HC Deb 11 July 1947 vol 439 cc2612-33

Amendment made: In page 6, line 38, after second "to," insert "a." —[The Attorney-General.]

Mr. Turner-Samuels

I beg to move, in page 6, line 39, after "employed," to insert: unless such servant or agent shall have been guilty of wilful neglect or default and loss or damage has been occasioned thereby.

The Chairman

I think I ought to say that the argument of the hon. and learned Gentleman on this Amendment might cover the later Amendments which stand in his name.

Mr. Turner-Samuels

I was about to suggest, for the convenience of the Com- mittee, that it might be well to take all the Amendments in my name to Clause 9 at the same time. After the first Amendment, the rest are consequential. This Amendment seeks to make the Crown liable in cases of wilful neglect or default by a servant or agent in relation to the loss or damage of a postal packet or in connection with telephone communications or telegrams. I think I am correct in saying that the law at present is that whereas the Postmaster-General himself is not liable for any wrongful act, if any loss or damage befalls a postal packet, or takes place in connection with a telephonic communication or telegram, his subordinates in the post office are liable for any wrongful act by them in relation to those items or matters. If that is correct, then Clause 9 of this Bill deprives the subject of rights which exist in his favour at this moment. I suggest to the Committee that it is depriving the subject of very important rights and that the consequences of the deprivation may reflect serious loss or damage. The Crown ought therefore to consider the question of amending the Clause in the way that I suggest.

If, for example, some sorter or postman, or some servant or agent of the Post Office, extracted anything from an envelope, no matter how valuable it was, in law that particular person could now be sued. Under the law as it will be if this Clause is passed without Amendment, the subject would be prohibited from bringing any such action. If a postman loses a letter one can sue him today. Under this Bill one would not be able to do so. In the courts a sub-postmaster has been held liable in respect of negligence in the transmission of a telegram. In future, if the Bill is passed in its present form, that will not be so. Indeed, the law which gives the subject his present rights against the Post Office has been the law since 1701. To argue that because it is now sought to confer the right of suing of the Crown in other respects it should at the same time be thought proper to take other rights away from the subject is somewhat incomprehensible. It is provided in the Bill that there is to be liability for a registered postal packet. On the face of it, that looks as though the Bill was conferring some important right upon the subject. In point of fact, the result is this: it is perfectly true that hitherto the Postmaster-General has not been legally liable for losses or damage to a registered packet, but in practice he has voluntarily accepted that liability on a published scale of loss or damage. Therefore, from a practical point of view the Bill is there conferring nothing whatever upon the subject. It is true that it is making statutory what has always been the accepted practice. On the other hand, however, it is taking away the very substantial rights that the subject has always had in regard to any claim he may have for damage or loss against some servant or agent of the Post Office in the cases I have mentioned.

It is important to consider the grave consequences that might happen. There are cases where a letter is posted and the time and date of the posting decides whether an offer has been accepted or refused. It may be a very important matter. It may be an acceptance which is very valuable indeed to the party concerned. If the letter is never delivered, of course, the benefit of that acceptance is completely lost. Yet, according to the Bill, no right of action is given to the subject in that case. What happens under the law now is that the subject would have a right of action against anyone in the post office other than the Postmaster-General. This Bill is seeking to take that right completely away. The same result arises in the case of a withdrawal of acceptance. That might be a very serious matter. A person may accept something and then, on reflection, he may wish to withdraw it and the non-withdrawal may involve him in very serious consequences indeed. Due to the wilful negligence of someone in the Post Office, the particular postal packet containing the withdrawal may never be received. In those circumstances, great loss may be sustained. Under the law as it stands at present, proceedings could be brought in order to claim damages, but if the Bill passes in its present form no such right of action will be permitted to the subject.

In regard to telephone communications, I would ask the Attorney-General why should the Post Office be immune from liability? An ordinary business must incur responsibility for any loss arising from negligence in a matter of this kind. If the Crown does not want to admit liability, why allow these telephone communications at allow? My submission is that if the Government allow telephone communications then they must allow the natural corollary if there is any negligence. If there is negligence, there ought to be a right to claim damages. As the right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid) said, one would have thought that in the case of the Crown we would have a model employer. In my submission, it ought to be easier to get redress under public ownership than it is under private enterprise. This Bill, however, shows that the reverse will be the case. I would also like to point out to the Committee that as the Post Office is staffed at present there is a good number of temporary employees. In a case of that kind, the liability to negligence is very much greater than when we have long experienced officers; and the public are exposed to the consequences of that action. To say that the consequences of wilful neglect ought not to be visited by the right to bring an action for damages in those circumstances must be wrong, and I, therefore, submit that this Amendment should be accepted.

