§ Mr. Finch
I beg to move, in page 2, line 40, to leave out from "if" to the end of subsection (2) and insert:it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled".
§ Mr. Deputy-Speaker (Sir R. Grimston)
With this Amendment we can discuss the Amendment in page 3, line 9, leave out from "if" to end of subsection and insert:it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled
§ 1.15 p.m.
§ Mr. Finch
As the Clause is drafted, a plaintiff has to produce evidence to show why he had not submitted his claim during the normal period. In our opinion, that is quite understandable. As my hon. Friend the Member for Lincoln (Mr. Taverne) has pointed out, it is only necessary for the person concerned to produce a medical certificate stating that he is suffering from a disease and as soon as possible to make an application for damages under law. We say that is reasonable enough.
However, the Bill as it stands requires the plaintiff to do more than that. He has to reveal all the details of his claim. He has to give the names of the witnesses. He has to show on what 1529 basis he puts forward the claim for damages. In other words, he has to reveal to the defendant the whole basis of his case. We say that is unreasonable. I do not know what hon. and learned Members think about this requirement, but I know what the ordinary workman would say, and the miner in particular. He would say, "You are giving the case away before you begin". All this has to be revealed before the case goes to court. The employer would have the names of the witnesses and would know the whole of the details of the case, and we suggest that is quite unreasonable.
We are prepared to agree that if a man has not been able to make his claim in the normal period of three years, he is out of time, and that such a person should show reasonable cause for the delay. We suggest that he can do this by the production of a medical certificate. But to require, in addition, that the plaintiff must prove a prima facie case, that he must get his witnesses and show to some extent how the alleged negligence has arisen, is unreasonable because he is being asked to reveal the whole of the details of his case. That is an unnecessary burden for a plaintiff to bear. If a plaintiff brings his action within the normal time, he is not called upon to bear such a burden. Yet if he is outside the normal time he has what my hon. Friend the Member for Lincoln called this extra hurdle to jump.
It is not easy to get witnesses and submit their names. Also to go into the details of the case is a costly procedure. I do not know who is to bear the cost. Not only is this procedure unnecessary, but I suggest it is unfair, for a similar onus is not placed upon the defendant. He is not required to produce all his evidence. Therefore, the balance as between the two is unfair.
As was said in Committee, there are other aspects to this matter. In some circumstances a plaintiff might not have a prima fade case. The case might be doubtful, and might be thrown out if it went through the stages required by the Bill, though it might become a good claim when the documents in the defendant's possession were discovered.
Therefore, under the Bill as it stands the plaintiff would suffer two disadvantages. First, he would have to reveal 1530 his evidence and the names of his witnesses, and secondly, he would not be able to carry on the action to the discovery stage where he might be able to find evidence in the form of documents in the defendant's possession which would help his case.
I hope the hon. Member for Colchester will give serious consideration to this Amendment. We on this side of the House take a very serious view of this point and we believe that a sense of injustice will be created if the Clause remains as it is. In any event, I hope that if the hon. Gentleman cannot accept the Amendment now, the Solicitor-General will say that it will be considered when the Bill goes to another place.
The hon. Member for Buckinghamshire, South (Mr. Ronald Bell) has referred to the National Union of Mineworkers and the British Employers' Confederation, but I can assure the House that there is nothing in the hon. Gentleman's suggestion. That matter does not arise. Certainly we have considered the Bill in the light of its effect on miners, and if the Bill is a good one we support it.
Indeed, we support the main features of the Bill, but I beg the hon. Member to consider what my hon. Friends, the trade unions and I regard as a flaw in the Bill. We do not want any more ambiguities. We are discussing a Bill which has arisen from an ambiguity in the law, and we do not want another ambiguity which would require the introduction of yet another Bill. I therefore ask the Solicitor-General to give serious consideration to this Amendment and, if he cannot come to a final decision today, to see that it is considered when it goes to another place. In any event, having regard to some of the things said today, I should imagine that there will be unanimous support for what I am saying. However, if we cannot have an assurance about the Amendment, we shall have to press it.
§ Mr. Buck
I have given this matter a great deal of thought in the past and will gladly do so again. I can give no absolute assurance, but I shall gladly consider it and, as I said on an earlier Amendment, one will hear with interest what is said by the learned Law Lords in another place as the Bill proceeds on its course.
