§ 10.30 a.m.
§ The Solicitor-General (Mr. Peter Archer)
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Limitation Bill [Lords] ought to be read a Second time.The Bill is designed to remedy certain defects in the law relating to limitation of actions for personal injuries. The courts have had long experience of the problems which arise when someone who is entitled to bring an action exhibits no great sense of urgency for a long period and then stirs himself to pursue his rights.
We must accept that there are people who conduct their affairs like that. They are otherwise admirable people. Perhaps if our wives were asked they would say that none of us here could cast the first stone. A Member of Parliament who
§ comes from an area where the pace of life is somewhat slower than in the Metropolis tells me that in his area there recently came a Spanish worker who, whenever he was given an instruction, would merely reply "Mañana". On one occasion when he had received that response to a request the foreman asked someone the meaning of this word, which was the normal reply to his requests. It was explained that the man was saying that he would do it tomorrow. The foreman said "It is not that urgent".
§ There are people who exhibit that sentiment in the pursuit of their legal affairs. However, where they do, it is likely to cause unfairness in at least two ways. First, the defendant may have assumed that he was not likely to have to meet a claim so long after the event. He may have arranged his business accordingly 1625 and may have destroyed his files relating to the matter, Secondly, witnesses' recollections are likely to be more shadowy. In some cases defendants may have lost touch with their witnesses, believing that they were not going to require their services. Of course, it is equally true of plaintiffs. Their witnesses may also forget. But to say that the incidence of unfairness is unpredictable is not a good reason for encouraging it.
§ Since at least 1623 Parliament has dealt with the problem by providing that someone who is in a position to bring proceedings and who delays doing so should not be permitted to bring an action after a specific period has elapsed. But that rule can easily operate oppressively towards plaintiffs. Sometimes it can produce greater injustice than it prevents. Legislatures have been successively led to make exceptions and provisos. At the end of the day it is often a matter of judgment where the balance of injustice lies.
§ If I may be permitted a thumbnail history of the matter, the Limitation Act 1939 provided a general period of six years for bringing actions in contract and tort, but it did not override the Public Authorities Protection Act 1893, which provided that for claims against public authorities there should be a period of only six months. It was found in practice that the six-year period was too long. In most personal injury cases there was no obvious reason why plaintiffs should not bring their actions earlier. On the other hand the six-month period was plainly too short. In the Law Reform (Limitation of Actions, &c.) Act 1954 Parliament prescribed that for personal injuries there should be a period of three years, whether the complaint was against a public authority or not.
§ But there emerged one class of case where the rule occasioned a real injustice. Normally, the period begins to run from the moment when there is a complete cause of action, when all the facts necessary to establish a case have occurred. Obviously one essential fact in personal injury cases is that the plaintiff should have suffered an injury. Where we are dealing with an ordinary accident situation, resulting, for instance, in a broken leg, there is one moment of time when the injury occurs and when the victim 1626 knows that it has occurred. He may not know its precise nature or severity, but he knows that he has suffered an injury and can consider whether he wants to bring proceedings, but where we are dealing with an illness or disease there are at least two problems.
§ First, there is no one moment of time before which he did not have the disease and after which he did. There is no moment of time when a doctor can say with certainty that all the criteria of having the disease are fulfilled. Secondly, in any event, he is not likely to be aware that he has the disease until some time after he has begun to suffer from it. We have the same kind of situation with other kinds of injuries such as a slipped disc. Time begins to run. The victim does not know, not only that he has a right of action, but even that there is a problem. The whole period may have elapsed before he has learnt of the injury.
§ A clear example of this occurred in the case of Cartledge v. Joplin in 1963 where the plaintiff had suffered pneumoconiosis allegedly from his employers' breach of their statutory duty. He was not aware of it within the statutory period. That was not his fault. There was no reasonable step which he might have taken to become aware of it. It was held in another place that there was no power to extend the period, so that the plaintiff came to the courts for a remedy and found the doors closed. In that case the relevant period was six years.
