TORTS (INTERFERENCE WITH GOODS) BILL [Lords] (Hansard, 23 March 1977)

§ The Attorney-General (Mr. S. C. Silkin)

I beg to move, That the Chairman do now report to the House that the Committee recommend that the Torts (Interference with Goods) Bill [Lords] ought to be read a Second time. This Bill implements a report of the Law Reform Committee on the civil law relating to liability for the conversion, detinue and other interference with goods belonging to or in the possession of another person. Although its report was completed in June 1971, it is not, I hope, too late to thank the members of the Law Reform Committee for the work which they have done to simplify and clarify an important branch of our law which has always been a layman's trap and a law student's nightmare.

I am grateful also to the Opposition, irrespective of party, for their willingness to have the Bill considered in this Committee rather than on the Floor of the 1432 House. The Second Reading Committee procedure is particularly valuable in the case of a Bill of this nature, which has up to now attracted unanimous support from all quarters and which makes some modest and useful changes in the law.

In the other place—if I am in order in mentioning it, Mr. Crawshaw—the Second Reading debate took 32 minutes flat, and may have established a record in that the only speeches, four in all, were delivered by the present Lord Chancellor and two former Lord Chancellors. It may be that no other noble Lord understood the Bill. We cannot hope to emulate that fullness of distinction of speakers here. I say nothing about either the understanding or the time scale.

Steps have been taken to ensure that a sufficient number of copies of the report of the Law Reform Committee were available in the Vote Office, and I hope 1433 that hon. Members have had an opportunity of considering its recommendations. If so, they will find that, for the most part, the Bill implements the recommendations made in the report, although there are one or two respects in which it departs from it. That is, perhaps, only to be expected in a topic of such complexity, particularly as the Law Reform Committee did not have the benefit of the expert assistance of the parliamentary counsel to help it in its deliberations.

In that respect, the Law Reform Committee has not always been as well served as the Law Commission, and that is a read handicap. It also to some extent explains the interval between completion of the report and presentation of the Bill to Parliament. I have done a little calculation, and I have worked out that the interval is almost equally distributed between the present Government and their predecessors, so that on delay, at any rate, no party point can be made, except perhaps by the hon. Member for Isle of Ely (Mr. Freud), who represents the Liberal Party—were he here. Perhaps he is doing other, more important, things.

The law relating to civil liability for wrongful interference with goods in the possession or ownership of another has in practice caused few major problems, bearing in mind its complexity, its ancient origins and the considerable changes which have taken place in our society. The Law Reform Committee found that the old torts relating to goods were still of reasonably merchantable quality but that the law could be simplified and anomalies removed by reducing the number of separate torts and bringing them under a single umbrella.

The Committee thought also that the opportunity should be taken to clear away some relatively limited difficulties which had arisen in the administration of this branch of the law in the courts. Of those, the most important was the procedural law concerning proof of ownership, which lawyers sometimes describe as jus tertii —at any rate for those who have had the benefit of a classical education.

I refer, first, to the reduction in the number of separate torts. The Committee found that there were various overlapping remedies, founded on distinctions for which there is no sufficient warrant in modern circumstances. Paragraph 6 of 1434 the report illustrates some of the absurdities which the present law generates, particularly that different remedies depend on very fine distinctions.

The creation of a new unified tort is therefore suggested, to be described as "interference with goods", or similar words. I am not sure that I like the word "interference" in this context. It might be misunderstood, but it is the best word that we have managed to hit on so far. The intention was that a new unified tort should be created from the raw materials in the present law.

The main tort—which it is thought should not be codified—would be the tort of conversion, which, in essence, is an injury to the plaintiff's right to or title in goods which results in their permanent loss. For that wrong, the sole remedy now available is damages. A plaintiff who wishes to recover the goods themselves now has to sue in the tort of detinue. It does not seem sensible that two separate and distinct torts should be retained in the law merely because one of them enables a different remedy to be obtained. The Committee boldly proposed that detinue should be abolished and that the remedy of specific delivery should be made more generally available, irrespective of the form of action chosen by the plaintiff. The Bill achieves this in Clause 2, which, in the modern idiosyncratic style of parliamentary draftsmanship, in three words abolishes detinue for ever. Clause 3 provides for the wider form of judgment. It is not every day that a Committee of the House is asked to abolish an action in tort, but I hope it is accepted that the tort is not necessary.

