HC Deb 18 May 1962 vol 659 cc1687-710

11.6 a.m.

Mr. Peter Rawlinson (Epsom)

I beg to move, in page 1, line 8, to leave out subsections (2) and (3), and to insert: (2) Where an action in tort is brought by one of the parties to a marriage against the other during the subsistence of the marriage, the court may stay the action if it appears—

  1. (a)that no substantial benefit would accrue to either party from the continuation of the proceedings; or
  2. (b)that the question or questions in issue could more conveniently be disposed of on an application made under section seventeen of the Married Women's Property Act, 1882 (determination of questions between husband and wife as to the title to or possession of property);
and without prejudice to paragraph (b) of this subsection the court may, in such an action, either exercise any power which could be exercised on an application under the said section seventeen, or give such directions as it thinks fit for the disposal under that section of any question arising in the proceedings. This is a substantial Amendment to an important part of the Bill and one which has not been without difficulty in framing the best way of carrying out its intentions. I therefore think it right, in view of the fact that there was no debate on the Bill on Second Reading, that I should indicate what the effect of the Amendment will be.

It appears from Clause 1 that the intention of the Bill is that spouses can do what they have not been able to do previously, namely, sue each other in tort or in respect of civil wrong. The previous position has been based upon the principle which, in the words of Blackstone, who is usually quoted in this context, is that by marriage, husband and wife are one person in law; that is, the very being and legal existence of the woman is suspended during marriage, or, at least, incorporated and consolidated into that of the husband. These are the words of the distinguished Blackstone, but the position has very much altered in other branches of the law since he wrote them, and, indeed, that position has been abrogated by Section 12 of the Married Women's Property Act, which permitted the wife to proceed in respect of her "separate property", but which was amended by the Law Reform (Married Women and Tortfeasors) Act, 1935, to her property.

There have been and there are considerable anomalies in the law, the removal of which are proposed by the Bill and this Amendment. These will indicate more clearly. One anomaly is, that, under the present law, a wife can sue her husband for a tort committed before marriage, namely, a civil wrong before marriage, such as negligence, nuisance, or slander, whereas the husband cannot. The wife, therefore, is in a better position than the husband. Secondly, under Section 12 of the Married Women's Property Act, a wife can sue her husband for protection of her property, that is to say, for detinue or trespass over goods, but the husband cannot. There does, of course, exist power under Section 17 of the Married Women's Property Act for determination of questions of title in or possession of property to be decided by the High Court or a county court, but there are still other anomalies which I shall refer to later.

My intention under the Bill is to permit spouses to sue in tort as though they were not married and that disputes affecting the title or right to property should be dealt with exclusively under Section 17, the wife not to have the alternative of any procedure under Section 12 of the Married Women's Property Act, which is repealed by the Schedule to the Bill.

This reform in the law has been the subject of recommendation by the Law Reform Committee, a very powerful body which consisted, among others, of two Lords of Appeal in Ordinary, the noble Lord, Lord Jenkins, Lord Howard Pearce, and also Lord Justice Donovan, Mr. Justice Ashworth, Lord Justice Dip-lock, Mr. Gerald Gardiner and my hon. and learned Friend the Member for Northwich (Mr. J. Foster).

This Committee made its recommendation in December, 1960, and referred to these anomalies and, indeed, some of the absurd positions which arise. For instance, Mrs. Tinckley, who many years ago separated from her husband, and, having taken the furniture to which she was entitled, her husband complained that she had stolen the property. She was arrested, she lost her job, and when she brought an action against him she could not, under the law then, have any redress whatsoever.

So there are these anomalies and difficulties which it was the recommendation of that Committee should be smoothed away. But, as drafted at present, it is not wholly clear in the Bill that the Bill, as it now stands, as amended in the Standing Committee, is carrying out my intention. The position might arise that a spouse might start an action under Clause 1 (1) of the Bill. He or she could either do that or could make an application under Section 12 of the Married Women's Property Act, 1882, Section 12 having been repealed. An example of that might be where a husband takes a wife's car away and smashes it up.

Then the wife, under the Bill as at present drafted, would be able to bring proceedings under Clause 1. But if the husband just took the car away and did not smash it up—just took it away—then under Clause 1 (2) as at present drafted: No action in tort shall be brought by virtue of this section in respect of damage for which relief could be claimed in an application made under section seventeen of the Married Women's Property Act, 1882. and in those circumstances the husband, having taken the car away, the wife, under the Bill in its present form, would be obliged to proceed under Section 17 because it would be a relief in respect of damage in respect of property, and she would have no remedy for detenue or conversion, the husband having taken the car and perhaps kept it for his own use. On reflection, that does seem totally unreal because in either case the wife would have to establish the car is hers and establish her right and title to the car.