2.0 p.m.

The Attorney-General

The purpose of this Amendment appears to be to make the Crown and the servants of the Crown liable for loss of or damage to postal packets, including telegrams, or for consequential damage resulting from the miscarriage of some telephonic communication in the case where a postal servant has been guilty of "wilful negligence or default." May I say a word first about that expression?

This proposal is really quite novel in regard to negligence. It has been laid down again and again in the courts that there is no different standard of care, no different degree of care, required in different classes of case. There is no such thing as "wilful negligence." Judges have said repeatedly that "wilful negligence" is negligence with a vituperative epithet, and it would be outside the purpose of this Bill to include words of that kind. There is no half-way house, and one has either got to impose liability for negligence in these matters or exclude it. The hon. and learned Member for Gloucester (Mr. Turner-Samuels) suggests, by the analogy which he seeks to draw with private concerns, that the Crown should accept liability for negligence, but private concerns are able to, and, in fact, almost invariably do, exclude any liability for negligence in the individual contracts which they make in certain cases. Is it to be thought for a moment that any commercial firm in its senses would undertake a liability to pay damages, not only for actual loss but for consequential loss as well, in the case where it was undertaking to collect say a letter, in London and deliver it, by train, first of all, many hundreds of miles, and then by hand to its ultimate addressee in return for the payment of 2½d.? Quite obviously, no commercial firm would do that. It would protect itself, as commercial firms do, by having an express provision in the contract excluding a possibility of that kind.

Moreover, it is a standard provision in contracts for carriage by railway, and for carriage by road, to exclude all liability for consequential loss, and that is the position which is being taken up by the Crown in this case. We are saying that we will accept registered packets in a somewhat similar way to that in which a Railway enters into a contract at Company's risk. We are saying that we will accept a liability not exceeding the market value of what we carry, but we are saying, just as the railways and the road hauliers do, that we cannot accept liability for consequential loss.

It is true that we are taking away a right which exists at present to sue the individual post office servant, but how can it be said for a moment, as the hon. and learned Gentleman suggested, that that is really a substantial right? How can it be suggested that that right, in a case where the Crown is not standing behind the servant, would really meet the case where, owing to the loss of some packet or failure to deliver some message in time, serious damage has occurred to the person concerned? How could those damages be recovered from a postman earning, say, £6a week? I have never had experience of an action of that kind, and I should have thought that actions against a post office official for negligence in the transmission of a postal packet must be very rare indeed, and would be quite valueless unless the Crown were prepared to stand behind the official and pay any damages that might be awarded. The Crown is not prepared to do that. It is not prepared to accept that liability for every postal packet which it under- takes to carry, but it is willing to accept a certain liability in the case of a registered packet and pay up to the limit of the market value of what is carried. In those circumstances, I cannot accept the Amendment.

Mr. Joynson-Hicks (Chichester)

I do not think that the right hon. and learned Gentleman has made out a case in defence of the Clause as it stands at present. I think he overlooked the fact that the Government are here removing a right from the public, and in order to do that, they have got to bring forward a very strong case indeed, and they have not done so. This right, which they are removing, is, as the hon. and learned Member for Gloucester (Mr. Turner-Samuels) has said, the personal right of any member of the public, who uses the postal service in the ordinary way for unregistered letters, to proceed against any individual servant or agent of the Post Office who may be found guilty on the evidence adduced of neligence or default; in other words, as we commonly express it, negligence. That right has been removed, and the only reason one can see for that—the reason given by the right hon. and learned Gentleman—was that, in his view, a postal servant employed by the Government at a salary of £6 a week is a man of straw against who it is not worth while a member of the public having the right to take proceedings. That, quite obviously, with all respect to the right hon. and learned Gentleman, is not for him to decide, or for us. If the right exists, there is no reason why it should not be available, and I do not think it is a proper constitutional line of thought to seek to do away with a right of the public simply and entirely on those grounds.

