In section 26 of the Limitation Act 1939 (which provides that in certain cases the commencement of the period of limitation shall be postponed) the following paragraph shall be inserted after paragraph (c) thereof—
(d) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute, or independently of any contract or any such provision) and the damages claimed consist of or include damages in respect of personal injuries to the plaintiff or any other person, and where the right of action was unknown and could not have reasonably been ascertained by the plaintiff until a date after the right of action had accrued,
and after the words "the fraud or the mistake" there shall be inserted the words "or in a case to which paragraph (d) of this section applies, has become aware of or might reasonably have become aware of the right of action".—[Mr. Fletcher.]
§ Brought up, and read the First time.
§ Mr. Eric Fletcher (Islington, West)
I beg to move, That the Clause be read a Second time.
The object of the new Clause is to introduce an amendment into the Limitation Act, 1939. The House will be aware that the period of limitation has varied from time to time and, whereas for a long time until the Limitation Act, 1939, it was six years, it was subsequently reduced to three years, and various other changes have from time to time been made in the period of limitation appropriate to bar actions of various kinds.
It has recently been discovered that there is an unfortunate defect in the law of limitation as it stands at present, a defect which puts great hardship on certain people, particularly workmen who work in dangerous conditions and contract illnesses of one kind and another which, through no fault of theirs and through no fault of medical advisers, cannot be detected by any method known to science for many years.
A glaring example of this occurred recently in the case of Cartledge v. Jopling & Sons, Ltd., of Sunderland. where ten workmen contracted pneumoconiosis as the result of a failure by their employers to observe their statutory duties under the Factories Act. They brought an action for damages in 1956, which action eventually came before the High Court, then went to the Court of Appeal, and ultimately went to the House of Lords.
The defence was that the inception of the disease from which the plaintiffs suffered started before 1st October, 1950, that is, more than six years earlier than the date when the writs were issued. In the meantime, at least one of the unfortunate plaintiffs had died and his action was revived by his widow. The plaintiffs were able to prove to the satisfaction of the court that it was the failure of the employer to take adequate precautions under the Factories Act which caused them to become the unfortunate victims of pneumoconiosis and that, apart from the Statute of Limitations, they would undoubtedly have had a right to recover substantial damages in each case. But the defendants, as they were entitled to do as the law stood, pleaded the Statute of Limitations and said, "This disease started over six years before the date on 1489 which the writ was issued and therefore it is barred".
The question which the courts had to consider was whether that defence was valid, and, with the greatest reluctance and regret, they came to the conclusion that it was valid in law because the terms of the Limitation Act provide that no action shall be brought from a date which in fact is the date when the cause of action accrued. Since the cause of action had accrued more than six years before the actions were brought, and although the plaintiffs could not possibly have known that the cause of action had accrued, their claim was defeated by this statutory defence. Since the time when that action was brought, the period of limitation for similar cases has been reduced from six years to three years, but that merely means that an additional and greater hardship will be caused to defendants in this position unless the law is changed.
As a result of that decision in the courts, a Committee was appointed, presided over by Mr. Justice Edmund Davies, which issued a Report known as the Report of the Committee on Limitation of Actions in Cases of Personal Injury. That Committee realised that something should be done to change the law, and the object of the Bill is to change the law in order to prevent plaintiffs who find themselves in the unfortunate position to which I have referred from being deprived of their ordinary rights by a statutory defence which can have no possible merits. As the Committee pointed out, there are various ways in which the law can be changed, and the Bill incorporates certain methods by which it can be changed, but, in my submission, they are not completely adequate to give workmen or others who find themselves in this predicament the relief to which I think they are entitled.
The law already provides that there should be certain exceptions to the ordinary period of prescription. For example, it may be right that in ordinary cases a plaintiff who has a cause of action should not delay seeking his remedy unduly and should not thereby put an unnecessary burden on a defendant in defending his claim, but there are certain circumstances in which it would be inequitable for any period of limitation to apply. For that reason, Section 26 of the Limitation Act provides that if an 1490 action is based on the fraud of the defendant or his agent, or if the right of action is concealed by fraud, then the period of limitation should not begin to run until the plaintiff has discovered the fraud or mistake. Manifestly, it would be unjust for a plaintiff who suffered damages by reason of fraud to have it alleged against him that the period of six years or three years, whichever it is, should run from the date when the tort was committed. In such cases, the period of limitation does not begin to run until the fraud is discovered.