11.15 a.m.

Therefore, the purpose of the Amendment is better to carry out the intention of the Bill, namely, that all property disputes should be dealt with exclusively under Section 17, and that is best effected by giving to the spouse a right of action in all cases, but giving to the court the power to stay the action if the matter could be more conveniently dealt with under the Section 17 procedure of the Married Women's Property Act. Of course, there is power in the court alternatively to deal with the issue as though it were an application under Section 17.

Mr. Eric Fletcher (Islington, East)

Would the hon. and learned Gentleman be good enough to explain for the benefit of the House exactly how some proceedings can be more conveniently dealt with under the Married Women's Property Act than as actions in tort?

Mr. Rawlinson

I was just coming to that. Because the Section 17 procedure enables the parties to apply to the appropriate court, the High Court, or it could be the county court, if that were thought fit, to have determined the matters in respect of the property—who owns the property, and so on.

This is dealt with by Masters of the High Court, or the appropriate officer in the county court, in chambers. It is a summary procedure and can be quickly and cheaply carried out, and one which has found favour with lawyers and litigants in so far as issues as to the ownership of property between spouses can in these circumstances be more speedily and privately decided, and decided, as I say, at the county court level if that be so wanted. Therefore, if a person decided to bring an action upon the detenue of a motor car, an action in tort, under the present Bill with this Amendment the court would have power to stay those proceedings and to say, "This is more conveniently dealt with and more cheaply dealt with under Section 17."

Alternatively, the court can say, "I will treat this as an application under Section 17. Although as an action in tort as to whether that car has been wrongfully detained and is still detained by the husband, I will treat it as an application for the court to say to whom does this car belong, whose is it, who ought to have it." It is to make clear that the court should always have that power, because of the interests, particularly, of litigants, that I move this Amendment. The purpose of the Amendment is to make that clear without any doubts whatsoever.

The rules of court to which reference is made in Clause 1 (4) are not affected by this proposed Amendment. They will provide for rules of court made on the "summons for directions" where the court gives directions as to place and nature of the trial, and in the county court by appropriate procedure, so that the court could then say, "This is something which ought to be decided under Section 17 and can be disposed of there," and then can adjourn it to an appropriate time, to be dealt with by the Masters as a Section 17 application. In other words, the intention is that where it is a dispute about property it should be Section 17 procedure and Section 17 procedure alone.

Under the proviso to Clause 1 (2) as presently drafted any question as to the right of a tortfeasor to recover contribution from either party to a marriage under … section six of the Law Reform (Married Women's and Tortfeasors) Act, 1935, shall be determined as if the foregoing provisions of this subsection had not been enacted. By the proposed Amendment that proviso is not once again recited for the reason that, in fact, it will be dealt with by the words of the proposed Amendment. The reason for it is that under the present law there are these anomalies.

For instance, a woman is injured driving in a motor car as a passenger and she claims that it was due to the negligence of the driver of the car in which she was a passenger and of another driver. If the court finds the drivers were fifty-fifty to blame, they would fifty-fifty contribute to the damage paid to the woman; but if the wife was a passenger in a motor car driven by her husband, and there was an accident with another car driven by another person, the wife could now bring an action against that other person, the other driver, and, although the court were to say that they were fifty-fifty to blame, that other driver would have to bear the whole 100 per cent. of the damages, being, therefore, in a very much worse position than if it had been not the husband who had driven the injured wife but it had been another relation or person other than her spouse.

Therefore, the position of third parties in that case is affected by the status of husband and wife and are often treated in what appears to be a totally unfair way. For example, if the husband negligently injures the wife, the wife cannot sue the husband and recover any damages for that injury. But if husband and wife were in the same employment, employed by the same person, and the husband negligently injured the wife in the course of that employment, the wife can sue the employer and the employer cannot rely on the fact that they are husband and wife. This is, therefore, yet another anomaly and, as has been said in the Law Reform Committee by Lord Devlin, this is a branch of the law where husband and wife both have their cake and eat it.

It seems indefensible that a third party should be adversely affected by privileges based on principles of law which are totally unrealistic. Therefore, the proviso in Clause 1 (2), which was put in to cover the position of third parties, is quite unnecessary with the terms of the new Amendment. There will be no need for the new proviso, because a spouse will have the right of action against the other in all cases and, therefore, it will be possible for a contribution to be made to some other tortfeasor by the husband in making up the damages which the wife was awarded.