There is another point with which the Attorney-General did not deal, and that is the question of absolving the Post Office from being liable for any loss, and, as I understand his argument, he failed to show why he should seek to retain the right for the Crown to proceed against one of its own servants, presumably, in regard to any fault which he may have committed against a member of the public. It is a curious triangular result. The Post Office servant commits a fault against a member of the public, but the member of the public does not have the right to proceed against the Post Office servant, nor does the member of the public have the right to proceed against the Post Office, yet, nevertheless, the Post Office does have the right to proceed against its own employee. I fail to see the machinery by which such process could be carried out, or, if in fact it was carried out, what would be the result, or, in the event of recovery being made from the Post Office employee, to whom the results of that recovery would belong. If, as I understand, the Amendment which the right hon. and learned Gentleman is going to move is incorporated in the Clause, he did not explain what he had in mind when he referred to cases in respect of which anything was done, or was omitted to be done, in relation to a telephonic communication. To my simple and unimaginative mind, it is difficult to see what a Post Office employee could do to a telephonic communication which could result in tort.

Mr. Hale

Put the plug into the wrong hole, and there is an action for slander.

Mr. Joynson-Hicks

What the right hon. and learned Gentleman is seeking to do is to protect the employee, not the member of the public who may have cause for complaint. I hope we may have a little more enlightenment on that minor point, and that the right hon. and learned Gentleman will more seriously consider the major point which I think is one of substance, and one which the Committee should not pass without very careful consideration.

Mr. Quintin Hogg (Oxford)

I agree with a great deal of what the right hon. and learned Attorney-General said with regard to this actual Amendment, and, indeed, with regard to what was said in favour of its acceptance. I think that, as at present drafted, the Clause goes too far in the way of protecting Post Office servants. Let me give an absolutely extreme example, which I think illustrates the point. If I hand my letter over to the postmaster of a village and I see him tear it up before my nose, I can, I suppose, under the existing law, bring an action against him for something. If he happens to be my rival and knows that the letter contains a proposal of marriage, I dare say I might find it worth while to seek an injunction to prevent him from doing it again.

On the other hand, the right hon. And learned Attorney-General seems bent on allowing him to do it, or, at any rate, if not on allowing him to do it, seems bent on reserving to himself only the right of preventing him from doing it. I do not see why that should be so, and why, if a Post Office official commits such an offence, I should not be able to take action against him. I agree that there might be very sound reasons for not making the Crown liable. It is probable that in such cases large sums of damages will not flow, and that actions of this particular type will be relatively few, and will be confined to relatively bumble people; but I do not think, for that reason, we should laugh at them, or prevent them from being brought. Such things do happen, especially in small communities. In my submission, this Clause goes too far, and without trying to make a mountain out of a molehill, I think that before the Report stage the AttorneyGeneral should think over the matter again.

Mr. Asterley Jones (Hitchin)

I agree with what has been said in support of this Amendment, and I hope that my right hon. and learned Friend the Attorney-General will look at this matter again. A few days ago, some Post Office workers in my constituency were erecting a pole on which telephone lines were to be distributed to various houses. The pole was being erected at the end of a garden of one of my constituents, and in order to give himself leverage, one of the men put his leg against the garden gate, and the gate gave way. Under the Clause as it now stands, my constituent will have no right of action against either the servant or the Postmaster-General.

The Attorney-General

My hon. Friend the Member for Hitchin (Mr. Asterley Jones) has not, I am afraid, appreciated the significance, if not the subtlety, of the drafting Amendment which I introduced at an earlier stage of this Bill. The effect of it is that claims for negligence are excluded only in regard to matters actually relating to the particular telephonic communication. In the case where a linesman has climbed to the top of a telephone pole and has dropped a pair of pliers or a hammer on one of my hon. Friend's constituents, the constituent would have a right of action. What we are excluding is a right of action where there has been negligence in connection with the actual transmission of the telephonic communication, where, for instance, the plug is taken out in the course of an important conversation with the result that the caller at one end, having asked a question—I will not suggest what—is unable to hear the answer given to him by the subscriber at the other end, or where, perhaps, the hon. Member having sent a telegram to his bookmaker, in order to put a half-crown on some horse for the 2.15 finds that his telegram has been delayed, and has reached the bookmaker only at 2.30, with the result that the half-crown has not been put on the horse which, has come in at 100 to I. That is the kind of case where we exclude liability in connection with a telephonic communication by the words here used, and that is the effect of the introduction of the word "a."

2.15 p.m.

