§ Mr. Daniel Awdry (Chippenham)
I beg to move Amendment No. 12, in page 13, line 7, leave out 'in such circumstances as may be specified in the rules'.
§ Mr. Speaker
I suggest that at the same time we can discuss Amendment 813 No. 13, in page 13, line 12, at end insert:'in the circumstances following, that is to say where, but only where:—
- (a) the defendant has admitted full liability; or
- (b) the full liability of the defendant has been established by the entry of interlocutory damages to be assessed; or
- (c) if the action proceeded to trial the plaintiff would be bound to succeed wholly on the issue of liability; and
- (d) in every such case the defendant, or if, there be more than one defendant each of the defendants, is covered in respect of the claim made by the plaintiff by a valid contract of insurance or is a public body or authority or other substantial corporation'.
§ Mr. Awdry
As you suggest, Mr. Speaker, I should like also to refer to Amendment No. 13.
We have now reached Clause 20 which gives powers to the Rules Committee to make rules enabling the court to order interim payments in certain cases. This follows the recommendations of the Winn Committee as set out in Section IV of its Report. We on this side of the House welcome the suggestions of the Winn Committee which will relieve a great deal of the hardship. From my own experience in dealing with personal injury cases, I know that a family can suffer great hardship if the main breadwinner is unable to work because of an accident and the insurance company which insures the defendant is not prepared to pay any amount on account of damages.
I can think of a case in which I was personally involved where a man was nearly totally paralysed in a car accident and there was no dispute on the issue of negligence. The other driver was wholly to blame and no one sought to deny it. Nevertheless the insurance company was not prepared to make any payment on account until the final medical assessments were available, and this took a long time. Equally clearly, justice must be accorded to defendants who have a valid defence to the action. Nothing must be done to prejudice their position.
The Winn Committee came to the conclusion that there were three classes of cases in which interim payments were appropriate. These were set out in paragraph 85 of the Winn Committee's Report, which I will quickly read: 814There are three classes of cases in which Orders for interim payments may be made without causing any prejudice or injustice to the defendant:—Later on, in paragraph 96, the Winn Committee deals with the problem which arises where a defendant is uninsured. The Committee came to the conclusion that the power to make interim payments should be confined to cases where the defendant or, if there were more than one defendant, all the defendants were covered by insurance.
- (a) Where the defendant has admitted full liability either by his pleading or otherwise on credible evidence of such admission;
- (b) Where the liability of the defendant has been established by the entry of interlocutory judgment for damages to be assessed;
- (c) Where, if the action proceeded to trial, the plaintiff would be bound to succeed wholly on the issue of liability without any discount for fault on his part or on the part of any person in respect of whose injury or death the claim of the plaintiff arises."
Clause 20 gives a totally general power to the Rules Committee to make rules giving the courts jurisdiction to order interim payments. We on this side of the House say that this House should establish in the Bill the exact criteria upon which the Rules Committee should work. That is precisely what we have done in tabling this Amendment. We have stated that interim payments should be ordered only in one of the three circumstances described in paragraph 85 of the Winn Report—the paragraph I have just read out—and only then if the defendant or, in the case of joint defendants, all the defendants are insured. In other words, in tabling the Amendment we have carefully followed the recommendations of the Winn Committee.
In case there should be any misunderstanding about our motives, may I say that it is not a fact that we have no confidence in the Rules Committee, although I might add that some solicitors have very little confidence at present in the Rules Committee. But that is not our motive. It is that we wish to criticise the Lord Chancellor, who incidentally appears to have very great or indeed absolute power in the Rules Committee. It is our view that this House should lay down the basis on which the rules are made.
Luckily for us, the Solicitor-General understands and sympathises with our 815 views, because in the Standing Committee he went a long way to help us. He said:I understand and have some sympathy for the argument that it is often, and perhaps usually, desirable that, where responsibilities are referred to a body like the Rules Committee, the criteria that Parliament wants the Committee to apply should be spelled out in the Bill. Even as a principle, however, that should not be accepted without qualification, because we all have experience of the risks that there are in attempts to go too far to define Parliament's wishes and the way in which it wants a Committee to perform its duties."—[OFFICIAL REPORT, Standing Committee D, 24th April, 1969; c. 125.]I accept that this is a matter of judgment. It is, to use an expression that we have heard earlier today, a finely balanced argument. But I cannot see any risks at all—if there are any risks I invite the Solicitor-General to tell us what they are—in defining the wishes of the House as we have tried to do in this Amendment.