The object of my new Clause is to equate the position of plaintiffs who suffer injury and damage of the kind revealed in the case of Cartledge v. Jopling with that of plaintiffs who suffer injury and damage as a result of the fraud of the defendant. It provides that, instead of a cause of action running from the date when the cause of action arose, it should not begin to run, as the new Clause states, until the right of action either became known to the plaintiff or might reasonably have been ascertained by him. I regard this as a distinct improvement on the provisions in the Bill, because, as the Bill stands, a plaintiff is not given, as I think he should be given, an absolute right to ensure that his action is not barred by a period which runs from the date when the right of action accrued.
Under the Bill as it stands, a plaintiff has to do two things. To begin with, before he can even bring an action, he has to satisfy the court on an ex parte application, in which he has to produce all of his evidence, first, that he has a good cause of action, and, secondly, that there are reasons which make it right that the ordinary period of limitation should not operate in his case. That means that a plaintiff would have a double burden imposed on him, which seems to me to be quite unjust and inequitable, for this reason. As the Edmund Davies Committee pointed out, it is impossible to tell how many cases of this kind there are because it must frequently happen that an injured workman or a workman who, unfortunately, has contracted a disease such as pneumoconiosis cannot be sure for a long time. The Report makes it clear that the effects of exposure to silica dust are such that the lungs become imperceptibly affected, and that can go on for a long time without it being detected by 1491 X-ray and without the workman suffering any inconvenience or showing any symptoms. Only after the disease has become aggravated over a period of years does serious injury to the lungs manifest itself, and medical science is then able to say that, as a result of many years' exposure to this kind of risk, the inception of the disease must have dated back to a much earlier time.
It is easy to imagine the dilemma in which workmen in these circumstances find themselves. They may have a slight suspicion of a lung being affected or of some other disease, but they obviously cannot take the responsibility of commencing an action for damages, because there is no method of proof. It seems to me, therefore, that it would be quite wrong that they should suffer through no fault of their own or that they should be deprived of the right which any other injured workman has of bringing an action, if he desires, whatever the risks.
I put this forward as an alternative to the proposals in the Bill, for this reason. It appears to me to have the support of one of the eminent Law Lords who considered the case of Cartledge v. Jopling in the House of Lords. It was Lord Evershed—I quote from the All England Law Reports—who, like all the other judges who had to consider the case, expressed regret that, as he said, the well-established principles of the interpretation of Statutes by the courts forbade him to come to an interpretation of the law which would give relief. One reason why he reached that conclusion was, as he said,more particularly so having regard to the express provision in Section 26 of the Limitation Act, 1939, for postponing the date of the accrual of the cause of action in cases involving fraud or mistake to the date when the fraud or mistake was, or could, with reasonable diligence have been discovered.He went on to say:My Lords, I share accordingly with my noble and learned friend the hope that in the interests of justice Parliament will take an early opportunity of making by way of some corresponding qualification a further exception to the general formula in the case of wrongs of the kind here in question. If on the one hand it is right and proper that causes of action should not be allowed to become stale, it must be no less right and proper that persons employed in factories should not have the ordinary enjoyment of their working lives de- 1492 stroyed by the need of constant and elaborate medical examination and be driven, often prematurely, to litigate with their employers lest they lose the benefit of just compensation for injury received. The present case well illustrates the result, for the most part highly beneficial, of the impact of scientific discovery on the working of ancient principles of the law.In commending the new Clause to the House, I merely add this observation as background. A plea by any defendant of the Statute of Limitations has no merit. It is a mere subterfuge or stratagem which the law permits to a defendant to resist the righteous claim of a plaintiff. The Statute of Limitations does not purport to take away the plaintiff's right; it merely states that he cannot bring an action. For example, if the defendant company were in liquidation, I understand that in any case a plaintiff would be able to claim in that liquidation, because the words of the Act are that no action should be brought. Equally, in a case in which a claim is brought against a person, a person can allege a counter-claim although it is an action that would be barred by a period of six years or three years if he had brought it in the first place.
It is also to be observed that there is no obligation on defendants to plead the Statute of Limitations. There have, for example, been cases in which trustees have had to consider whether they have a duty to their beneficiaries to plead the Statute of Limitations. I believe that it has been held that there is no obligation upon trustees as honest persons to attempt to defeat a claim against them by pleading the Statute of Limitations. Therefore, the whole question of the fair and just operation of the Statute of Limitations is to ensure that justice is done to people who have claims which ought to succeed. It is for these reasons that I move the new Clause.
§ Mr. Speaker
Before I call another speaker, perhaps the House will be good enough to allow me to add to what I said earlier to the hon. Member for Dagenham (Mr. Parker). The list shows my provisional selection of Amendments, save that in the case of Clause 8, page 8, line 19, it should have been the second Amendment which was specified as selected. The two Amendments were not distinguished in the list as originally put forward.
