Grand Committee Report of 20 November 1996

Official Report of the Committee on theCivil Procedure Bill [H.L.]
Wednesday, 20th November 1996.
The Committee met in the Moses Room at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. But the House has agreed that there shall be no Divisions in this Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
I should also explain what will happen if there is a Division in the Chamber while we are sitting. This Committee will adjourn as soon as the Division bells are rung and will then resume after 10 minutes.
On Question, Title postponed.
Clause 1 [Civil Procedure Rules]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 1:
Page 1, line 11, at end insert
("(3) The provisions of this section and of Schedule I shall have effect for the purpose of enabling courts to conduct proceedings expeditiously and at reasonable economic cost, consistent with fairness in the administration of justice.").
The noble Lord said: When I was six years of age and thrown in at the deep end of the Tuttle Street Baths in Wrexham, someone threw in a lifebelt and I was pulled to the side. My children were a little more fortunate because they had pink inflatable plastic water wings which were puffed up by and indulgent parent. I come before you today with my water wing, which is also pink, and I assure your Lordships that it is neither inflated nor puffed up, and that is the report of the Select Committee on Delegated Powers and Deregulation.
The committee is particularly concerned about paragraph 4 of Schedule 1. I wish to speak to Amendments Nos. 1, 19 and 32, all of which are relevant to the concerns expressed by the Committee. The paragraph gives to the civil procedure rule committee the widest powers to modify the rules of evidence. It says,
"Civil Procedure Rules may modify the rules of evidence as they apply to proceedings in any court within the scope of the rules".
The committee's views are set out in its report at paragraph 8, and they make the following points: that in the past rules of evidence have mostly been made by the decisions of the courts or by statute; that such powers as have in the past been delegated to rules committees have been limited and concerned mainly with procedural matters; that paragraph 4 in Schedule 1 could, by contrast, change statutory and judge-made rules bearing critically upon the whole range of civil litigation; and that substantial evidential doctrines—for example public interest immunity and legal professional privilege—could well be affected.
The committee, having viewed the particular paragraph in question in Schedule 1 then sought the views of the Lord Chancellor's Department in writing. The department's representatives referred at page 11, paragraph 4.2, to the views that had been expressed to them by the Law Commission. The Law Commission said that it was used to having difficulty implementing reform of the law by primary legislation, and consequently supported the extension of rule-making powers to matters of evidence. It was the view of the Law Commission that effective case management must include limiting cross-examination and excluding evidence. The Lord Chancellor's Department was asked what use it envisaged would be made of paragraphs 2 to 4 of Schedule 1 which would involve over-riding any enactment. Its answer, first of all in writing, was vague and unsatisfactory. It said that no specific need could be foreseen, that parliamentary counsel simply suggested that there might be legislation effected, and that the rule committee might wish to consider the manner in which expert and opinion evidence was given, reference being made particularly to the Civil Evidence Act 1972. The answer appears at paragraph 6.2 on page 11 of the report of the Select Committee.
On the examination of witnesses by the committee, the answers given did not make the position more satisfactory. Mr Michael Kron agreed, in response to question 13 on page 14, that the effect of the proposed legislation was to permit legislation to cover not simply specific aspects of the rules of evidence but was a generalised power to permit rules of court to cover all aspects of the rules of evidence, whether statutory or at common law. He further agreed that it was a significant change.
It is not my function to go through the whole of the exchanges that took place between the witnesses and the committee but to draw attention to the views, at page 4 of the Select Committee report, where, in bold lettering, it expressed the view that,
"paragraph 4 should remain, provided that the additional safeguards described below are added to the bill."
The amendments to which I am speaking follow the recommended safeguards set out at paragraph 9 on the same page. The first amendment is a purpose clause. Mrs Hodgson, in giving evidence to the Select Committee, declared that the Lord Chancellor's Department was
"open-minded to a purpose clause, and how it might he phrased,"
The amendment that I propose follows the thinking of the Select Committee and endeavours to encapsulate, in as brief a form as possible, the eight principles of the

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Woolf Report, Access to Justice. I am conscious that purpose clauses are frequently criticised. The Renton Committee Report, The Preparation of Legislation said in 1975 that,
"Among the advocates of statements of purpose are those whose task it is to pronounce or advise on the effects of legislation: members of the judiciary, practising lawyers and teachers of law."
The draftsman was less impressed and referred to the evidence of Professor Reed Dickerson who thought that most purpose clauses were quite unnecessary, and tended to degenerate into pious incantations such as the one in a recent ecology Bill which in substance said, "Hurray for nature", but that in preparatory language, in individual sentences such as "for the purpose of this", "for the purpose of that" or "in order to do this", an economic focus purpose statement was of some use. I have endeavoured to put before your Lordships a focused, purpose statement that may be of some use.
The Renton Committee drew a distinction between a statement of purpose which simply delimits and illuminates the legal effects of the Bill on the one hand and a statement of purpose which is a mere manifesto. I suggest that this amendment is not a manifesto and that it seeks to set a balance between expedition and economic costs on the one hand and fairness on the other. It is the importance of maintaining that balance which causes me to invite your Lordships to consider the amendment. I suggest that it would be helpful, first of all, to the civil procedure rule committee to have these standards encapsulated in the Bill and at the forefront of their minds in drafting the civil procedure rules. Secondly, the purpose clause would be a test against which rules can be measured.
Thirdly, and perhaps most importantly, a purpose clause would be a constraint on future amendments because one can quite perceive that in the carrying out of the Woolf Report the civil procedure rule committee would initially be enthusiastic to follow the principles that the noble and learned Lord, Lord Woolf, has so helpfully and carefully set out in paragraph 1 of his report, but that in future there might be a real danger that those principles would be forgotten. Hence the importance of stating that balance as I have expressed it between financial considerations and expedition, on the one hand, and fairness on the other.
Amendment No. 19, to which your Lordships may permit me to speak, encapsulates the second recommendation of the Select Committee in that same paragraph 9 on page 4. The second recommendation was that,
"no existing enactment should be overridden unless the rule expressly so provides, in which case the rule should be subject to affirmative resolution procedure".
Amendment No. 19 does not follow that wording exactly for a number of reasons. I first suggest to your Lordships that the principle to which the Select Committee referred should not be confined simply to existing enactments. The substantive law of evidence is very much a product of the common law. For example, public interest immunity has developed enormously
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over the past three or four years in criminal cases and although we are dealing with civil procedure I have no doubt there may be an impact in this field as well.
Secondly, a provision in the terms that I have suggested in Amendment No. 19 would avoid legal argument as to whether a principle of the law of evidence had been amended or repealed by the rule committee by necessary implication. It would require the rule committee expressly to provide for the amendment, repeal or revocation of any particular enactment. Your Lordships may feel it wise to ensure that the civil procedure rule committee had expressly considered the effects of the rules upon existing law and that it should not be by way of some back-door method of amending the law. That would simply cause all sorts of problems in the courts which are attempting to marry the civil procedure rules with the well-known existing statutory and common law rules of evidence, as an example.
I have already mentioned the Select Committee reference to the rule being subject to affirmative resolution procedure, and that matter is covered in Amendment No. 20, to which the noble Lord, Lord Irvine, will be speaking. I do not propose at this stage to say anything further about it. Again, I suggest to your Lordships that amendments made in the future are the real danger against which one must guard.
Finally, Amendment No. 32 refers to paragraph 8 of Schedule 1 which says:
"Paragraphs 2 to 4 have effect in spite of anything in any other enactment."
One might call that a defiant provision. It is a sort of bill of rights in embryo that anything that has happened or may happen in the future would be overridden by that provision. The amendment differs slightly from the Select Committee's recommendation that paragraph 8 should not apply to any future enactment by simply expressing the overriding provision as subject to Amendment No. 19, which I have proposed that your Lordships should insert into the Bill. If my proposed amendments are adopted the scope of the overriding provision is sensibly limited. I hope that the amendments that I have spoken to altogether address the concerns advanced by the Select Committee and I commend them to the Committee. I beg to move.
3.45 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): It may be for the convenience of the Committee if I indicate at the outset that I very warmly welcome the report of the Delegated Powers Scrutiny Committee and its recommendations, subject to a point that I am about to mention. My intention is that I should bring forward amendments to address these points in time for Report stage. I am also minded to introduce a purpose clause somewhat on the lines of Amendment No. 1, but parliamentary counsel, as he noted in the reference to Lord Renton's committee report, needs some time to consider exactly what that should contain. However, it would be quite wise to go along those lines.
The second recommendation is covered by Amendment No. 19, but the noble Lord, Lord Thomas, goes rather further in that he wishes the provision to