The Solicitor-General may remind us that when the rules are made by the Committee they will be brought to this House for approval. He may argue that this may meet our point because if we do not like the rules we can vote against them. But, as the House knows, under the Standing Orders of this House we have no power to amend the rules when they come here. We either have to accept them in toto or reject them in toto. Clearly we do not want to reject them altogether because we approve entirely of the principle of interim payments. The truth is that the House will have no effective control over the rules once they come here. That is why we say that the criteria on which the rules are to be based should clearly be written into this Bill.
I hope the Solicitor-General will see our point of view which I have tried to put as reasonably as I can. I repeat what my hon. and learned Friend said a few moments ago. We hope that on this occasion the Solicitor-General will meet us and not oppose the Amendment.
§ 6.30 p.m.
§ The Solicitor-General
The issue here is, I think, fairly narrowly balanced, and the hon. Member for Chippenham (Mr. Awdry) has recommended the Amendments with the moderation which one has come to expect from him, but, with 816 respect, they would impose an over-rigid series of criteria, even applying the standards to which I have been quoted as referring in Standing Committee.
Amendment No. 13 follows closely—one understands what has been in hon. Gentlemen's minds in this connection—the language of the Winn Committee. It is intended that the rules should give effect, broadly, to that Committee's recommendations. It is felt desirable, however, that the Rules Committee should be given some latitude in defining the circumstances in which an order for interim payments may be made. To restrict the rule-making power by using, as the Amendment does to a marked extent, though not entirely, the precise wording of the Winn Committee's Report would, in my judgment, be undesirable, for reasons which I think it right now to deploy.
In paragraph 85(a) of its Report, the Winn Committee referred to the case comprised in paragraph (a) of Amendment No. 13, in which the defendant has admitted full liability. It is to be observed that the word "full" does not appear in the summary of conclusions and recommendations on page 38 of the Winn Committee's Report or in the draft rules in Appendix 6. I draw attention to that; it is an interesting discrepancy. It is not clear whether the defendant should have admitted liability for the whole amount of the plaintiff's claim or whether it would be sufficient for him to have admitted liability for part of the claim, provided that he did not raise any issue of contributory negligence or plead any set-off or counterclaim. There is a doubt there.
In paragraph 85(b), the Winn Committee referred to the case adumbrated by paragraph (b) of Amendment No. 13, the case in which the liability of the defendant has been established by the entry of interlocutory judgment for damages to be assessed. The word "interlocutory" does not appear in the draft rules in Appendix 6 to the Committee's Report, and it is doubtful whether the phrase "entry of interlocutory judgment" is apt to describe obtaining judgment upon a trial of liability ordered before trial of damages, which is one of the most important cases mentioned in paragraph 86 of the Report as falling under this head.
817 In paragraph 85(c), the Winn Committee referred to a case in which, if the action proceeded to trial, the plaintiff would be bound to succeed wholly on the issue of liability. It did not say whether, if there were two or more defendants, the plaintiff would have to show that he would be bound to succeed against each of them. It is clear, however, from paragraph 90 of its Report and the draft rules in Appendix 6 that the Committee thought that it should be sufficient for the plaintiff to show that he would be bound to succeed against any one of them.
Full consideration must be given to the question whether a court ought to be empowered in these circumstances to make an order for interim payments against the other defendant or defendants. This must now be left to rules, but the Rules Committee ought not to have to consider first whether the case comes within the ambit of its rule-making powers, as it would have to do if the Amendments were passed.
In paragraph 96 of its Report, the Winn Committee make it an over-riding condition of the power to order interim payments that the defendant, or all the defendants, are covered by a valid contract of insurance in respect of the plaintiff's claim or are public bodies or authorities or other substantial corporations. These expressions, while affording an adequate guide to the Committee's intention, are much too vague to be used in a Statute defining rule-making powers. In the draft rules in Appendix 6, the reference to a substantial corporation becomes a reference to a body having adequate assets to meet the plaintiff's claim. It is, I suggest, plainly better to leave this matter to the Rules Committee.