§ Mr. Antony Buck (Colchester)
The hon. Member for Islington, East (Mr. Fletcher) has outlined the reasons for the introduction of the Bill. He has reviewed the case of Cartledge v. Jopling. There are several ways which might be open to us to deal with the mischief which was revealed by that case, and, indeed, by other types of case which were reviewed in the Committee which was presided over by Mr. Justice Edmund Davies.
In a nutshell, the mischief which we are remedying by the Bill is to ensure that if a person sustains an injury but its real effects remain dormant for a long period, during that time when the injury is, as it were, a secret injury, time shall not be running against that person. That is the purpose of the Bill.
There are many ways of going about this problem. After complete conviction, I thought it safe and right to follow the recommendations of Mr. Justice Edmund Davies' Committee. That distinguished Committee, for whose work the House is, I am sure, immensely grateful, made recommendations of a detailed character about the way that we should make this inroad into the normal rule about limitation of actions.
The normal rule about limitation of actions is a good one. The substance of what the hon. Member for Islington, East has just said would seem to me to have been an attack on there being any limitation period at all; that, in effect, was the burden of the hon. Member's argument. What he has suggested by the new Clause, however, is an alternative way of achieving what I have sought to achieve in the Bill. It has one merit which the hon. Member did not mention, which was one which attracted me initially to thinking in terms of this sort of solution, namely, a mere amendment of Section 26 of the Limitation Act, 1939. That would seem at first blush to have the merit of simplicity, but when one delves into the whole question of limitation one finds that simplicity, for all its attractions, does not bring about a completely desirable solution.
Perhaps I can give an illustration by the effect of certain parts of the new Clause. First, it would not give protection to a whole class of people who ought to have protection, because the Clause 1494 causes time to run where the right of action was unknown. This does not meet the following sort of case, which is the kind of event which could happen to any of us as we leave the House.
We might be knocked down—not seriously—and have a bang on the head. We think that there is no serious consequence and so, in the kindness of our hearts, we take no action although, being cautious people, we take the number of the vehicle involved. Thinking that we have sustained a trivial injury involving merely a bang on the head, or, perhaps, even a moment of semi-consciousness, we do nothing further about it. Then, in three years and one month's time, one could develop an intercranial tumour or epileptic fits or ailments of that character. If one were to adopt the hon. Member's new Clause, one would not be able to proceed now, because at the moment when one is knocked down, one knows that one has a cause of action. So one knows there is a cause for action, but one thinks that the results of it are trivial, but one would be entitled to nominal damages for being knocked down in those circumstances—40s., or pehaps a little more, depending on how serious the knocking down had been. No protection would be received in the new Clause as proposed by the hon. Gentleman. This is the sort of difficulty one gets into when one starts to try to deal with this problem of limitation.
Moreover, there is perhaps another defect, I would respectfully suggest, in the new Clause. It is that it would give to every person a further three-year period from the date of discovery. It may be asked, why not? Mr. Justice Edmund Davies and his Committee considered, and in my view quite rightly, that where there has been a delay—through nobody's fault, but a substantial delay; and we are now going to permit action to be brought—this would perhaps add on defendants a burden which might be thought not reasonable. Where a person does come to full knowledge of the injury and of the nature of his complaint he should in the case of an old claim thereafter act with added expedition. This was something which was accepted by all sides. This point was considered. The Committee asked the Trades Union Congress and the British Employers Confederation their view of the proposal that 1495 12 months should be granted from the discovery of the injury, and they both considered it and considered it acceptable. The new Clause would go further, I would venture to submit to the House, than would be right and proper, giving too much time here, giving defendants no right to have these matters dealt with with expedition.
Then also, when one goes into this matter and looks for a simple solution, one finds there is a further defect, I respectfully submit, in that the Limitation Act does not apply to Scotland, so one would have a divergence in the law here relative to Scotland. One would perhaps have to deal with that point if one were to proceed with this new Clause.
I hope that by these reasons I have shown the House the difficulties of following the hon. Gentleman's solution. The solution in the Bill is one which is on the whole accepted by all sides of industry, by insurance companies, employers, trade unions, the whole range of industry. It is one which was given very careful consideration and upon the distinguished advice received by the Committee, and I venture to suggest that it would be inappropriate to seek now at this late stage a new way to try to deal with the problem we all have in mind.