I now turn to the more substantial part of the matter. We have thought it quite impossible to leave the Post Office servants in a less favourable position than the employees of ordinary concerns who, when they are sued by third parties in respect of matters which have occurred in the course of their employment, can normally expect to find their employers standing behind them, because, in practice, no one would sue them without joining the employers as well, since they will know that it is the employers and not the servants who have the money. For reasons which I think have commended themselves to hon. Members opposite, the Crown are not able to undertake a liability to pay damages except in respect of the registered packet. They have felt, therefore, that it would be quite unfair to leave the servant liable to action by third parties in circumstances where they, as the servant's employer was not liable. We have, however, retained the right of the Postmaster-General to take either criminal or civil proceedings, and such action would be taken in a gross, disgraceful and flagrant case such as that suggested by the hon. Member for Oxford (Mr. Hogg). I can assure the hon. Member for Oxford that if he reports to me any case in which such an incident occurs, we shall see that the full majesty of the law is directed against the servant concerned.

Mr. Hale

I think that the substance of this Amendment opens up a terrifically wide field for fraud. I think I can say that I might have clients who would willingly swear that they had sent £500 in an unregistered letter, and who would bribe the postman to say that he had lost the packet. What a racket that would open up. On the other hand, I think that there is a point of substance in what was said by the hon. Member for Oxford (Mr. Hogg). If a postmaster tears up a letter before the hon. Member's eyes, the hon. Member is surely entitled to have some right of action against him.

The Attorney-General

An action of that kind would be quite outside the scope of this Clause which relates only to things that are done in the course of actual employment and in relation to the postal packet: it would be outside the course of the employment. That point was considered by persons in another place whose opinion on the law is far more authoritative than mine.

Mr. Turner-Samuels

I do not think that ray right hon. and learned Friend the Attorney-General has met the point at all. As I understand it, he rests his case on two things. The first is that the Crown cannot undertake this liability, and the second is that it must place its servants in at least as good a position as the servants of any other undertaking. In my humble submission, there is no substance whatever in either of those two points. First, as the law now stands, the Crown is liable, and has always accepted liability for the negligent acts of its servants. No case has been made out, and no illustration has been given of anything which has occurred in the meantime to show why that liability ought not to be continued. As the hon. Member for Chichester (Mr. Joynson-Hicks) said, where a Bill seeks to remove a right which already exists in the subject, then the Government must make out a very strong case indeed before it is allowed to take that right away. I feel that no case whatever has been made out on this by the learned Attorney-General. My hon. Friend the Member for Oldham (Mr. Hale) said that the Amendment as framed would open the door to fraud. If that is so, it is an extraordinary thing that it has not done so in the past. It is not suggested that the law as it stands today has been the means of creating fraudulent claims. That argument is completely unjustified.

I want to refer to another point which the learned Attorney-General made. He said that the Crown wishes to be in exactly the same position as the railway companies, for instance, and to say to the public, "Register your packet and we will be liable for it." Is the Attorney-General seriously asking everybody in the country to register every letter that is sent by post? That is what the suggestion would involve. In my submission, it is absurd to ask everybody in the country to register their letters in order that they may be sure that no loss or damage will be sustained to the postal packets. That cannot possibly be right.

Then the Attorney-General said, "Who is going to sue a postman who is in receipt of only £6a week?" With respect, that is not the point at all. The liability of the postman has existed for a long time, and when it has become crystallised in the form of an action and a judgment against the postman, the Crown has always been behind the postman and has always paid the damages. What the Attorney-General meant by instancing the fact that a post man might not be in receipt of a very big salary, as being an answer to the Amendment, is completely unacceptable by me. I cannot see any substantive answer there at all. It is not a question of a postman having £6a week. It is a question of whether a postman is liable or not, and if he is liable, the Crown is in honour bound to meet the liability.

I wish to say a few words on the question of the adjective "wilful" before the word "neglect." I hesitate to differ from so high an authority as the Attorney-General, but I would respectfully submit that what he said about that matter is not quite accurate. It is true that cases have held that the use of qualifying adjectives like "gross" in connection with "negligence" neither adds nor takes away from the substantive meaning of the word "negligence," but it is not correct to say that the word "wilful" before "neglect" has the same effect. There are many cases in which it has been held that the use of the word "wilful" before "neglect" imports a certain amount of recklessness which is more than ordinary negligence.

Mr. Scholefield Allen (Crewe)

If my hon. and learned Friend will allow me, I would point out that Bevan on Negligence says that the addition of the word "wilful" does not carry the case any further.