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refer to any rules of common law. That creates a difficulty because one of the purposes of the rules would be to clarify situations that might be less than clear at common law and that sort of provision would be quite difficult to operate. My present intention, subject to anything that your Lordships may say, is to bring forward an amendment at Report stage to give effect to the recommendations of the Delegated Powers Scrutiny Committee.
As regards Amendment No. 32, I would be very happy to go along with the proposal in Amendment No. 32, subject to the detailed drafting considerations that I am sure your Lordships would wish it to receive.
In regard to Amendment No. 20, tabled by the noble Lord, Lord Irvine of Lairg, I propose to go along with the proposal of the Delegated Powers Scrutiny Committee in having the affirmative resolution procedure where the rules modify an enactment. That is a satisfactory balance because, as your Lordships know, there are quite a lot of rules which are very much matters of agreement and on which it would be quite inappropriate to occupy the time of either House of Parliament. On the other hand, where something that Parliament has passed is being dealt with it is clear that that should be done by the affirmative resolution procedure. In essence I am accepting, subject to drafting, the Select Committee recommendations referred to, and subject also to embracing the somewhat more flexible Amendment No. 32 put forward by the noble Lord, Lord Thomas of Gresford.
It might be as well for me to say at this stage that I also intend to follow the terms of paragraph 11 of the report; namely, that where the main proposals of the noble and learned Lord, Lord Woolf s review are implemented by the rule committee—at the stage at which the rule committee has finalised its consideration of the matter and before it goes forward to make the necessary rules—I shall lay what it has done before both Houses of Parliament so that both Houses have the opportunity at that stage to comment on the rules. I believe that that is a constructive way of handling the matter.
In so far as the rules were commented on, I would wish the rule committee to take these comments into consideration before they finalise the rules. The rules would then be subject to affirmative resolution in so far as they modify existing enactments, otherwise to the negative resolution procedure. I am, therefore, accepting the spirit of the proposals.
Lord Ackner: Before my noble and learned friend sits down perhaps he could help me on a small point which I believe I should have covered by an amendment. It arises from his agreement in regard to Amendment No. 20 and the affirmative procedure. I refer to Schedule 2, paragraph 4, which states:
"In section 120 of the Courts and Legal Services Act 1990 (regulations and orders), in subsection (4), "1(1)" is omitted".
The position is that the effect of that paragraph is, as the explanatory memorandum indicates:
"It also provides for negative resolution procedure to apply to orders made under section 1(1) of the Courts and Legal Services Act 1990 regarding the allocation of business between the High Court and county courts".
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Section 1 of the 1990 Act provides that:
"The Lord Chancellor may by order make provisions—"
and then it deals with conferring jurisdiction here, there and everywhere. Section 120 then provides:
"Any power to make orders or regulations conferred by this Act shall be exercisable by statutory instrument".
It then proceeds to state:
"No instrument shall be made under Section 1(1) … unless a draft of the instrument has been approved by both Houses of Parliament."
May I infer from the noble and learned Lord's concession that paragraph 4 can in future find itself omitted from the Bill?
The Lord Chancellor: That is not my intention. The explanation is that we had that provision in the 1990 Act. In fact, on the allocation matters there has been very little disagreement so far as experience since then is concerned. In view of that experience I therefore felt that it was really no longer necessary to require Parliament's time to be taken up by an affirmative resolution procedure. That is why the amendment is there, and it is not my understanding that the Delegated Powers Committee want to affect that, because it is not one of the rules of court procedures. It is a separate system. That is my reasoning. So far as I know the committee did not disagree with my reasoning, as a result of which that position was taken.
Lord Kingsland: As a member of the Select Committee on delegated powers and deregulation, perhaps I could say, on behalf of its chairman, my noble friend Lord Alexander of Weedon, how very pleased the committee will be at hearing what my noble and learned friend the Lord Chancellor said in reaction to the committee's recommendations.
However, as the member of the committee who was perhaps more responsible than any other for raising the issue about the relationship between Clause 1 and Schedule 1, and in particular Schedule 1 paragraph 4, I should like to add a point of my own. I have never been able to understand why it was necessary to include changes to the rules of evidence in the Bill.
The Bill is about procedure and, although there are clearly blurred edges between the rules of procedure and the rules of evidence, the rules of evidence play a much more significant role in our law with respect to the protection of individual rights. That, of course, is more dramatically demonstrated in the criminal process than in the civil process, but nevertheless there are occasions in a civil trial when the rules of evidence can make all the difference to the rights of the litigant.
I wonder whether I may prevail on my noble and learned friend the Lord Chancellor to say a little more about the background to including the rules of evidence in paragraph 4; and why he feels it is necessary to subject something which can go to the heart of our constitution to procedures of negative affirmation. I bear in mind, of course, the very substantial concession he has already made to the notion of a purpose clause.
The Lord Chancellor: The principle behind this aspect of the proposal is the one my noble friend mentioned at the beginning; namely, that the spill-over

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from procedure to evidence is a difficult boundary. Where is the boundary in a number of cases? I entirely agree that this Bill is primarily concerned with giving the rule committee the power to make rules of procedure. But there are quite a number of examples in which the nature of the evidence required can have a considerable effect on the rules of procedure. For example, any attempt to limit the situation so far as the number of experts are concerned could well have an effect on the procedure to be adopted. It is at the heart of the proposals of my noble and learned friend Lord Woolf that that kind of thing should carefully be considered in relation to the overall procedure.
Perhaps I should say that underlying my approach is full confidence in the rule committee because the rule committee will contain two of the most senior of our civil law judges. Therefore, I would anticipate that Parliament could be confident that they would use these rules in order to perform the function which has been noted by the noble Lord, Lord Thomas of Gresford, in the first of his amendments. But there are areas in which evidence can have an effect on the procedure which would have quite a substantial bearing on the nature of what the court could accomplish.
Lord Donaldson of Lymington: I support the proposal that the committee should have power to deal with the rules of evidence. The commercial court has always been regarded as one of the faster courts, if I may put it that way, and the only way it has achieved that is by "persuading" parties to waive the rules of evidence.
I can give the Committee two illustrations of how far that has gone. When I was appointed deputy chairman of Hampshire quarter sessions, I realised for the first time that I did not know anything about the rules of evidence because they had never been used in the commercial court whatever.
I can give a second illustration. I was appearing in that court before Mr Justice Diplock, as he then was, and my clients wished to prove that there had been a dock strike in Australia. For that purpose, in our simple-minded way, we produced the local Australian newspaper. My opponent, who was not familiar with the ways of the commercial court, rose to his feet and said that it was plainly inadmissible. Mr Justice Diplock thought for a moment and he said, "Yes, Mr. Smith, you are absolutely right. I propose, subject to anything further you may say, to adjourn this case for three months while we send a commission to Australia to investigate this matter and report back. You are fully entitled to rely upon the rules of evidence. They apply to this court as they do to any other. But before you press the point, I think you ought to remember that when the matter comes back, I have complete discretion as to the costs". The interloper decided that perhaps on the whole it was better to conform to the practice of the commercial court.
Those are merely illustrations. Many of them have been covered by rule changes already. But in this electronic age we may well meet situations in future where new ways of proving facts swim into our ken,
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and it is desirable that the rule committee should be able to deal with them if the current judges of the commercial court are unable to bang heads together to the extent that the parties so agree.
I would be in favour of this. I do not think the committee would ever dream of altering rules such as privilege and the like, but in the field which I have indicated, there is scope for it having this power.
4 p.m.
Lord Thomas of Gresford: Nothing I have said in the amendments takes away from the Bill's proposals to modify the law of evidence. All I have said in Amendment No. 19 is that when that happens, it should be done expressly and not by implication. It would be ungracious for me to quibble with the gracious way in which the noble and learned Lord the Lord Chancellor has dealt with the amendments I have put forward. However, when it comes to what I call the law of evidence rather than the rules of evidence as contained in the common law, I have no objection to those being modified on the principles set out in the Woolf Report as long as everyone knows that that is being done; first, that the rule committee knows that it is being done by expressly considering it; secondly, that Parliament realises that, whether by affirmative or negative resolution, it is considering such amendments; and thirdly, that the poor old practitioners know that it has happened and that no argument is left open about the modification of either an enactment or of common law when it comes to evidence. That is all I have to say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 2:
After Clause 1, insert the following new clause—
REVIEW OF CHANGES TO CIVIL JUSTICE SYSTEM
(". All important changes to the civil justice system including the principles behind the new rules of court, are to be kept under review by the Civil Justice Council, the members of which shall be appointed by the Lord Chancellor and shall include representatives of the judiciary, the Courts Agency and Lord Chancellor's Department staff, legal practitioners (both barristers and solicitors), consumer organisations, advice agencies and other users of the courts.").
The noble Lord said: I rise to move Amendment No. 2. Amendment No. 3 in the grouping is in the names of the noble Lords, Lord Hacking and Lord Thomas of Gresford. The purpose of the amendment is to require a civil justice council, as recommended by the noble and learned Lord, Lord Woolf, to be established. In his interim and final reports, he advocated the establishment of,
"a continuing body with responsibility for overseeing and co-ordinating the implementation of my proposals."
In his final report, he expressed his disappointment that this important step had not yet been taken. He repeated that position in the Second Reading debate on 5th November. He said:
"The second concern is the absence of any reference to a civil justice council, the creation of which I recommended. I see the council as a central plank to my recommendations. It will be the