§ Mr. Dick Taverne (Lincoln)
I should like to ask my hon. Friend the Member for Islington, East (Mr. Fletcher) to withdraw his Clause. There are technical objections which the hon. Member for Colchester (Mr. Buck) has pointed out. The Clause was considered by the National Union of Mineworkers, who are most directly affected, perhaps more directly affected than anybody else, by the Bill, and they were satisfied with the Bill as it stands subject to one point which is itself the subject of an Amendment in the names of my hon. Friend the Member for Bedwellty (Mr. Finch) and my hon. Friend the Member for Cardiff, West (Mr. G. Thomas) and my name. The only point on which they had reservations is the question which we can deal with on Clause 2 when we reach it. Since the mineworkers are satisfied with the Bill, and since the Trades Union Congress are satisfied with the Bill as it stands, subject to this one matter, I do hope that my hon.
1496 Friend will withdraw his new Clause, especially as there are serious legal objections which the hon. Member for Colchester has pointed out.
§ Mr. Ronald Bell (Buckinghamshire, South)
I have put my name to the new Clause which has been moved by the hon. Member for Islington, East (Mr. Fletcher), and I must say I have a general sympathy with what he has in mind. Equally, if I may say so, I see the force, and I have throughout seen the force, of some of the objections made by my hon. Friend the Member for Colchester (Mr. Buck).
We are all very much indebted to my hon. Friend for bringing forward this Bill, which is an attempt to deal with a blemish in the law which has been apparent in the law for some time. It is actually a double blemish, because quite apart from the results of the amending Act of 1954, I think it was, there were pre-existing difficulties, as he knows, even when we had the six-year period for all kinds of claim; and then to those pre-existing difficulties was added the greater one that the period was reduced to three years for certain classes of claim. I hope he will not feel that because of Amendments like this new Clause having been put down for consideration now, we are in any way lacking in appreciation of the efforts he has made.
The fact is that this is a very difficult and complicated Bill; the whole subject of limitation of actions is difficult and complicated. It was very courageous of him to try to plug this hole by means of a Private Member's Bill at all. He will know that his colleagues in the law are always interested in these subjects and like to make their contributions as solutions of them, and those of us who were not able to be on the Standing Committee have naturally wondered what other approaches there might be. The difficulty is, of course, that on Report one cannot content oneself altogether with indicating a line of improvement which one has in mind. This is a Bill which has indeed a course to run in another place where infelicities in wording can be put right and indeed some corrections can be made, but I do see the point of what he says about the wording of the new Clause.
I think, although I have not put down an Amendment to this effect, because I 1497 am not quite sure how it should be done, that if one puts in such words asdecisive facts relating to right of actionin the new Clause, it may help, in view of the fact that the Bill now does contain a definition Clause. The definition of "decisive facts relating to" would include the magnitude of the injury. He will know what I am referring to—Clause 7. My hon. Friend has dealt with this problem, that one who receives an injury has a right of action when he does not know about the materiality of the damage to himself till after the period has run out. My hon. Friend has dealt with that problem by using the definition Clause to describe what is meant by "decisive facts relating to". Some insertion of those words "decisive facts" in the new Clause of the hon. Member for Islington, East would meet this point.
I do not think that one need be put off by that extremely valid difficulty which my hon. Friend has referred to, because, though it is a most serious blemish on the wording of the new Clause, it is a matter which can be corrected with minimum difficulty at a later stage of this Bill in its course through Parliament. I think that what the hon. Member for Islington. East has in mind, and I certainly have had in mind in supporting the new Clause, is that one really does want to have a rather easier way of correcting this defect.
My hon. Friend's Bill is most carefully and skilfully drafted. Indeed, I think that it is plain that he has had what I may call special help in the matter—[HON. MEMBERS: "No."]—It may be it was all of my hon. Friend's unaided drafting, but I should really not be surprised if expert assistance in the drafting had been available. One appreciates that in a matter of this length and complexity. In a sense, the Bill does the job without leaving any holes, but I think that one's first reaction is one of sheer dismay at the complication which will be introduced into the law of limitations of actions.
I was always unhappy about the three-year period being introduced, and the Bill in a way shows that one was right in doubting the wisdom of ever cutting down the six-year period for this class of action.
§ Mr. Bell
I said earlier that this was a two-headed monster. We had it before the six-year period, I agree, but the frequency with which it arises has immensely increased by the reduction of the period to three years. On the whole, if one receives an injury one is likely to know its effects within six years, and one is presumably less likely to know its full effects within three years. What has given the problem sharpness and required this Bill is the reduction of the period to three years.
Hitherto we have had a relatively simple limitation law, and I am very worried about the introduction of all this complication. Let us consider how it will work. First of all—this is what the hon. Member for Islington, East is really basing himself on—there is no actual right to bring the action. Once the three-year limitation period has passed, the man is at the mercy of the courts and the various procedures. He has no right to bring his action, but he may apply to do so. The Bill says that the man will apply ex parte except in so far as rules of court may otherwise provide. I hazard the guess that it will not be for long that these applications are made ex parte.
