HC Deb 18 May 1962 vol 659 cc1711-30
Mr. Rawlinson

I beg to move in, page 2, line 24, to leave out "References in" and to insert: The references in subsection (1) of section one and subsection (1) of section two of". This is a drafting Amendment, which is necessary because the expression "parties to a marriage" will, under the Bill as amended, appear not only in Clause 2 (1), but also in Clause 1 (2) and in Clause 2 (2), and in the last two mentioned cases the reference is to proceedings during the subsistence of the marriage, and it would clearly be inappropriate in those cases to suggest that the reference to parties to a marriage included parties to a marriage which has been dissolved.

But the parties to a marriage, or the spouses to a marriage, would be able to bring proceedings under the Bill after that marriage had been terminated, in respect of a tort which had been committed during the course of the marriage.

Amendment agreed to.

12.20 p.m.

Mr. Rawlinson

I beg to move, That the Bill be now read the Third time.

This Bill is an attempt to clarify and modernise the law and to bring the law in relation to tort into modern relationship, having regard to the present status and position of husband and wife. It was clear from our discussions on Report this morning that this is not very easy to effect. But I am sure that all of us who see the gross anomalies that exist and the hardship which is imposed upon wives, who would otherwise be unable to get compensation for injuries they have received in, for instance, accident cases, would wish to see that that is put right.

Nevertheless, this is a matter of some complexity and follows upon the change in the law and the modifying of the law over the past century. The unity of the household, which, of course, was the old idea, was breached a long time ago, particularly in 1882, when powers were given to the wife which arose, of course, from the view that the husband should cease to have control over the whole of the wife's property. The wife having won the power to control her own property and to bring proceedings against her husband in respect of it, as the hon. Member for Islington, East (Mr. Fletcher) said earlier this morning, it is obvious that there should be an equal right in the spouse to bring actions in respect of tort.

The unity of husband and wife is, therefore, in the present state of the law, unrealistic, with the wife as an individual having the same status and rights as the husband. Nothing that I have said in that regard, of course, alters the social importance of the sanctity and maintenance of the marriage.

The cases and the anomalies to which reference has already been made show how necessary it was for some reform of the law to be brought about. I have referred to the accident cases and the cases with regard to employers and the contributor, and third parties. The Law Reform Committee, to the members of which I have referred and all of whom have great experience not only in the practice of the law, but also in judicial administration—two of them are at present Lords of Appeal in Ordinary, two others sit in the Court of Appeal and one other sits in the Queen's Bench Division of the High Court, while others are not only practitioners of the law but are also academic professors—agreed to the recommendation that the court should have some power to stay the action having regard to the circumstances, including the conduct of the parties, the nature of the matter complained of and if the judge is satisfied that the complaint is not one of substance.

That recommendation is based upon the social conception that there should be some restraint and of the undesirability of having complete freedom. The only body which said that there should be complete freedom for husband and wife to litigate was, I see with interest, the Association of Liberal Lawyers. That suggestion was rejected by this very powerful Committee, and I should think that the House would want to reject it also. Therefore, there is surely the need for some restraint and a power which I should have thought the courts, with their experience, would be able to administer sensibly and reasonably in the interests of the parties.

In these circumstances, and acknowledging the great help that I have received in this matter from my hon. and learned Friend the Solicitor-General and other advisers, I ask the House to give the Bill its Third Reading.

12.26 p.m.

Mr. R. T. Paget (Northampton)

The hon. and learned Member for Epsom (Mr. Rawlinson) was successful in obtaining the Second Reading of his Bill on the nod and in it having a rather formal Committee stage. Therefore, this has really been the first discussion on the Bill. That being so, and although this is not by any means always my view, I think that it may be rather fortunate that there is a further stage elsewhere, because I am not entirely happy about the whole of the Bill.