§ It was obvious that there were going to be more of those examples when the period was reduced to three years. The Government, therefore, appointed a committee under the chairmanship of Lord Justice Edmund Davies, now the noble lord, Lord Edmund-Davies. That committee reported. Broadly its recommendations were implemented by the Limitation Act 1963. Even that Act gave rise to problems, which I shall consider in a moment after completing the thumbnail history. Some of the points were remedied in the Law Reform (Miscellaneous Provisions) Act 1971. Some remain outstanding.
In 1971 the then Lord Chancellor asked the Law Reform Committee, under Lord Justice Orr, to consider
what changes in the law relating to the limitation of actions were in the opinion of the Committee desirable".
It is still considering that reference, but in 1972 it was asked to give priority to limitations in personal injury cases. In May 1974 the committee produced its Twentieth Report, which related to this matter.
§ This Bill gives effect to those recommendations. And it is right that I should pay tribute to the hard work, the wealth of experience and the clarity of the recommendations of the committee.
§ This Committee will be relieved to hear that I propose to leave the chronological history there and to proceed to indicate some of the problems which the Edmund Davies Committee considered, the answers which it gave, and some reflections which have subsequently been made on those problems.
§ The first is, how long a period should the plaintiff have to bring his action when his disability is removed or when he has discovered the relevant facts? The Edmund Davies Committee suggested that the period should be 12 months. It did not suggest that there was any magic in that period. Clearly we were in an area of trial and error. The period of 12 months was enacted in the Act of 1963. It was found in practice that that period was too short. Having myself conducted very many of these actions, I confirm that that is so. By the time solicitors have taken instructions, traced the witnesses, taken statements, collated the evidence, exchanged correspondence with the other side, consulted counsel, instructed counsel to settle the necessary documents and issued the proceedings, and bearing in mind that often some months have elapsed before the victim is in a position to consult his solicitor, a year is clearly too brief.
§ The Law Reform (Miscellaneous Provisions) Act 1971 increased the period to three years. The Law Reform Committee recommended that that period should be retained. The Bill proposes to retain that period. So far as I am aware, that is not in issue.
§ The second question is whether, where the normal period has been extended, because the plaintiff lacked the necessary knowledge, we needed some kind of screen. It was conceivable that, once it was possible to override a Limitation Act defence, people might bring hopeless actions. The Edmund Davies Commit- 1628 tee recommended that actions should not be instituted without the leave of a judge. That was included in the 1963 Act, but it was found in practice that lawyers do not normally advise clients to bring hopeless actions.
§ The Law Reform Committee quoted figures about this. I am not a great believer in quoting statistics—at least, since I saw a document headed "The House of Commons, broken down by age and sex". However, I should like to quote a few statistics. They appear in paragraph 81 of the Report of the Law Reform Committee.
§ Master Jacob supplied the figures for applications made in London in the five years beginning in the year 1967. In 1967 the annual figure was 72, in 1968 it was 200, in 1969 it was 282, in 1970 it was 267, in 1971 it was 191. There was no source of statistics for the applications which were successful, but Master Jacob consulted the chief clerk to the judge in chambers and his recollection was that the number of refusals was infinitesimal. Out of all those figures there were two or three refusals at the most. Most hon. Members who have carried out that kind of work can confirm that those statistics are not misleading.
§ If a screen is not necessary, clearly it should be abolished, as it merely adds one step to the action, with resulting delay and an increase in the costs. The Law Reform Committee recommended that that screen should be abolished and the Bill so provides.
§ The third problem is probably the most difficult—what facts must a plaintiff know before the period begins to run? The 1963 Act set out provisions which I shall not trouble the Committee with by reading them out at length. Those provisions transpired in practice to be somewhat complicated and difficult to apply. They were considered in another place in Smith and Dodd v. Central Asbestos Company Ltd. in 1973. That was an asbestosis case. Although it is not clear from the report, it seems possible that the victim did not know that, as a matter of law the facts gave him a right of action. In that case the victim won his case. However, reading the report, it seems that he did so on the basis that there was a doubt on the findings in earlier courts as to 1629 precisely what it was that he did not know.