Clause 2(2) restates, as a wrong for which an action lies in conversion, the only case known to the law where a plaintiff does not have an option between the two torts. It may interest the Committee to know that the tort of detinue very nearly perished in the eighteenth and early nineteenth centuries, because, until the Civil Procedure Act 1833, a defendant in an action for detinue could succeed by the process of waging his law. In the unlikely event of any hon. Member not knowing what waging one's law means, I should say that it means trial by compurgation. If anyone needs any further explanation, which I think highly unlikely, compurgation means establishing a case by bringing forward a number 1435 of witnesses—usually 12—who could swear to the truth of the defendant's case. The procedure might perhaps be adopted occasionally today, but I cannot recall having done so myself.

The Law Reform Committee suggested also that other torts concerned, principally trespass to goods and the action on a case for damage to a reversionary interest in goods, should be restated as part of the new unified tort. This part of the report has, unhappily, presented a certain number of drafting difficulties, and the Bill now before this Committee does not, abolish these relatively unimportant torts as the Committee proposed. Instead, they are referred to either by name, as in Clause 1(b), or in the compendious phrase in Clause 1(d), with the result that the Bill is able to extend to them the substantial degree; of common treatment which it provides for the various torts now to be grouped together under the collective name of wrongful interference.

I hope that the Committee will accept that the Bill is on the right lines in not attempting to achieve full codification of these rare and, it must be admitted, relatively unimportant torts. One advantage of the approach in the Bill, which provides for common treatment rather than complete unification, is that it has been possible to extend the number of the provisions in the Bill to the tort of negligence as it affects goods. This should help to ensure, as time goes on, that the differences between an action pleaded in negligence and an action pleaded on the basis of the strict liability provided for under the tort of wrongful interference should disappear wherever it is possible for them to do so. I am thinking here particularly of the rules about extinction of title upon satisfaction of a claim, with which Clause 5 deals.

So much for the overlapping remedies. The second main purpose of the Bill is, as I have said, to clear away some limited difficulties which have arisen in relation to the torts covered by the Bill. There is, perhaps, no common strand running through the various clauses, but I ought to mention the most important of the changes. This is to be found in the group of clauses, Clauses 7, 8 and 9, the general effect of which is to make the tort of conversion more apt to suit modern society with its complex system of ownership of personal property and, 1436 in particular, the widespread use of the hire-purchase contract.

The main defect of the present law, as analysed by the Law Reform Committee, is that it does not permit a defendant to lead evidence to show that the goods which are the subject matter of the plaintiff's claim do not belong to him. This rule is a development of the proposition that title to goods is a relative matter, and that a person with a better title to goods than another must be regarded by that other as having the full title to them even if he has not.

The Law Reform Committee showed how this presumption could work injustice and recommended that it should be abolished. The Bill achieves this in Clause 8(1), which provides that a defendant is entitled to show that a third party has a better right than the plaintiff to the goods. The fact that the defendant will be able to bring evidence to show that the plaintiff is not the true owner will mean that the court will have to determine all the respective claims concerning the goods at once. At present, one court may be dealing with an action by the owner of the goods against the wrongdoer for conversion, while another court is dealing with the claim of an intermediate owner, such as a bailee, as against the same wrongdoer—who could, in fact, be made to pay damages twice or more times over.

Clauses 7 and 8 provide the necessary machinery to enable the court to arrive at a result which is fair to all concerned, and Clause 9 enables all the separate proceedings to be joined together by removing any difficulty about jurisdiction.

Clause 10 deals with an isolated problem concerning co-ownership of goods, and Clause 11 makes a number of minor provisions all of which were suggested by the Law Reform Committee. Clauses 12 and 13 provide a new power of sale of goods in cases where the goods have not been collected. These clauses, and Schedule 1, simplify and enlarge the scheme for a power of sale which was conferred by the Disposal of Uncollected Goods Act 1952. That Act would be repealed.

The Bill has been generally welcomed by all concerned, and the Government moved amendments in another place in order to meet points helpfully taken on 1437 the Bill by the Law Society. My noble Friend has recently received representations from the Finance Houses Association, which will, I hope, lead to some minor amendments to meet points which the finance houses, too, have helpfully taken.

I conclude by expressing my appreciation, and that of the Government, to all concerned for the interest they have taken in the Bill, and I hope that the Committee will be willing to agree to the motion.

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Crawshaw, Mr. Richard (Chairman)	Davidson, Mr. Arthur
Attorney-General, The	Havers, Sir Michael
Bates, Mr.	Miscampbell
Bennett, Mr. Andrew F.	Stradling Thomas, Mr. John
Budgen, Mr.