Mr. Turner-Samuels

That may be so, but what Bevan says there about negligence does not interest me at the moment. The Attorney-General may have taken a textbook like that and taken something out of it on the question of negligence. I have studied the authorities and the cases on this matter, and I say advisedly that the word "wilful" is in an entirely different classification from, say, the word "gross," and it does import, and add, meaning and colour to the word "neglect," For all those reasons, I ask the Attorney-General to look at this point again between now and the Report stage to see whether an improvement in that respect can be made to this Clause.

The Attorney-General

I will certainly do that.

Mr. Turner-Samuels

If the Attorney-General says he will do that, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Joynson-Hicks

I beg to move, in page 6, line 45, to leave out from "telegram," to the end of line 4, page 7.

So far, we have been dealing with the ordinary unregistered postal packet, and we now come to deal with the registered postal packet. I would like briefly to summarise the present position, and to state what my Amendment purports to do. The present position, as I understand it—I speak subject to correction, which I shall undoubtedly get from the Attorney-General, if I am wrong—is that there is no legal liability whatsoever on the Post Office in regard to a registered postal packet, but, as an act of grace, and over the course of time, there has grown up a custom in the Post Office inasmuch as they accept the moral liability to meet a claim in respect of loss or damage to a registered postal packet, up to certain limits which are defined, and which are based upon the amount of the registration fee which is paid to the Post Office. That is a purely moral responsibility on the part of the Post Office.

The Bill now proposes to change that position and, therefore, presumably to remove the moral responsibility by substituting instead a legal liability upon the Post Office in respect of loss or damage to a registered postal packet. That proposed legal liability is one which in normal circumstances, we might recognise as being reasonable—namely, a liability if the consignor of the registered postal packet can establish, presumably by proving by way of evidence, negligence on the part of the servant or agent of the Post Office.

This Amendment seeks to eliminate the necessity, in the special circumstances of a registered postal packet, for the consignor to have to prove negligence against the servant of the Post Office. The reasons I want to try to take this matter out of the normal provisions of the law are purely practical, because one cannot possibly hope to establish negligence against an individual employee of the Post Office in respect of the loss of a postal packet, even if it is registered. If any hon. Member registers a postal packet at the post office here, to be consigned to a most important constituent, and it is lost, unless one happens by chance to see the recipient of the postal packet in the post office throw it into the wastepaper basket inadvertently, or something of that sort, not only is there no earthly hope of being able to establish that an individual person was negligent in his handling of the registered postal packet, but there is no earthly hope of being able to identify the individual employees in the Post Office who have had the handling of the postal packet, and still less hope of discovering what they have done with it.

Therefore, in the action which the Government are taking in regard to these registered postal packets, it is difficult to say that they are removing an actual right which the citizen at present holds, because he holds only a moral right, but he does at present have the certainty of enjoying the benefit of the moral responsibility of the Post Office to meet his claim in the event of loss or damage to a registered postal packet. Under the provisions as they now stand, the moral right will have gone and, instead, the citizen will have only a totally ephemeral right—though a legal one—of being able to claim for loss or damage to a registered postal packet if he can prove negligence against an employee.

That is quite impossible, and I venture to suggest to the Committee that it is also unnecessary, because it is not a normal transaction. Carriage of a registered postal package is less common postal business than the ordinary letter post: it is more nearly akin to the insurance business. The consignor pays to the Post Office something additional to the fee for carriage, and he pays what is, in effect, an insurance premium for the safe carriage of that postal package to its ultimate destination. Therefore, if the right hon. and learned Gentleman is accepting a registration fee in addition to the postal fee for the safe carriage of this postal package, and the postal package is lost, and if he relies upon the necessity of the individual consignor to prove negligence against one of his employees, he is really taking money under false pretences.

2.30 p.m.

Mr. Seholefield Allen

Surely, the case is covered by the maxim "res ipsa loquitur "?

The Attorney-General

Will my hon. and learned Friend, and also the hon. Gentleman the Member for Chichester (Mr. Joynson-Hicks), allow me to say that there is really nothing between my hon. and learned Friend and me on the one hand and the hon. Gentleman the Member for Chichester on the other on this point.

The Chairman

I did not think that the hon. Member for Chichester had finished his speech, and I thought he had only given way to the hon. and learned Member for Crewe (Mr. Scholefield Allen). I have not yet put the Question.

Mr. Joynson-Hicks

I will conclude quickly, and leave the Attorney-General to make his observations. I think I have made my point clear. Surely, there is an insurance value in this particular transaction ?

