on by private enterprise. We would like to see the mines and the railways nationalised. That can only be done by an act of Parliament and a statutory duty would be placed on certain people to run them. Suppose there 2026 was a railway or mine accident. Does my hon. Friend suggest that it is one of the advantages to be claimed for nationalisation that in that case anyone who is injured would have his right of action limited? Surely not, but that is one of the arguments put forward tonight. I am suggesting that where an important administrative duty is being performed by the authority of Parliament that should be exempted, but that when it comes to things like driving motor buses or tramcars and doing other simple ordinary, everyday acts of that kind, no case has been sought to be made out for this privilege. My Amendment draws a distinction between these two cases as it was drawn by the report on which this Bill is based. I claim in support of it the arguments which have been brought against the Amendment with which we have just dealt.
§ 11.14 p.m.
§ The Attorney-General
There are two objections to this Amendment. The first is that it would be inconsistent with the decision to which the House came a short time ago. The House approved the priniciple of the Public Authorities Protection Act, and by far the larger number of cases covered by it are the kind of cases which this Amendment would exclude. The other, and I think fatal, objection to it from any point of view is the vagueness of the terms used. It is lucky for the hon. Member that the hon. Member for Farnworth (Mr. Tomlinson) is not here, because he really might have some ground for the suggestion that this Amendment was put down to encourage litigation. It would have the most unfortunate result that in border line cases a man would not know whether he had a right of action until the case had come into court. The court would have to determine whether the act complained of was of an important administrative character. Words of this character would lead to the creation of a large number of border line cases in which there would be complete uncertainty if it was desired to bring a case after 12 months had elapsed, and there would be no way of settling the point other than by taking proceedings in court. I hope, therefore, that the hon. Member will be prepared to withdraw his Amendment.
§ Mr. Silverman
Was it not made perfectly clear by the language used in the report that the vast majority—I think those were the words used—of cases would not arise out of "important administrative" acts, and would not my Amendment, therefore, protect the vast majority of cases, even allowing that there would be border-line cases?
§ The Attorney-General
It is because the Committee said that the vast majority of cases covered by the Act were not of an important administrative character that I suggested that to accept the Amendment would be completely inconsistent with the vote which the House gave 20 minutes ago.
§ Amendment negatived.