This is a subject which interests me a good deal, because I remember that I was in the case which upset the decision of Mr. Justice McCardie, which, I think, then stood for twenty years, to the effect that a wife could not sue her husband with regard to an accident which happened before the marriage. The Court of Appeal, I must confess slightly to my surprise, held in my favour on that occasion. Therefore, it has been possible since then to bring an action upon torts which occurred before the marriage. Whether the Amendments introduced on Report fully achieve this, I am not certain, but my own feeling is that so far as husband and wife are concerned actions in tort ought really to be confined to actions which involve injury either to the person or to property.

I am not at all happy about a variety of other actions in tort of which, of course, the most obvious is slander. I cannot really think that we shall be better off as a community and, indeed, add to the dignity of marriage if we find rows in the bedroom and talk to neighbours afterwards, translated by husband and wife, instead of bringing an assault summons before the magistrates proceed to issue a writ for slander.

However, there will be an opportunity in another place to consider that aspect of the matter. I have no doubt that those in another place will do so, and, subject to that slight reservation, I think that we should express our gratitude to the hon. and learned Member for Epsom for having provided us with a very useful and valuable addition to the law.

12.29 p.m.

Mr. Doughty

As the hon. and learned Member for Northampton (Mr. Paget) said in his speech, with every word of which I entirely agree, this is really the first occasion that the House has had the opportunity of discussing the Bill. It is seldom that an hon. Member obtains on the nod a Second Reading of a Private Member's Bill of a somewhat controversial nature. There is nearly always one hon. Member to object. We therefore congratulate my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) upon his good fortune and luck. He is probably as surprised as I am that his Bill has got as far as this.

Having said that, I suggest that we should treat the Third Reading stage of the Bill more like a Second Reading stage and hope that the Bill will receive further consideration in another place, because it is a very important Measure. It deals with so many people, since the vast majority of adults in this country are married. The reason for it is, quite bluntly, that insurance companies managed to escape liability in respect of injured persons because one was married to the other.

I do not believe for a moment that if there were not any question of compulsory insurance such as exists in connection with motor cars, the Bill would have been introduced. If it had confined itself to that, it would have had my wholehearted support. At the moment, it has only my qualified support. However, I will not object to it now any more than I objected to it on Second Reading.

I would point out the opportunities that the Bill, as amended, gives for collusion. That is not a desirable feature of the Bill. The Bill introduces complete power, subject to the Amendment which we discussed earlier, for a spouse to sue the other in tort. Tort covers many matters, besides ordinary negligence. It covers libel, slander and assault, to mention only three. This will open the door to spouses to bring civil actions in respect of all those and other matters as well, which, frankly, I have no hesitation in saying are undesirable between spouses. This cannot be desirable between spouses who are—I will not say living happily together but, at any rate, living together. When they are no longer living happily together it opens up an opportunity for one further to irritate, annoy and pester the other by means of legal process which at the moment they do not, and rightly in my view do not, possess.

The Bill will undoubtedly be used to bolster up divorce proceedings. A spouse will tell the judge that there have already been two judgments for slander and one for assault against the other party. It may be that one spouse wishes financially to ruin the other. One can exaggerate a libel, slander or assault and obtain an order for damages and costs, probably assisted by legal aid, in order not only to irritate and worry the other party but also to reduce that party to a state of financial embarrassment and perhaps thereby prevent him or her defending the later divorce proceedings. Therefore, a great deal of criticism can be offered to these provisions.

It may be said that the Amendment which we discussed earlier dealing with "substantial benefit" will cover that point. I have no hesitation in saying that, in my view, it will not. Suppose a wife alleges that her husband has grossly slandered her. Is the court going to say that no substantial benefit would result from a continuation of the proceedings? The question whether or not the slander was spoken cannot be decided at the preliminary hearing. It cannot decide the question whether or not the damage effected by the slander is serious. That is a matter for the subsequent trial which may take a long time to decide such difficult questions. Therefore, this alleged safeguard is absolutely no safeguard at all.