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means of ensuring that a reformed civil justice system remains responsive to the needs of the public. It is also the necessary companion to a compact small rules committee".—[Official Report, 5/11/96; co1.622.]
From these Benches we support the establishment of such a council.
The noble and learned Lord the Lord Chancellor, when replying to the debate on Second Reading, said:
"On the civil justice council, I appreciate what my noble and learned friend has proposed, but I do not think that we can get into that just yet. One of the functions of the council would he to ensure that affairs of civil justice remained prominent into the future. The profile of civil justice has been raised considerably and will continue to he raised while the new rules are being prepared and consulted on. I entirely agree that it is right to have the widest possible consultation on these rules. My noble and learned friend has carried out a lot of consultation already and I expect that many of the views that have been expressed will be taken into account by the rule committee when formulating the rules".—[Official Report, 5/11/96; col. 630.]
With respect to the noble and learned Lord the Lord Chancellor, I for one was not entirely clear what he was saying. I invite him to clarify his policy. Is it that he contemplates the establishment of a council in the future but not now? If so, when and in what circumstances?
It is true that Lord Woolf's reports have hugely raised the profile of civil justice, but we do not have in mind merely the raising of profiles. The purpose of the noble and learned Lord's reports is to effect dramatic changes that will work in practice. True enough, Lord Woolf s reviews involved to the full the majority of interests in the civil justice system, and his co-operative method of proceeding, along with his team, secured the general welcome in principle that his reports received.
However, as I have said before, the rule changes must surely only be regarded as a beginning. It is behaviour on the ground that must change so as to make resolution of disputes less adversarial, speedier and cheaper. The function of the council would be to continue the co-operative method, by which Lord Woolf and his team worked, into the practical development of the new system.
The function of the council would be to maintain a continuous overview of the system, to highlight the need for changes, to commission research, to put ideas to the new rule committee and the Lord Chancellor's Department, to assist the head of civil justice, to co-ordinate initiatives, both through practice directions and practice guides, and to monitor the impact of changes on the ground. An important area should be the development of pre-proceeding protocols, designed to help cases to settle before litigation has started, through the development of alternative dispute resolution approaches, in particular mediation, and through practice directions and guides.
I see the key point of Lord Woolf's proposal as this: in essence, the civil justice council should take up where the noble and learned Lord, Lord Woolf, leaves off. The way ahead should be a permanent body specifically charged with monitoring and progressively improving the civil justice system. The council would be a vehicle for contributions from all interest groups. It could work with user groups in local courts and in Divisions of the High Court, to identify problems and to recommend
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reforms. It should provide a useful source of advice for the noble and learned Lord on the Woolsack, the senior judiciary and the rule committee. In essence, its task would be to ensure that what Lord Woolf has recommended actually happens in practice.
I have no particular affection for the precise text of the amendment standing in my name. Amendment No. 3, which stands in the name of the noble Lords, Lord Thomas of Gresford and Lord Hacking, may be a better expression of the principle of what is required. That is a matter to which we may have to return on Report. Today my objective is to invite the noble and learned Lord the Lord Chancellor to clarify his current thinking about why a council should not be established here and now and to clarify whether his present judgment is that it should be established in the future but for some reason not now. I beg to move.
The Lord Chancellor: It may help if I state my position on this matter as clearly as I can at present. I have made clear that I appreciate the need for some consultative machinery to drive forward the reforms of the civil justice system that are necessary. In the implementation strategy document, which your Lordships have, I stated that such a body should provide a two-way channel of communication and should allow for representation of all the participants in the civil justice system. In my implementation strategy I also stated that I was not yet satisfied that a civil justice council would be the most effective way to achieve active participation in the reforms and I still remain in doubt about that on the assumption that the council is structured on the lines of these amendments.
I certainly do not wish my comments to be taken as implying that I am against a consultative forum—far from it. I wish to ensure that the most effective body possible be established: one that is not unwieldy or bureaucratic; one that has a well defined purpose and role to play and is of sufficient size to be effective—that is, sufficiently small to be effective. My department's Access to Justice strategy committee which includes the Vice-Chancellor, Sir Richard Scott, is currently exploring possible models for just such a body and I am very grateful to receive views from others of how such a body should operate because so far that particular aspect of the matter has not, for obvious reasons, been examined in detail.
Your Lordships are aware, I am sure, that in many courts user committees are already established and I believe they have proved to be extremely effective. Indeed, my noble and learned friend, Lord Woolf, is today involved in discussions of just such a committee in connection with the Court of Appeal. There is a great deal to be said for trying to develop a structure in which these committees which are at the user level, the court level, should be able to work together in a co-ordinated structure. Therefore, I am actively exploring the question of models for a body to deal with these matters. While there is general agreement that a consultative body is required precisely, the questions of how it should work, how it could be most effective and how it should relate to the rule committee still need to be resolved.

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One of the models that I have in mind as a possibility, but it needs to be varied considerably from the present arrangement, is the relationship between the Supreme Court Procedure Committee which was developed, as it were, to look at matters from a strategic point of view and see what might be required, and the Supreme Court Rule Committee which was charged with trying to put these matters into more detailed form. These are all ideas which have something to commend them.
It is clear that this council need not be enshrined in a statute and it would probably work more effectively if it were capable of being changed from time to time in the light of experience. It is for that reason that so far I have not felt able to support a statutory provision for a civil justice council precisely in the way proposed. There is something to be said for trying to see, as we work through the proposals of my noble and learned friend Lord Woolf, just what sort of structure would best serve the purpose which he has in mind. As I said, it need not be a statutory structure. That is the position that I hold on the matter at present and I hope I have now made clear what the noble Lord, Lord Irvine of Lairg, found unclear in what I said at the conclusion of the Second Reading debate.
Lord Thomas of Gresford: The civil procedure rule committee would obviously be concerned with the setting of rules. What is necessary is to have a body which monitors how those rules prove to be effective. I am grateful that the noble and learned Lord the Lord Chancellor has accepted in principle the need for a consulting body. But that body must surely include judges who will give teeth to such a body, representatives of the Lord Chancellor's Department who can give a different aspect, practitioners who have to work the rules day-by-day, consumer organisations whose members are affected, and other users of the court. When one simply lists the people who are necessary for such a body one ends up with precisely the suggestions that the noble Lord, Lord Irvine of Lairg, has put forward in his amendment, and which perhaps has been expressed rather more fully in Amendment No. 3. I support the amendments.
Lord Ackner: As I understand it, the civil justice council was meant to be more than consultative machinery. It was meant to be there to monitor how successful these new ideas were, to voice criticism if criticism was desirable, and to take an active part in ensuring that the new machinery worked. That is more than consultative.
Perhaps I may give an example as to what I envisage one of its qualities might be? Case management will depend on having enough judges to do the case management and enough judges of the right quality. The monitoring of the scheme might show that there are not enough judges. The monitoring of the scheme might show that people of the wrong quality were being recruited, or that the training was inadequate. That may throw up problems about resources. There would be a greater prospect of those resources being provided if you had such a body going public and indicating in detail the deficiencies. It would enable the Lord Chancellor's
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Department, which would be represented on that body, to bring the necessary pressure to bear, if pressure was necessary, upon the Treasury to make sure those resources were provided. Without such a body, what will be the source—who will be the spokesman—to ensure that the new machinery is moving forward expeditiously and competently? The body would carry, I should have thought, considerable clout. In order to emphasise its status I should have thought it essential that it did feature in the statute. Those are my respectful submissions.
Lord Campbell of Alloway: I am a little puzzled, if I may say so. The rule committee is well constituted and proposes the rules. The amendment suggests that its proposal, before it could ever be implemented, should be sent to the civil justice council. But what sort of power has it? It is to keep under review what exactly happens. If it looks at it and does not like it, what happens? Is it sent back to the rules committee? It does not to me to have been wholly well thought out.
Lord Irvine of Lairg: What is of the first importance to appreciate is that the rules committee is concerned to develop new and better rules, and we will be considering in the course of our deliberations this afternoon various amendments about the rules committee itself, its composition, its manner of proceeding, whether it meets at all and what quorum is required before the committee can put forward changes to the noble and learned Lord on the Woolsack for his approval.
Under discussion as a result of this amendment is a wholly different proposition. It is, as the terms of the amendment make plain, that the important changes to the civil justice system deriving from the new rules should be kept under review by a civil justice council along with others recommended by the noble and learned Lord. The council should comprise a membership of the kind indicated in the amendment and appointed by the Lord Chancellor, and also of course include representatives of consumer organisations, advice agencies and other users of the court.
Therefore, as the noble and learned Lord, Lord Ackner, said, it is not about the making of new beneficial rules, but about monitoring and giving useful advice as to how successful these rule changes are proving in practice. So in a sense the co-operative approach involved in Lord Woolf's inquiries, about as inclusive of all interest groups as one could contemplate, will continue into measuring success in practice. I note that the noble and learned Lord on the Woolsack accepts that some consultative machinery to drive the changes forward is necessary.
We have known since the publication of Lord Woolf's reports precisely what he proposes. That, therefore, is the only candidate in the frame and I ask: what is the noble and learned Lord's positive position? What in his view would be most effective, if not the civil justice council as proposed? With great respect to this Committee, what is significantly absent from the noble and learned Lord's reply to the amendment is a positive proposal. We have Lord Woolf's positive proposal and we await another positive proposal. We are