§ Lord Reid distinguished four elements in a cause of action: the nature and extent of the injuries, what the defendant did, that what the defendant did was what caused the injuries, and that what the defendant did was wrongful. I would not seek to improve on an analysis by Lord Reid, but by "wrongful" he meant, presumably, in a factual sense and not in a legal sense; that is to say that somebody had already warned the foreman that the machine was defective, rather than a construction of the provisions of the Factories Act. Lord Reid was critical of the drafting. That is a fate which falls to the lot of draftsmen from time to time.
§ The question which chiefly exercised the minds of their Lordships was, what would be the position if the plaintiff was aware of the facts but was not aware that as a matter of law they gave rise to a cause of action? One test which had been suggested earlier by the Court of Appeal was formulated by the noble Lord, Lord Denning, in this way: "Did he know that he had a worthwhile cause of action?" The majority of their Lordships held that, at least on the wording of the 1963 Act, that was not the appropriate test. It was irrelevant, if he knew the facts, whether he also knew the appropriate conclusion of law.
§ The Law Reform Committee considered this problem. It rejected the "worthwhile cause of action" test. It said that the rule that everyone is presumed to know the law is an ancient one and founded on good reasons. It recommended that it should not be rejected. It recommended that the period should run from the date when the plaintiff has knowledge, actual or constructive, both of his injured condition and of the injury having been caused by acts or omissions of the defendant. That test was adopted. It has been turned into an appropriate form of words and is now in the Bill.
§ There is one other problem arising under this heading. Perhaps we can state it in this way. Suppose the victim requires advice in order to learn some of the facts. Suppose he requires medical advice as to whether his working conditions caused his present medical con- 1630 dition. Perhaps he requires legal advice as to what questions of fact he should ask of his employers. Suppose he has taken all reasonable steps but has failed to discover the facts—for example, because either the advice was not available to him or he was given bad advice. Should he then lose his right to bring an action? The Law Reform Committee was unable to agree a clear recommendation on this. It offered two choices which it designated as the "strict" and the "liberal" approaches. The Government prefer the liberal approach and that is included in the Bill.
§ There is one final problem in this field. Is it right, having decided what is the test and the appropriate period of time, to have a specific cut-off date when time elapses once and for all, or should the courts have discretion to extend that time? It could be argued that there should be a specific time when a potential defendant knows with certainty that he can safely destroy his files and forget about the matter. However, any inflexible rule can on occasion produce injustice.
§ The Tucker Committee, which reported before the Act of 1954, recommended that there should be a limited discretion to extend the time, although it then suggested that there should be included what it called a "long stop date" well in advance—it suggested 10 years—after which the discretion should no longer operate. I understand that in German law there is a long stop date of this kind after 30 years.
§ The Edmund Davies Committee said that in its view there should not be a discretion to extend the time at all, and there is no discretion in the 1963 Act. The Orr Report said there should be a residuary discretion to consider actual hardship in particular cases and that there should not be a long stop.
§ That is the proposal which the Bill adopts. The new Section 2D confers a discretion upon the court to override time limits if to do so would be fair as between plaintiff and defendant. The court is required to consider all the circumstances and the section sets out specific guidelines, although these are not intended to be exhaustive, to which the courts should have regard. These include the length of the plaintiff's delay, 1631 reasons for it, including, presumably, whether he was given bad legal advice, the conduct of the defendant, including, presumably, whether he deliberately concealed the facts from the plaintiff, disability suffered by the plaintiff after his injury, and the nature of any expert advice given to him. It will remain a matter of discretion, and the court will have to consider in each case what would be fair as between this plaintiff and this defendant. These were specific matters which the Edmund Davies Committee considered, and those are the answers which are now being given.