One knows how bitter and strenuously contested these actions between husband and wife can become. I foresee, as a result of the Bill, not the recompensing of injured spouses who are unfortunate enough to be involved in accidents of one kind and another, unintentionally although perhaps negligently caused by their spouses, but long and bitterly-fought cases resulting from trivial matters—slander, and so on, or assaults committed perhaps in the heat of the moment which occur sometimes between husband and wife; and I foresee many days being occupied with the results of such footling incidents, perhaps supported by legal aid.

For those reasons I hope that in another place this will be considered more carefully, and that Amendments will be moved to cover these difficulties, deal on a practical basis with spouses who become bitter towards each other, and make provision to stop actions of that kind taking place.

12.36 p.m.

Mr. Weitzman

As has been said, this is the first opportunity we have had of discussing this extremely important Measure. I congratulate the hon. and learned Member for Epsom (Mr. Rawlinson) on introducing a Measure which certainly carries out to a considerable extent a much-needed reform.

I am frankly, however, rather worried about the point which has been referred to before, whether the Bill in fact carries into effect the very important consideration that was put forward by the Law Reform Committee. I question whether disputes between husbands and wives are so dealt with that the recommendation of the Committee has been carried out. One recognises, of course, that as the sexes are equal, opportunities ought to be given to both husband and wife to bring actions at law. At the same time, we have to recognise the particular relationship between husband and wife. It is a relationship which is most important in our society. Anything that interferes or tends to interfere with that relationship must be considered very carefully indeed.

That is why I echo what has been said by my hon. and learned Friend the Member for Northampton (Mr. Paget). I hope that this matter will be considered very carefully from the point of view of seeing how far this reform goes, whether the intentions that we really desire to bring into effect are carried out in the Bill and whether due regard is placed on the relationship between husband and wife.

I should like to emphasise what I mentioned before when we discussed the first Amendment. I am troubled by the words: … no substantial benefit … to either party. I hope that these words will be considered very carefully. I hope also that if it is intended to implement to some extent the recommendation of the Law Reform Committee, words will be used which really implement it. I feel that the words which are now inserted are of little advantage. Apart from that qualification, I support the Bill and congratulate the hon. and learned Member on introducing it.

12.40 p.m.

Dr. Alan Glyn

I congratulate my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) not only on his success in the Ballot but on having got his Bill through Second Reading without difficulty. That is evidence of two things: first, of popular support in the House and the country for some reform of the law—

Mr. Dudley Williams


Mr. Weitzman

The hon. Member for Exeter (Mr. Dudley Williams) has not taken part yet.

Dr. Glyn

—and, second, of my hon. and learned Friend's popularity in the House which ensured that there were no objections to a Second Reading.

This is an important Measure. It is another illustration of how our business on Fridays and private Members' time can be usefully employed in putting through legislation which is of considerable value. The Bill represents what is probably the greatest step forward since the Law Reform (Married Woman and Tortfeasors) Act, 1935, and we have all welcomed it today. As I see them, the Amendments which my hon. and learned Friend put down have to a great extent improved the Bill and have removed what would otherwise have been come anomalies. None of us would care to see the social importance of marriage in any way impaired, but there has been an ancient anomaly, and my hon. and learned Friend has sought to overcome a real difficulty which many hon. Members have illustrated by individual cases arising out of accidents.

I am a little worried that there may be a spate of vexatious litigation in the courts, and I hope that my hon. and learned Friend the Solicitor-General will tell us how he envisages that the Amendments introduced today will enable the courts to stop such litigation. I have in mind cases such as those to which my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) referred which should not come before the High Court at all but which properly should be the substance of actions in the divorce courts.

It is undeniable that, when two persons have been divorced, there is very often a great amount of spite between them. It might be possible to use the provisions of the Bill in the pursuit of litigation which could do neither party any good and which could cause the ruin of one or the other. I hope that my hon. and learned Friend the Solicitor-General will enlarge on this point about how litigation of this sort will, in his view, be dealt with by the High Court.

