Foreign Limitation Periods (Northern Ireland)

HC Deb 23 April 1985 vol 77 cc832-6 9.59 pm

The Minister of State, Northern Ireland Office (Dr. Rhodes Boyson)

I beg to move, That the draft Foreign Limitation Periods (Northern Ireland) Order 1985, which was laid before this House on 2nd April. be approved. The law in Northern Ireland, in common with that of other developed legal systems, contains limitation periods for the bringing of civil actions, so as to prevent stale claims. Actions in respect of contracts and debts, for example, must generally be brought within six years of the events which give rise to the action; actions in tort within six years, or three years in personal injury cases; and actions involving land within 12 years. The law of limitation in Northern Ireland corresponds to the law in England and Wales; the law of Scotland is distinct.

But it may happen that under the established rules of private international law — which have been evolved from the common law in relation to both England and Wales and Northern Ireland — a court in Northern Ireland is called upon to apply the law of a foreign country. I shall try to illustrate this with a simple example. A Northern Ireland importer agrees to buy goods from a French manufacturer under a contract governed by French law. A dispute arises in respect of the goods, and proceedings are instituted in Northern Ireland. The Northern Ireland court applies French law.

In such a case as the one that I have illustrated, the French limitation period may well appear to have relevance in the proceedings which are substantially governed by French law. But, in essence, under the present rule of private international law in Northern Ireland whether or not the Northern Ireland court applies a foreign limitation period depends in turn upon whether the court classifies the foreign limitation as a matter of substance or merely as a matter of procedure. If the court regards the limitation as a matter of substance, it will apply the foreign period; but if it regards the matter as merely one of procedure it will apply the Northern Ireland period.

The English Law Commission examined the rule in its report No. 114 and found it wanting. The rule was based on a highly technical and perhaps artificial distinction between matters of substance and procedure; it had created a number of anomalies; and it was inconsistent both with the private international law of many other countries and with the European Community Convention on the Law Applicable to Contractual Obligations.

The Law Commission's report was implemented, in relation to England and Wales, in the Foreign Limitation Periods Act 1984. The order does likewise in relation to Northern Ireland, thus ensuring that the private international law of Northern Ireland remains the same as that of England and Wales.

The essence of the Law Commission's recommendations, contained in article 3 of the order, is that, where under the established rules of private international law the substantive foreign law applies in a particular case, the rule of that same foreign law which relates to limitation should also be applied, rather than the Northern Ireland law of limitation.

Article 4 contains three exceptions to the rule, the most important of which concerns public policy. Where in a particular case the court determines that the application of the limitation period prescribed under the foreign law would be contrary to public policy, it may refrain from applying the foreign period.

The order is quite legally complex. I know that the hon. Member for Middlesbrough (Mr. Bell) is a lawyer and he will no doubt look upon it with a lawyer's eye. However, I am grateful for the support which the order received from the Northern Ireland Assembly, which considered it with the benefit of submissions from the Law Society of Northern Ireland and the Northern Ireland Chamber of Commerce and Industry. All of them supported this change. Thus, I commend the order to the House.

10.5 pm

Mr. Stuart Bell (Middlesbrough)

I am grateful for the opportunity to participate in this debate. The Minister anticipated my enjoyment when he referred to the fact that I am a barrister. As a barrister I have looked very carefully at the order. I have also looked at the order very carefully as a legislator. The legislator must be eternally vigilant. The barrister must be vigilant too, but in the sense of protecting not the nation but his client, whether plaintiff or defendant.

As a barrister I have welcomed this stroll back in time through the doctrines of renvoi — quaintly called "tortuous reasoning" by a Member of the Northern Ireland Assembly. There are also in this order the rules of private international law, lex fori and lex causae—rules which are prosaic or exotic, esoteric or essential, depending upon whether one is a plaintiff or a defendant.

The realms of international law are not as complicated or as bureaucratic as those of the former Chancery—by which we are all being entertained in "Bleak House" on BBC Television. They may not be as expensive as libel actions brought against the BBC and the "That's Life" team, but they can be costly and lengthy all the same. The weaknesses brought to light in Great Britain by the Law Commission, while they may be rectified by the order, may in time reveal other weaknesses which will also have to be purged from the statute book.