1531 My present feeling is that there is a great deal to be said in favour of adopting the recommendation of the Edmund Davies Committee on this matter. Mr. Justice Edmund Davies is a most distinguished and universally respected judge, who is not, so I understand, unknown to hon. Members opposite. His Committee comprised people eminent in every sphere of life connected with the problems under consideration, distinguished medical people, trade unionists, and lawyers.
The recommendations of the Committee were unanimous, and on the point now before the House the procedure provided for in the Bill as it stands was the procedure recommended by the Committee. Its view is summarised in paragraph 33(C) on page 15 of its Report:We have tried to find some method by which unmeritorious claims can be weeded out before the defendant is put to any expense.Pausing there, is it right that the Committee should be so searching? In my opinion, it is. We are here, as the Committee itself recommended, relating the cast-iron rule concerning limitation in favour of plaintiffs, and this imposes an additional burden on defendants. The Committee was searching to find a way by which that added burden on defendants could be mitigated without substantially affecting the genuine and legitimate rights of plaintiffs.
The Committee appears to have taken the view—it is a view which I share—that the sort of case of which the hon. Member for Bedwellty (Mr. Finch) has spoken today and which the hon. Member for Lincoln (Mr. Taverne) adumbrated in Committee should not be brought. I refer to what is known as a "fishing" claim—a term which will be well known to my hon. and learned Friends—a claim about the merit of which one is not altogether sure. A person bringing such a claim starts his action and goes to the stage of discovery, after which he either drops it or proceeds. He is fishing about to see whether additional evidence will be disclosed which may give him a chance to succeed. In my submission, this sort of claim should not be brought if it is outside the limitation period.
In a very rare case, it may be that a fishing claim which might have come off 1532 would not succeed in getting justice, but, because of the position in which a defendant is placed in dealing at a long range of time with the claim made against him, it is appropriate, in my view, that claims which are not shown prima fade to have a basis should not be brought, because it may be much more difficult for a defendant to deal with them when there is an element of staleness about them.
In my judgment, therefore, the Committee was right in trying to discover a method by which unmeritorious claims could be weeded out. The Committee goes on to say:The major hardship on the defendant in such cases is not that he may have to pay damages to someone who has no real claim (since, in the event, he will probably not be held liable) but that he will, if the action goes to trial, almost certainly be seriously out of pocket as a result of the costs which he may well fail to recover from his opponent.We all know that this does comes about.Our conclusion is that it would be practicable and desirable to require the plaintiff to persuade a judge both that he has a reasonable case on merit and that he can satisfy the tests which we have proposed in paragraph 32"—which are to be found in the Bill.
The trade unionists and all the members of the Committee gave this matter considerable care and thought. Was it right, in allowing a plaintiff to have a new right, to put an. added burden on the defendant? I submit that there is great force in the unanimous answer which the Committee gave.
Nevertheless, I recognise that there is substance in what the hon. Member for Bedwellty has said. I shall be only too glad to look at the matter again in the light of anything said in the debate. But I cannot myself give any specific assurance, and I await with interest what the Solicitor-General will say.
§ Sir Frank Soskice (Newport)
The hon. Member for Colchester (Mr. Buck) has said that he will consider the argument and that he awaits with interest what the Solicitor-General will say. I put the matter in this way and ask him to take these considerations into account. The relevant test in deciding whether an application to bring an action out of time should be granted is, surely, whether the would-be plaintiff has a reasonable excuse for not bringing it 1533 within time. In other words, it is the test propounded in Clause 1(3): had he or had he not a reason which excused him from bringing the action within the prescribed time?
If he has that excuse, it is, I suggest, unreasonable that he should have to prosecute his claim under the disadvantage that the nature and scope of his evidence is probably known to the other side. This is not a disadvantage under which litigants in general have to labour, particularly litigants bringing claims for personal injuries.