I have no hesitation in supporting the Bill, which I regard as a real step forward in removing an anomaly which has existed for centuries.

12.42 p.m.

Mr. Dudley Williams

I hate to sound a discordant note, but I am not in favour of the Bill. I regard it as an undesirable Measure and I shall regret it if the House decides to give it a Third Reading and send it to another place. I hope that, if it goes to another place, it will receive short shrift there.

I criticise the Bill because it is another nail in the coffin of matrimony. The fear expressed by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty) that it will lead to a spate of litigation is, I believe, well founded. I do not believe that it is possible for people to issue writs against each other for slander, libel or assault and still continue in the state of matrimony. If legislation of this kind were thought desirable at all by the House, it should be applied only to marriages which have already broken up or, at least, where a legal separation has taken place. To suggest that these powers should be given to either spouse to sue the other is, to my mind, another way of saying that the House of Commons is prepared to pass legislation which will encourage the break-up of marriages. For this reason, I oppose the Bill.

Both my hon. and learned Friend the Member for Surrey, East and my hon. and learned Friend the Member for Epsom (Mr. Rawlinson), whose Bill it is, spoke about a wife being unable to sue her husband in a case of negligent driving. This is true, but a similar limitation applies in other respects. We had this matter thrashed out in the House of Commons on a Friday last Session, when the hon. Member for Loughborough (Mr. Cronin) introduced a Bill which would have made it compulsory to insure pillion riders on motor cycles.

Mr. Rawlinson

Does not my hon. Friend realise that in this case, where persons have entered into an agreement, a policy of insurance, which covers third parties, they do not, if they are husband and wife, have the benefit of that policy which they would have if they were father and daughter or lover and mistress?

Mr. Williams

I cannot speak for lovers and mistresses. My hon. Friend is not so naive as to believe that, if this ground of legal action were given to spouses, there would not be a rise in insurance premiums. I submit that it would lead to a considerable number of cases, in many of which, I have no doubt, there would be a strong element of collusion. Nothing would be easier than for a wife to sue her husband and say that, owing to his bad driving and an accident which he had caused, she had had a nervous breakdown. It would be to the husband's advantage to encourage his wife to bring such an action because he would not pay the bill.

Mr. Paget

Has the hon. Gentleman considered that it is, perhaps, a little unjust that the one person who should be restrained from suing in those circumstances is the very person who almost undoubtedly has for a very long time been giving the husband good advice about how careful he ought to be in driving?

Mr. Williams

I do not like the suggestion that she has been giving him good advice. In fact, it will work just as much the other way. The husband would have been giving the wife good advice, but it is suggested that we should give him power to sue her if she is driving. I think that this is undesirable.

In my view, the Bill should not be accepted by the House. Subject to what my hon. and learned Friend the Solicitor-General may say, I shall have to consider carefully whether I ought to call a Division to test the opinion of the House. My present view is that it is far from desirable that the Bill should be given a Third Reading.

12.47 p.m.

Mr. Fletcher

I can give the Bill only qualified support on Third Reading. My support is qualified for the same reasons as those expressed by my hon. and learned Friend the Member for Northampton (Mr. Paget).

As has been said, it is obvious that the Bill is introduced primarily to give spouses remedies against third parties, particularly against insurance companies, in circumstances in which they have not such rights at present. This was recognised in the Report of the Law Reform Committee to which the hon. and learned Member for Epsom (Mr. Rawlinson) referred. I share the concern already voiced about the possibility of this leading to undesirable vexatious litigation between husband and wife which it has hitherto been the policy of the law to restrain.

We all agree that it would be very undesirable if the passage of the Bill into law were to lead to a lot of trivial, frivolous or vexatious proceedings for slander or petty assault by one spouse against another, or even to the threat of such proceedings, because this would lead inevitably to matrimonial unhappiness.