I apologise for taking up the time of the House and for the technical nature of these comments, but this is a complicated branch of the law and one which, in my view, has been calling for reform for some time. It was felt by the Law Reform Committee that it was most important that the courts should have the power to stay certain actions and that the law must not assist in airing petty grievances between husband and wife. Of course, apart from petty grievances on a matter of tort, civil wrong, there is the jurisdiction of the High Court, Probate, Divorce and Admiralty Division. The Divorce Division of the High Court or the magistrates' court provides a tribunal for spouses on matrimonial issues which arise as to divorce, separation, maintenance, failure to maintain, or the custody of children. That is the jurisdiction of the Divorce Court and the magistrates' court.

But where we are now giving that power to spouses to be able to sue each other for civil wrong it was felt by the Committee that the courts must have this power to stay, which is now set out in subsection (2) of the Amendment. It reads: … the court may stay the action if it appears— (a) that no substantial benefit would accrue to either party from the continuation of the proceedings … The court would have to take into consideration and would take it into consideration where a wife or a husband bring some action in tort on, say, the ground of negligence and it was an extremely petty matter, or say, nuisance or other of the civil wrongs, all the circumstances surrounding the claim made and the conduct of the parties and the nature of the complaint, and it would have the power to stay the action and to say that it should not proceed if it thought fit.

Clearly, the court would not do that if there were behind the scenes a person or institution which was going to provide indemnity. Therefore, the wife in the motor car case sues her husband knowing that there is in existence a policy of insurance, This means that any damage she recovers, though technically and legally coming from her husband, comes from the insurance company. This, to use the robust language used by the Solicitor-General in the Committee, puts the wife in the same position as the husband's daughter and in the same relationship in law as a mistress would have with her lover. By the terms of the Amendment this would apply too all action in tort brought during the subsistence of the marriage.

The suggested wording makes it clear, therefore, that the courts will have power to stay and that this power to stay will apply to all actions of tort between the spouses. The effect of the Amendment is better to carry out the intention of the Bill, which is not so clearly carried out in its present form. The Amendment provides more certainty and ensures by the wording that the property disputes will come under Section 17 of the Married Women's Property Act, that the Bill will not affect the rights of the spouses to sue, and that it will provide the court with power to stay in appropriate circumstances or to treat the case which is brought in tort as, in fact, being an application under Section 17.

11.30 a.m.

Mr. Fletcher

The hon. and learned Member for Epsom (Mr. Rawlinson) has pointed out that the Bill has hitherto had very little discussion. It went through on the nod on Second Reading and the Committee stage proceedings took less than half an hour. I do not think, therefore, that the hon. and learned Member need have apologised to the House for having explained the provisions of the Bill in some detail because, as he pointed out, the Amendment introduces a substantial change in the Bill from its original form.

The Bill itself makes a substantial change in the law of the land as it has existed for several centuries. It is, therefore, important that we should be clear about what we are doing and be satisfied that the Bill, if the Amendment is accepted, is now in the right form and carries out the intentions both of the hon. and learned Member and of the Law Reform Committee to which its origin is due.

I agree that it has been anomalous that hitherto a wife has had certain remedies against her husband in respect of contracts and matters of property, but no redress in matters of tort or injury. As the hon. and learned Member said, the existing law derives from conditions of society where, probably rightly, husband and wife were treated as one person in the eyes of the law. That situation has been gradually eroded and there are now numerous cases in which proceedings between husband and wife in various forms come before the courts.

I understand that the Bill will go a long way to remove the existing anomalies. At the same time, of course, it is devoutly to be hoped that granting for the first time rights in tort as between husband and wife will not in itself either disturb matrimonial felicity or lead to a spate of actions between husband and wife. I do not think that there is any reason to suppose that that will be the result, but if it were, it would obviously be undesirable.

It is, presumably, for that reason that the hon. and learned Gentleman is now introducing a somewhat novel provision for an Act of Parliament, giving the courts power to stay proceedings if no substantial benefit would accrue to either party from the continuation of the proceedings. I hope we shall hear from the Solicitor-General whether he is quite satisfied with the effect of the Amendment now proposed. Superficially, there is an inconsistency in, first, giving a spouse a right of action in tort against the other spouse as if they were not married, and then saying that that right should not be exercised unless some substantial benefits can be shown to accrue.

Mr. Rawlinson

I am sure that the hon. Gentleman will appreciate that there has always been in the Bill a power to stay, from Second Reading onwards and during the Committee stage. This is putting it in another way and putting it in other terms. The provision has always been in the Bill on the basis of the recommendation of the Law Reform Committee that a power to stay should be given to the court.