I agree that the Bill puts an added burden on defendants. No doubt, this is a circumstance which will be taken into account by judges in deciding whether to grant applications and when evaluating the quality of the excuse which a would-be plaintiff advances when asking for leave. But I respectfully put to the hon. Gentleman that it is unreasonable and rather undesirable to make a plaintiff in such circumstances what is really a kind of second-class litigant, a litigant who has not the ordinary facilities but who has to put forward his claim in circumstances in which it is known to the other side so far as it depends on evidence.
The hon. Member for Colchester said earlier that the application would be made ex parte, and subsection (1) provides that the application shall be made ex parte, but it goes on to say, as was pointed out by the hon. Member for Buckinghamshire, South (Mr. Ronald Bell), that that shall be done only when the rules of court do not otherwise provide. The rules of court may provide that a potential defendant can in some circumstances oppose the application for leave. If he opposes it, presumably he must know the strength of the plaintiff's case. He will know not only the excuse but what evidence the plaintiff can put forward to show that he has a meritorious claim.
§ Mr. Buck
The wordsexcept in so far as rules of court may otherwise provide",which were inserted in Committee as a result of an Amendment which I put down, were designed to meet the circumstances arising during the course of the trial, and that is dealt with in subsection (3). It seemed absurd that one 1534 should cause an ex parte procedure to be indulged in by a litigant when the matter of limitation came up in the course of the trial. I recognise, however, that it would be open to the court to devise rules which did away with the ex parte procedure.
§ Sir F. Soskice
As the hon. Gentleman says, there is power in the Bill to that effect, but if a potential defendant is not given the opportunity of challenging the potential plaintiff's application for leave, an unfair burden is put on the potential defendant. He may wish to appear and say, "The excuse is not adequate and reasonable", and he should be heard. If he knows what the evidence is because he is present when the application is made, that puts a heavy burden on the potential plaintiff. It makes him a second-class plaintiff. He goes to court and has not the advantage which other plaintiffs have.
It may be said that the general system should be altered and that parties on both sides should have some knowledge of the witnesses which the other party proposes to call. That is not the rule at the moment. Our system does not work in that way. While we have our system, surely all litigants should be treated in the same way. Some should not be better placed to enforce their claims than others.
In these circumstances, I hope that the hon. Member for Colchester will give sympathetic consideration to the Amendment and that he will feel that the view expressed by the Edmund Davies Committee, which I agree was a Committee of great learning and authority, was perhaps mistaken in this regard. I hope that the hon. Gentleman will take steps at a later stage to have this change made.
§ Lady Megan Lloyd George (Carmarthen)
I am glad that the hon. Member for Colchester (Mr. Buck) has said that he is willing to look at the Amendment again, and I hope that he will be encouraged in this at a later stage by the Solicitor-General.
I strongly support the Amendment. No layman would willingly intervene in a debate in which hon. and learned Members fall out, and I do so only because I happen to represent a great many miners who suffer from pneumoconiosis. As the House has recognised on many occasions in legislation, there are very special difficulties which pertain to pneumoconiosis. The disease is very difficult of diagnosis, 1535 not only in the early stages, but in the intermediate and later stages. My right hon. Friend the Member for Llanelly (Mr. J. Griffiths) quoted a tragic case this morning in which a diagnosis of the disease was made only years after the disease had first been contracted. These are not single instances, as all hon. Members who represent mining areas know. Sometimes the disease is diagnosed only years after the miners have left the industry and have taken up other employment.
We therefore press the Amendment because we want to eliminate another hazard. There are many hazards in the diagnosis of this disease. We say that it is not reasonable that a plaintiff should have to establish a bona fide case for damages, and that he should not have to prove a case for negligence in the first instance. The defendants would be present and would hear the case and would be prepared for the second hearing. The witnesses would have to be called.
The hon. Member for Colchester said that this is a filter procedure which would avoid unmeritorious cases being brought. But, as my right hon. and learned Friend the Member for Newport (Sir F. Soskice) said, this will produce second-class litigants. There will be two hearings and two cases. Speaking in a lay capacity, I think that we are here setting a precedent. I do not know whether this is true, but it has been put to me that it is very unusual to have a preliminary hearing of this kind in the case of people who are legally aided. I should like to know whether that is so. No doubt hon. and learned Members will be willing to throw further light on that.