§ The Bill seizes the opportunity to codify the law on these matters and there are two other specific areas where it does that. One relates to the case where injury causes the death of the victim, in which area the previous law was undoubtedly somewhat complicated, largely for historical reasons.
§ I must explain to the lay members of the Committee that the death of a person may give rise to two distinct causes of action. There is the victim's own cause of action for injuring him and shortening his life, a cause which survives to his executors or personal representatives. There is also the cause of action in the victim's dependants for depriving them of the breadwinner. The former one is covered by the Law Reform (Miscellaneous Provisions) Act 1934, and the latter by successive Fatal Accidents Acts.
§ Perhaps one can summarise the existing law in this way under the 1963 and 1971 Acts. If the victim knew the position more than three years before his death his claim is barred and neither his personal representatives nor his dependants can resurrect it. If he died unaware of the facts or was aware of them less than three years before his death, they have three years from his death or three years from when they first learned of the relevant facts, whichever is the later. I have stated that in concise terms, perhaps by contrast with some of my earlier comments, but that position is to be found over a fairly wide-ranging group of authorities. It is not found in any one place.
§ The Bill brings all the relevant provisions within the statute, although the existing law is largely preserved.1632
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
Is the Solicitor-General satisfied with the perpetuation in this Bill of the recent practice of patching up another Bill instead of, in this instance, producing an entire limitation Bill? We are taking bits out of the Limitation Act 1939 and putting other bits in with considerable consequential inconvenience to practitioners and a very untidy result. Is he satisfied with that?
§ The Solicitor-General
I suppose one is never satisfied with anything less than perfection in these matters and we should be striving for it. However, the hon. and learned Gentleman will know that the Law Reform Committee is considering the wider implications of the Limitation Acts. It was asked to consider limitations relating to personal injuries as a matter of priority, and we look forward—I hope in the not too distant future, although I say that without instructions—to some report on the wider aspects of limitations, when one hopes that it will be better to produce one codifying statute.
The other problem which the Bill has sought to bring within the code is as follows. Normally, time does not run against a victim while he is under disability, including while he is under age, the relevant age being now 18. Section 22 of the 1939 Act provided an exception to that. It said that time should run against a victim if he was in the custody of a parent, although the Act introduced that rule only for the protection of public authorities. The reason apparently was that public authorities are very much at the mercy of people who long afterwards bring allegations of negligence against schools. That was extended to all personal injury actions in the 1954 Act. It gave rise to a number of problems, which the committee has discussed at some length, including, for example, what happens if the person who causes the injury is the parent. The committee recommended that the rule should be abolished, and that is what the Bill does.
The Bill seeks to remove some of the sources of injustice to plaintiffs from the operation of limitation rules in personal injury cases and at the same time makes an admittedly limited move towards making the law simpler and easier to understand. It does not assist plaintiffs who 1633 have merely been dilatory, and it is not intended to.
It was suggested to the committee that one solution might be to abolish all limitation periods in personal injury cases. The committee considered that proposal. The TUC, for example, had pointed out that normally it is at least as much to a plaintiff's advantage as to a defendant's to expedite the proceedings. But if there is a failure to do so all the mischief I have mentioned—files being destroyed, witnesses forgetting the facts and so on—will then arise with resulting injustice. If the Commission under Lord Pearson reports in a particular sense, and if the report is in due course adopted, many of these problems will be considerably eased, but for the moment the Law Reform Committee recommends retaining the limitation rules, and that is the solution which the Bill adopts.