What grieves me is that the hon. and learned Member for Epsom has prayed in aid the recommendations of the Law Reform Committee, but there is in the Bill a serious departure from its recommendations. We have not implemented to the full the safeguards which it stated should be provided to prevent the very abuse to which I have referred. It is really not open to the hon. and learned Member to claim support from this very distinguished Committee unless he can go to the length of ensuring that the safeguards which it thought necessary are written into the Bill.

The Law Reform Committee felt this concern strongly. It recognised that, because of anomalies arising out of claims against insurance companies, certain changes were desirable, but in paragraph (9) of its Report it said: Litigation in respect of petty acts of negligence in the domestic sphere would certainly not be conducive to the continuance of the marriage and would, we think, do nothing but harm. It was for this very reason that the Committee recommended that the court should have the right to stay proceedings.

My regret is that, as the Bill now stands, the right of the court to stay proceedings is limited to the circumstances in which the court finds that no substantial benefit will accrue to either party. That is something substantially less than the Law Reform Committee proposed. It states in paragraph 10: A solution on these lines would recognise that the theory underlying the common law rule as to the inability of either spouse to sue the other for a tort committed during marriage had finally disappeared and that the law was concerned only to ensure that some check was placed on litigation which could not serve any useful purpose. To achieve that result, it specifically recommended that 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. That last phrase—those vital words—have been omitted from the Bill and I think that it is essential that they should be written in the Bill. Therefore, while I give the Bill support on Third Reading I hope, as hon. Members on both sides of the House have said, that when the Bill gets to another place, their Lordships will see fit to have regard to the full recommendations of the Law Reform Committee and amend Clause 1 (2) so that the court can stay proceedings if it thinks that it is in the best interests of the parties that the action should not be allowed to proceed.

I can imagine plenty of cases in which the court may find it very difficult to say whether any substantial benefit would accrue or not. I do not know what the position is if one spouse slanders another. Often, hasty, intemperate and unwise words are said by one spouse to another in the presence of third parties. If on every occasion that happens there can be the threat of proceedings, or actual proceedings, it is putting a very invidious task on a judge to say whether the degree of slander uttered was substantial or not. There must be many cases in which a court would be able to say that it could not be in the interests of the parties or in the interest of the marriage that proceedings of that kind should take place.

The Solicitor-General, in what I thought was a very laboured and unconvincing speech, tried to give us the reasons why he did not think that it would be possible to have these words in the Bill. I very much hope that he will have second thoughts about that matter. He did not convince me. The reasons he gave did not convince distinguished members of the Law Reform Committee. Since they gave the matter this degree of thought and were concerned, as hon. Members on both sides have been, about the dangers of troublesome and unnecessary vexatious litigation between spouses which will be opened up if we go further than necessary in correcting the main anomaly at which the Bill is aimed, I hope that when the Bill gets to another place this matter, to which attention has been drawn, will be rectified in the Bill.

12.55 p.m.

The Solicitor-General

We started this morning with a good deal of enthusiasm for the Bill which has become somewhat qualified as time progressed. I should like on behalf of the Government to welcome the Bill as it stands at present and to congratulate my hon. and learned Friend the Member for Epsom (Mr. Rawlinson) on the choice of subject, on his skill in its presentation and in getting it through all the stages up to date, and on his expertise in getting it on the nod on Second Reading.

Since it has not been discussed generally on the Floor of the House, perhaps the House will forgive me if I say a word or two about the general principles of the Bill. I should like before I do that to express the thanks of the House and of everybody to the members of the Law, Reform Committee for their very excellent Report. It is obvious that all hon. Members who have taken part in the debate have relied on it very much indeed. It was, as I think we would all agree, a well-thought out exposition of the difficulties of the law as they exist. We ought to be very grateful to the distinguished members of that Committee for the time and trouble taken in elucidating this subject, and the fact that we are passing this Bill within fifteen months of the Report being issued will be an encouragement to all members of Law Reform Committees to continue with their good work, which often appears to them, no doubt, to be a somewhat thankless task.