Mr. Fletcher

I appreciate that there has always been in the Bill power to stay. The Amendment puts it in different language. What is proposed may not be very different; it may be repeating some of the provisions of subsection (3). However, apart from the words of the Amendment, the Bill gives the court power to stay if no substantial benefit would accrue.

I hope the Solicitor-General will be able to tell us whether it is sufficiently clear in an Act of Parliament to use those words. I do not quite know what is meant by "no substantial benefit". I should have thought this was something which some courts might have difficulty in construing. In the ordinary case a person is entitled to take proceedings if there has been any damage, however small, and a court cannot stay an action merely because it thinks that the results will be minimal or frivolous The court has to go through the functions of determining the issue, and what, ever the damages may be, large or small, they are awarded.

Hitherto, a court has not been able to say that it would have been better for the action not to have been brought because it was only a storm in a teacup, or something of that kind. Courts cannot say that. If it is intended that a court should say that with regard to not very serious injuries between a husband and wife or claims for tort, then we ought to be quite assured that this language is something which the courts will be able to adopt.

On the other point, I agree with the hon. and learned Gentleman that we should remove the anomaly which now exists where a wife is a passenger in a car driven by her husband and has an injury in a collision with another car as a result of which the drivers of both vehicles are to blame. It would be quite wrong that the loss should fall on the third party or his insurance company. I am glad that this change is now being made. I also think it is right that an insurance company should not escape liability if a wife who is a passenger is injured in a car driven by her husband on the technicality that she has no claim against her husband and, therefore, there is nothing in respect of which her husband's insurance company can indemnify.

With regard to the new proposal for giving the court power to stay or decide that questions can be remitted for trial under the Married Women's Property Act, 1882, or dealt with as if the proceedings had been started under that Act, I take it that this will not give the court any additional power of remitting to a county court proceedings which otherwise it would not be able so to remit.

Those are the points that I wanted to raise. Subject to the assurances which I hope we shall get from the Law Officer, I personally hope that the Amendment will be supported.

Mr. Charles Doughty (Surrey, East)

The matter of the general merits or demerits of the Bill is, I suppose, something that we shall consider upon Third Reading, because on Second Reading and, apparently, in Committee, little has been said about the Bill. Therefore, our opportunity will arise at a later stage. Consequently, I shall confine myself, as I must according to the rules of the House, to the Amendment before us.

One has first to look at the words which are proposed to be deleted and those which are proposed to be added in their place, and decide whether this amounts to an improvement or not. Frankly, for reasons which I shall give, I think that the words in the Bill are better than those in the Amendment, though there is a good deal of criticism to be levelled at the words in the Bill.

The original words in Clause 1 (2) give the court peremptory direction that no action in tort shall be brought in a case where relief already exists under Section 17 of the Married Women's Property Act, 1882. That is clear, and the court knows what it is going to do. In the case of a person issuing proceedings in respect of property, the order would say, "These proceedings will be stayed, and you must go under Section 17 of the Married Women's Property Act." The court would then know where it was, and everybody else would know where he was.

But the words of the Amendment alter that, and say that the question or questions in issue could more conveniently be disposed of on an application made under section seventeen of the Married Women's Property Act, 1882". What is the court to decide? What factors is it to consider? Is it to consider the timing of the action? Is a person to say, "I can get this case on in court so quickly because the lists are empty" or "I can get into a county court and get a date on Friday week to have the case heard. It is more convenient to me to have speed"? Or is the court to consider the propriety of bringing action which relate to property or the misuse of property—I use the word in the tort sense? There, the court is left at a disadvantage.

I do not know what the Amendment means on the basis of those words, and I look forward to hearing what the Solicitor-General has to say about more conveniently be disposed of on an application made under section seventeen of the Married Women's Property Act, 1882. If it is a question as between husband and wife, which has for years, ever since the Married Women's Property Act, been referable to a contest under that Act, then it ought to be left where it is. There is no necessity to alter the law. Both spouses have ample powers to obtain a legal decision binding upon the other. There is no necessity to alter the law and give them power to bring that in tort. If the Amendment is passed they will have a choice, and the court will have no clear directions about what is to happen when an action is brought under this Clause.

For those reasons, though I do not propose to divide on the matter, I am not really in favour of the Amendment. I should like to know what is meant by the words, that no substantial benefit would accrue to either party from the continuation of the proceedings. Suppose one comes before whatever tribunal it is to apply to have the proceedings stayed on the ground that no substantial benefit would accrue to either party from the continuation of the proceedings", what does it mean? What arguments does one put forward? Does one say, "This is a trivial matter. It is an action for assault, and the wife or husband got only a black eye and no bones were broken, and no substantial benefit will accrue financially, for there may not be very large damages"? But the other party is entitled to say, if he has a cause of action, "My benefit may not be astronomical, but it is certainly real, and, therefore, you cannot stay the action."