The Bill is concerned, where by reason of delay someone must suffer, to consider how the balance of injustice should be adjusted. We have done the best we can after a great deal of thought by well-informed people. I wish to read from a letter from Justice to the Lord Chancellor. As a former member of the council of Justice I am conscious how often that organisation has produced penetrating criticism of the state of our law and of the inaction of successive Governments. I have the permission of Lord Gardiner, Chairman of the Council and author of the letter, to read out what it says. It reads:The Justice Committee on Compensation for Disablement, under the Chairmanship of Paul Sieghart, has considered the Limitation Bill which is currently before Parliament, and I have been asked to pass on to you the views which that Committee takes on the Bill, and which the Executive Committee of Justice endorse.We welcome this Bill, which seems to us to represent a substantial improvement on the present law. It removes a number of anomalies which have caused hardship in the past, and we are particularly glad to see the flexibility which Clause 2D introduces, and which will give the Courts important new powers to prevent injustice to any of the parties concerned.One can only accept that compliment graciously on behalf of the Government.
There is one other matter which I wish to mention and which I hope will not trespass too far on the rules of order. 1634 We are to have the benefit of the great learning and experience of my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman). The Committee might be interested to know that today is his seventy-seventh birthday, which is a particularly appropriate occasion to welcome the wealth of his experience.
It is in that spirit that I recommend the Bill.
§ 10.55 a.m.
§ Mr. Mayhew
In the current flood of legislation which is before Parliament it is pleasant to come across a Bill with which we can agree, and it is pleasant for me personally to be able to follow the Solicitor-General in what he said in support of the Bill.
No part of his remarks was more pleasant or felicitous than those with which he has just concluded in congratulating the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) on this happy day. We wholeheartedly concur with the Solicitor-General's words and wish to be associated with them.
I cannot think of any statute which has sustained more surgical transplant than the Limitation Act 1939. Even where rejection of the transplant has occurred, as with the subsection added to Section 22 of that Act by Section 2(2) of the Law Reform (Limitations of Actions, &c) Act 1954, the surgeons have not been daunted, and the provisions set out at page 6, lines 4 to 12 of this Bill, freshly plucked as they are from the Twentieth Report of the Law Reform Committee, have been deftly stitched into place by the draftsmen. Truly chloroform has been the agent of law reform.
However laudable the intention and the effect of the Bill, the body of that 1939 Act is now looking, I believe, distinctly battered, and in the interests of humanity with practitioners particularly in mind, I hope this mode of revising our statute law will be abandoned and that we shall make entire and not patchwork Acts of Parliament in future.
I follow the Solicitor-General's point about the as yet unfinished task of the Law Reform Committee in reviewing the whole question of limitation, the whole question of whether we should offer to 1635 drop the portcullis on the would-be litigant and thus bar him from the judgment seat, and if so in what circumstances, but this is one of the most difficult problems that we have to resolve in Parliament, whether for the lawyer, the litigant or the legislator. The law must offer justice both to plaintiffs and defendants, and justice must be done to both, where ever possible, by the courts.
The Law Reform Committee under Lord Justice Orr came firmly to the conclusion that a period of limitation must be retained. I am sure that the committee is right, and it is worth reviewing briefly the considerations which led it to that conclusion. The first was that stale evidence from witnesses is unreliable evidence. Secondly, experience shows that without a limitation sanction even meritorious plaintiffs quite frequently do not get on with their litigation. The Solicitor-General referred to the "mañana" principle, and we have all come across that, not only from lay clients but from their solicitors, too.
The third consideration is that in personal injury cases the insurance companies are the source of such damages as are recovered in most cases, and if the time in which an action may be brought were unlimited some risks might become uninsurable, and that would be in no one's interest.
Lastly, because the implicit threat of a stale claim, however hopeless, has a real "nuisance value—and some of us would say a blackmail value—which is not consistent with justice to potential defendants, I think that the committee was right to retain the concept of limitation. The Government are right to adopt its recommendation in that regard.
I acknowledge what the committee expressly states, namely, that no solution is entirely satisfactory and that limitation inevitably involves a compromise between conflicting interests. Of course, no such compromise can give complete justice to both parties in every case. Parliament must try to do the best it can in those circumstances.