§ Mr. Bell
I suppose that affidavit evidence might well be used in practice, but there is nothing in the Bill to say that live evidence shall not be given. Is one really to imagine that the other side will not want to be represented during an application when two things are to be dealt with: first of all, whether there is a prima facie case and secondly, whether circumstances exist, as defined in the Bill, which justify the granting of the leave of the court for an action to be brought out of time? There are quite large sums of money at stake as a rule in these cases. The defendant is usually an insurance company or employer and will, of course, want legal representation present while all this is going on. The defendant will probably want to argue that the circumstances did not exist, that the man had knowledge or the opportunity of knowledge, that he is affected with constructive knowledge.
All these are not matters which are very aptly dealt with by affidavit or by the argument of counsel. After all, there is a certain amount of complication in the Bill about the requirements which are to be satisfied, quite apart from the prima facie case history. There are requirements which are to be satisfied as to the state of mind of the plaintiff at material times before one can decide whether he should have leave to proceed or not. I certainly think that the defendants will seek the opportunity of resisting the application. Rules of court will have to be made so that, broadly, if the defendant applies to be heard and to resist, he shall be given the right to do so. Then this very soon ceases to be an ex parte application and becomes a sort of subsidiary hearing of the action.
One cannot always avoid that kind of thing in the administration of the law, but it will be very cumbersome indeed and rather expensive and not the kind of procedure that one wants to see introduced into the law if one can avoid it. That is, I think, what the hon. Member for Islington, East has in mind, and it is what I have in mind. There are the two questions. There is the point that the man who did not have within the limitation period the materials on which to found his action shall have a right to bring his action, subject, of course, 1500 as now, in the case of fraud and mistake, to his proving at the time of the action or on an application to strike out that he can bring himself within Section 26. The other point is that one should not have this cumbrous procedure of a kind of ghost hearing before the real one, with all the difficulty, incidentally, which follows in the Bill about the transitional provisions and all the rest of it.
I know what my hon. Friend has said about simplicity. Sometimes the pursuit of it can lead to great complication. However, I feel that one ought somehow to try to do this in less than these eleven pages and with less of the procedural difficulties.
Section 26 seems to be the obvious way of doing it briskly and shortly, and I ask my hon. Friend to consider whether, with the addition that I have suggested of the wards "the decisive facts relating to", this might not be a way of doing it. It would, of course, like some of the safeguards that one gets, have the complicated procedure of the application and the statutory definitions, but as a working procedure it would be more acceptable and more practical than the elaboration which has resulted from the deliberations of the Committee, for whose work one is, of course, extremely grateful.
I do not know whether my hon. Friend feels that it is too late at this Commons stage of the Bill, but he might like to consider it. There really is a point here. If we go forward on these lines, within a year or two we shall be coming back again to refashion the Bill, and, incidentally, perhaps to extend it because as it stands it does not cover the case of the person who is under a disability other than the lack of knowledge, of fraud, or mistake. It is like the case of the magistrates—I am sure that my hon. Friend will remember this—who had a man certified in a manner which was negligent because they had no jurisdiction and had not the necessary two medical certificates. The man was, therefore, put away in a lunatic asylum, and he remained in that form of incarceration and legal disability for more than six years. He escaped and remained at large for more than twelve months so that he was, under the Lunacy Act, safe, and then he issued his writ. Although he had a cause of action which was apparently irrefutable, he 1501 nevertheless had the Limitation Act successfully pleaded against him; and that cliff-lenity remains unresolved.
This is an extraordinary state of affairs. It is a pity in a way that when one is plugging the holes in the limitation law this matter, which really is outrageous, should be left out of it. I think that this is outside the Long Title of the Bill because it does not relate to personal injuries. I mention it because this subject needs further examination.
§ Mr. James Griffiths (Llanelly)
I congratulate the hon. Member for Colchester (Mr. Buck) on his Bill, and on behalf of the miners I convey our thanks to him for taking advantage of his luck in the Ballot to introduce it. Although we would like to see it amended, I hope that the Bill in general will be given the unanimous approval of this House. We want it badly. I am anxious to make it as reasonably easy as possible for men stricken in this way to claim. We are reaching a stage in which industrial diseases contracted during employment—often because of the negligence of employers—do not reveal themselves for a long time.
A few weeks ago I met again an old colleague who once worked with me in the mines. I am almost afraid to confess how long ago that was. It was forty-one years ago. Yet, after forty-one years out of the pit, that old friend of mine was certified as being disabled by pneumoconiosis.