The hon. Member for Colchester has handled the Bill with great skill, tact and understanding, and I hope that he will show further understanding by reconsidering a matter which we regard as being of the utmost importance.
§ Mr. Taverne
There are three points which I hope the hon. Member for Colchester (Mr. Buck) will bear in mind in reconsidering this matter. First, as hon. Members have pointed out, it is a serious disadvantage for a plaintiff to have to show his hand. It has been recognised as a serious disadvantage by the rules of court, which afford certain 1536 protection to parties and prevent them from having to show their hand at this early stage. I made this point in Committee and therefore I will not elaborate it.
Secondly, the hon. Gentleman says that we should discriminate against a "fishing" claim because of this additional hardship on defendants. But there is a difference between a fishing claim and a doubtful claim. There may he many cases in which it turns out that a plaintiff has a perfectly good claim, and part of his case may rest on documents provided by the defendants or on evidence given by witnesses for the defence who are cross-examined on certain points. It may be that he is unable at the preliminary hearing, when he presents his prima facie case, to have affidavit evidence from these parties or to have evidence of these documents, although he knows that something of the sort is in existence. A number of doubtful claims which should go forward for hearing would probably be knocked out under the Bill as it stands.
Thirdly, the hon. Gentleman's objection and the objection of the Edmund Davies Committee is that unmeritorious claims should be knocked out before a defendant incurs expense, and that a defendant should not have to pay the costs out of his own pocket if he cannot recover from a plaintiff with an unmeritorious claim. This hardship on defendants is not so very great and the provisions of the Bill are not so very necessary, as the hon. Member for Colchester himself pointed out in Committee.
Most plaintiffs will need legal aid or support from their trade unions. They can pursue an action and bring it with the support of the trade unions or obtain legal aid only if they can make out a prima facie case. Therefore, the overwhelming majority of plaintiffs will have already made out a prima facie case, but they will not have been under the disadvantage of having to disclose it to the defence. Therefore, in the majority of cases, he is not, in effect, protecting defendants from unmeritorious claims which would not otherwise be brought. He is simply giving the defendants an additional advantage which they otherwise would not have. I ask the hon. Member, who himself raised the point, to bear it in mind and I hope that the Solicitor-General will deal with it.
1537 It may be asked, what about people who do not need legal aid? Suppose that a wealthy man is knocked down by a motor car and his serious injuries do not become apparent until after three years. That case might be meritorious. If it is a wealthy man who does not need legal aid, the question of costs no longer becomes as important, because the defendant will be recompensed in costs.
The hon. Member for Colchester has asked what reason there is for discriminating against the poor, because they have to prove a prima facie case to a legal aid committee or trade union whereas the rich man does not have to do so. The answer is that this is true already in the law, because anyone who wants to bring an action can do so without merit if he has funds and must show a prima facie case if he has not. That objection, therefore, does not apply.
In the vast majority of instances, these will be cases which are brought with the support of a trade union. In such cases, unmeritorious claims will not go through, because the trade union must to some extent be satisfied that there is a case on which to proceed. A number of doubtful cases which should be brought will be excluded if the Bill remains as it is. There will not, therefore, be any real hardship upon defendants. A great disadvantage will be imposed on the second-class plaintiffs of whom my hon. Friend the Member for Carmarthen (Lady Megan Lloyd George) spoke and I hope very much that the hon. Member for Colchester will reconsider the position.
§ Mr. J. Griffiths
I support my hon. Friends and speak with some years of experience. In deciding whether to take a case of this kind, even at such an early stage trade unions give it careful consideration. The cases are costly and cause a great deal of work. It does not help us to lose a case. There is, therefore, a kind of filter. Nowadays, it would be either a trade union or the appropriate legal aid committee which dealt with the case. For this reason, the possibility of unmeritorious cases is apt to be exaggerated. I hope that if the hon. Member for Colchester (Mr. Buck) cannot give a favourable answer now, although I hope that be will, he 1538 will further consider the matter possibly with a view to further action in another place.
Would the so-called preliminary trial go to the local county court? The whole question is one of cost. As I said earlier, if we are to effect this improvement, do not let us hedge and surround it with so many difficulties as to prove it in the end to be valueless. All this is a matter of cost. I hope, therefore, that the Solicitor-General will consider the matter and that if he is adamant that the Clause must remain unchanged, he will tell us to which court the prelinimary trial would go.