The Attorney-General

The practical difficulties which the hon. Gentleman the Member for Chichester (Mr. Joynson-Hicks) very properly has in mind are, in fact, covered and overcome by a subsequent provision in the Bill—in the last paragraph of Subsection (2) of the Clause which is now before the Committee. There it is provided that there shall foe a presumption that the loss or damage was due to neglect by a servant of the Crown unless the contrary is proved by the Crown, and the result is that the reasons for the Amendment, namely, that it would be very difficult for a person to prove negligence in the circumstances of the carriage of a registered packet, are overcome by the subsequent provision. We put in this in order to deal with the precise difficulty which the hon. Member has in mind, and I think we successfully deal with it. I hope in those circumstances the hon. Member may see fit to withdraw his Amendment.

Mr. Joynson-Hicks

I had already appreciated the words to which the right hon. and learned Gentleman has drawn attention, and had intended to say something about them, but if he has nothing further to say, it is still quite evident what is the meaning of the words. I think the Bill would be better drafted if he had not put in a requirement and then taken it out; and I think it would be better if he accepted my Amendment.

The Attorney-General

We cannot accept the liability of an insurer in these matters, but we do accept this presumption which, I hope, will cover every reasonable and ordinary case.

The Chairman

I am not sure if the hon. Member for Chichester asked leave to withdraw the Amendment or not.

Mr. Joynson-Hicks

I thought I had done so. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Joynson-Hicks

I beg to move, in page 7, line 9, to leave out paragraph (b.)

I hope that this is also a practical point. I quite agree with the principle involved, that there should be a limit to the value which can be recovered against the Post Office in the event of a successful claim being made for loss or damage of a postal package. The Bill provides two alternative limits of damage. The second one, in paragraph (c), which we are not discussing, I entirely agree with; but the first one, in paragraph (b), appears to me to involve a frightful lot of difficulties, and I say that there is no necessity for it, having regard to the fact that there is also a limit of damage imposed in paragraph (c). The basis of the value, the measure of damage, to which a limit is put under paragraph (b) is the market value of the package in question.

Who on earth is going to be able to establish the market value of the package in question? This rather introduces the point raised by the hon. Member for Oldham (Mr. Hale), as to the essential necessity of being able to prove what is in the package. But, apart from that, it involves a great many other things. What is the market value of an article which may be sent—which is suitable to be sent—by registered postal packet? One can think of any number of different illustrations. Suppose a man buys an article at one of the more expensive shops in the West End of London. Its price there may be, for instance, £25. The same article could quite well be bought in some less expensive shop, perhaps in the market town of any of our constituencies, at £15. Again, if it is- bought wholesale, its value may be £10. What is the market value of such a commodity as that?

Another point is, when does it become secondhand? It has already been bought, and, therefore, it has passed into private ownership. It has been consigned by the private owner to somebody else. Presumably, it is already a secondhand article. Is its market value that of a secondhand article or of a new one? What about a perishable article? There are nowadays, perhaps, even more perishable goods than before, with a very high value, which are consigned by post. Consider a box of peaches. A man might send the box of peaches by post. What is its market value if it is lost? It all depends on when it is lost. Was it lost at the moment of consignment or was it lost at the moment when, by virtue of the provisions of this Clause, the consignor starts to establish the fact that negligence has been committed? What is the market value of a box of peaches—the price to the grower, or to the consignor? These difficulties of knowing What is the market value of a registered packet are so innumerable and insuperable that this paragraph (b) is not worth putting into the Bill. It protects nobody; and there is alternative protection in paragraph (c).

The Attorney-General

The purpose of this provision is to prevent claims against the Post Office in respect of consequential damages, and we are adopting in this matter—as, indeed, we have been invited to do by both sides of the Committee—exactly the same position as is commonly adopted by ordinary commercial concerns -which undertake the carriage of goods. Let me take a particular example. A person may send a registered letter containing information, and may claim that, by reason of the loss of the letter or delay in transmission of the letter, he has suffered the loss of a market on which, if he had had the information in time, he would have been able to secure some advantage because of a rise of the market price; or something of that kind. Such damages would be exceedingly difficult—indeed, impossible—for the Post Office to check, and exceedingly difficult for any court to assess, and the Post Office are not able to undertake a liability of that kind.