Does it mean that if, as between a husband and wife living together, one gets an order for damages and costs against one it automatically reverts on the other because the joint income is thereby reduced by that amount and, therefore, no substantial final benefit results? Does it mean that if the defendant spouse has no money, no substantial benefit would result? Does it mean that the publicity, and so forth, would result in no substantial benefit to the parties as they are?

Let us also take the case as it probably will be when these actions are brought, that they are spouses only in name in the sense that they are married but are at daggers drawn and only too anxious to bring proceedings against each other, perhaps to support some subsequent matrimonial proceedings by which a court is entitled to say, "This is an action for assault" or, "This is an action for slander"—be what it may"—and I consider, having heard all the parties, that this is really part of divorce proceedings which are in course of taking place or are about to be started, and one party wants to have an advantage against the other through being able to say, 'I got an award of damages for assault or libel. Look how cruelly I have been treated'." Is not the court entitled to say, "No; your benefit must come in the divorce proceedings."?

The words have very little meaning in law for those who have to administer the proceedings finally. That is why I shall listen with interest to see whether the Amendment has the support of the Solicitor-General, whether he can explain to us what these words mean, and whether it would not be better to give the court clear directions, as I have suggested, about the words, could more conveniently be disposed of". I should be interested to hear whether he thinks that those words ought to be included. At present, in connection with this Amendment, I have grave doubts.

11.45 a.m.

Dr. Alan Glyn (Clapham)

In the presence of such legal brains among my colleagues, I hesitate to intervene, but this seems to me to be a very reasonable and sensible Amendment.

I know that some fear will be expressed about the words, could more conveniently be disposed of on an application made under section seventeen of the Married Women's Property Act, 1882, and also about the words, that no substantial benefit would accrue to either party from the continuation of the proceedings, but I should have thought that it was not unreasonable to expect the court to give a decision in these cases.

If it is, quite honestly, a case which already falls within the compass of the Married Women's Property Act, I can see no objection—I can visualise no loss to the plaintiff—to the proceedings being taken under that Act. Nor can I see any reason why the court should not judge whether any substantial benefit would accrue.

I was, however, impressed by the remark of my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) that perhaps in some cases this might well be an action for assault or for slander and might well be a prelude to an action for divorce or separation. He said that in those circumstances perhaps it would have been more convenient to proceed under the normal processes and get a decision of the court. Again, it seems that it is in the power of the court considering all these circumstances to say that there is a benefit which can accrue, and that it should, therefore, permit the proceedings to continue.

As I understand it, the Amendment also means that certain proceedings may also be taken in a magistrates' court as an alternative to the High Court. If I am right, and I hope that the Solicitor-General will correct me if I am not, I would have thought that that action was something which, from the point of view of machinery, was a more beneficial way of conducting the litigation.

This is only an Amendment and I am sure that many of us on either side of the House will have much more to say on Third Reading. But, subject to what my hon. and learned Friend the Solicitor-General says, I have no hesitation in supporting my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) in the Amendment which will make the Bill better and probably simpler to administrate.

Mr. Dudley Williams (Exeter)

I was rather surprised to hear the support for this Amendment which came from my hon. Friend the Member for Clapham (Dr. Alan Glyn) until I recalled that it was only recently that he entered into the bliss of matrimony. I hope that he will never have to suffer as a result of anything within the ambit of the Bill. It would not be proper for me to give my full opinion, because I would have to make a Second Reading speech. Unfortunately, I was not here when the Bill received a Second Reading, or it would not have had such an easy run as it has.

I support the view which was expressed by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) and by the hon. Member for Islington, East (Mr. Fletcher). I intensely dislike the suggestion that the court should have this power and this duty. I have always felt that the office of all the offices in the Government which I should most like to have to refuse is that of a Law Officer of the Crown. I do not see how a Law Officer of the Crown can discharge his duty in advising the House on an Amendment of this nature, which is so vague.

My hon. and learned Friend the Member for Surrey, East made the point of the grounds on which the learned judge would have to decide whether to stay the action. I would have thought that it was extremely difficult to know upon what grounds a judge would have to make up his mind, and some of the points which my hon. and learned Friend the Member for Surrey, East made were most valid. One thinks of the public figure, the Member of Parliament, who is attacked in the court by his wife. Has the court to decide whether that is likely to result in a member of the Liberal Party or, even worse, a member of the Socialist Party, being returned at the next General Election if the hon. Member concerned is a member of the Tory Party? This is an intolerable strain to put upon the learned judge in such proceedings.