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told that there are user committees at court level which could be co-ordinated in some way, but it is not necessary for that to be by' means of a statutory body, although of course a statutory body commands much greater authority than any looser and more informal arrangement. So I have to confess that from these Benches we are disappointed by this response. We will have to consider whether this is a matter that should be resumed upon Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 2 [Rule Committee]:
Lord Ackner Lord Ackner moved Amendment No. 4:
Page 1, line 24, leave out ("two") and insert ("three").
The noble and learned Lord said: There has been grouped with Amendment No. 4, as far as my amendments go, Amendments Nos. 5, 6 and 8. These are simple and uncontroversial amendments designed with the agreed purpose in mind to improve the expertise of the rules committee. The amendment simply seeks to increase the number of practitioners on the rules committee by the addition of one extra advocate and one extra litigator. The reason for that is simply this: if there are three of each instead of two of each, it would enable the Lord Chancellor to appoint an advocate of suitable seniority with experience of Chancery work in the High Court and the Court of Appeal—and no doubt a senior member of the Chancery Bar would be appointed—to appoint an advocate of suitable seniority with experience on the common law side both in the High Court and the Court of Appeal—and, by parity of reasoning, one would expect a senior member of the common law Bar to be appointed—and then, thirdly, an advocate not necessarily of the same seniority as the former two, with particular experience of county court advocacy. By this means, there would be three advocate members and three litigator members who could be expected to have a collective experience of most types of cases heard in the Supreme Court and the county courts.
I would stress that it is particularly important to bear in mind the wide range of cases in relation to the Chancery Division. It embraces trusts, real property, wills, intellectual property, copyright and company law. On the common law side, it embraces, among other things, commercial work, construction, personal injury, professional negligence, judicial review; and of course the county courts embrace practically everything. This is solely designed to add to the expertise of the committee and involves only the addition of two extra persons. I beg to move.
Lord Campbell of Alloway: I strongly support every word the noble and learned Lord has said and all the amendments in this group. As a practitioner I have an interest to declare; but it is a very small interest because I am not likely to be appointed to any of these committees.
Lord Irvine of Lairg: I rise to speak to Amendment No. 7 which stands in my name. With your Lordships'
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leave, I am minded also to speak to Amendments Nos. 9 and 11 within this grouping and I am further minded to speak to Amendment No. 12 which is first in the next grouping, for the sake of economy.
I shall deal first with Amendment No. 9. The purpose of the amendment is to give effect to the recommendations of the noble and learned Lord, Lord Woolf, that the membership of the civil procedure rule committee should include persons with the expertise to represent the interests described in Amendment No. 9. It is important that the Bill recognises these interests and provides for an involvement by the consumer sector and the advice sector. Again, then, the purpose of Amendment No. 9 is to carry forward into the composition of the bodies to be established under the Act the inclusive approach that the noble and learned Lord, Lord Woolf, himself adopted.
In his final report, the noble and learned Lord recorded that:
"To help carry forward the work on the new rules, I set up a new working group. It incorporated judicial, consumer and lay advisory viewpoints".
The noble and learned Lord, Lord Woolf, rightly observed:
"This is the first time representatives of consumer and advice organisations have been directly involved in preparation of rules of court".
He went on to record that such representatives should have a permanent role as a counterbalance to the professional legal viewpoint in the new rule-making committee which will be needed to enact the combined rules.
I entirely appreciate that the noble and learned Lord the Lord Chancellor may well intend that the,
"two persons with knowledge of the working of the courts",
referred to in Clause 2(2)(g), may include persons whose experience derives from the consumer and advice sectors. The provision, however, does not say so in express terms.
The amendment proposes an increase in that number from two to four. The rule committee, I would suggest, as defined by Clause 2(2), is simply too lawyer-dominated. The modest increase from two to four in Clause 2(2)(g) is necessary to ensure adequate representation from the relevant interest groups. There should be a sufficient number of lay members to ensure that all relevant interests are represented. I do hope that the noble and learned Lord will demonstrate the openness of mind on these amendments which he assured us on Second Reading that he always has. I do not believe that the addition from two to four would make the committee less effective. It would make it more representative of the interest groups, whose confidence in the new methods of managing and conducting litigation it is necessary in the public interest be secured.
I now refer to Amendment No. 11. It is a variant on Amendment No. 9. It leaves Clause 2(2)(g) in place, that is to say,
"two persons with knowledge of the working of the courts",
but it adds two additional persons,

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"with knowledge of advice and consumer issues".
Amendment No. 12, to which, with the leave of the Committee, I shall also, for the sake of brevity, refer, then prescribes the organisations which the Lord Chancellor must consult prior to appointing these two additional persons. The Bill as drafted achieves consultation only in respect of appointees from the judiciary and the legal professions. For myself I think that the absence of a requirement to consult the consumer and advice sectors sends the wrong signal and we should change that.
The noble and learned Lord, Lord Woolf, was clear in his recommendations that what is required is lay members,
"who can advance consumer, advisory or other lay viewpoints as a counterbalance to the professional legal interest".
What this requires, if his recommendation is truly to be accepted, is representatives from organisations that are in the business of advising and assisting litigants in civil courts on a regular basis. The present statutory language,
"two persons with knowledge of the working of the courts",
could cover retired judges, retired lawyers, legal academics and legal journalists. All of those would seem perfectly well to fall within that language. What we suggest is that it is important that some means be established on the face of the Bill for ensuring an adequate number—we say four—of representatives of those interest groups which have a great deal to offer and on whose competence much will depend in carrying the recommendations of the noble and learned Lord, Lord Woolf, into effect with success. We say either have four persons, such as are described in Amendment No. 9, or keep the two, as described in Clause 2(2)(g), but add the further two prescribed for in Amendment No. 11.
I now refer to Amendment No. 7 which is the first of the amendments in this grouping of Amendments Nos. 4 to 11 that stands in my name on the Marshalled List. The effect of that amendment would be to increase from two to four the persons referred to in Clause 2(2)(f). Let me say straight away that I entirely appreciate the need to have a rule committee that is not unnecessarily large and, in consequence, unwieldy; I quite accept that. What must be remembered, however, is that the new committee will be making court rules across a whole area of civil litigation at a time when practice in civil litigation is becoming increasingly specialised. Dinosaurs such as myself regret that, but it is, I fear, a fact of modern legal practice.
The extent of specialisation by solicitors in comparatively narrow areas of legal practice must be appreciated. The Law Society encourages specialisation by practitioners through accreditation of skilled and experienced solicitors who join specialised panels. This helps in the delivery of quality service which benefits the clients and the courts. However, old-style generalists may regret that. The plain fact is that there are only two such solicitors on the rule committee. If there are only two such solicitors on the rule committee, whole areas of practice will not be adequately covered.
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I have endeavoured to summarise my reasons for putting the amendments before your Lordships.
Baroness Wilcox: The words of my Amendment No. 10 are a little more precise and specific, and I did not think this would happen sitting, as I am, in front of lawyers. I believe, with the noble Lord, Lord Irvine, that we are talking about the same sort of thing: consumer representation. We are talking about people with experience and knowledge of the advice sector, so my purpose in the amendment is to add two members to the new civil procedure rule committee—one member from a consumer organisation and one from the lay sector. I have been most specific in the wording on that.
I welcome the inclusion of two lay members on the committee in Clause 2(2)(g). That is a significant step forward. I believe that the wording of that clause,
"Persons with knowledge of the working of the courts",
will allow the noble and learned Lord the Lord Chancellor a free hand to appoint two lay people representing frequent court users such as small businesses. In addition to those two places I believe that there should be places specifically earmarked for the consumer and advice sector. This would implement the intentions of the noble and learned Lord, Lord Woolf, who said in his final report Access to Justice that representatives from consumer advice organisations should have a permanent role as a counterbalance to the professional and legal viewpoint on the new rule-making committee which will be needed to enact the combined rules—an intention that I fully support.
I believe that this amendment will help to ensure that, wherever possible, the weaker party in a civil dispute is not disadvantaged by court procedures or practices. It is essential to have on the committee people with direct contact with inexperienced litigants. The Bill will provide the mechanisms for much-needed change. I appeared to spend the whole of my six years as chairman of the National Consumer Council doing nothing but think about access to justice. In fact, in the first two days I was working for the National Consumer Council I well remember being confronted by the head of the Bar Council because of the work that we had done on access to justice, or the cab rank rule and on allowing solicitors into court. Now, here I stand, making absolutely sure that we take it just that little bit further so that all of us can understand what is going on in the courts.
Please let us seize this opportunity to make certain that litigants are able to participate more fully as their cases progress through the legal system and lay members on the new committee will ensure that the court procedures are accessible to possible litigants. If, as I earnestly hope, this amendment is agreed, the question is: would the result be that there are too many members on this committee? I think not. The committee would comprise 14 members; 15 if we listen to the noble and learned Lord, Lord Ackner; or 16 because the Law Society wants two extra litigators. Given that few committees ever, in my experience, meet with their full membership, I believe that 14 or 16 would be a viable number. Four lay members would prevent a situation where one or two lay members were facing a battery of