In that same week, a constituent came to see me. His was a tragic case. He is an old-young man of 60 years of age. He is a machinist in the building trade—or was. He told me his simple but tragic story. He is a very skilled craftsman and among his jobs was to saw timber and asbestos sheets. During the war there was a change in the nature of the timber used and he suddenly found that instead of shavings more and more dust was resulting from the sawing. Similar circumstances arose with the asbestos sheets.
For some time, no attempt was made by the firm at dust prevention. Of course we are now beginning to learn of the tremendous price our people are paying for the failure to prevent dust in industry. That man is now completely disabled. I am satisfied that he has something like pneumoconiosis. The doctors 1502 may call it emphysyme but, of course, many of these terms are almost interchangeable. I am anxious that this man should have what I consider him entitled to. He is disabled because no real attempt was made to prevent the dust which has made him an old man at 60.
I am glad of the support of all my legal friends here, including that of my right hon. and learned Friend the Member for Newport (Sir F. Soskice). He will recall that when he was Solicitor-General and I was Minister of National Insurance, after long arguments on private Bills and other Measures about the doctrine of common employment, we abolished it altogether. I do not suppose that any one wants to bring it back. It was a simple step we took but it had been argued by lawyers for a century. Perhaps the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) was in the argument.
§ Mr. Griffiths
I am glad to hear it. Now here is another piece of limitation. If a man is disabled by accident or disease then, if that is due to the negligence of his employer, I am concerned to make it as reasonably easy as possible for him to secure justice. That is why I am glad to support the Bill. I am willing to take the skilled advice we have available to us as to the best way of achieving this, whether by this proposed new Clause or by the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch) we shall discuss later.
Once again I thank the hon. Member for Colchester. This is one further improvement in our existing provisions. I hope that it will have a unanimous Third Reading later today.
§ The Solicitor-General (Sir Peter Rawlinson)
I want briefly to advise the House on this Clause in view of the speeches made by the hon. Member for Islington, East (Mr. Fletcher) and my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell). The right hon. Member for Llanelly (Mr. J. Griffiths) has indicated our appreciation of this problem which has been illustrated particularly by the case quoted by the hon. Member for Islington, East. The problem has caused the gravest concern 1503 not only to the sufferers but also to those who have practised in the law.
The approach suggested by the hon. Member for Islington, East is radically different from the approach set out in the Bill. My hon. Friend the Member for Colchester (Mr. Buck) has accepted the suggestions made by the Edmund Davies Committee, to which he has paid tribute, and I would now like to add my own. His Bill was based on the Committee's recommendations and we accept that as reasonable. After all, one need only look at the membership of that Committee to realise that every single aspect of this problem was represented by men of great experience.
As my hon. Friend the Member for Buckinghamshire, South has said, although he would like to have reached a solution of complete simplicity this is inevitably a complicated matter. The gentlemen on the Edmund Davies Committee studied it for twenty months, and having done so felt that the approach now adopted by my hon. Friend in this Bill is the right one to get the best degree of justice and equity.
As my hon. Friend the Member for Colchester has pointed out, the wording of the new Clause would make a limitation period uncertain in all personal injury cases. It would thus make every case uncertain. It is obscure and would, as my hon. Friend said, result in injustice to many prospective plaintiffs. He gave the example of a person being knocked and who suffered serious consequences later from an injury which seemed trivial at the time. He would not be able to bring an action in respect of that under this new Clause.
For reasons based on the wording and effectiveness of the new Clause I recommend the House not to accept it but take the course suggested by my hon. Friend the Member for Colchester.
§ Mr. William Wells (Walsall, North)
While accepting all the criticisms that the hon. and learned Gentleman has made of the Clause, is it not possible to have some such approach as my hon. Friend the Member for Islington, East (Mr. Fletcher) has suggested in order to eliminate the need for an application for leave of the court to proceed—a matter which will be discussed later— 1504 which, as we have heard, the National Union of Mineworkers objects to? Indeed, I object to it myself.
§ The Solicitor-General
I apprehended from what was said by the right hon. Member for Llanelly that this matter would come up later for discussion and is one on which different views are held.
§ Mr. J. Griffiths
Keep an open mind on the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch) when it comes up.
§ The Solicitor-General
If so experienced a parliamentarian gives advice like that across the Floor of the House, one is tempted to accept it. However, we shall discuss this later. I know that it is a matter of considerable concern to the House. I recommend the House to accept that there is merit in the course proposed by my hon. Friend the Member for Colchester in view of the circumstances which could arise if there were no period of limitation. We of course have to strike a balance, because otherwise it would be grossly unfair if ancient causes of action, through someone not caring or through carelessness were to be kept hanging over someone's head. It would be grossly unfair not to have some period of limitation.