Mr. Rawlinson

My hon. Friend the Member for Exeter (Mr. Dudley Williams) will recollect that the power to stay is based on the recommendation of the Law Reform Committee and he will appreciate that at least five judges were members of that Committee and believed that there should be the power to stay. I appreciate that the wording is mine, but, presumably, as they felt that they should have the right and power to stay, they would be able to administer such a power.

Mr. Williams

That makes me even more suspicious. The moment that leading members of the Bar get together and start making recommendations, I am always a little worried about whether the unfortunate layman will understand what his rights and powers are, although I have no doubt that that advice was given in complete sincerity.

I should like the Solicitor-General to say whether this power which is to be given to the courts is original, or whether there are any other cases in the law whereby such power is available to the courts. If there are, I should like to hear what they are before making up my mind about whether I can support the Amendment. I understand that this is a very original approach, but I should like to hear from my hon. and learned Friend whether it is, or whether there is precedent for it in other laws.

The Solicitor-General (Sir John Hobson)

I should like to begin by congratulating my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) on putting forward this substantial Amendment and this improvement to the Bill in subsection (2). The view of the Government is that this is an improvement on the Bill as it was originally drafted, and I should like personally to congratulate my hon. and learned Friend on the skill with which he has produced this redraft of the original subsections (2) and (3). I should like to follow what I think is the right course adumbrated by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) and devote myself to the Amendment, speaking more generally on Third Reading about the effect of the Bill and the important amendments which it will make to the law of husband and wife.

What the Amendment attempts to do is to co-ordinate the new right of action which is given between husband and wife and the old and subsisting procedure under Section 17 of the Married Women's Property Act, 1882. The hon. Member for Islington, East (Mr. Fletcher) asked why Section 17 procedure was more appropriate or convenient and why we should want to retain it, or to remit an action which has been started in tort for decision under the summary processes of Section 17.

The advantages of the Section 17 procedure, for all those who have been concerned with unhappy disputes about property to or possession of mutual goods as between husband and wife, are that it is an exceedingly convenient process. First, it is summary. Secondly, the problems of dividing the property of husband and wife in the unhappy event of the break-up of the marriage is often exceedingly difficult and cannot be adjudicated upon according to the ordinary principles of right and title or right to possession, because many of the goods have been common property and nobody has ever considered whether they belong to the husband or to the wife as they have always been regarded as part of the lares et penates of the matrimonial home. When it comes to a division of them, it cannot be done strictly according to law and must be done on general equitable principles.

Suppose the late Aunt Margaret leaves her silver teapot in her will. It arrives in the matrimonial home. Although she was the aunt of the wife, she had said that she would leave it to the husband. When that marriage breaks up, to whom does it belong? That cannot be adjudicated upon according to the ordinary principles of the law. Therefore, the Section 17 procedure is essential for the equitable divison of not only the chattels, but even the house, the matrimonial home, and the other assets which have been jointly enjoyed by the parties while they regarded each other as one.

Thirdly, it is a very advantageous procedure because it is in private. Everybody would agree that, whatever the necessity for publicity in ordinary litigation, there are great advantages for husband and wife whose marriage unhappily breaks apart being able to wind up the property side of that marriage in the privacy of the Master's chambers and without all the publicity which is attendant on a public hearing. It is, therefore, necessary, and I think that nobody has disagreed with this, that one should preserve the Section 17 procedure.

It can be used in any circumstances when the title to or possession of property arises between husband and wife. This may arise in a hundred different ways closely linked with questions of tort. In an action of negligence, particularly where third parties are concerned, one of the principle issues may be who was, in fact, the driver, husband or wife. This would be a question of who was in possession of the property, namely, the motor car, and under the Clause as it was originally drafted, if a question under Section 17 arose, the court had to stay the main action and remit it for decision under Section 17.

The area between conversion of goods and detinue of goods and the decision as to the right and title to them or possession of them is often very narrow. It is exceedingly difficult in some instances to determine whether an issue which has arisen in the course of an action is one which could properly be decided under Section 17. Under the Bill as originally drafted and, if the Amendment is not accepted, as the Bill stands, that awkward question at the beginning of the proceedings will have to be determined to see whether the action must be stayed.

Questions as to the title to or possession of property might also arise in actions which are linked with a series of other questions between husband and wife which are properly triable as actions of tort, and one might therefore have to divide the action and send the Section 17 part as to property between husband and wife to the Master, for decision in Chambers, leaving the other part of the action outstanding because it is an action in tort and not a Section 17 action. Yet the same issues of fact between the parties might be involved, and would then have to be determined by two different courts.