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formidable lawyers and judges and possibly then feeling inhibited from making a very valuable input into the committee. I hope briefly that I have been able to convince you that my words are irresistible.
The Lord Chancellor: It is always very difficult to resist proposals so eloquently put as those which have been put before us in connection with this group of amendments, Nos. 4 to 11.
In the consultation paper that I issued before the Bill was published I proposed a membership of 17 in the rule committee. If effect were given to all these amendments, it would come to 17. I reduced the number because the overwhelming majority of respondents to the consultation urged that such a committee would be unwieldy. That is why I revised my ideas and came to the conclusion, in the light of the consultation, that 12 would be the correct number. I would be somewhat reluctant to increase this number.
As the noble Lord, Lord Irvine of Lairg, said, legal practice has become increasingly specialised these days both at the Bar and among solicitors, and even among the advice agencies there are now specialist advice agencies of various kinds. It is quite impossible to have a rule committee that is representative of all those interests unless it is very large indeed, and that is why the rule committee must work by consultation. It is why I believe that some consultative machinery is required and why it is consultative machinery which will bring people along with it and try to help them to feel that the movement is in the right direction.
I do not believe that it is possible to have a system that is completely representative of all the various interests. What we need are people who are sufficiently skilled to understand the consultation and then to adopt rules which are reasonably effective. Of course, one of the ideas is to have general rules which will be applicable across the board and then more specialist rules which may apply to particular types of litigation—for example, in the field of industrial property. It is for those reasons that I feel pretty strongly that, as a result of the consultation—and surely one does not consult for the purpose of ignoring the consultation—it would be a mistake to add to the total number that I have in mind.
I turn to particular matters. My noble and learned friend Lord Ackner has particular experience of the county court. I would be reluctant to appoint to the committee lawyers, none of whom had experience of the county court. On the other hand, I would be looking for the best candidates available and they would certainly be able to appreciate the problems of the county court as a result of consultation.
So far as consumers, advice agencies and so on are concerned, I originally proposed that there should be three lay members on the committee as part of the 17. As a result of the consultation, all the respondents to the consultation paper argued that two lay representatives were sufficient apart from one notable organisation that my noble friend will be aware of; namely, the National Consumer Council. It argued that that was not so. The balance on consultation was that two lay representatives were sufficient, and it is for that reason that I have adopted this.
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I am certainly anxious that this power should be as wide as possible and I would certainly wish to include representatives from the consumer world and the advice sector. There are others, as has been mentioned—the business world, industry, academics and possibly others—and it might be unfortunate unduly to modify the definition.
It is important, in view of what my noble friend Lady Wilcox said, that those who do come forward as lay people are able to hold their own with the other members of the committee, and I believe that knowledge and experience is a good basis for that. It is therefore of importance that the basic requirement should be some knowledge, however that may be gained.
I am certainly willing to consider improving the definition of lay members further, and particularly perhaps to talk about knowledge of how the court works and how that impacts on lay users of the system. Something of that kind might help to open this out. I certainly mean it to be absolutely open to include all the various possibilities that I have mentioned.
It is difficult to satisfy all these requirements together, and it is for this reason that we have put the Bill forward in its present form. I am certainly willing carefully to consider all the recommendations that have been made this afternoon, but I believe we want to have a committee that works. One of the later amendments that the noble Lord, Lord Irvine of Lairg, is to move requires the committee to meet. One of the difficulties of the present Supreme Court Rule Committee is that it does not meet, as it is really too large. My noble and learned friend who was in the senior responsibility when I came to office felt that it was not necessary to have meetings; it was better to put these things on paper, because people could not be assembled.
There is a good deal of benefit in having a meeting in which opinions are shared and when people can develop ideas on how something might be tackled. Therefore, I am keen that this committee should be one that works by meetings and works by real detailed consultation within the committee itself as well as a wider consultation. It is for these reasons that I feel somewhat reluctant to agree to an addition which would bring us to 17 again in the light of the consultation. It is not easy to see a compromise which solves all of these problems. However, I remain open-minded and if a suitable compromise can be found, I would be very happy to adopt it.
4.45 p.m.
Lord Donaldson of Lymington: Before the noble and learned Lord sits down, I wonder whether he can help me. I have been looking at Clause 2 while he has been talking. I see that the civil procedure rule committee should consist of:
"(a) the Master of the Rolls,
(b) the Vice-Chancellor, and
(c) the persons currently appointed by the Lord Chancellor under subsection (2)."
I cannot understand how anybody can be currently appointed when the Act comes into force. It seems to me that he must by definition be appointed afterwards.

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But I have probably got this wrong. The reason why I started looking at this was to see whether there was any limitation on the numbers. Normally on a committee of this sort the appointing officer or body would be required to include people in various categories and there might well be a maximum number so that they had a discretion on whether or not to appoint additional members. That might be a way out of the difficulty, because the noble and learned Lord said that his original thoughts were 17, but that consultation had brought him down to 12 (which shows what a mistake it is to consult!) and it may be that in the light of experience he would want to go back to his first thought of 17. He could do that if the mandatory categories were limited to 12 but he had some elbow room. He looked puzzled, and perhaps my first point may have been entirely wrong. It is the word "currently" that worries me. Clause 2(1)(c) states:
"the person currently appointed by the Lord Chancellor under subsection (2)".
Does that mean from time to time?
The Lord Chancellor: My noble and learned friend Lord Donaldson is of course right that at this stage the Lord Chancellor "must appoint" under subsection (2). Subsection (1)(c) is intended to define the civil procedure rules committee as it is from time to time. Therefore the committee consists of the Master of the Rolls, the Vice-Chancellor, and the persons who at the time of considering it are,
"appointed by the Lord Chancellor under subsection (2)".
The idea is to define the device for making sure just how the constitution of the rules committee is defined. In a sense, as it is from time to time, those who are "currently appointed" is a correct description. However, it does make possible going to a larger committee if practice showed that to be necessary. It is difficult to accept the principle of anything without consultation as well as the other remark of my noble and learned friend.
Lord Irvine of Lairg: I feel obliged to say that I find the Lord Chancellor's answers disappointing. He assured us of open-mindedness in his Second Reading speech and in his reply, but I have to suggest, with respect, that I have not seen much outward or visible sign of it, nor any words that suggest it.
My over-riding point is that the rules committee is too lawyer-dominated. That is a specific point which has not been responded to. My second point is that the expression,
"two persons with knowledge of the working of the courts"
does not necessarily involve representatives of the consumer or advice sectors at all. I have heard no reply to the proposition that it could exclude these persons and could cover the examples I gave of retired judges, lawyers, legal academics, legal journalists.
The noble and learned Lord said that consultation has indicated that the overall number he puts forward is right. Let that be, but that is what consultation may have suggested. I hope that the noble and learned Lord will pay equal attention to what is said in this Committee to what may result from consultation. Also, the overall
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number says nothing about composition and I, for my part, would respectfully suggest that there is a serious sense in making the number somewhat larger in order specifically to recognise the role and the utility of an involvement of consumer and advisory groups, and a specific number from those. I would go further. I respectfully submit that it is bad politics not to do so.
It is all very well to say, as the noble and learned Lord has said, that this rule committee will consult widely. It may be that it will, but a consultation is no substitute for representation on the rule committee. Unless the noble and learned Lord adjusts his position—we would certainly co-operate in an amendment which gave specific recognition to the consumer and advisory groups—I have to submit that huge disappointment will be caused to the consumer groups and to the advice sector, and the attitude of Parliament will be seen in the sharpest contrast to the inclusive approach of the noble and learned Lord, Lord Woolf—an approach which went so far as to secure acceptance for what he was proposing.
Lord Ackner: Perhaps I may reply briefly to what my noble and learned friend the Lord Chancellor said. I accept that the rule committee will be obliged, and no doubt will wish, to consult widely, but there is no point in consulting widely unless one has the necessary expertise to evaluate the advice one gets following that consultation. It seems to me to be cutting the barrister and solicitor representation down to the bone to say in regard to each of them that there should be one and only one who is a specialist in the Chancery field, High Court and Court of Appeal, one and only one who is an expert in the common law—trials of first instance in the Court of Appeal—both of whom are bound to be senior silks, and one who is an expert in the county court. Of course the two silks, if they are silks, involved in the Chancery and the common law work will at one time have done county court work, but "one time" will probably be 15 or 20 years back. To rely upon their expertise to evaluate the advice they get on county courts is asking for the blind to be led by those whom they cannot follow. My submission is that there is no great attempt to widen to any real extent the numbers, and the difference between 12, 14, 15 or 17 is neither here nor there. I ask leave to withdraw my amendment without prejudice to my activities at the Report stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 to 12 not moved.]
5 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 13:
Page 2, line 15, at end insert—
("( ) The Civil Procedure Rule Committee shall, when making or amending Civil Procedure Rules, consult such interested organisations and individuals as the Committee considers appropriate.").
The noble Lord said: Amendment No. 13 is a modest amendment. Its purpose is to ensure that the committee consults with outside organisations about new rules or changes to existing rules. The amendment is careful to provide that the consultation will be as considered appropriate by the committee. Thus, the consultation

