HC Deb 03 May 1963 vol 676 cc1543-9
Mr. Fletcher

I beg to move, in page 7, line 12, to leave out from "regarded" to the end of line 17, and to insert: as giving him (apart from any defence under section 2(1) of the Limitation Act 1939) a good cause of action". This is merely a drafting Amendment, and the intention of it is, I think, obvious from its words. It seems to me that it would reduce the hardship of a plaintiff if in this interpretation Clause it were provided that for the purposes of this Bill any of the material facts relating to the cause of action should be taken as facts of a decisive character if they were facts which a reasonable person knowing those facts, and having obtained advice with respect to them, would have regarded as giving him a good cause of action.

Surely it is not necessary to provide, as the Bill does, that he should have regarded them as having a reasonable prospect of succeeding with a resulting award of damages. If a plaintiff thinks he has a good cause of action, then in the ordinary case he is entitled to bring his action. Some people are perfectly entitled to bring an action even though they know at the outset that the odds may be against them. I am most anxious throughout the Bill that the plaintiffs who are affected by it will not be worse off than any other plaintiffs. That is the object of the Amendment, and, with that explanation, I hope that the hon. Member will consider it sympathetically.

2.0 p.m.

Mr. Buck

One of the difficulties about accepting the Amendment will, I am sure, at once become apparent to the hon. Member for Islington, East (Mr. Fletcher). It is an objection of a similar nature to that which I raised on the proposed new Clause. As phrased, the Amendment would prevent anybody from having a cause of action in the terms of the example which I quoted earlier. This is because the Amendment involves a good "cause of action", and this, as I see it, would severely restrict the rights which a potential plaintiff would have in the way I have indicated and would have the reverse effect to that which the hon. Gentleman intends.

Mr. Ronald Bell

I wonder whether my hon. Friend the Member for Colchester (Mr. Buck) is right about that. Here one is dealing with a requirement before the man has leave to proceed. If we narrow that we merely help the plaintiff. I think that my hon. Friend has slightly misconceived the argument.

I saw my hon. Friend's argument quite clearly in relation to the new Clause moved by the hon. Member for Islington, East (Mr. Fletcher). As my hon. Friend rightly pointed out, there one had to bear in mind the occasion when the person knew that he had a good cause of action from the beginning but did not know that he had suffered any damage. To leave out those words in that new Clause constituted a blemish, which we discussed at the time.

But in this context to leave out a reference to a substantial amount of damages has not, I think, the same effect. Leaving it out merely widens the screen and allows more to pass through. It cannot react to the detriment of the plaintiff as could the omission in the other case. This time it is the other way round, and it is not, therefore, a serious difficulty.

If the hon. Member's Amendment were accepted, the plaintiff would get leave to proceed if he showed facts such that a reasonable person knowing about them would think that he would have a good cause of action. If we raise the standard and say that the man must have a good cause of action and would obtain substantial damages, we are increasing the burden which the plaintiff has to discharge. So I think it is the opposite way round to what my hon. Friend was saying.

The hon. Gentleman's proposal is in aid of the plaintiff and not damaging his interest, as my hon. Friend seemed to think. Obviously, if we reduce the test which the plaintiff has to satisfy, we allow through some plaintiffs who otherwise would fail the higher test. Under this test the plaintiff would get through if he could show that he would have a good cause of action, even though he did not show that he would recover substantial damages.

The issue of the Amendment is simply whether a would-be plaintiff ought to have to satisfy the court on his application that he would obtain substantial damages. One could answer that either way according to how one sees the merits of it. However, on this I share the view of the hon. Member for Islington, East in not seeing why a would-be plaintiff should have to show that in these circum-stances when no other would-be plaintiff has to show it. It is as simple as that. Why should we load on to the would-be plaintiff here this quite exceptional and, I think, unprecedented burden?

My hon. Friend will no doubt say, as he said in answer to previous Amendments, that the man is out of time and is at the mercy of the court and asking for a favour. I do not see it like that. This man is someone who has suffered an injury and did not, and could not, know about the effects of it for a period of years because the effects were hidden, and he must already have satisfied the court that by no reasonable vigilance could he have known about them. Therefore, if he has done that, and if he has been injured by the wrongful act of somebody and has suffered some injury in consequence of it and could not have known that the consequences were going to flow, why should he now have to satisfy the court on ex parte application that he would recover substantial damages?

It does not seem to me to be a very equitable operation. The phrase "damages sufficient to justify the bringing of the action" is one which seems to argue for itself and anybody who argues against it appears almost by definition to be unreasonable. The point which the hon. Member for Islington, East, I think, and I both wish to make clear is that this is not the kind of thing that one should ever ask a plaintiff to satisfy the courts about before he brings his action. It is as short and as simple as that.

I hope that my hon. Friend will not put it aside on a misconceived argument about the effect of it on the plaintiff but will bear in mind that this really is a constructive proposal to improve the Bill.

Amendment negatived.

Mr. Fletcher

I beg to move, in page 7, line 27, to leave out paragraph (c).

Might we discuss with this, Mr. Deputy-Speaker, the three following Amendments, in line 29, after "might", insert "reasonably"; in line 29, leave out "or inferred"; and in line 30, leave out "all"?