It was with those difficulties in mind that the hon. and learned Member for Epsom has adopted the procedure which is proposed by the Amendment and which gives the court a discretion to remit the whole action to the Master, or in the county court, to the Registrar, for trial as a Section 17 action; or to retain the whole action as an action in tort and, if necessary, to apply the Section 17 procedure to the whole or part of that action; or, to remit part of the issues between husband and wife for decision by the Master while still retaining itself the decision of the issues to be decided in strict law of tort.

This is a departure from the recommendations of the Law Reform Committee which, in paragraph 14 of its ninth Report, recommended that disputes affecting the title to or right of possession of any property should in future be dealt with exclusively under Section 17 of the 1882 Act, and that a wife should no longer be able to bring an action under Section 12 as an alternative to proceedings under Section 17. A provision on these lines, however, is open to the objection that cases might easily arise in which it is by no means clear whether the proper course is to start an action under the general power conferred by Clause 1 (1), or to make the application under Section 17 of the 1882 Act.

The distinction between the two is rather unreal and under the Bill as originally drafted the unfortunate plaintiff would have had to choose the correct procedure at the outset of the proceedings. If he had got it wrong, he would have thrown away time and some costs, because the court might come to the conclusion, on what is a very narrow and difficult issue, that the case should have proceeded under Section 17 and, therefore, the action should be stayed.

The distinction between these two actions is, in a sense, very technical and somewhat unreal. As time proceeds, I am sure that it will be found convenient that we should preserve the advantages of the Section 17 procedure but leave it to a court in which an action for tort has been started either to remit it, if the whole action can be tried, or remit part of it far trial in private and summarily if that is a more convenient way of disposing of the issues between the parties.

12 noon.

The other principal issue discussed on this Amendment was the point raised by the hon. Member for Islington, East, my hon. Friend the Member for Exeter (Mr. Dudley Williams) and my hon. and learned Friend the Member for Surrey, East on what is the purport, meaning, intention, and probable result of the provision in paragraph (a), that the court may stay the action if no substantial benefit would accrue to either party from the continuation of the proceedings; This is an attempt to put into legislative form the recommendations of the Law Reform Committee on this question of staying actions. The first question is whether husbands and wives ought to have an unlimited right in all circumstances to sue each other in court. There was only one recommendation in favour of that position before the Law Reform Committee, and the evidence it had and all the other recommendations include some suggestion that there aught to be a limitation upon the rights of husbands and wives to litigate within the courts and, perhaps, to ventilate their vindictive passions to little purpose.

The way in which the Committee expressed its opinion on this subject was as follows: The court should, however, be able either of its own motion or on the application of the defendant, to stay the action if, having regard to all the circumstances including the conduct of the parties and the nature of the matter complained of, the judge is satisfied that the complaint is not one of substance or that it would not be in the best interests of the parties that the action should be allowed to proceed. This proviso, enabling the court to stay, has picked up that part of the recommendation which suggests that the court should stay an action if it is not one of substance, but has not picked up the suggestion that there should be a stay if it is not in the best interests of the parties that the action should be allowed to proceed. There would be the greatest difficulties if in the earlier stages of an action a court had to consider what was the long-term best interests of the parties, and what was in a sense likely to be the result of the action on the status and permanence of the marriage.

The conduct of the parties can really have very little relevance to the substance of the proceedings, and a reference to the best interests of the parties implies an obligation to examine the effect of the proceedings on the continuance of the marriage. If that were to be done by the court, however, in cases where the stability of the marriage was in doubt there would be a stay, but in circumstances where the parties were very happily married and an action was likely to have no result on the stability of the marriage, or in circumstances where they had been parted for many years and there was little likelihood of effecting a reconciliation, the action could be brought.

It would be an odd position if only those spouses whose matrimonial relationship was in a somewhat dubious state were prevented from proceeding with the action whereas all other spouses who could show that they were happily married or unhappily married would be able to do so. This would be an impossible distinction for the courts to draw in deciding whether an action should proceed or not.

In any event, on the evidence before the judge at the early stages on which this decision would have to be taken, it would be very difficult for him to assess whether there was any prospect of a reconciliation, or what was the state or reality of the marriage. Indeed, this might be involved in the very decision of the action that was coming on for trial, and therefore distinctions of this sort are impossible to provide for by legislation. All that one can do is to say that spouses ought not to use the processes of our courts if it is unlikely that any substantial benefit would accrue to either party from the continuation of the proceedings.

If there is likely to be a substantial benefit to one of the parties the action proceeds, because the position would not be within the paragraph giving power to stay. Therefore, any person who shows that as a result of the action continuing he will get a substantial benefit, whatever the result will be on the other party, will be able to continue with the proceedings, unless the position is that the success of one spouse will lead to the ruin of the other, and thus to the ruin of the plaintiff spouse.

