LIMITATIONS OF ACTIONS IN TORT AGAINST ESTATE OF DECEASED (Hansard, 17 April 1970)

§ Mr. Peter Archer (Rowley Regis and Tipton)
As there was no debate on Second Reading, it may assist the Committee if I indicate very briefly the purpose of the Clause and, if I can do so and remain in order, its relationship to the rest of the Bill.
This is a modest Measure of law reform of the kind which is sometimes referred to as lawyers' law. I suspect that that term is used to indicate that it is of no interest to anyone who is not a lawyer. [Interruption.] My impression from some of my hon. Friends at the moment confirms that view.
It may be worth reminding ourselves that the reform of lawyers' law is for the benefit, not of lawyers, but of their clients—those members of the public with whose affairs the law is concerned. The Bill relates to the situation which arises when an individual against whom there is a personal cause of action dies before the matter proceeds to judgment. Without wishing to inflict undue technicalities on hon. Members who are not lawyers, may I summarise the matter by saying that personal actions form the substance of the civil actions which come before our courts. In layman's language, the Bill deals with the situation where someone wishes to bring an action for damages for personal injuries, for example, and finds that his proposed defendant is dead, and seeks to rectify certain injustices which have arisen in the past in that situation.
The common law followed logic in this matter where it led, without being unduly deterred by common sense. I shall not inflict on the Committee the medieval Latin in which the rule was expressed, but in English what the common lawyers 1740 said was that a personal action died with the person.
If it was not clear previously, it certainly became clear in an age when collisions between vehicles were all too frequent, that if someone were injured in a road accident in consequence of the negligence of another driver, and if that driver were killed in the accident, the victim would find himself left without a remedy. The fortunate beneficiaries of the estate would pocket the deceased's property free from the obligation to pay the damages which he would have had to pay had he lived. And this was so even though the damages were payable by an insurance company, whose finances were in no way affected by the death.
By 1934 certain limited exceptions had been introduce to that general rule, but the rule itself remained. In that year, the Law Revision Committee recommended that the matter should be rectified, and the Law Reform (Miscellaneous Provisions) Act, 1934, enacted that causes of action subsisting for or against the estate of a person who then died should survive for or against the estate. But the statute went on to enact that an action against the estate of a deceased person, if not already instituted by the time of the death, must be instituted within six months of the taking up of representation by the executors or administrators.
The rule was introduced because the Law Revision Committee had expressed the view that if the estate were subject to claims for the whole of the normal limitation period which in most cases was then six years, the administration of estates might be unduly delayed. Somewhat curiously, the rule was confined to causes of action in tort, so that the many causes of action in breach of contract are not even now affected by the rule. But the rule, having been introduced by the Statute, gave rise to a number of hardships. It was found, for example, that if a plaintiff were seriously injured in an accident, by the time that he was sufficiently recovered to attend to his affairs, he might discover that the period during which he could bring his action had elapsed. Sometimes, too, he might not even be aware of the death, and might therefore fondly believe that he had the normal 1741 limitation period in which to bring an action, only to be suddenly confronted with the information that the proposed defendant had died more than six months ago, that administration had already issued, and that he was left without a remedy.

§ Mr. Edward Lyons (Bradford, East)
Was not there an advantage in the rule that one could bring an action against an estate of a deceased person within six months of taking out letters of administration if those letters were not taken out until four or five years after the death? Since the usual period of limitation is three years, a plaintiff in those circumstances would be able to sue at a date later than the normal law for others would allow—in other words, after three years had expired?

§ Mr. Archer
It is certainly true that it has been held—somewhat surprisingly, that other normal limitation periods do not apply when this limitation period applies, so that sometimes a person whose cause of action would have lapsed under the normal three-year rule in personal injury cases has found that that period was extended when the provisions of the 1934 Act applied. That was only one further anomaly. So far from effecting justice, in a sense it made the balance between one potential plaintiff and another even more irregular.
There were many situations in which real injustice and hardship could arise. The Law Commission considered the matter with the encouragement of the Law Society, and reported in April, 1969, its report being set out in Cmnd. 4010 of that year. The Commission bore in mind the purpose of the original rule, but recommended that, on balance, the best method of dealing with the matter would be to abolish the six months' limitation rule—and that is the primary purpose of the Bill.
The Bill was introduced in another place by my noble Friend, Lord Lloyd of Hampstead. It received a Second Reading on 2nd February of this year and a Third Reading on 3rd March, and last Friday it was given an unopposed Second Reading in this House. That is why I have ventured to introduce Clause 1 at rather longer than the normal length. Clause 1 is the major enacting Clause, and it may save the time of the 1742 House at a later stage if I indicate briefly the way in which Clause 1 is connected with Clause 2.
Clause 2 permits the Lord Chancellor to make rules of court to deal with certain procedural matters arising in connection with the difficulties indicated by the Law Commission in Appendix II of its report——