The next question is the length of the limitation period. This is an equally difficult matter, as may be seen by the history of this legislation. First, as the Solicitor-General reminded us, we have had a six-year period for contract and 1636 tort. That was first enacted in 1623 and was re-enacted in 1939. For personal injury actions the period was reduced to three years by the 1954 Act.
However, three years was found to be too short in certain circumstances because it might unjustly shut out those who, through no fault of their own, did not know within three years from the date of accrual of action that the facts connected with their injury were such that they should bring an action. The 1963 Act relaxed that rule and gave an additional 12 months from the date when the plaintiff could first reasonably have been expected to have discovered the nature of his injury and its cause. That was expressed as his date of knowledge. That applied if the resulting date was later than three years from the date when his right of action accrued. Then there was the amendment brought about by the 1971 Act. That is the law as it now stands.
The 1963 Act was prompted by a notorious case in which 10 miners were shut out because their pneumoconiosis came to light outside the six-year period, the then limitation period. The period of three years, with a possible three-year extension, was calculated from the date of knowledge. In my view it is rightly retained in the Bill. However, it alters the base line for calculating the expiry date of the additional three years, or the potenial period of three years, by redefining the plaintiff's date of knowledge. I shall explain why I believe it is right so to do by setting out the principal reasons.
The Solicitor-General spoke with kind moderation about the drafting of the 1963 Act, but I am afraid I shall not be quite so moderate. I consider that it was abominably complicated. This may be seen from the fact that even the learned General Editor of the "Supreme Court Practice", the White Book with which lawyers are so familiar, was moved in his annotation on the rules of court made under the 1963 Act to describe the Act as "somewhat elaborate and complex". That can also be seen from the fact that, whereas for several years the Court of Appeal held that the wording permitted the extended period to run from the date when a plaintiff knew, actually or constructively, that he had a worthwhile cause of action, the House of Lords ultimately held in 1973 by a majority that that was wrong in the case of Central 1637 Asbestos Ltd. v. Dodd. It was clearly right that the whole matter should be considered by Parliament afresh.
That leads me to my second reason for supporting this provision in the Bill—namely, that the definition of date of knowledge to be found in new Section 2A(6) is much clearer and one which we can all readily understand. It is in accordance with the Law Reform Committee's view and the "worthwhile cause of action" suggestion is expressly dispatched by the declaratory words. I believe that that is right.
The principle that no one may take refuge behind ignorance of the law does have, as the Solicitor-General said, good reasons to support it. To depart from it in this context would be unreasonable from the defendant's point of view. However, when the portcullis of limitation drops, the sanction of the rule of law is grievous in its severity. In my view there should be room for discretion. In what is always conveniently but not very helpfully described as a "proper case", the Bill makes such provision in new Section 2D. That is a separate reason for my support of the Bill. The discretion which it gives to Her Majesty's Judges to extend the period in which a plaintiff may commence proceedings is right, and the guidance laid down for exercising that discretion is also right. I am not sure that the judges will welcome it, as it imposes upon them the task of weighing prejudice to one party against prejudice to another. However, I am sure that they will be equal to the task.
Before concluding it is appropriate to acknowledge how much Parliament is coming to rely on the judges as the expression of our consciences. For example, when dealing with the leasehold reform legislation and the innumerable Rent Acts the judges have to weigh lay rather than legal considerations. In this instance they will be asked to decide whether it is equitable to allow an action to proceed. We should recognise that they have a difficult jurisdiction to exercise. However, modern experience shows that the judges will bring a fair and realistic approach to the task. I refer to the guidelines which appear in new Section 2D(3). We shall expect to hear in Committee from the Solicitor-General 1638 the reasons for the departures in drafting from the tentative but expert and concise drafting of the Law Reform Committee in paragraph 69 of its report.