Reverting briefly to the role of the legislator, I congratulate all those in the Northern Ireland Assembly who have scrutinised this order in accordance with section 3(2)(a) of the Northern Ireland Act 1982. They have rendered the House a signal service and in a sense done a great deal of work for us.

I read with some amusement the verbatim record of the evidence taken by members of the Finance and Personnel Committee on Thursday 11 October 1984 from witnesses well versed in the highways and byways of private international law who were from the Office of Law Reform. I can sympathise with the statement of the deputy chairman of the Committee, who admitted that there were some of his members whose knowledge of legal matters was somewhat elementary but who had no doubt been enlightened on the subject. It is to be hoped that some of our colleagues have been and will be enlightened by this short debate tonight and that more will be enlightened when they avidly read the pages of Hansard, which I am sure that many hon. Members do, certainly as they relate to debates on Northern Ireland. I am sure that that is how they stay in touch.

I note that the deputy chairman requested submissions from a whole host of authoritative bodies in Northern Ireland, included among which was the Irish Congress of Trade Unions. There is no evidence of a reply. I presume that they were preoccupied at the time with the future of the town gas industries—and no doubt we shall be getting round to a debate on that subject at another time in the House.

The Finance and Personnel Committee was thorough in its work and therefore, as I have said, rendered a signal service to the Northern Ireland Assembly as well as to Members of the House, and they should be congratulated on that. It highlights once again the importance of the Assembly and the useful work that it can do on behalf of the citizens of Northern Ireland even when dealing with an item of legislation as abstruse as the Foreign Limitation Periods (Northern Ireland) Order 1985.

The heart of the order, as the Minister has already indicated, is the new rule, already incorporated in legislation covering England and Wales. Mercifully we are not also discussing Scotland tonight. The rule states that where a foreign law falls to be applied in a Northern Ireland court the rule of that same foreign law which relates to the limitation should also be applied, and not the Northern Ireland law of limitation. It occurred to me immediately on reading that that it might cause damage to plaintiffs rather than assist them or cause benefits to accrue to them. For a plaintiff might be damaged in the pursuit of his claim if the limitation period in the foreign law were shorter than the limitation period in Northern Ireland. That may be a complex point and it may read better then the way I have put it. We must bear in mind that there are different and differing limitation periods throughout the EEC.

I was somewhat assuaged in my anxiety when I read the background paper by the Office of Law Reform on the draft Foreign Limitation Periods Order, which seemed to indicate that this difference had been taken care of by article 4(2) which provides that the application of foreign limitation periods shall conflict with public policy to the extent that its application would cause undue hardship to … a party to the … proceedings. The example of undue hardship that was given was one where the foreign limitation period was extremely long compared with the Northern Ireland limitation. In such a case, the court might take the view that it would cause undue hardship to a defendant to have the threat of an action hanging over him for an excessive period—the concept in law of the so-called stale claim.

Conversely—this is the point that originally exercised my mind—in different circumstances a court might take the view that a foreign limitation period that was escessively short caused undue hardship to a plaintiff.

All this is not, of course, in the order. It is an interpretation which a judge must make. He must decide the appropriate definition of hardship. I cannot ask the Minister to alter that tonight. I cannot ask that the English and Welsh law should be changed tonight. I cannot ask for the Law Commission to make a further reference back to the Chancellor, because that can be done only if the Chancellor wishes. This is the concept of functus officio. Unless the Lord Chancellor refers the matter back to the Law Commission for further and better particulars and advice, the Law Commission has no status. It will be left, therefore, to the enterprise of the Bar, to the skill of the barrister on behalf of his client, plaintiff or defendant, to drive that point home in the Irish court of law or in arbitration proceedings. It will be for the judges or the arbitrators to understand and take that on board.

With these fine legal points I have completed the circuit of private international law, statutes of limitations, lex fori, lex causae, renvoi and the draft Foreign Limitation Periods (Northern Ireland) Order. I therefore follow the Government in commending the order to the House.

10.12 pm

Mr. J. Enoch Powell (South Down)

I first congratulate the hon. Member for Middlesbrough (Mr. Bell) on the substantial and tasty meal that he has made out of this order. It need be no secret from you, Mr. Deputy Speaker, that throughout this afternoon and evening my hon. Friends and I have been anxiously approached by other hon. Members desirous of knowing the likely duration of the proceedings on this order and the order that is to follow and whether any events would require their presence. We have assured them—or, if they had spared the time to listen, we would have assured them — that it is not our fault that they are being troubled in this Way, that we are on their side and that it is very much our contention that these are procedures with which the House should not be troubled; and that in the interest equally of Northern Ireland and the rest of the kingdom.