There is a danger also that, if the circumstances in which provision may be made for an order for interim payments are defined in the Bill by reference to the recommendations of the Winn Committee, they will not be apt for cases other than actions for personal injuries, which the Clause is intended to cover.
I have put forward what I hope the House will regard as convincing arguments why in this respect the rule-making powers under the Clause ought not to be subject to such rigid criteria as are 818 set out in the Amendment. I realise that I am not giving anything away under this head and that I am resisting an Amendment when it has been suggested that, in view of an earlier disposition shown by hon. and learned Members opposite, it might be thought gallant and proper to yield. But I regard the arguments against the Amendments as too overwhelming for such dalliance to be permitted, and I ask the House to reject them. The criteria asked for in this instance are much too exact, even, as I say, applying the standards which I ventured to refer to on the earlier occasion. I hope that, with the reasonableness which is a characteristic of the hon. Member for Chippenham, he will think it wise to ask leave to withdraw the Amendment.
§ Mr. Percival
To borrow a phrase which you used the other day, Mr. Speaker, it seems that we have been too good-humoured in debate. Our good will on a previous Amendment is not to bring home the chestnuts on this one, if I may adopt that colloquialism. I do not propose to be particularly good-humoured in what I now have to say. It does not surprise me greatly that our gesture has not produced the result which it might have done, for we accept that there are technical difficulties here, and, with that in mind, I shall in a few moments take a certain course.
I am disappointed by the Solicitor-General's reply. We had hoped that something more useful than mere agreement that this is a technically difficult matter might have emerged from the debate. We wish to make as clear as we can from this side that we dislike in principle legislation by the Rules Committee. If the law is to be changed, it should be changed by the House, not by the Rules Committee. We dislike a piece of legislation such as Clause 20 which, if it remains unamended, says merely that there shall be a certain change in the law and leaves it to the Rules Committee to say what the change shall be.
We are not happy with the Clause as it stands because it passes to the Rules Committee part of the job of the House. We are not happy about it because of the power which the Lord Chancellor has over the Rules Committee. In saying that, I mean no reference to the present holder of that office. I refer to the Lord 819 Chancellor as the holder for the time being of that office. As was demonstrated recently, he has power of veto in the Rules Committee. No doubt that is very desirable, and it is acceptable when that Committee is dealing with rules, but it is not acceptable when the Committee is making new laws.
Furthermore, we do not like the situation because of the absence of any procedure by which the House can amend rules which come before it for consideration. I have no doubt that the Rules Committee, which will be given this job —because we cannot press our Amendment—will do the best it can, but there is no special reason to suppose that the House ought to agree to everything which the Committee puts in the rules. It would be much more reasonable to suppose that the House may well have some different views on some of the details of the rules and that its disagreement may be reasonable and well-informed. But under the procedure of the House, however strongly the House—or at least this side of it—felt that it would like to see some of the rules in a slightly different form, there would be nothing that the House could do about it. Those are the main reasons why we are not happy about what is being done in Clause 20.
Another reason why we are far from satisfied with the Solicitor-General's reply and much worse humoured than we were earlier is that I am bothered by what the Solicitor-General said when he objected to our Amendment on the ground that it seeks to impose over-rigid criteria. I accept that our Amendment will not stand as close analysis as it would need to stand before the House could accept it, because there are technical difficulties which must be covered. But we had thought—I believe rightly—that the criteria postulated in our Amendment were entirely in line with those of the Winn Committee. If the Solicitor-General believes that in the Amendment we were seeking to impose over-rigid criteria, that leads inevitably to the conclusion that he has in mind that the rules which emerge from the Rules Committee will entitle and enable the court to make payments out in circumstances considerably wider than those recommended in the Winn Committee and in the Amendment. We must 820 anticipate that by a procedure which allows us no scope for amending we shall get rules which go wider than the recommendations of the Winn Committee. That is a further reason why we are unhappy about what the Solicitor-General said.
But, coming back to where I started, I accept that technically our Amendment is not good enough. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.