§ Mr. Deputy Speaker (Mr. Sydney Irving)
Order. It may be helpful if the hon. Member deals with the matter in that way, but I hope that he will not repeat this explanation on Clause 2.

§ Mr. Archer
It was for that purpose that I ventured to say one sentence on Clause 1, Mr. Deputy Speaker. I was not proposing to take the matter further unless any other hon. Member wished to discuss it.
I conclude—hoping to remain within the rules of order—by paying tribute both to my noble Friend, Lord Lloyd, whose clarity in introducing the Bill in another place has greatly facilitated the task of all who have had to follow him, and to the Law Commission, which performs a great deal of valuable work, often of an unspectacular nature but which, as in this case, has afforded numerous ordinary people a real reason for gratitude, often in ways not obvious to those who have benefited.

§ The Solicitor-General (Sir Arthur Irvine)
It may be right for me to indicate, in the discussion of the Clause that contains the substantial provision of the Bill, that the change in the law here proposed has the entire support of the Government. It is a very welcome change. In its report the Law Commission adhered to its excellent practice of spelling out a draft Bill which it felt conveyed the objective and purpose that it had decided upon in its consideration of this point of law.
As my hon. Friend has indicated, the existing law concerning proceedings against estates provides that a writ must either have been issued before the death or not later than six months after the grant of representation to the deceased's estate. There is no doubt that this very short period of six months can cause considerable hardship.
1743 Before arriving at its ultimate decision the Law Commission considered various possibilities. There was the possibility of giving the court a wider discretion than it has under existing law, and the possibility of providing for the registration of pending claims. These suggestions were gone into with care, but the conclusion was reached that the solution of abrogating the six-months rule altogether was the preferable one.
The Bill introduces a useful change in the law. The matter was originally brought to the attention of the Law Commission by the Law Society, whose solicitors had found that in many cases hardship flowed from the shortness of the six-months period. I welcome the Bill and the course that it has followed in the proceedings to date, and I wish it well in its future stages.

§ Mr. Edward Lyons
I should like my hon. Friend the Member for Rowley Regis and Tipton (Mr. Archer) to elucidate two points arising out of Clause 1. First, what happens if a plaintiff wishes to issue a writ when the three-years limitation period has almost expired but no grant of probate or administration has been made? Would that deny the possibility of the plaintiff's beginning proceedings, since it takes some time to ensure that the estate of the deceased person is represented as a result of a grant of that kind?
Secondly, does my hon. Friend see any possibility of the Bill's reducing the delay in the winding up of estates, since, if there is delay, it may produce a situation in which a plaintiff is forced to be very slow off the mark, which means that his compensation will be denied to him for a long period?

§ Mr. Peter Archer
I think that I can answer my hon. Friend's questions briefly. His first question concerned the difficulty of an intending plaintiff who wished to issue a writ when no personal representative had been appointed. The proposal is that that would be dealt with by rules of court made under Clause 2. I am not authorised to say what the nature of those rules of court would be, nor would I purport to do so, but the Law Commission recommended that the situation which it dealt with in Appendix II in its report should 1744 be covered by the rules of court contemplated by Clause 2.
My hon. Friend then asked about the possible reduction of delay in winding up estates. I do not think that that was quite the mischief at which the Law Commission's report was aimed, nor the mischief at which the Bill is aimed. It might, in fact, be argued that this might operate in a reverse direction, that by eliminating the limitation period, it could actually produce delay in the winding-up of estates.
This was a consideration which was weighed at some length by the Law Commission. It was felt unlikely that such delay would be occasioned, partly because the normal limitation periods would continue to apply, and partly because probably the bulk of the cases in which this sort of situation would be likely to arise are dealt with by insurance companies rather than by those who attend to the winding-up of estates, and it was felt that such delay as might conceivably arise would be a price worth paying.
That, I think, answers the two questions which my hon. Friend raised, and I see that he kindly agrees that it does answer his questions.