The Minister of State observed that the law of Northern Ireland in this respect corresponds with that of England and Wales. None of us would dream of saying that an alteration such as that which was made by the statute of last year in the law in England and Wales should not correspondingly apply in Northern Ireland. To that extent, we welcome the order. We have no intention of resisting its passage. We must take the opportunity to draw attention to the absurdity of the operation in which the House is engaged.

I have in my left hand the Foreign Limitation Periods Act 1984, applying to England and Wales, which was passed last year by the House, and in my right hand I have the Foreign Limitation Periods (Northern Ireland) Order 1985. I have examined them quite zealously and, except for the necessary references in the Act to England and Wales and in the order to Northern Ireland, they are to all intents and purposes identical—as, indeed, they ought to be. Therefore, the question naturally arises: why, when we enacted in 1984, did we not enact at the same time for that part of the United Kingdom in which the law on the subject is and ought to remain the same?

When we made observations upon that point, my hon. Friends and I used to be reminded of an imaginary thing called the statute book of Northern Ireland which had to be maintained in its pristine integrity. In order that it may retain that integrity, whatever is done in England and Wales that ought to be done in Northern Ireland has to be done separately for Northern Ireland by an Order in Council. However, in this case, as in many of the other examples that we have examined, that will not wash, for in article 4(4) we find a reference to something which will not be found upon any real or imaginary statute book of Northern Ireland, namely, the Limitation (Enemies and War Prisoners) Act 1945.

I consulted the statutes at large and ascertained that that Act applies to the whole of the United Kingdom. Therefore, the House is being troubled with an order so that the separateness of the code of law that applies to Northern Ireland may be maintained, yet this order is having to appeal to the text of an Act of the United Kingdom to which the same procedure was not applied—an Act of the United Kingdom, incidentally, that was passed when there was still a separate Parliament in Northern Ireland.

It would be wrong for my hon. Friends and I not to complain once again of the arrant and useless waste of effort and time that is involved in this sort of complication. It is a waste of skilled manpower. Drafting work is duplicated. It is also a waste of resources, of the time of the House and of the effort of all the officials who are concerned. It might be thought that this wasteful procedure is being maintained simply for the purpose of irritating hon. Members, including my hon. Friends and myself. It used to be argued, although the argument is wearing threadbare, that in order that Northern Ireland might drift off or be pushed off into another political connection there ought to be loaded on to it, as this House legislates, separate legislation for Northern Ireland. Then it could sail away with its code of law complete, not to mention the Limitation (Enemies and War Prisoners) Act 1945. For such causes is this House invited to do such absurd things.

Although the application of the Foreign Limitation Periods Act 1984 to Northern Ireland is necessary and right, it is a wasteful and stupid absurdity against which my hon. Friends and I are bound to protest. It is absurd that tonight the House is being troubled unnecessarily with what could have been accomplished equally well, sooner and more efficiently within the ambit of the 1984 Act.

10.18 pm

Dr. Boyson

I have listened carefully to the points made by the Opposition spokesman, the hon. Member for Middlesbrough (Mr. Bell). On his point as to whether the foreign limitation period is excessively long or excessively short, if the court decides that in the public interest it is excessively long or short, action can be taken under the law of Northern Ireland. I welcome the general comments of the hon. Member.

The right hon. Member for South Down (Mr. Powell) expressed the view that he holds about this procedure. I am not being drawn into that argument this evening. I know the integrity with which he holds that view. He has expressed it on a number of occasions.

Mr. Roy Beggs (Antrim, East)

I assure the Minister that all my hon. Friends—present and absent—share the views of my right hon. Friend the Member for South Down (Mr. Powell).

Dr. Boyson

I welcome that intervention. I do not doubt that that is so. I referred to the right hon. Gentleman because only he had spoken. It would be difficult to refer to 635 people if all hon. Members agreed about something. I hope that on this occasion when there are only nine or 10 of us here we can agree to the order.

Question put and agreed to.

Resolved, That the draft Foreign Limitation Periods (Northern Ireland) Order 1985, which was laid before this House on 2nd April, be approved.