The subject of legislation for husband and wife is dealt with in one of the oldest statutes extant, going back to 1285. It contains provisions about the forfeiture by married women of their dowry in the event of their elopement. Throughout the centuries Parliament has been concerned with adjusting the mutual rights as between husband and wife.

The great jurist, Blackstone, expressed the view that the female was a great favourite of the laws of England. A good many other people would regard her position, at any rate until the Married Women's Property Act, as being one of extreme disadvantage when she was subject to her husband taking possession and power over the whole of her property and leaving her almost without any rights.

We have since those days of the Married Women's Property Act, progressed a good deal. There is one respect in which a wife has an advantage over her husband. While spouses can contract with each other and sue each other in contract they may not, as has been said and which it is the purpose of this Bill to deal with, sue each other in tort, except that a wife may sue her husband for the protection and security of what is her own property. This injustice to husbands in not being able to sue their wives for protection of their property is now, I am glad to say, being removed. I say that "I am glad to say", because I am addressing an exclusively masculine House today.

The rule that spouses should not sue each other in tort is supposedly based on their unity after matrimony. As they are one body and one person by the ceremony which has been performed, they cannot, therefore, invoke the law for their mutual protection. In fact it is generally thought that the main principle in the earlier law of husband and wife was to give the husband a profitable guardianship over the property of his wife and that the common law devised the doctrine of the unity of the person in order to disguise and justify this particular law. But this principle of unity has never been recognised in equity or in the ecclesiastical courts. It is a mere common law device which has survived only as far as tort, not contract, is concerned. Therefore, while we are in a sense embarking on a very new and radical procedure in giving to spouses the right to sue each other in tort, it is in line with the general reforms in the law of husband and wife which have been taking place over the last century or so.

Of the two exceptions to the present bar on proceedings between husband and wife, one was Section 12 of the Married Women's Property Act, which, as I have said, gave the wife the right to protect her property by suing her husband in tort. The Bill abolishes this right. It will be swallowed up in the wider right to have remedies in tort not only for the protection of the property but for all other purposes.

The other provision of the legislation which provided for actions between husband and wife was Section 17, which enabled disputes concerning title to or possession of property to be litigated between them. That will remain, and either party will be able to employ it and the courts can insist on their employing it in circumstances in which it is convenient to do so.

The Law Reform Committee's Report dealt only with the law of England, but the legal disabilities of parties to a marriage were not dissimilar in Scotland. Such was the persuasiveness of the arguments of the Committee to Scottish lawyers and those concerned with the matter in Scotland that they have gladly climbed on the band-wagon of my hon. and learned Friend the Member for Epsom and have taken this opportunity of making a similar reform in the law of Scotland. The Bill does not extend to Northern Ireland, though, no doubt, the Parliament at Stormont will be able to use its powers to adjust the law in the same way if it so desires.

Clause 1 provides that in future, subject to the two restrictions which we have discussed this morning, the parties to a marriage in England shall be able to sue each other as if they were not married. There is to be the procedural restraint in the form of the power of the court to remit disputes for trial under section 17 or to stay the action if no substantial benefit is likely to result to either party. If it will result in benefit to one party, the action can continue.

The new right of action applies to torts committed before marriage as to torts after marriage and therefore removes the anomaly which existed before, that a husband could not sue a wife for a pre-nuptial tort whereas a wife could sue her husband. We have dealt at some length this morning with the question of the procedural arrangements which have to be made to co-ordinate an action in tort and the possibility of resolving claims as to property under Section 17. I do not think it necessary to elaborate on those arrangements. The principal subject of discussion on Third Reading and the principal criticisms of the Bill have related to the fact that the recommendation of the Law Reform Committee to give a power to stay "an action when it would not be in the best interests of the parties that the action should be allowed to proceed" has not been incorporated in the Bill.

