LIMITATION (ENEMIES AND WAR PRISONERS) BILL [Lords] (Hansard, 9 February 1945)

§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
2398 This Bill deals with a rather technical subject. It follows the line of what we think a very sound report of a Committee. Under our law, after a certain period, which differs according to the nature of the cause of action, the cause of action is defeated by the lapse of time. I believe that to be a very sound principle, not only because all things ought to come to an end at some time, but because if a defendant is faced with proceedings a long time after the cause of action arose he may be in great difficulty, if it is a question of evidence, in getting the evidence which it is necessary or desirable that he should be able to get if he is to put his case properly before the court. There may be some cases which deal solely with documents and, if the documents are fortunate enough not to have been bombed, they may be available. But one cannot differentiate on those grounds, and there are large numbers of cases where it would be unfair if a plaintiff were allowed to pursue proceedings after a certain lapse of time. Undoubtedly the difficulties in the way of a defendant who is faced with proceedings after a long interval of time have been aggravated rather than lessened by the war. Therefore, I myself lean against any extension of periods of limitation.
It was recognised, however, after the last war that, where the two parties concerned are separated by being what in law is described as enemies, it is right that the period should be suspended, because both in law and in fact they cannot really get at each other or communicate. It may be—I would not put it higher than that—that under the ordinary law, if the thing was left without legislation, the courts would decide that the existence of enemy status as between the parties suspended the period, but it is doubtful, and it is desirable that there should not be doubt on the matter. It was dealt with expressly after the last war, and we have thought it right to deal with it expressly in this war. It was dealt with in the last war under the Treaty of Peace, and the relevant provision got statutory effect under an order made under the Treaty of Peace Act. One of the main reasons for the Bill, and why we are proceeding by Bill and not doing it as we did in the last war, is that both in Europe and in the Far East, owing to the large area of territories which have been occupied by our enemies, there is a very large 2399 number of persons, business houses and others with whom we previously had dealings and entered into contracts who have become technically enemies by reason of the fact that their country has been occupied by the enemy. Our relationship with them would not be covered in any Treaty of Peace, even if there is a Treaty, and it is quite outside what may be dealt with by any terms imposed on our actual enemies. We therefore thought it right to proceed by Bill and to make the matter clear to those who are affected.
May I say a word about the position with regard to what I call our actual enemies, the Germans and the Japanese? In so far as this Bill prolongs the period for a claim by an actual enemy against a British creditor, that inures not for the individual benefit of the man but for the custodian. We have a procedure under which the custodian is notified of and, if he thinks right, can collect enemy debts. There might be a case where he had not been notified, but the British creditor might be able to plead the Statute of Limitations. That would not be fair as between British creditors, but in this war, as in the last, debts owed to enemies go into a fund for the benefit of British creditors of Germans, or anyhow for the general benefit in the general settlement between the countries. The reason why the Bill is necessary, rather than just leaving it to a Treaty, or whatever the instrument is, is that we have large numbers of people with whom we previously had commercial intercourse, perfectly friendly to us, who have been separated from their debtors or creditors as the case may be by this legal and de facto barrier of enemy character. The Committee carefully considered all these aspects of the subject and the Bill follows the main lines of their recommendations.
Clause 1 (1) is the operative Clause and says that, as between enemies, the period shall be extended and shall come to an end not less than 12 months after the enemy character ceases. The reason for that is that, suppose the period of limitation expired at once when the person ceases to have enemy character, this might create hardship, and it is reasonable to allow a little time. The proviso deals with a case where there are businesses partly in enemy territory and partly in neutral territory, for instance in South America. The Bill will only apply 2400 in respect of transactions which arise out of that part of its business which is in the enemy country.
The main cases covered by the Bill will be where there has been a transaction with an individual or a commercial house in what was previously a friendly territory but which has acquired enemy status by reason of occupation. The commercial house or individual will normally remain in Holland, Belgium, France or wherever it is until the enemy character of that territory ceases. So there will not generally be any complicated case of a person going in or out. No doubt there may be cases where individuals have been in the territory at one time and then have left it and, therefore, we thought it right to say that where the plaintiff proved that the defendant was in enemy territory on a given day he is presumed to have remained until that territory ceased to be enemy territory unless he proved the contrary. Sub-section (3) deals with a small point—where a man goes in and out. For example, a Frenchman may make occasional visits to Portugal and we do not want to subtract all those but to treat it as a contiuous period.
Clause 2 is the definition Clause. Broadly speaking, and I do not want to go into it in detail, as differences are not of any substance, the Clause says that "enemies" follows the Trading with the Enemy Act, that is to say covers all those persons who are in what has been defined by a Board of Trade Order to be enemy territory. No doubt it would be convenient for all who will have to work this Bill that they should be given all the assistance we can possibly afford them. At the end of a publication by the Board of Trade called "Trading with the Enemy" there is a very useful table giving the dates when various territories were declared to be enemy territories and we would favourably consider any proposal, if it was thought that it would assist solicitors and others, to print that table as a separate pamphlet, because they could then have before them a document giving all the relevant dates.
I should perhaps explain before I come to Clause 2 (3) that, in addition to those who are enemies either at Common Law or under the Trading with the Enemy Act, the provisions of the Bill apply to prisoners of war who, of course, are not technically enemies, and to civilians who have been detained in enemy territory. 2401 We thought it right to insert this provision, because although they are not technically enemies and although, it they could communicate with this country, they could no doubt proceed or instruct a solicitor without getting a licence, they are under great difficulties as to communicating. Anyone who is abroad in the Services can communicate by letter, but prisoners of war are rigidly limited as to the number of letters they can send and are cut off in a way that ordinary men overseas are not. Therefore, the Bill applies to them.
Sub-section (3) deals with the case which arises where a prisoner of war escapes but remains in hiding, and is not technically detained. He would still get the advantage of this Bill until he gets out of enemy territory. The Bill applies to the Crown and to Scotland. The Application Clause merely translates the provisions of the Bill into the proper Scottish form. Northern Ireland would rather consider the problem for themselves. Clause 5 gives them the power to pass their own legislation if they wish to do so. There might have been some doubt whether this was a reserved subject, and therefore that has been inserted.
I should like to say a word about a point, which was considered by the Committee, whether we ought to have extended this provision beyond enemies. Persons overseas are to some extent away from their affairs, and apart from persons overseas there has been great dislocation in this country. My own view is that the Bill does right to stop where it does. No doubt the war has made many people put aside pre-occupations, and among those pre-occupations may possibly be money claims against other people, but on the whole I am strongly of the view that it is undesirable to extend these periods unless for very good reasons. I was overseas for five years continuously in the last war. Unfortunately, I do not think anybody owed me any money but if they had I and those whom I was with would not have had any great difficulty, if it was the type of claim we wanted to enforce by legal proceedings, in writing home and getting something done.
There are claims against people overseas. Some of these may already be Statute-barred. It would not be a very pleasant home-coming for a person if Parliament said: "It is true this claim 2402 was Statute-barred, but now, when you come home, the plaintiff can sue you," and while appreciating, as the Committee did, and sympathising with the difficulties which the war has brought about between people overseas and people here, and as between different people in this country, we think the right thing is to restrict this Measure, as was done in the last war. May I add that if the only difficulty is inability to trace a defendant a plaintiff can always keep his cause of action alive and prevent the Statute running against him by issuing a writ and renewing it from time to time? If a man has a claim for which he wishes to take legal proceedings, but owing to the war he cannot trace the defendant, the action can be kept alive by issuing a writ and renewing it. For these reasons I commend this Bill to the House. A great deal of care was given by the Committee to the various issues that have been raised. We believe their recommendations to be sound, and I hope the House will give us the Second Reading.