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will not be required for all rule changes but only for those substantial rule changes that will involve significant changes in policy or practice. Here again, we look for evidence of the open mindedness of the noble and learned Lord the Lord Chancellor.
If changes to the rules are to be practicable and workable then it is vital that practitioners and others with detailed knowledge of the system are involved in their preparation. That cannot be achieved merely by having a rule committee which itself is in theory sufficiently representative, although your Lordships have already heard on the previous grouping my submissions as to why what is proposed is not a sufficiently representative rule committee because of the exclusion of a specific recognition of the interests of the consumer and advisory sectors.
At present the position is that there is only consultation on proposed rule changes shortly before they are due to be introduced. After the rule committee has discussed in private the perceived problem and the options for solving it there must be early and meaningful consultation. It is perhaps unkind to mention it but the disaster of County Court Rule 17(11) would have been avoided by adequate consultation. That was the rule that provided for the automatic striking out of claims in the county court if the timetable provided for by the rules was not strictly followed. Poor rule drafting led to thousands of appeals and prolonged consequential litigation.
The new rule committee should really proceed democratically, as the Law Commission does. It should announce that a particular area of procedure is to be reviewed, invite ideas on that area and then consult in an open way on the options before—I emphasise the word "before"—making any firm recommendations.
I shall speak briefly to Amendment No. 18. It is a variant on Amendment No. 13 but it makes specific the kind of interest groups and organisations which ought to be consulted. Significantly, it expressly involves the consumer groups and the advice agencies in consultation. I beg to move Amendment No. 13. I have spoken to Amendment No. 18. I expressed preference, however, for Amendment No. 18 because of the recognition it gives to the important role of consumer groups and advice agencies.
The Lord Chancellor: The noble Lord, Lord Irvine of Lairg, mentioned my open mindedness. I am happy, subject to drafting matters, to accept an amendment on the lines of Amendment No. 13. I shall certainly take account of the rather fuller wording of Amendment No. 18, but certainly Amendment No. 13, subject to drafting, would be acceptable as far as I am concerned.
Lord Irvine of Lairg: I desire to acknowledge the first triumph of this Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg: moved Amendment No. 14:
Page 2, line 17, leave out ("four") and insert ("eight").
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The noble Lord said: Included in this grouping are Amendments Nos. 14, 15 and 17. Under Clause 2(6) of the Bill the rules need only be signed by four members of the committee in order to be submitted to the Lord Chancellor. The purpose of Amendment No. 14 is to provide that when rules are made they must be signed by at least eight members of the committee.
It is unsatisfactory for only four members—one-third of the committee of 12—to be able to agree a new rule of court for submission to the Lord Chancellor. With the present provision, either four of the six judges on the committee could be the signatories; alternatively, the two barristers and solicitors; alternatively, two solicitors and two persons with knowledge of the working of the courts.
In those circumstances rules would not have been made for submission to the Lord Chancellor in a way that reflected the views of a reasonable cross-section of the interested parties. I believe that the amendment is all the more important in the absence of a statutory requirement for the rule committee to meet or to consult.
I now speak to Amendment No. 15. The purpose of the amendment is to ensure that if, contrary to Amendment No. 14, the number remains at four and does not become eight, at least one of the four must be one of the two persons with knowledge of the working of the courts; otherwise rule changes could be submitted to the Lord Chancellor by the lawyers with no lay involvement at all.
I now speak to Amendment No. 17 and look forward to the response of the noble and learned Lord the Lord Chancellor to it. Amendment No. 17 would insert a new clause obliging the rule committee, when making rules, actually to meet to discuss and agree them. Any member of the public studying the amendments we are considering today and reading the Hansard report of the Committee's proceedings would be rather surprised that under the Bill the rule committee is not under any such obligation. In fact, the present Supreme Court Committee does not meet; it conducts its business solely by post. In effect, it is not a committee, but it may well be a group of individuals who are invited to endorse proposed rule changes put forward by others.
I recognise that committees work best provided they are small enough and well briefed and chaired; but I believe only if they meet and thrash out problems in discussion with a view to arriving at a consensus. Again, I hark back to the way in which the noble and learned Lord, Lord Woolf, conducted his inquiries. That is the way in which his inquiry team conducted its business. That is one of the many reasons why the proposals of the noble and learned Lord have been so warmly welcomed by so many groups.
I do not believe that it would be onerous or expensive for the proposed new rule committee of 12 to arrange to meet three or four times a year, or as necessary, to discuss and agree rule changes. I also believe that it would give a properly informed public much greater confidence in what is going on. I beg to move.
Lord Ackner: I rise to support Amendment No. 14. I would respectfully submit that it is a very odd situation

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in which we should legislate so that rules are allowed to pass into law when well under half the relevant committee is not prepared to assent to them. If the number is increased to eight, then it will be more than half if the number becomes 14, and half if it becomes 16 and only just under a half if the outsize number referred to of 17 is the relevant case. It will not have escaped the Lord Chancellor for one moment that what is proposed may save him from potential embarrassment of a high order if he receives, in order to decide whether to allow or disallow a rule, the information that only one-third or less of the committee has passed it, and he then has to consider the personalities who have decided for and those who have decided against. So for both those reasons, I would strongly support what is proposed.
Lord Donaldson of Lymington: I find myself in the curious position of wondering whether this really matters. I say that for this reason. I first joined the rules committee as a junior, I was again a member of the rules committee as a silk and certainly I held various judicial offices. When I was a member as a junior, we had regular meetings at which matters were discussed, and I believe things were much simpler in those days. As complexity came back, the 64 dollar question in every case was: was the Lord Chancellor at the time—and I am not commenting on the present incumbent—prepared to agree a rule change. If he was not, let us not waste our time. If he was, that was fine and probably everybody would agree about it. So you had a culture, as I recollect, where rule changes, although put up by an individual, in fact came down from the Lord Chancellor for approval, because only if he wanted them would they get through. It was for that reason that it really seemed more sensible to agree to written representations rather than meeting together.
I would welcome a change in the methods of working, but I am not suggesting changes in the statute. It might need a lead from the noble and learned Lord the Lord Chancellor to say, "I really would like to discuss these matters with you, and I have an open mind". Then I believe you would get a situation in which it was possible to have meetings, and there would be a changed atmosphere.
I am not worried about the numbers here, because the idea of any Lord Chancellor approving a minority view of the committee, the others refusing to sign, seems to me to be inconceivable. So I do not believe the numbers matter.
Lord Meston: I wish to add a word of support for Amendment No. 17. It came as a revelation to me at any rate during the Courts and Legal Services Bill to realise that the Supreme Court Rule Committee did not actually meet, even on quite important amendments to the rules. It certainly seems to me, as the noble Lord, Lord Irvine, said, that most people in the outside world would assume that, when a statute provides that something shall be decided by, or referred to, a committee, such a committee would physically meet to discuss the proposal before it, each member of the
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committee contributing his expertise and perhaps altering the proposal in some way in the course of discussion.
That does not in fact happen as I understand it, but the proposed rule or change of rule is simply circulated to a sufficient number of members of the committee as may constitute a quorum, together with an explanatory memorandum. That seems to me to be, with all due respect to the undoubted other demands on the time of the people involved, an unsatisfactory way of dealing with matters of this importance.
Here we are going to be faced with a complete new set of rules, and it is likely that, however much care goes into producing those rules in the first place, the subsequent amendments to those rules may not just be minor amendments, but may be substantive amendments. It is, therefore, of considerable importance that a sufficient number of the committee physically meet to discuss not only the first set of rules, but any substantive amendments thereafter.
I can see that where there are, as sometimes happens in these cases, minor amendments to correct drafting or deal with technical matters, it would be unnecessary to have a full meeting of the committee. But surely it must be right that not only the first set of rules, but substantive amendments thereafter, should be the product of a committee which physically meets.
5.15 p.m.
Lord Thomas of Gresford: I rise to support Amendment No. 17. The position as described by the noble and learned Lord, Lord Donaldson, suggests that there was a top-down culture in the past whereby rules were handed down to the committee to approve. I would have thought that the whole thrust of the Woolf reforms, which have come like a breath of fresh air to practitioners and no doubt to court users, is to ensure that reforms come from the bottom up. That is why we are talking about having consumer groups and advice centres participating in the deliberations of the proposed committee, and also why we are talking about having a civil justice council, so that there can be participation from those who use the services rather than those who administer them. I support Amendment No. 17.
The Lord Chancellor: I have found the method of working on the Supreme Court Rule Committee somewhat unsatisfactory. On the other hand, the County Court Rule Committee has worked because it can and because it is reasonably small. That has something to do with the membership and the size of the committee which consists of all the top judges. They have other responsibilities and it is difficult to arrange meetings. This goes back to the point about the size of the committee, which was discussed. I am entirely in favour of a committee that meets to discuss those matters; that is what I am aiming at, and I believe that that is what we shall get.
So far as concerns top-down, I would not like the committee to be a talking shop for the Lord Chancellor. The Lord Chancellor had a chance of indicating his views on this, but the ideas did not come from him; the ideas came from others, at least the good ones! I am

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very content to accept Amendment No. 14 and to change the number from four to eight. My purpose has been that these rules apply to both the county courts and the Supreme Court. It will be made clear in the job-descriptions that meetings will be the normal practice. It is for that reason that my noble and learned friend Lord Donaldson, to whom I alluded, attaches no particular importance to the quorum. However, I am perfectly content to increase the number to eight. I hope that it will not be necessary to move Amendment No. 17 because the whole emphasis will be on a committee that can meet. I undertake to make it abundantly clear that, in making appointments to the committee, the intention is that it will meet regularly.
Of course, some amendments, as has been mentioned, could be agreed in correspondence. But certainly I am very content to accept eight as the quorum.
So far as vetoes are concerned, I am not sure that that will be wise. I am very content to accept Amendment No. 14.
Lord Irvine of Lairg: I am heartened, from gathering evidence throughout the procedures of the committee, by an open-mindedness on the part of the noble and learned Lord. I take it that Amendment No. 14, in the form as moved in Committee, will be accepted.
As far as Amendment No. 17 goes, if the noble and learned Lord considers that the committee ought to meet, ought he not to accept Amendment No. 17, which is the only means of ensuring that it does meet and which obliges it to meet? Meanwhile, I shall withdraw Amendment No. 14 unless the noble and learned Lord indicates that he will accept it here and now.
The Lord Chancellor: I accept it here and now.
On Question, amendment agreed to.
[Amendment No. 15 not moved.]
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 16:
Page 2, line 18, at end insert—
("( ) The Civil Procedure Rule Committee must publish from time to time information as to the discharge of its functions.").
The noble Lord said: The purpose of this amendment is to ensure that the rule committee should from time to time publish information about its operations. I cannot think that it will be excessively burdensome for the rule committee to comply with that obligation. I have in mind that it should publish information about what it is doing, and why, which intelligent laymen can understand.
The noble and learned Lord, Lord Woolf, wanted a simplified and combined set of rules giving effect to the clear objectives he defined in his reports. The object of this amendment would be to keep the committee, which one hopes will meet, up to the mark, and require it to publish information about its doings. I beg to move.
The Lord Chancellor: My noble and learned friend Lord Woolf recommended that the head of civil justice should issue an annual report. The head of civil justice, as the Vice-Chancellor, will be a member of this committee. That report would be a more suitable medium for detailing the rules committee work than a
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stand-alone report. Once the main body of the rules is changed, there might not be a tremendous amount happening from time to time. I know that the Vice-Chancellor intends to carry forward this recommendation. My noble and learned friend Lord Donaldson led the way in this by publishing an annual report for the Court of Appeal. That is an extremely useful and valuable method of drawing attention to its work, which has been carried on by his successors.
The head of civil justice will report. As I understand it, he will carry forward the recommendation. I believe it, would be right to cover in that report any work that the rules committee is doing in the period covered by the report from time to time. I hope that will be an efficient way of dealing with this matter.
Lord Irvine of Lairg: In the light of the response of the noble and learned Lord, which on this point I find entirely satisfactory, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
[Amendments Nos. 17 to 19 not moved.]
Clause 3 [Section 2: supplementary]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 20:
Page 2, line 25, leave out from ("to") to end of line 26 and insert ("approval by resolution of both Houses of Parliament.").
The noble Lord said: As I said at Second Reading, what the noble and learned Lord, Lord Woolf, proposed, if not quite a revolution in how civil litigation has been conducted, is certainly a transformation in the culture of civil litigation. Nor should the re-drafting of two cumbersome sets of rules into a single, simplified set be allowed to conceal what is truly a dramatic transformation in the whole culture of civil litigation which will affect millions of citizens.
The purpose of this amendment is to contend that Parliament should not be by-passed in the approval of these major changes. As a general proposition, I do not say that they should be subject to the same approval procedure as routine statutory instruments which introduce minor changes of a regulatory character. The transformation in the culture and practice of civil litigation should not be carried into effect without full debate in both Houses of Parliament.
The noble and learned Lord on the Woolsack demonstrated a sensitivity on this point at Second Reading when he said that,
"I agree, of course, that the main change is a big one. We shall have to see whether there is some way of dealing with that. I would be perfectly prepared to undertake that, once the rules are formulated, it would be appropriate to have a debate on their detail in this House … before the instrument that would bring them into effect could be laid."—[Official Report, 5/11/96; col. 630.]
As I understood the noble and learned Lord in our discussions on Amendment No. 1, he was signifying—I shall be as particular as I can and I have no doubt that the noble and learned Lord will either confirm or correct my understanding—that his intention is that the affirmative resolution procedure would apply where rules emanating from the rules committee had the effect of modifying any enactment. He will correct me if I am

