HC Deb 04 July 1957 vol 572 cc1422-5
Mr. Renton

I beg to move, in page 10, line 12, to leave out from "of" to the end of line 36 and to insert: subsidence damage to any property shall not be entitled to proceed at the same time in respect of the same damage to that property with both—

  1. (a) a claim against the Board by virtue of subsections (2) to (5) of section one of this Act; and
  2. (b) a claim against the Board or a licensee of the Board for damages or compensation under a liability arising apart from this Act,
but subject to the next following subsectian may elect which of those claims he will proceed with for the time being. (2) Where any person proceeds with a claim such as is mentioned in paragraph (a) or, as the case may be, paragraph (b) of the foregoing subsection, then unless—
  1. (a) it is determined, whether by agreement or otherwise, that he is entitled to none of the relief claimed; or
  2. (b) the claim is withdrawn before it is determined.
he shall not be entitled to proceed thereafter with a claim such as is mentioned in the other of the said paragraphs of that subsection. (3) Regulations for the purposes of subsection (1) of section two of this Act shall secure that where any person proceeds with a claim such as is mentioned in paragraph (b) of subsection (1) of this section and that claim was made before the expiration of the time otherwise prescribed for the service of a damage notice in respect of the same damage, the time within which a damage notice must be served by that person in respect of that damage shall not commence to run until that claim is either determined or withdrawn before determination". The effect of the Amendment would be virtually to redraft the whole of the first three subsections of the Clause, which deals with the avoidance of double remedies. It was pointed out to us in Committee—and we readily appreciated it—that, to put it bluntly, the Clause was a bit tough as it stood. We were very much impressed by the arguments put forward by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and by other hon. Members on both sides about the fatal nature of the decision which has to be made under the Bill as it stands.

What we have done is to give a free choice in the matter of proceeding under the Bill or seeking the alternative remedy by common law contract or Statute. If a person is completely unsuccessful in the proceedings in which he exercises his first choice he will have the right to bring other proceedings, but if he is only partially successful in the proceedings which he first chooses to bring he will not have the right to bring other proceedings. In other words, we adhere to the principle of avoidance of double remedies.

It is not necessary for me to go into detail as to the phraseology used in the Amendment. It carries out the intention which I have expressed. I should mention subsection (3) of the Amendment, because it is a little complicated in its relation to the other Clauses. It requires the Minister, in the Regulations which he will in any event have to make under Clause 2 (1)—in order to lay down a time limit in which damage notices must be served—to prescribe that when a claim under rights other than those contained in the Bill—the alternative rights—has been made within the time limit for serving a damage notice, the time in which the damage notice can be served in respect of the same damage by the person who lodged the claim will not begin to run until that alternative claim has been decided or withdrawn. It is a rather considerable extension of time which is likely to take place but in the circumstances we feel that it is reasonable. The National Coal Board will have been put on inquiry about the matter by the mere making of the alternative claim so that it is not unfair to the Board and it will not have been taken at a disadvantage.

9.15 p.m.

There is another matter which has been achieved by the Amendment. It is that in Clause 6 as it stands, where there is more than one person with an interest in the damaged property, the person with the greatest liability for making good the damage is the person who has to serve the damage notice. The other people interested in the property are not entitled. That would have been very tough, but we have altered it as hon. Members will see. We have now provided that anyone with an interest in the property will have the right to exercise alternative rights of action, whether under the Bill or by means of action by common law contract or Statute. I think we may say, therefore, that we have tidied up Clause 6 in such a way as to meet the fears expressed by hon. Members.

Mr. R. Williams

We are indebted to the Minister for having completely altered the basis of Clause 6. Without this Amendment it would have been necessary for the person concerned to "pick a winner." If he did not, he might very well lose the rights we all want him to have.

As I understand it, the effect of this Amendment is to leave with a person with rights under the Bill his rights apart from the Bill. As a result of this Amendment, if in his election that person picks a "loser" he has not lost all because he can proceed under the Bill. If he succeeds in his action, he has no complaint because, having been successful, his case is ended. If he is partially successful, that ends his case, but in practice that might be a bit tough on him. The answer is that the Government in subsection (2, b) have inserted the words the claim is withdrawn before it is determined. So there is a stage at which a man may think that he has a winning case but in consultation with his legal advisers discovers that it is a loser, and he can then withdraw without prejudicing his rights under the Bill. I thank the Minister for that provision and for the way in which this has been re-drafted. The Amendment which we submitted during the Committee stage discussions would have given the man everything, win, lose or draw, but the Government are not prepared to go as far as that. They are not prepared to provide complete justice in all possible situations, but they have gone so far in this Amendment that I heartily commend it, and I hope that my right hon. and hon. Friends will support it.

Sir H. Lucas-Tooth

I, too, should like to congratulate the Government on having redrafted the first three subsections of this Clause. I quite agree with all that has been said about the redrafting.

In our discussions in Committee, I criticised subsections (2) and (3). These are the subsections which provided for the Board giving a counter-notice to third parties so as to try to clear off a whole set of claims at the same time. That procedure has now disappeared altogether, and I imagine that the position, therefore, is that, as regards third parties, if they have any rights against the Board in respect of the same circumstances, those rights shall be unaffected in the ordinary way.

When remedial action is taken, their position will be safeguarded, because when the action has been taken there will normally be an end of the matter, but if there is a money claim involved it may be that third parties will still have some claims after the Clause has been brought into operation. In that event, the position is left entirely open, and they will have whatever rights they had before the machinery of the Clause was brought into operation.

Amendment agreed to.