I agree with the hon. and learned Member for Northampton (Mr. Paget) that it is, perhaps, an advantage that this difficult problem can be considered again in another place. I do not pretend that one can view with equanimity the prospect of a spate of what may well be vexatious and unjustified actions in the courts as a result of what we have done today. But, conversely, our instinct must be to allow people to exercise their rights under the law. If we give people the right as between husband and wife to ensure that they obtain justice and as much indemnity for injuries suffered by them as if they had not been spouses, then there is strong pressure to see that that right is not cut down unless it is really necessary.

I assure the House that a great deal of thought has been given to this very difficult problem, and the solution in the Bill, which has been in it since its inception, has been very carefully considered and is acceptable to the Government for the reason that we should not place shackles on the rights of people to seek justice at the bar of the courts of law unless it is essential. Also, it is very difficult to devise any sort of formula which would enable courts of law equitably and fairly to distinguish between those types of action which should be allowed to continue and those types of action which should be stopped in limine so that a plaintiff is deprived of what may be his just rights.

Under the Bill as drafted, a person cannot proceed with an action if it is not likely to be of substantial benefit to both parties to the marriage. If it is desired to widen this, consideration can and should be given to it in future. But there are considerable difficulties in seeing how courts could properly decide the wider question which the hon. Member for Islington, East (Mr. Fletcher) adumbrated, namely, that one should consider the effect on the marriage of the social, ethical and moral consequences of allowing litigation between married people to continue.

Mr. Weitzman

What do the words "substantial benefit" mean? Will the Solicitor-General give us a definition of them?

The Solicitor-General

I endeavoured during discussion of the Amendment to give a definition, and I am sure that the hon. and learned Member would not wish me to waste time by giving it again. I refer him to HANSARD. It means a practical and financial benefit, not a prospective moral or ethical benefit. It must be concerned with questions of money and property. If the net result of the action will be only to satisfy the vindictiveness of an invidual, or something of that nature, that cannot be a substantial benefit.

Mr. Weitzman

Suppose that a hushand slandered his wife very seriously. Would he have to await the verdict of a jury on how much it should give him, and would the judge then have to decide whether that was a substantial benefit or not?

The Solicitor-General

No. It is intended that the question as to whether there should be a stay should be considered at a very early stage in the proceedings, probably on the summons for direction as soon as the pleadings are closed. At that stage one would have to consider whether the nature of the claim and the injury alleged was trivial. If it was trivial, there would be no substantial benefit in continuing. If, however, it appeared to be a heavy claim but, nevertheless, there were no assets against which a successful judgment could be executed, the action could be stopped. The intention is to cover those sorts of action in which the fruits of litigation are likely to be nugatory and in which it is thought that there can be no object in allowing husband and wife to continue to litigate.

Like everyone who has been concerned with the Bill, including, I am sure, my hon. and learned Friend the Member for Epsom, I very much appreciate the necessity of ensuring that we do not open the door to unnecessary litigation too wide. Nevertheless, the task of devising a practical dividing line is exceedingly difficult.

The suggestion of the hon. and learned Member for Northampton that the matter should be confined to personal injuries and injuries to property was very interesting. This is a matter which will be considered. I should point out, on the other hand, as to questions of the right to sue in libel or slander, that there is no legal aid in the High Court of Justice in such actions. While on the one hand it may be said that people may bring unnecessary actions, they will have to do so at the risk of bearing all the cost themselves, and they will get no assistance at all in such actions from the legal aid fund. Conversely, one remembers that there may be circumstances in which a husband and wife have been separated for years, their marriage has broken up, and one party very seriously slanders the other party; in such circumstances we might be depriving a person who was seriously injured of her right and putting her in an exceptional position from the rest of the community.

