JUDICIAL ACTS (Hansard, 24 June 1998)

§ Mr. Garnier
I beg to move amendment No. 61, page 6, line 32, at end insert `and the court may take into account the conduct of the applicant in relation to the unlawful act giving rise to the proceedings'.

The Second Deputy Chairman
With this, it will be convenient to discuss Government amendment No. 130.

§ Mr. Garnier
Mr. Lord, I begin by saying welcome to clause 8. We are a little way into our deliberations, which have been useful. I think that the Minister will agree that we have so far made steady progress, and that we shall now make even steadier progress. Amendment No. 91 seeks to—

§ The Second Deputy Chairman of Ways and Means
Order. It is amendment No. 61, not 91.

§ Mr. Garnier
Here are my glasses. I used to think that I was rather young, but, after five hours in Committee, I am beginning to doubt it.
The two amendments in this group seek to introduce into the regime under the Bill principles broadly akin to those affecting contributory negligence and—in relation to the Government's amendment—to those dealing with contribution proceedings. I hope that I have reasonably accurately summarised the Government's intention in their amendment.
In moving amendment No. 61, the Opposition are inviting the Committee to agree with us that, when damages or some judicial remedy akin to damages is to be awarded, the court should take into account the conduct of the applicant in relation to the unlawful act giving rise to the proceedings. I shall come at the matter with a brief explanation of the law relating to contributory negligence, which I hope will be of assistance to the Committee in understanding our amendment.
Under the Law Reform (Contributory Negligence) Act 1945, principles that were well known under maritime law—under the Maritime Conventions Act 1911—were introduced to negligence on land. In current law, damages may be apportioned whenever both parties have been negligent and both have contributed to the damage. Section 1(1) of the 1945 Act provides: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".
In the majority of cases, the plaintiff's negligence will have contributed to the accident that led to his injury—for example, when a driver or pedestrian fails to keep a proper lookout, or an employee omits to turn off a machine before cleaning it. However, that is not necessary for a finding of contributory negligence. What is essential is that the plaintiffs conduct contributes to his damage. Therefore, in that context, one could expect a reduction in the damages awarded when a motor cyclist fails to wear a crash helmet, a passenger fails to wear a seat belt, a man rides in a dangerous position on the back of a dustbin lorry, or someone gets into a car and goes on a journey, with a driver whom the passenger knows to have taken far too much drink. 1113 Broadly speaking, two principal criteria of responsibility suggest themselves—causation, and blameworthiness or culpability. However, I suggest that there is no single principle for apportionment of damages in cases of contributory negligence; certainly no mathematical approach is possible. No doubt the extent of the plaintiff's lack of care for his own safety must be a major factor in all cases, but the court is directed by the statute to do what is "just and equitable".
The matter is thus one for the discretion of the court. Although the discretion must be exercised judicially, it is both unnecessary and undesirable that the exercise of the discretion should be fettered by rigid rules requiring the court to take into account some aspects of the given case and to reject others. However, if the court comes to the conclusion that the actions of both parties contributed to the damage, it has power neither to disregard the plaintiff's fault nor to hold the plaintiff guilty of 100 per cent. contributory negligence.
I used the analogy of contributory negligence in tort to illustrate the point that we are attempting to get across in amendment No. 61. We ask that, under the Bill, the court should be given a discretion to take into account the applicant's conduct in relation to the unlawful act giving rise to the proceedings. I hope that, having used the example of existing contributory negligence law, I do not have to belabour the point—which, I hope, reveals itself quite simply to the Committee after use of that illustration.
We do not quarrel with Government amendment No. 130—I hope that I can anticipate the Minister's remarks on it. He knows as well as I do that, in civil law, contribution proceedings are governed by the Civil Liability (Contribution) Act 1978, and that, under that Act, arrangements are available under the rules of the Supreme Court—especially in order 16—which provide for a structure by which cases can be progressed and in which an apportionment or indemnity can be worked out for their respective liability for the same wrong as between defendants or respondents.
I invite the Committee to accept Government amendment No. 130—no doubt after first listening carefully to the Minister's comments on it. Equally, I shall be very happy if the Committee accepts our amendment No. 61, not as a quid pro quo, but simply because it is sensible and it would defy common sense—unless the Minister can persuade me that it does not—not to accept it.

§ Mr. Mike O'Brien
As the hon. and learned Member for Harborough (Mr. Garnier) said, Government amendment No. 130 is concerned with contribution. The Civil Liability (Contribution) Act 1978 provides a right to contribution when more than one person is liable for the same damage. We see no reason why that standard provision should not apply when damages are awarded against a public authority under clause 8 of the Bill. The amendment makes it clear that the terms of the 1978 Act and the relevant provisions in Scotland—section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940—apply to the award of such damages. I heard what the hon. and learned Gentleman said, and will therefore take that matter no further.
I shall try to deal with some of the points that the hon. and learned Gentleman made on amendment No. 61, which would operate on clause 8(4) of the Bill. Clause 1114 8(4) provides that, in determining whether to award damages for an unlawful act of a public authority or the amount of any award, a court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation.
Amendment No. 61 would add to that provision by specifically enabling the court to take into account the conduct of the applicant—the person bringing proceedings against a public authority—in relation to the act that was found to be unlawful. The intention is presumably to send a signal to the courts to reduce the amount of any award if the applicant is regarded as undeserving.
It may help if I say something about the principles applied by the European Court of Human Rights in relation to the award of compensation. Article 50 of the convention, which will become article 41 when protocol 11 comes into force later this year, provides that in the event of a finding of a violation, the decision of the Court shall, if necessary, afford just satisfaction to the injured party". There is no entitlement to an award, and the court's discretion is guided by the particular circumstances of each and every case. On many occasions, the court has held that no award should be made because the finding of a violation itself constituted just satisfaction. It appears from the court's judgments that matters such as the applicant's conduct and the limited nature of the breach are relevant factors. An interesting case in that regard, and one that most of us would remember, is the 1995 judgment in the case of McCann and others v. UK, in which the court, in dismissing the applicant's claim for damages, had regard to the fact that the three terrorist suspects who were killed had intended to plant a bomb in Gibraltar.
In our view, therefore, the requirement to take into account the principles applied in Strasbourg already allows the court to have regard to the conduct of the applicant, and it is unnecessary to amend the Bill to insert a specific reference to it. Also, it would be undesirable to do so, because the purpose of the Bill is to reflect Strasbourg thinking on the award of compensation, and the insertion of an additional condition of this kind could imply only that we wanted to gloss the court's thinking in some way. That is not our purpose. Our purpose is to use the way in which those decisions are reached to guide our courts.
The basic argument that I am putting to the hon. and learned Member for Harborough is that his amendment is unnecessary, because the Bill can deal with the issues under the provisions by which the Strasbourg courts currently decide such matters. Therefore, I hope that, on full consideration of what I have said, the hon. and learned Gentleman will withdraw the amendment.

§ Mr. Garnier
I had fondly hoped that my arguments warranted something more than basic arguments from the Minister, but I know what he meant, and in the light of his explanation of the powers given to the court under the existing jurisprudence, I beg to ask leave to withdraw the amendment.