§ The Solicitor-General
I purposely delayed speaking on this important Amendment because I was anxious to hear everything that was to be said about it. This is an important matter and hon. Members who have spoken have shown not only great feeling but considerable force of argument.
I hope that hon. and right hon. Members will bear with me while I put some of the matters which should be taken into account. We have to consider that we do not legislate only for the general—I accept that the general must be the pneumoconiosis kind of case and one in which, perhaps, the person concerned is a member of the National Union of Mineworkers or some such organisation—but we also have to legislate for the particular case.
There could easily be cases concerning defendants who did not have anything behind them in the way of an organisation, who might well find themselves in the position of having a very late claim brought against them, and a claim which they would find it extremely difficult to meet. Therefore, although I accept that the majority of cases which arise in such circumstances are cases such as those which have been illustrated here today, we have to consider carefully the fact that unfairness could be created for a defendant in particular circumstances.
It is for that reason that a balance, about which hon. Members have spoken, must be kept between the rights of plaintiffs, including plaintiffs who in the past have had these rights not properly, in the view of most of us—satisfied, and 1539 the rights of defendants. All would accept that in any proper administration of the law there must be a principle of limitation to prevent stale cases coming before the courts, not only because of the difficulty which is thereby imposed on the courts, but also because of the hardship and unfairness that can be imposed upon defendants.
The demands of justice are twofold. It is often believed that justice demands only the acquittal of a person, but justice demands the conviction of the guilty and it also, on occasion, demands the denial of damages to a plaintiff if that is just. These are the matters which must be taken into account when by this legislation we breach the principle of limitation, which, we accept, is a principle that must be there because of particular cases and of circumstances which arise bearing in mind certain decisions.
The Committee under the chairmanship of Mr. Justice Edmund Davies clearly had in mind the possibility of unmeritorious claims. The members of that Committee were experienced in all fields in this respect. They dealt with unmeritorious claims and they appeared to be satisfied that there were a considerable number of persons who make claims which are unmeritorious. It has been said against them, however, that for a hearing in such circumstances, the person concerned would have probably to seek legal aid and, therefore, establish a prima facie case or, as the right hon. Member for Llanelly (Mr. J. Griffiths) said, get the assistance of his trade union.
In such a case, however, a trade union might well say, "We will give you assistance because, if you establish a prima facie case before the judge, we will be satisfied that you will be able to go on. If you fail before the judge, very little expense will have been involved." Therefore, the trade union would not be put to great expense and, in addition, the person would have the possibility of seeing whether a prima facie case existed.
I accept that that means revealing the evidence and putting such a litigant into a different position. The right hon. and learned Member for Newport (Sir F. Soskice) spoke of the second-class litigant. What I would rather say is that 1540 it puts a litigant in such circumstances on certain terms. Because we are breaching and defeating the usual principle of law with regard to limitation, a person is required to carry out certain other functions and certain other burdens are put upon him.
Those are some of the reasons which must have driven the Edmund Davies Committee to form the view which it did. They are some of the reasons which must have influenced my hon. Friend the Member for Colchester and which occur to me in listening, as I have done, with the greatest care to the arguments advanced by right hon. and hon. Members opposite.
The last time I came to a passage of argument with the hon. Member for Bedwellty (Mr. Finch), he convinced me as to half his case during the debate and convinced me of the other half of it when I had an opportunity for reflection. I am, therefore, chary of coming up against the hon. Member too fiercely. Having heard what has been said here today, I will certainly from my own point of view, look at this matter again. I was glad to hear what my hon. Friend the Member for Colchester said. I think it is worthy of the most careful study, though I am sure that it must have had careful study by the Edmund Davies Committee, as it certainly has from myself. But I would say further that, having studied this, and having looked at it again, if we were to come to the conclusion that it might be necessary to tender different and further advice to my hon. Friend, we certainly would take the opportunity to do it in another place. I want to make it clear to hon. and right hon. Gentlemen that for my part I will certainly carefully bear in mind every single thing which has been urged on my hon. Friend by hon. and right hon. Gentlemen in the course of this debate.