§ Mr. Alexander Walkden (Bristol, South)
I think that on this Friday morning we have been doing several useful things which will show people that there are no forgotten men anywhere. That observation applies to the Bill which we passed as the first item of Business; and this one will show people that, however far away they may be, wherever they may be hidden, or whatever their difficulties arising from the war, they are being provided with opportunities to secure their rights and get what is due to them when they can return and take the necessary action. I, therefore, welcome the Bill, but I do not feel at all sure that the concluding words of the Attorney-General were altogether justified. I would suggest that he should keep his mind open in regard to people other than those in enemy territory or who are prisoners of war. Time goes very rapidly nowadays, the weeks and months fly by, and people are very busy. Debts may be due to them and they may have been so much occupied that they have not been able to attend to them, and a special extension of the Statute of Limitations may in these circumstances prove to be advisable as time goes on. We feel pretty confident, I think, that the war both in Europe and in the Far East will soon be ending, but we do not know that that will 2403 be so, because we are up against tough and clever people and they may "keep on keeping-on." If the war should be more protracted it may well be that it would be right to introduce a further little Bill for the benefit of those people not specified in the present Measure.

§ Colonel Lyons (Leicester, East)
I should like to make one or two comments upon this Bill and at the same time to thank the learned Attorney-General for introducing it. There must be, of course, a limitation—we all know that—but this Bill will prevent the limitation operating unjustly against those who may be affected and I therefore welcome it. The learned Attorney-General said that he would consider issuing in pamphlet form a list of enemy territories and the dates when they became enemy territories. Would he consider during the further stages of the Bill whether it would be practicable to add a Schedule containing a list of those territories—not issuing it as a pamphlet but making it part of the Bill itself? That would obviate the need for reference to the list. Apart from that I want to give my support to what I regard as a useful Measure.

§ Sir Adam Maitland (Faversham)
May I also thank my right hon. and learned Friend for the very clear and sympathetic way in which he explained the purpose and general provisions of the Bill? I think he made out a case for it, and for the different way in which we are dealing with this question now from that which was adopted at the end of the last war. There is, however, one rather important matter which ought not to be overlooked. I presume those who will be largely affected by the Bill are importers and exporters, people who in the past have had extensive financial transactions with business people in other countries. Those who are debtors would, no doubt, say there ought to be no extension of this statutory limitation, whereas those who are creditors would be glad to see an extension. What I should like to know is to what extent associations of importers and exporters have been consulted during the consideration of the terms of this Bill. If they have not so far been consulted, will my right hon. and learned Friend take the matter up with the Board of 2404 Trade? The fact that this is a small Bill and that it is going through without much discussion may mean that a good many people outside may overlook what is being done, and before we reach the final stages I should like my right hon. and learned Friend to make certain that those who are most likely to be affected may have the opportunity of submitting any points for his consideration.

§ The Attorney-General
In answer to the point put by my hon. and gallant Friend the Member for East Leicester (Colonel Lyons), an objection to his suggestion would be that these territories will gradually cease to be enemy territories. My idea was that we should from time to time issue a document which showed the dates on which they became enemy territories and the dates when they ceased to be. It would be necessary to bring that document up to date from time to time, and it would be a pity to put into the Bill a list which would give only half the relative story, because the Bill does not get going until the territories have been released from enemy hands. With regard to the other point, this Committee did not take formal evidence, but one of the members was a city solicitor of wide experience and the Committee had a good deal of information, and a good deal of informal consultation took place. I will bear in mind what my hon. Friend said and will see whether there is anybody else who should be consulted and ask whether they have any views on the subject.