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wrong, but I believe that that would call for an amendment which I anticipate the Government would bring forth; otherwise his position is that the negative resolution procedure would apply to rule changes. Subject to one qualification only, for our part we find that position satisfactory.
I should like also to hear the noble and learned Lord, in responding to this amendment, formally renew the undertaking which he gave on Second Reading. Perhaps he would give some indication as to the Government's position in the other place—that is, the elected Chamber—where plainly there should be a full debate. Whether or not the new rules modify enactments, they should be subject to full debate in both Houses of Parliament so that Parliament has the opportunity to express its view on what all sides agree is intended to be a transformation of the culture of civil litigation.
The Lord Chancellor: I confirm what the noble Lord, Lord Irvine of Lairg, has said in relation to the proposal to modify the Bill in order to provide for affirmative resolution procedure if the rules repeal or amend an existing enactment. I also undertake that when the rule committee has completed its deliberations on the substantial rules required to give effect to Lord Woolis proposals, the Government will provide for debate in both Houses of Parliament so that the rule committee will have an opportunity of having the views of Members of Parliament in both Houses before finally adopting the rules. I believe that this is an effective way of bringing Parliament into the matter at a stage when it will be possible to give real effect to the concerns that might be expressed by Members of Parliament. So I undertake as Lord Chancellor that that would be done. The committee, I believe, felt that it was a satisfactory way of proceeding. I pointed out, and I believe it to be the fact, that the alternative proposal was to have an affirmative resolution for the first exercise of the rule-making power. It is quite possible that something fairly small might be the first exercise of the rule-making power in order to prepare the way—for example, by pilots—for testing some of the rules. So it is not particularly effective in the context of this particular Bill to have that kind of procedure, and I believe that what I am proposing is a good and practical procedure for dealing with the matter. I am glad that it was accepted by the committee of which my noble friend is a distinguished member. I would, therefore, put that formally on the record now as a government undertaking to apply to both Houses of Parliament.
Lord Irvine of Lairg: On that basis, with pleasure I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Clause 3 agreed to.
Clauses 4 and 5 agreed to.
Clause 6 [Power of courts to make orders for preserving evidence, etc.]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 21:
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Page 3, line 18, at end insert ("or
(c) the delivery up of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").
The noble Lord said: I beg to move Amendment No. 21 and speak to Amendment No. 26. These two amendments accompany Amendments Nos. 23, 24, 27, 28, 29, 30 and 31, all in my name, which are in separate groupings, but are related. I hope that it is convenient to mention, in moving Amendment No. 21, what the broad purpose of all the amendments is. I fear that in proposing the amendments, even at this hour, it may be necessary to take a little time because of the importance of the subject.
The broad purpose of all the amendments is to meet the basic concern that putting the Anton Piller jurisdiction on a new and clear statutory basis, which is plainly sensible, and specifying in detail the precise orders that the court may make creates a real risk that the language of Clause 6 will have the effect of confining the jurisdiction more narrowly than the current decisions of the court have defined it.
When statute confers discretionary powers on judges, it can do so generally or particularly. The general mode was applied by the Supreme Court Act 1991, Section 37(1). By that provision, Parliament provided for a judicial power to grant injunctions where just and convenient to do so. Clause 6, however, adopts a particular model but has failed to get the particulars right.
Experienced practitioners in the intellectual property field are acutely concerned that an unintended effect of Clause 6 may be to cut down the ambit of this salutary jurisdiction—the Anton Piller jurisdiction—and it is to prevent that happening that I am proposing the amendments in the subsequent groupings, Amendments Nos. 23, 24, 27, 28, 29, 30 and 31. These amendments, however—I am moving Amendment No. 21 and speaking to Amendment No. 26—invite the Committee to take the opportunity of improving the existing jurisdiction in one important respect where experience shows it to be required.
I apologise again for the detail in which it will be necessary to move all the amendments in this and the subsequent groupings, but it is important that this valuable jurisdiction be not diminished but, if at all possible, improved. It is desirable to explain myself in full so that Hansard reports what I believe is right to commend to the Committee and so that it can be considered before Report. If the noble and learned Lord the Lord Chancellor is minded to accept the amendments in principle, or any one of them, I shall of course be happy before Report to correspond with him about the precise form of any amendments that he might consider to be desirable.
I deal, therefore, with these two amendments in this grouping first. They are designed to effect improvements in the Anton Piller jurisdiction; all the other amendments on this subject in my name are designed to ensure that the Anton Piller jurisdiction is not unwittingly reduced.
Amendment No. 21 concerns Clause 6(1). The existing Clause 6(1) recognises only two of the three vital functions of an Anton Piller order. The third crucial function is to obtain delivery up to the complainant or his solicitors of property owned by the claimant. That was fully recognised even in the earliest Anton Piller orders. I refer to EMI Records Limited v Pandit [1975] 1 WLR 302. In that a case a distinction was drawn in the form of the order granted between a right merely to inspect material not owned by the plaintiff and a right to remove articles which infringe the plaintiff's copyright, which under then existing copyright law were deemed to be owned by the copyright owner.
As the Anton Piller jurisdiction developed, so plaintiffs were also granted the right to have their solicitors remove not only the plaintiff's own property but property belonging to the defendant which constituted or might constitute evidence. The relevant authorities there are Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55; Yousif v Salama [1980] 1 WLR 1540 and Emmanuel v Emmanuel [1982] 1 WLR 669.
The Anton Piller jurisdiction moved away from its narrow foundation as a means of retrieving for an owner infringing articles and developed into a means by which plaintiffs could also secure property not the subject of the proceedings, including documents, books of account, and so on, which constituted mere evidence in proceedings which the plaintiff feared might be destroyed or hidden if the ordinary processes of discovery in civil litigation were gone through.
The power to make interlocutory orders for the delivery up of property to its owner is now contained in Section 4 of the Torts (Interference with Goods) Act 1977 and rules of court now exist to provide for such applications. The relevant order is Order 29, rule 2(a) of the Rules of the Supreme Court. It is to be noted that an application for interim delivery up of goods can be made ex parte; that is, Order 29, Rule 2(a)(2).
The purpose of the amendment is to offer for consideration the proposition that Clause 6(1) should be amended, as proposed in the amendment, to bring the present Bill in line with the current practice in the Anton Piller jurisdiction.
I now speak to Amendment No. 26. Clause 6(4) does not empower the applicant or his solicitors to remove property owned by the applicant for the purpose of returning that property to the applicant so that he or she may make any use of it which he or she chooses. Subsection (5)(b) provides merely that an order may direct the respondent,
"to allow any such person, or secure that any such person is allowed, to retain for safe keeping anything described in the order".
I shall give a practical example. Employees surreptitiously remove their employer's files or floppy disks so as to use them in a rival business. The employer's business cannot function without them. If an order is made that those files or disks when recovered by the employer must be kept in the safe keeping of the employer's solicitors, which is the standard form order, then the employer's business remains paralysed. It is not the purpose of an Anton Piller order to paralyse a person's
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use of his own property once it has been recovered. Accordingly, what lies behind the amendment is that a new sub-paragraph should be added to subsection (4) which would enable a court, where it thought it appropriate, to permit an applicant to remove into his own custody any of his own property that he might recover so that he might have the use of that property for purposes other than mere safe keeping.
Just for the sake of completeness in making these suggestions to the Committee, I shall say a word about the separate grouping, Amendments Nos. 30 and 31, to which I shall speak later properly. I shall also be proposing that certain additional definitions be included in subsection (8) to clarify the steps that may be taken pursuant to an order under this clause. There are some doubts whether the existing wording of subsection (4) is sufficiently wide to require a respondent or an employee or a person in charge of premises to give access to any information stored on a computer system or floppy disk. I shall return to these proposed additional definitions under Clause 6(8) and I shall explain the point fully when I come to move Amendments Nos. 30 to 31. I beg to move.
5.45 p.m.
The Lord Chancellor: The purpose of this clause is certainly not to limit or reduce the jurisdiction which is currently being exercised under the Anton Piller order but to seek to put it on a secure statutory foundation as recommended some time ago by a working party of the Judges' Council. Therefore, I would wish to consider in detail the sort of consideration that the noble Lord, Lord Irvine of Lairg, has raised in relation to the amendment to which he has already spoken, I have already had a good deal of advice from well-informed quarters about this clause, but I would wish to pursue the indication that the noble Lord has given about this matter with my colleagues before Report stage. That is probably better than my attempting to deal with these in detail now.
I have fairly detailed answers to a number of these matters but they are pretty technical, and the intention is absolutely clear. I do not want in any way to limit the powers which the court presently exercises under the Anton Piller jurisdiction. There are other powers to which this order can relate which can also be Anton Piller-type orders; you can combine various types of order together, and therefore the points are quite technical.
I believe that this is the best way of handling this sort of debate. If the noble Lord, Lord Irvine of Lairg, and others have points they wish to make, I would encourage them to do so now and reserve my detailed answer, saying that my purpose is to give effect, as far as possible under the statutory authority from now on, to what the court has hitherto done in exercising its jurisdiction, broadly referred to as the Anton Piller jurisdiction.
Lord Donaldson of Lymington: I entirely agree with the approach proposed by the noble and learned Lord the Lord Chancellor. This is a very difficult realm in which there is limited expertise. We have taken the Bar and solicitors as a whole and the expertise is limited, but it is very important that this expertise be tapped in full. If I understood the noble and learned Lord the Lord