I am glad that the Government have opted for lenience where a plaintiff has taken all reasonable steps to obtain expert advice, even though in consequence he was misled. That is provided in new Section 2A(8). I rejoice, as will all practitioners, that the Bill abolishes the cumbersome and, as events have turned out, unnecessary procedure for seeking the so-called leave of court for the purposes of Section 1 of the 1963 Act. That is a necessary condition for bringing proceedings. The abolition of the harsh custody of a parent rule is long overdue, but none the less effective way in Clause 2.
With the reservations I have expressed about fitting out the body of the weary old 1939 Act with a new heart, and about the drafting of the guidelines for the exercise of the judge's discretion as to what is equitable, I warmly welcome the Bill and I advise my hon. Friends to support it.
§ 11.9 a.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
First, I thank my hon. and learned Friend the Solicitor-General and the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) for their kind words and good wishes.
I want to say how much I welcome the Bill. I congratulate my hon. and learned Friend on his presentation of this measure and his detailed account of the position that applies in respect of it.
During many years of practice at the Bar I have often been involved in cases where the period of limitation has been a matter of the greatest importance. In my early days of practice—I do not suppose that either my hon. and learned Friend or the hon. and learned Gentleman will remember this—among other statutes the Limitation Act 1623 and the Public Authorities Act 1893 applied. One often felt that there was considerable force in the argument that when a litigant had a just claim it was wrong that he should be debarred because he had not brought his action in time.
In personal injury cases, in particular, where proof depends upon the testimony 1639 of witnesses which may well be untrust worthy with the passage of time and where defendants might well face difficulty in having to meet stale claims, some limitation must be imposed. The 1939 Act both consolidated and amended the statute law. The period then provided was a general limitation period of six years in almost all actions of contract and tort, although there were some exceptions. That period was felt to be too long in running down cases and in claims under the Factories Acts. The period was reduced to three years by the 1954 Act.
Again, that limitation was shown to be inappropriate. Indeed, it was far too short in certain cases. Industrial conditions and the growth of medical science revealed cases where a person contracted diseases due to exposure to dangerous conditions or substances, and it was very often the case that the man would not know, until the limitation period had passed, that his condition was due to his conditions of employment and that he had a just case for compensation.
It is true that the Edmund Davies Committee Report led to the 1963 Act and the provision that the plaintiff could bring his action within 12 months of the—vital words—"date of knowledge", but to do so the plaintiff had to obtain the leave of the court. He had, of course, to satisfy the judge not only that he had a good prima facie case but that his failure to bring an action within three years was because he had been unable to discover the injury and the cause within that period.
Section 7(3)(c) of the 1963 Act raised the problem of what was meant by the phraseobtaining knowledge of the material facts".There were conflicting decisions as illustrated by the judgment of the Law Lords in the asbestos case.
I was particularly interested in the problems which arose when my hon. Friend the Member for Carlisle (Mr. Lewis) was fortunate in the Ballot for Private Members' Bills. I assisted in drafting his Dangerous Drugs and Disabled Children Bill, in which I inserted a clause aimed at clarifying the position. I note with satisfaction that the Law Reform Commission referred to that in paragraph 18 of its interim report on the 1640 limitation of actions in personal injuries claims. The Second Reading of my hon. Friend's Bill on 9th February 1973, although well supported, was to my great disappointment talked out. We did not get enough in the Lobby to continue with the Bill. I think that we had 61 to 5. We were very disappointed. Hon. Members will appreciate how readily I support a Bill that removes the doubts and difficulties that previously existed.
The cumbersome process of applying for leave will now go. The Bill, in new Section 2A(3), permits the three years to run from the date of the claimant's knowledge. In Section 2A(8) is set out what is meant by knowledge. I add that it usefully sets out that the claimant is not fixed…with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtainsuch advice, and, where appropriate, to act on it. It rightly caters, in my view, for the case where an expert, such as a doctor, has given an opinion. I am sure that my hon. and learned Friends will agree that even a lawyer has given advice that has subsequently turned out to be wrong.