§ Mr. A. J. Irvine
I would wish to say, as one who supports in principle the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch), that we are very glad to have heard the Solicitor-General on this point and to have heard him deal with the matter in the fashion which he has. The hon. Member for Colchester (Mr. Buck) very naturally and very wisely said that he would wait to hear the advice which was to be given 1541 to him by the Solicitor-General, and it is all the more satisfactory to us to have heard the Solicitor-General himself say that he will look at this matter again. Although, of course, I appreciate that he has put forward arguments for leaving the language of the Bill in its present form, none the less he has assisted us by indicating that this matter, the seriousness of which he recognises, is going to be looked into again.
I am glad of that and I venture to bring forward one circumstance which I hope due weight will be given to when that further consideration is given both by the Solicitor-General and the hon. Member for Colchester. In raising this I am conscious that I did not have the advantage of participating in the discussion of this Clause in the Standing Committee, and it may well be that points occurring to me have been, in the thoughts of some at any rate, sufficiently deployed, but I desire it to be observed how moderate is the effect of my hon. Friend's Amendment. It is a moderate Amendment. I know he feels very strongly about this and that those for whom he speaks feel very strongly about it. I acknowledge, and I hope that hon. and right hon. Gentlemen opposite will acknowledge, the moderation of the Amendment.
Why do I say that? It is not merely that this Amendment raises no objection in principle to the whole concept of the preliminary application. He accepts that it is relevant to that. He acknowledges that it is an instance of avoidance of the limitation provision, and he is prepared to acknowledge in these circumstances that there should be an application for leave. Be it observed that the effect of his Amendment is to leave it essential before action can be initiated that the court entertaining the application shall be satisfied that the requirements of Clause 1(3) are fulfilled. These requirements go very far, as I understand it:The requirements … are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge of the plaintiff until a date which …".My hon. Friends are conceding a good deal, in my view of the matter. They are raising no objection to inquiry into the facts, because they acknowledge that the material facts have to be ascertained. 1542 They are prepared to concede that it is a proper matter for inquiry, to which they raise no objection, whether these facts are of a decisive character within the meaning of that subsection (3).
That is the point I wanted to stress. If ever there was a moderate Amendment, this is a moderate Amendment, and many matters to which no unreasonable objection might have been taken are outside the provision presented by my hon. Friend. This is the factor I would ask to be given due weight to in the further consideration of the provisions of this Clause, the concept which my hon. Friends, very naturally and rightly, in my respectful view, are anxious about, the concept of the second trial, the double inquiry.
There are those wordsin the absence of any evidence to the contrary".I do not want to go into this at great length. That wording is well understood. Those words provide a very considerable safeguard, undoubtedly, in the kind of case about which my hon. Friend has expressed anxiety. None the less the anxiety is there, widely and sincerely felt, and I hope that the factors to which I have ventured to draw attention, as well as other factors to which attention was drawn by others, may carry some weight when the wording of this Clause is given final consideration.
§ Mr. Buck
As the hon. Gentleman opposite seemed to indicate a wish for a further word from me, perhaps I may say a word, by leave of the House.
§ Mr. Deputy-Speaker
The hon. Member in charge of the Bill has a right of reply.
§ Mr. Buck
I have listened with great care and appreciation to all that has been said on both sides of the House and I repeat the assurance which I gave earlier. I repeat it with great confidence having heard what my hon. and learned Friend the Solicitor-General has said. Of course, it is a difficult matter. One does appreciate the power of the arguments which have been put forward by hon. Gentlemen opposite, but I think that they themselves will acknowledge that it is a matter in which there are arguments on both sides. One would gladly reconsider this matter. I will strive to arrive at a conclusion which 1543 will be satisfactory to hon. Gentlemen opposite. In view of what the Solicitor-General said, that he further will consider it, we will both do that. It would be wrong of me—for I might mislead the House—to make any firm undertaking beyond the undertaking that we will look very carefully at this matter and pay heed to all the many powerful arguments put forward by hon. Members on both sides.
§ Mr. Fitch
In view of the assurance given by the hon. Member for Colchester (Mr. Buck) and of the remarks of the Solicitor-General that further consideration will be given to this in another place, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.