I suggest that the approach of my hon. Friend, which he has accepted in this Bill and which he has taken from the Edmund Davies Committee, is the better approach. Complicated though it may be, it nevertheless has merits which, I suggest to the House, are superior to those recommended by the hon. Member for Islington, East.
§ 12 noon.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I wish to express agreement with what the Solicitor-General has said. The House wants this Bill and the hon. Member for Colchester (Mr. Buck) has done excellent work in connection with it. This is a very important and useful Bill with which I was very pleased to have my name associated. It is regarded with great favour by large numbers of my hon. Friends.
As to the merits of the discussion so far, I take the view that they are with the method adopted by the Bill rather than with the method proposed by my hon. Friend the Member for Islington, 1505 East (Mr. Fletcher). What strikes me as most important is that, if we are seriously considering this matter in the context of the general wish that the Bill should go through, there are the gravest objections to the new Clause from that point of view. it involves such a radical change in the whole method of approach to this problem—involving, among other things, the abandonment of the whole of Clause 2, because implicit in it is the discarding of the application procedure—that I doubt very much whether the House would be willing at this comparatively late stage to give consent to proposals which involve such important and radical alterations in what have been originally put forward and have received careful and thoughtful consideration in Committee.
I am certain that my hon. Friend the Member for Islington, East has no intention of doing damage to this Bill. I am perfectly aware of that, but I join with my hon. Friend the Member for Lincoln (Mr. Taverne) in asking my hon. Friend the Member for Islington, East to withdraw the Clause, quite apart from the merits, on the ground I have put forward. This House will not be prepared, I conceive, at this late stage to accept proposals which constitute a totally different approach to the whole problem from that previously very carefully gone into. The suggested approach involves inevitably so large an alteration in the rest of the Measure as the abandonment of the whole of Clause 2. On those grounds, and because we want this Bill and this is not a matter to be played with, for it affects countless very important cases of industrial illness and disease, I hope that my hon. Friend will not proceed with his new Clause.
§ Mr. Ian Percival (Southport)
I am entirely in sympathy with the hon. Member for Islington, East (Mr. Fletcher) in suggesting that this wholly deplorable situation should be remedied. I do not think there can be a question of disagreement on that, but I am also entirely in agreement with what the Bill tries to do and with the right hon. Member for Llanelly (Mr. J. Griffiths), who said he hoped that it will complete all its stages today.
The questions implicit in and raised by the proposed new Clause are questions of how far one should go and 1506 the methods by which one should make what is now to be provided available. As the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) said, if this proposed new Clause were accepted it would necessarily replace Clauses 1 and 2 of the Bill as drafted, with the result that rather different rights would be given and the pursuing of those rights would follow a different course. Many technical reasons have been given for not accepting this alteration with those consequences. I agree with those technical reasons, but I suggest that there are more than technical reasons for taking this view. My sole purpose in intervening is to call attention to two of the non-technical reasons for preferring the existing procedure to the proposed procedure. I do this because I think it unfortunate that anyone should get the impression that lawyers or anyone else consider alternative proposals such as these purely on their technical merits or demerits and without regard to their wider implications.
One of the principal claims on which the hon. Member for Islington, East based his interesting argument for accepting his Clause in place of the existing provisions was, I understood, that he takes, and expressed, the view that the Statute of Limitations is a fairly procedural Act and that defences raised under it have no merits whatever.
With respect, I beg to differ from him on that. I should like to follow and enlarge upon what was said by the Solicitor-General on this point. It would be wrong if this House or the public were to be left simply with the view that those defences are purely technical and have no merit at all. I suggest that they have considerable merit.
Their purpose is to endeavour to hold a fair balance between the two parties to litigation. One cannot do better than remind the House of the three points to which the Edmund Davies Committee drew attention in this context. First, that Report pointed out that these provisions were intended to protect defendants from being vexed by stale claims relating to long-past accidents about which records may no longer be in existence and as to which their wit- 1507 nesses, even if they are still available, may well have no accurate recollection.
That is a situation which may very well arise in less than three years. in the kind of case we are considering, where we are supposing that the action may not be brought until after three years, this situation is ex hypothesi more likely to arise. It can well produce a situation which may be almost as unfair to the defendant to allow proceedings to continue as to the plaintiff not to allow them to continue. The Edmund Davies Committee pointed out that there were at least two other reasons. I shall not take the time of the House in discussing the second one, which is that it has never been the principle to encourage litigation unduly, but the third one is more important and goes directly to the point I made that these provisions are intended to hold a fair balance between the interests.