What I am particularly impressed with is the provision in Section 2D, where power is given to the court, where it is equitable, to override the time limit in its discretion. It is true that there may be a burden upon the judges and that some uncertainty may be created, but the guidelines have been set out in subsection (3). As was said in another place and reiterated by the hon. and learned Member for Royal Tunbridge Wells, the judges have the training and experience to ascertain the facts and they can be trusted to be fair. I very much welcome this provision. It will mean that where there is a claim that ought to be allowed having regard to all the circumstances an injured person's rights will not be defeated by the lapse of time but he will be compensated. It is a good example of justice not only being done but being seen to be done.
This is an excellent Bill and I hope that it will quickly reach the statute book.
§ 11.15 a.m.
§ Mr. Jeffrey Thomas (Abertillery)
I shall not delay the Committee for more than a few moments. I have great pleasure in joining in the congratulations to my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) on this special occasion for him. I venture to hope that there will be no limitation of time upon his activities.
This is a Bill which is long overdue. Lord Reid, as long as 12 years ago, took the view that a change in the law was urgently needed. With commendable speed the House is at last bringing about such a change in the law. We hear a good deal about the law's delays, and this is an important matter for members of the public who are affected by the law. I believe that this measure will help to create a far better impression in regard to the administration of justice.
I have only one reservation and it refers to new Section 2D. The noble lord, the Lord Chancellor in the other place referred to this new provision in these terms:New Section 2D provides that the court shall have a general discretion to override time limits if to do so would be fair as between the plaintiff and the defendant. The court must consider all the circumstances of the case; but guidelines are given in the Bill, specifying the matters to which the court should have particular regard."—[Official Report (Lords), 1st May 1975; Vol. 360, c. 11.]I shall not elaborate on what those guidelines are because they are plainly set out in the schedule. I am happy that the Solicitor-General has given us an assurance that these guidelines are not intended to be exhaustive.
One of the factors the court will take into account is the fact that it is extremely difficult in many of these cases to get to the bottom of the point, in exploring problems which may have arisen many years ago. The difficulty with equity is that it varies with the length of the Chancellor's foot. In giving judges more and more discretion, I wonder whether there is not a certain 1642 amount of laziness on the part of the legislature. That is not a step which I wholeheartedly welcome. It creates more and more uncertainty for a litigant. No doubt one can place trust in a judge as well as in a prince, but as a practising member of one of the branches of the law I know that it very much depends on the individual judge.
The Law Reform Committee said:In suggesting this solution"—referring to Section 2D—we have not overlooked the difficulties which would face a judge in weighing the hardships on one side or the other, or the fact that even a measure of discretion erodes certainty in this field.I am personally not clear about the situation in regard to injuries to an unborn child, nor am I clear about injuries sustained by a child at the time of birth. Perhaps these matters can be clarified in due course.
However, subject to that reservation, I wholeheartedly welcome the measure, particularly since I represent a mining constituency and know only too well the appalling problems which have arisen over the years due to the existence of pneumoconiosis and other chest diseases.
§ 11.20 a.m.
§ The Solicitor-General
I seek leave to speak again for one brief purpose. Certain questions have been asked and reservations raised with which, I believe, it will be more appropriate to deal at a later stage. I merely wanted to rise to thank you, Mr. Davies, for the way in which you have presided over our deliberations. I hope that we have not imposed a great drain on your patience, or on your capacity to control the Committee. On behalf of the Committee, I should like to thank you for your patience.
§ Question put and agreed to.
§ Committee rose at twenty-two minutes past Eleven o'clock.1643
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE|
|Davies, Mr. Ifor (Chairman)||Percival, Mr.|
|Callaghan, Mr. Jim||Rooker, Mr.|
|Dunn, Mr.||Solicitor-General, The|
|Kershaw, Mr.||Thomas, Mr. Jeffrey|
|Mayhew, Mr.||Weitzman, Mr.|