What they are prepared to undertake is the same kind of liability as is commonly undertaken by ordinary commercial concerns in such circumstances, a liability for actual physical damage to the contents of a registered package. In a case where what has been transmitted is not a mere message, a paper which has no tangible value at all, but where something of some value has been transmitted, the question of what damage is sustained by its loss and the market value of the article in question is one for assessment by the court according to the ordinary principles which govern the action of the court in matters of this kind. It is not a matter which really gives rise to much difficulty in the courts, and it would not give rise to any greater difficulty in this kind of case than it does in the case of ordinary commercial concerns, and the Post Office does not feel able to undertake a greater responsibility in such matters.

Mr. Boyd-Carpenter (Kingston-upon-Thames)

I quite appreciate what the learned Attorney-General has said about the difficulties of assessing the value of information, and so far as that part of the paragraph is concerned, I must confess I am with him rather than with my hon. Friend the Member for Chichester (Mr. Joynson-Hicks); but I do not think the Attorney-General has met the real point of substance in my hon. Friend's Amendment, namely, that the phrase "market value" may, in certain circumstances, give rise to very considerable difficulties. Let me put one example to the learned Attorney-General. It is the practice, as I understand it, in ordering clothing by post, to send clothing coupons in an envelope. Now, the right hon. and learned Gentleman may be aware that there is a market value for clothing coupons, but that is not a legal market value. They may well have a market value—

Mr. Janner (Leicester, West)

The hon. Member is probably aware of the fact that a recent judgment has shown that there is a market value.

Mr. Boyd-Carpenter

I shall not enter into an argument with the hon. Member on the subject of "black market" transactions, because I cannot match his knowledge on the subject. [Interruption.]The hon. Member for West Leicester (Mr. Janner) knows perfectly well that I am not casting any imputation upon him. He saw fit to interrupt me with a legally in accurate observation, and I replied flippantly, as he very well appreciates.

Mr. Janner

It was not an inaccurate observation. It is a matter of fact that a judge has so held.

Mr. Boyd-Carpenter

I am afraid I cannot accept that from the hon. Member, because it so happens that my hon. Friend was present in court during the hearing of the case to which I have referred, and I am assured by him that the judge said no such thing. In any event, if the hon. Member for West Leicester were right—which he is not—it has remarkably little to do with the point, which is that the learned Attorney-General must recognise that the assessment of market value can, in the case of certain articles—-particularly of articles sent by post—give rise to considerable practical difficulties. "Therefore, I submit to the Committee that it would be very much easier and more satisfactory to leave the assessment of damages in this matter to the good sense of the courts, which are engaged every day in assessing damages, bearing in mind that the Crown is protected, as my hon. Friend has said, by the following paragraph. I hope the learned Attorney-General will give some attention to this point, because I feel that the Clause as it stands gives rise to wholly unnecessary difficulties.

Mr. Janner

I do not want to enter into a controversy with the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), but I would have him know that the case to which I was referring was not the case to which his hon. Friend was referring. The fact of the matter is that, in the particular instance of which he spoke, a market value for coupons was given. I, too, can conceive of matters in which it would be literally impossible to decide what is the market value of any commodity. In particular, I should like to refer my right hon. and1 learned Friend to the position with regard to deeds and documents which may be lost. In a matter of that kind it is extremely difficult to assess the market value. It might become necessary to make searches, in order to be able to replace those documents. I think that ought to be left to the court; or at least we ought to have an assurance from the learned Attorney-General that, although proceedings cannot be taken under this particular Bill when it becomes an Act, his Department will make it clear that that will not exclude the right or possibility, which exists at present, of the postmaster making good any such loss.

2.45 p.m.

Mr. Hale

I agree with my hon. Friend' the Member for West Leicester (Mr. Janner). I think the case of the deed is a very clear case in point, because the market value of a deed is the secondhand cost as a piece of parchment, and the cost of replacement is more. I want to make a point with regard to registered postal packets, which the learned Attorney-General contemplates as ordinary commercial usage, because there is the question of insurance. If a fee for insurance is paid, and if the price is to be increased, people are entitled to the full measure of the insurance as against the loss they have sustained. There maybe a firm which has spare parts specially made for a machine which has broken down. It may be some small piece of machinery of only slight value, which is specially made and is sent out to the factory in order to get that machine going again. If it is merely said: "We will repay you the 3½d. which had to be paid for that special screw of which you had not a spare" that will be wholly inadequate, because the machine will' have remained idle. There should be-some means of dealing with consequential loss. With regard to the words "market value," there does seem to be a fundamental objection. We wish to avoid vexatious -actions, but we certainly wish to ensure that there is fair value. Certainly the words "market value" appear to be wholly inappropriate, in view of the variety of articles involved.