One can imagine circumstances in which really the wife is getting all the money that she can get from the husband, or is ever likely to get, and to sue him for monetary sums thereafter is merely to run up an additional bill of costs to no purpose because the prospect of getting more money than she is getting at the time is nil. On that basis it will be open to the court to say that it is absurd for this wife to pursue this husband for a monetary remedy which is likely to be fruitless. The only purpose she can have for bringing the action is one of ventilating vindictively the affairs of the marriage to no real purpose, and therefore there is no substantial benefit in continuing the action and the court can then stop it.

Mr. Fletcher

Would not the Solicitor-General agree that if that is the way the courts will determine whether there is or is not a substantial benefit, that inquiry will also involve consideration of the relationship between the parties which would not be any more difficult than the inquiry which the Law Reform Committee recommends as to whether the proceedings are in the best interests of the parties? In deciding whether there is substantial benefit, they have to consider the status of the marriage, the prospect of the marriage surviving, and so on. That is the kind of inquiry that would be involved in considering whether it is in the interests of the parties, which the Solicitor-General advises is impossible.

The Solicitor-General

With respect, that is not so, because in the one case where one is considering the prospects of reconciliation, or the status of the marriage and the general situation of the marriage state, one has to investigate to a large extent both the history of the marriage and the personal relationships between the parties. When one is considering substantial benefit, one has the easier task of considering the financial position.

The substantial benefit here does not mean the benefit in the sense of the ethical or moral disadvantages or advantages of pursuing a spouse in a court of law. It must be confined to the practical property aspect of the matter, the cash, the house, and whatever other assets there may be, and it does not go so wide as to include the general moral considerations of the advantages or disadvantages of maintaining a married state in the society in which we live. It is with that object in view that the court should have power to see that no practical benefit is being derived by a party by pursuing the litigation, or, if the litigation is pursued it will be completely fruitless. Those are the two situations intended to be dealt with.

Another situation with which it is intended to deal is the situation where, as has been said, the injury is quite trivial, where there is only a black eye, and it would be absurd to allow the people to ventilate a matrimonial quarrel, the net result of which would be to produce nothing except acrimonious litigation between them, again with no substantial benefit because the claim is small and costs would be high.

Members of the Bar have had experience of cases in which parties who are both legally added have pursued against each other a trivial claim about property or small injuries, at enormous expense to the Legal Aid Fund and really for no benefit to themselves. It is to deal with those cases—which, I believe, will be minimal—that the provisions are necessary. It is not envisaged that there will be large numbers of cases in which it can be said that the result of the whole litigation will be that neither party will get any benefit at all. If either party can show that he or she will receive a substantial benefit from pursuing such litigation the court will not have power to stay any such action.

I heartily agree with the hon. Member for Islington, East that it is to be hoped that these Amendments and the provisions which we are making will not lead to a spate of husband-and-wife actions.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I refrained from intervening while the Solicitor-General was speaking, because I was not able to be here at the very beginning of the discussion, and I did not want to criticise an excellent Bill by raising one point. Nevertheless, I am a little worried about what the Solicitor-General has said in respect of the words "no substantial benefit." Those words misconceive the recommendation made by the Law Reform Committee. That Committee said that in disputes between husband and wife which it is clearly not in the best interests of the parties to pursue there should be power to stay actions.

That is a very different thing from the provisions of the Amendment, which says: that no substantial benefit would accrue to either party from the continuation of the proceedings … The Solicitor-General would not pretend for a moment that that carried out the recommendation of the Law Reform Committee. It seeks to nibble at the problem by including words which will go some way towards the recommendation of the Committee.

Do the words achieve their object? The Solicitor-General instanced the case of the husband who gave his wife a black eye, in respect of which she brought proceedings against him. Let us suppose that medical evidence was given, and that the wife claimed damages. If real damage had been done, why should not the court say that the wife should receive a substantial benefit? Would not the court be in a real difficulty in deciding what is meant by "no substantial benefit"? I appreciate the intention behind the Amendment, but when a court tries to translate its provisions it will say, "The real point is: is there any real damage? If there is the offending party will have to pay for that damage. If the party pays for that damage a substantial benefit will accrue to the other party." Therefore, the insertion of these words will not achieve what we intend. I am rather troubled about the insertion of these words in an otherwise excellent Bill. To some extent they spoil the Bill.

Amendment agreed to.

Further Amendment made: In page 2, line 1, leave out "(3)" and insert "(2)".—[Mr. Rawlinson.]