It is that for a very long time it has been a principle of our law that it should ensure that there comes a time when a person may with confidence feel that he may treat as being finally closed an incident which might have led to a claim against him. In other words, people will not be left for ever wondering whether a claim may lie against them. Those, I suggest, are not technical reasons; they are good reasons on their merits for preserving these definitions provided by the Statute of Limitations.
What we are here trying to do does not break those principles at all. While recognising the value of those principles and that they exist to hold a fair balance, we are trying to iron out an anomaly arising under them which offends our sense of justice as ordinary human beings and as lawyers as well. For that reason I suggest it is most important that we should be careful to do just that, and to continue to try to hold a fair balance. I therefore join issue with the hon. Member for Islington, East on the question of whether the definitions we are talking about are meritorious or not. I respectfully suggest that they are.
There are other non-technical reasons for being careful to preserve this balance. I suppose that laymen as well as lawyers would appreciate and accept that commencing an action is, or at all events ought to be considered, a very solemn 1508 and serious step. It starts a train of events which inevitably will cost someone, whether it be the taxpayer or the parties themselves, a great deal of money. That is not something which should be undertaken lightly, especially after a considerable period of time. But I wish to suggest a more human reason than that.
It may well be—those of us who are practising lawyers have experienced this—that once an action is started the plaintiff's hopes may, very humanly, but without any great foundation, be built up. Because he has an action running, he feels that it will be successful and that he will get damages. But he may not. One is told by the doctors that the tension under which a person lives the whole time that litigation is pending is a very serious thing and may well affect that person to a considerable extent. I mention this as another human, non-technical reason for saying that we ought to be very careful about the steps to be taken before proceedings are commenced after a long time.
I suggest that it is another reason for saying that what is provided by this Bill is a wise and sensible safeguard. It is not a very difficult step. We are all familiar with ex parte actions. They need not take long or be very expensive. They can be disposed of fairly and quickly. A very great discretion is given to the judges under the provisions dealing with them. I suggest that it would be fair if it were left to the courts to deal with these preliminaries expeditiously and fairly.
It may be a handicap to someone who wishes to conduct proceedings. It is something else that a person would have to do. But I suggest that it is only a small handicap, and if one looks at this in the right way, it will be appreciated that the whole problem is how best to balance all the different interests involved, remembering that one must have some regard to the position of the defendant after a long period of time has elapsed. The provisions in the Bill are fair to both sides and, with respect to the hon. Member for Islington, East, I think they are preferable to the provisions which his new Clause would substitute for them.
§ Dr. Alan Glyn (Clapham)
I was impressed with what was said by the hon. Member for Islington, East (Mr. Fletcher) with particular reference to the disease of pneumoconiosis. These diseases are often almost impossible to diagnose or at least it is almost impossible to provide correct evidence about them in the initial years. It is true that in many cases there may be some clinical evidence, but the positive evidence which is looked for by the courts is extremely difficult to provide. For that reason I can see that there are certain diseases of that type regarding which it would be difficult for a plaintiff to establish a case.
However, as was said by my hon. and learned Friend the Member for Southport (Mr. Percival), we are called on to strike some sort of balance in those cases where it is difficult to diagnose and at the same time to give a fair time interval for the employer, so that he will not have lost track of the evidence. One has to look upon the matter as establishing a fair balance between employer and employee. I feel, therefore, that we should not accept the new Clause, especially because at this late stage it would make such a fundamental change in the Bill. It is in my opinion too late—particularly in respect of a Private Member's Bill in its passage through this House—to introduce a new Clause of this nature which would bring about such a radical change in the Measure. I can appreciate the reasons why the hon. Member for Islington, East moved his Motion and we have every sympathy with him, but on this occasion I cannot agree with the hon. Gentleman.
§ Mr. Fletcher
I have listened carefully to what has been said. I am still of opinion that the new Clause would have provided a better method of dealing with this problem than the one in the Bill. I say that with the greatest possible respect to the members of the Edmund Davies Committee, for whose work and labours on this subject we are grateful. But my major concern, like that of other hon. Members interested in this subject, is to ensure that the Bill shall be passed into law.
After listening to the opinions expressed by my hon. and learned Friend the Member for Liverpool, Edgehill (Mr. A. J. Irvine) and by the hon. Member for Colchester (Mr. Buck), and other hon. Members, and because I am 1510 conscious of the difficulties which would follow were I to press this matter to a Division as it introduces a radical change, I beg to ask leave to withdraw the Motion.
§ Motion and Clause, by leave, withdrawn.