Mr. Paget

This is a useful qualification which could well be put in. The difference in respect of slander is whether the marriage was subsisting or not in the sense that they were living together. The mere fact that they cannot get somebody else to pay for it is not necessarily conclusive. The Solicitor-General might have in mind a case running at the moment in which there might be half-a-dozen slander actions if they were allowed.

The Solicitor-General

It is an exceedingly difficult question and it is fortunate that it can be reconsidered. Reconsideration will be given to all that has been said and all the suggestions which have been made. It was thought that this was the best formula which could be devised and which can be applied practically by courts of law in deciding which actions should be stopped. If we provide that it is only when parties are living separate and apart that they should be able to sue each other, I suppose in actions other than injuries to property and persons, then difficult questions arise of how long they have been separated and whether they were truly separated or whether they had separated in order to be able to sue each other. But I do not exclude consideration of all these matters, and I am grateful to hon. and right hon. Gentlemen who have made proposals as to how this difficult question might be reconsidered.

An important effect which the Bill will have is upon the rights of third parties. The present law has been anomalous and unjust in the way in which third parties have been dealt with when there has been the equivalent of a tort between husband and wife. A person liable jointly with one spouse for injury to the other spouse will now be able to recover contribution. The present situation is that if Mr. and Mrs. Jones are driving along the road in their motor car and Mr. and Mrs. Smith are endeavouring to overtake them, and in the course of that there is an accident which is due to the negligent driving of both Mr. Jones and Mr. Smith, which results in serious injuries to Mrs. Smith, the whole of the cost and expense of providing those damages for Mrs. Smith fall upon Mr. Jones and his insurers. The insurers of Mr. Smith get off scot free, because the doctrine of law is that Mrs. Smith could not have sued Mr. Smith and therefore there is no liability on him and none on his insurers. This is obviously an absurdity and an injustice.

There is another set of circumstances in which in an action by one spouse for loss suffered as a result of an injury to the other spouse the amount recoverable against the defendant cannot be reduced because of the injured spouse's negligence. It is an absurdity that if you suffer damage by the loss or deprivation of the services of your servant, and he was negligent, the defendant can rely on that, but if it is your wife, he cannot do so, and has to pay in full even though your wife may have been substantially responsible for the injuries which were inflicted upon herself. The Bill will have considerable effects upon cases of this nature.

My hon. Friend the Member for Exeter (Mr. Dudley Williams) raised the question of the insurance companies. They were invited to make representations to the Law Reform Committee and did not do so, and as far I know they have not made any since. It may therefore be assumed that they are happy with the provisions of the Bill.

Mr. Dudley Williams

They are happy because they have the premiums the moment the Bill goes through.

The Solicitor-General

That is so, because the additional risk may require some small—not very large—increase in premium, or they can provide in their policies that the liability to indemnify passenger-wives or husbands can be excluded. This is a matter of negotiation between motorists and their insurers. One either sticks to one's present premium and excludes the possibility of one's spouse being indemnified or, if one wishes to include her, the extra risk will have to be covered by some small extra premium. But it will result in the removal of the present absurd position whereby your daughter, your mother-in-law, your girl friend or your mistress can sue you if you injure them when they are passengers in your motor car, and your insurance company is liable to indemnify you, whereas under the present law your wife can neither sue you nor obtain any indemnity against your insurance company.

It has been said that this is an opportunity for collusion between husband and wife to put forward fraudulent claims pretending that one has injured the other, but I think that we can rely on the skill and know-how of insurance companies over many years to deal with fraudulent claims, which they know how to smell out and recognise. In any case, that could not be a reason for excluding all honest persons from being indemnified by the insurers of their spouses.

It is for these reasons that the Government welcome the Bill and recommend it to the House. I congratulate my hon. and learned Friend upon his success in the Ballot and in carrying the Bill thus far in the procedure of our legislation.

Question put and agreed to.

Bill accordingly read the Third time and passed.