The Attorney-General

I understand from the speeches of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and my hon. Friends the Members for West Leicester (Mr. Janner) and Oldham (Mr. Hale) that they are in favour of acceptance of liability in respect of consequential loss. All the instances they have given are those of consequential damage and not direct damage. Thus, the loss of deeds may result in other deeds having to be drawn up, searches having to be undertaken, and matters of that kind. Those are consequential losses and consequential damages. I should have thought, with respect, that that was clearly a case of consequential loss. The other instances that were given were all cases of consequential loss. Indeed, the hon. Member for Oldham said that this is a form of insurance, and it ought to cover consequential loss. He said so in terms. It may well be that the paying of a registration fee does give rise to a certain form of insurance, but the risk covered is the risk of loss of the articles carried, and not of consequential loss. When one pays a premium one ascertains before paying it what risk is being covered. That is the risk which the particular insurance company in these matters if one so regards the Post Office is prepared to undertake for the payment of 3½d., or whatever it may be; to repay the actual value of the article which has been lost, but not to cover any consequential damage. That, contrary to the suggestion of the hon. Member for Oldham, is what the railway company does and what the common carrier does. I think there are standard terms, and in every case they say—

Mr. Hale

The learned Attorney-General is referring to the common carrier which is analogous to the ordinary rate, the ordinary 2½d. form of postage.

The Attorney-General

The hon. Member is mistaken. I am taking the case of the railway company carrying at the company's risk. They do not insure against consequential loss; they exclude it in terms.

Mr. Hale

They have a higher fee.

The Attorney-General

I suppose anyone might cover any risk for a fee which was high enough. That may well be so. We are not prepared to enter into transactions of that kind. We accept a limited class of insurance for a premium. The only risk we are going to insure against is the actual value of the loss sustained. I quite agree that some articles which are carried in registered packets may be such as have no market value. If that is the case, there would be no difficulty in dealing with the matter, because the effect of the maximum exclusion would not then apply, and the courts would have to ascertain what was the real value of the article, disregarding consequential damages.

Mr. Sydney Silverman (Nelson and Colne)

I do not regard this as the most important part of the Bill; nor this defect the Bill's principal defect. I do not think the Attorney-General has treated the argument fairly. It is rather a pity that the real point involved should be obscured by an ambiguous use of the wordm "consequential." If he insist upon it, let it be conceded that the kind of damage which, it is claimed ought to be covered, could be fairly described as "consequential." No one is saying that all the consequential damages which flow from the loss of a registered packet should be insured by a registered stamp. What has been said is that a limited form of consequential damage ought to be covered—perhaps the replacement value in the particular circumstances and of the particular article. No one is claiming the loss of a contract, or failure to deliver in time, as being consequential damages of this kind. It is quite a different thing from immediate consequential damage. I do not see why there should be any difficulty if we said that the article will be replaced, or a fair value will be given. That would satisfy everyone, and it would not involve the Post Office in any great liability.

Mr. Joynson-Hicks

I do not wish to detain the Committee any longer on this matter, because we have had a fairly thorough Debate upon it. The Attorney-General was continually referring to the actual value of the article, but I would point out that in the case of many articles the actual value is not even the market value, and we therefore immediately begin to get into a point of difference on the Attorney-General's own words. I think I must have as great a mind as the hon. Member for Oldham (Mr. Hale), because as he produced his words "replacement value," I was writing them down. It seems that we both had the same thought at the same time. I think that if any value should be inserted, it should be the replacement value.

The Attorney-General said, "Leave it to the courts," and that is the right thing to do, but the courts will not thank us for saying that what they have to find out is the "market value." The Attorney-General has said that this is not an insurance scheme as generally understood, but is merely a special fee accepted to ensure that the Post Office take care to try and avoid losing a registered packet. He has made it clear to the Committee that there is but one standard of negligence, that is, wilful neglect, or gross negligence, and that epithet should be true as far as other Departments are concerned. I hope that, if the Attorney-General does not see fit now to consider this matter further, it may be taken notice of at a later date. In the circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Amendment made: In page 7, line 12, leave out "of," and insert "or."—[The Attorney-General.]

Clause, as amended, ordered to stand part of the Bill.