Mr. Deputy-Speaker (Sir Robert Grimston)

The Amendment to line 30 will not now he called because it was to have been discussed with an Amendment which the hon. Member for Islington, East (Mr. Fletcher) has not moved. But with this Amendment the House may discuss the two Amendments in line 29.

Mr. Fletcher

This will be convenient, Mr. Deputy-Speaker, because I can then make my point in one speech instead of in three speeches.

What worries me about paragraph (c) of Clause 7(5) is that it seems to put every possible handicap in the way of the plaintiffs whom we are trying to help with the Bill. The hon. Member for Colchester (Mr. Buck) and other hon. Members will realise that the whole of the effective part of the Bill is governed by Clause 1 which provides that the Limitation Act does not apply if it is proved that certain material facts were outside the knowledge, actual or constructive, of the plaintiff until a certain date. Therefore, it is obviously important to define what a material fact is and when such a fact is outside the knowledge of the intending plaintiff.

The definition Clause seems to me to be extremely rigid against the plaintiff because it says, in effect, that a fact shall be taken to have been outside his knowledge "if, but only if" and so on. Perhaps the hon. Member would explain whether the words "but only if" have any value or merit at all or are intended to qualify the matter. Either the plaintiff did not know the facts—that is obvious—or he was not capable of having ascertained them. I think that is reasonable.

I should like to omit sub-paragraph (c) altogether. Why is it necessary to say that a fact should be taken into account if it was outside the knowledge of that person? This part states that a fact shall be taken as outside the person's knowledge if he did not know … there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice. … This seems an extremely onerous burden to put on people who by definition we are seeking to help. Either we should omit sub-paragraph (c) as unnecessary or improve it by inserting the word "reasonably" so that it would read: … that fact might reasonably have been ascertained … I suggest that we delete altogether the words "or inferred", because I find it difficult to understand how any court could ascertain circumstances in which a reasonable person might, with some knowledge, have obtained appropriate advice, having inferred certain facts. I wonder whether any court has ever before been asked to interpret a complicated provision of this kind, putting itself in the position of having to decide whether a person, if he had taken appropriate advice, would have learned something from it, from which he might have inferred something else, and who, having done all that, would then be denied the protection the Bill is intended to give. This raises doubts which trouble me about this Clause, and I hope that the hon. Member will either be able to accept my Amendment or will undertake to reconsider this matter.

Mr. Buck

I admit at once that I share some of the hon. Gentleman's misgivings about this part of the Bill. He raised the question of the words "but only if" and asked if their presence had any significance. Their presence is undoubtedly in the interests of clarity. An earlier Amendment put down by the hon. Gentleman to omit those words was not moved by him, but if the words had been deleted I do not think that it would have made any difference to the meaning. They are there only for clarification.

On reflection, I have doubts as to whether subsection (5, c) contributes materially to the Bill. If the hon. Gentleman is agreeable, I would like further opportunity to consider it. But at the moment I hope that it will be left in the Bill. I would have no objection to the exclusion of the words "or inferred", and perhaps that would make it a little more acceptable to him. I am optimistic that in another place this part of the Bill, which is not entirely satisfactory, may be rephrased to make for greater simplicity. My present thought is that what is wanted is met by subsection (5, a and b). The purpose of drafting subsection (5, c) was to make it clear that the potential litigant should seek appropriate advice. It was thought necessary to have subsection (5, c) in for that purpose. However, in the light of my assurance, I hope that the hon. Gentleman will agree to withdraw his Amendment. I would, however, gladly accept his Amendment to delete the words "or inferred".

2.15 p.m.

Mr. Ronald Bell

I was glad to hear what my hon. Friend the Member for Colchester (Mr. Buck) has said, because it helps us. I feel that what has gone wrong here is that subsection (5, c) tries to say too much. The further one tries to define these things, the greater the complication one can get into. I have the feeling that when this gets to another place, and is considered in the more relaxed atmosphere there, something like the words "or ought to have known" will be found to meet the case.

It is when one subdivides that trouble arises. Originally, subsection (5, c) was intended to refer to medical advice. Everyone then was thinking of pneumoconiosis, because it would be absurd if the man concerned did not know of his condition because he had not been to a doctor. However, as the provision is drafted it applies not only to doctors but to every other kind of advice a man might get. It would therefore be rather burdensome.

My hon. Friend will certainly meet my wishes if he reconsiders this, not just in the light of this Amendment but also in the hope of finding a short phrase to cover the situation. If he is unable to find a short phrase, I am not sure that the words "or inferred" should be left out, although my name is on the Amendment. If we are to proliferate various possibilities, then we shall have to have these words. I thank my hon. Friend for what he has said and I have no doubt that the hon. Member for Islington, East (Mr. Fletcher) will make the appropriate response.

Mr. Fletcher

I am glad that the hon. Member for Colchester (Mr. Buck) has agreed with me in expressing considerable misgivings about subsection (5, c) and that he has given an undertaking to reconsider it. I hope that that at least will do something to satisfy some of my hon. Friends that a number of these Amendments we are considering are not frivolous. I am not sure of procedure whereby a promoter of a Private Bill in this House may ensure that Amendments in another place are properly considered, but no doubt the hon. Gentleman will find out.

I hope that when the Bill comes back to us we shall find that subsection (5, c) has been deleted. In that hope, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.