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Chancellor, he said that if we raised points he would answer them. I want to raise a point but I do not want an answer, because it will require a bit of study.
It has always bothered me from the very beginning with the Anton Piller jurisdiction that you can have the position, normally ex parte—and it is the ex parte that is the problem—that somebody may go off to the court and produce very good evidence that his property has been sold or whatever. In that context it is almost certain that if any notice was given to the putative respondent, it will get destroyed or moved elsewhere; so surprise is all. Then the problem comes when somebody gets the order, knocks on the front door and says "I have here an order from the High Court which entitles me to go right through your premises searching for this, that and the other"; the man at the front door may say, "I am not so sure about this. I want to go to the court and dispute this order, which was made ex parte". That is when you come right up against the problem.
I do not know whether I said it in a judgment or whether in some court, but I know that at that time I thought we could live with this on the basis of my suggestion that the respondent stood his ground and said "I am going to the court and I am going now, but I will give you an undertaking—and if you want to you can put somebody in to observe—that no documents will be destroyed and no goods will be removed, but you are not going to look at all these documents and these goods until I have had an opportunity of challenging this order". I thought the only solution to that was to suggest that any court, faced with that situation, might, if it was technically minded, say that there had been a contempt of court in not complying with the order, but it would certainly say "No penalty".
If we are now looking at Anton Piller we ought to find some way out of this difficulty. It may be that, as part of the Anton Piller order, judges will have to evolve a provision that, if somebody wants to dispute the order, apply it, or have it set aside, provided he follows certain procedures—such as allowing the person who has the carriage of the order to satisfy himself that the documents are not being destroyed and so on—he need not comply with the order pending his application to set it aside. That is one way of doing it.
Another way of doing it would be to confine the carriage of the order, not in the statute but in most cases in practice, to solicitors. I do not mean solicitors' managing clerks, I mean qualified, admitted solicitors, they being required to take documents into their custody. They would obviously have to look at them to decide whether they were within the categories but not to reveal those documents or their contents to their clients, or to make any use of that information in subsequent proceedings if the order were set aside on application.
I merely throw out the problems and possible solutions. Whether the solutions ought to be statutory, whether they ought to be in rules, or whether it ought to be left to individual judges to work them out on a case-by-case basis, I do not know, but I would be very troubled by a situation in which an order was granted to somebody who was not legally qualified. Heaven knows I am not pushing legal qualifications, but the point is that those who are legally qualified have a direct responsibility to the court
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which others do not have. An order being given to someone who was not legally qualified could produce a conflict between the duty of the citizen to obey an order of the court and the right of the citizen on an ex parte order to apply to the court for relief.
A parallel situation arose in the case of the Industrial Relations Court when we first started on the question of sequestration. It had been confined, I believe, to a very limited perhaps family law field. I was appalled to be told that the applicant for a sequestration order could nominate the sequestrator. I then had visions of various people—and I mention no names—operating in that field, who given a sequestration order might produce the most startling results to say the least. I am afraid that I just baldly announced that the Industrial Relations Court was different, that the court would always nominate its own sequestrator, and that it would not be open to applicants to nominate their own sequestrator. However, that was the same point in a slightly different form. We always nominated Price Waterhouse or people of that sort. I mention that to show that this is not a novel problem, but it is one which I believe is serious and requires looking at. However, I would not dream of asking the noble and learned Lord the Lord Chancellor to give me an answer tonight, not least because I have been thinking about it for a long time and I am not sure what the answer is.
Lord Meston: I wish to speak in relation to Amendment No. 21 and support everything that the noble Lord, Lord Irvine, has said, since this is a form of order which is at the extremity of the court's powers and includes the power to enter ordinary domestic premises. Hitherto, the jurisdiction has been regulated by practice directions and practice directions are quite easily amended. This will now be on a statutory basis, which is less easily amended, but it seems to me that the inclusion of the words proposed in Amendment No. 21 are most important.
In the most recent practice direction, made as recently as 31st October, the specimen order provides, among other things, that the defendant must immediately hand over to the plaintiffs solicitors any of the listed items which are in his possession or under his control, save for any computer or hard disk integral to any computer. I certainly have only limited experience of the jurisdiction but I can certainly recall obtaining for a plaintiff an Anton Piller order in exactly the situation described by the noble Lord, Lord Irvine. A large number of employees had disappeared overnight with valuable documents belonging to their former employers. It was absolutely vital not just to preserve them but to have them delivered up so that they could be used by the business.
The other matter I mention in passing is that this jurisdiction is not just confined to the commercial sphere. The noble Lord, Lord Irvine, referred to the case of Emmanuel, which indeed was, as I recall, the authority for the proposition that this jurisdiction can be used in matrimonial disputes. I have certainly had a client who chose to conceal a vast quantity of money in her deep freeze until it was revealed by those enforcing an Anton Piller and led inevitably to a great many tiresome jokes about frozen assets and hot money.

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Again, the point is not entirely humorous because this is a jurisdiction that tends to be exercised at the beginning of litigation and some use may have to be made of the recovered asset before the litigation is finally concluded. The money may have to be reinvested in some way and it is therefore important that it is delivered up. I therefore support Amendment No. 21 in particular.
Dealing with the point made by the noble and learned Lord, Lord Donaldson, he is right, if I may respectfully say so, to emphasise the importance of the supervising solicitor who is now an integral part of the current Anton Piller order. It must be right that recognition should be given to the role of the independent supervising solicitor who ensures that the order is properly and fairly carried out, both at the early stages and in what happens to the material recovered thereafter, and reports to the court.
Lord Irvine of Lairg: On the basis of the assurances that the noble and learned Lord on the Woolsack has given—in particular that it is no part of his intention inadvertently in any way to diminish the existing Anton Piller jurisdiction—and in the hope also that if there are reasonable opportunities here of improvement in modest respects (we should take such legislative opportunities now) I shall ask leave to withdraw the amendment, but subject only to saying this. If the noble and learned Lord is minded to enter into correspondence on this subject—clearly it will be quite complex—we should give sufficient time for the correspondence to be undertaken before Report stage so that we can have a fruitful debate so far as it may prove necessary. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Brightman Lord Brightman moved Amendment No. 22:
Page 3, line 18, at end insert—
("( ) The Court may make an order under this section for the purpose of ascertaining, in the case of any existing or proposed proceedings in the Court, the location of evidence which is or may be relevant.").
The noble and learned Lord said: In moving Amendment No. 22 I shall also speak to Amendment No. 25. Amendments Nos. 22 and 25 would extend the provisions of Clause 6 and bring them into line with orders that are currently being made by the court and have been for the past 21 years.
I shall refer to the origin of Anton Piller orders before turning to the amendments that I advocate. An Anton Piller order derives its name, as your Lordships will know, from a case before the Court of Appeal headed by my noble and learned friend Lord Denning in December 1975, just 21 years ago. The background to the case was that the defendants possessed vital material which it was feared they might destroy or dispose of in order to defeat the ends of justice. The plaintiffs therefore applied to the High Court without the defendants' prior knowledge for an order which, in effect, was a private search warrant.
The application first came before the Chancery Division of the High Court and the order sought was, I am sorry to say, refused by Mr. Justice Brightman. His decision was reversed by the Court of Appeal and so the Anton Piller form of order was born.
I emphasise that the object of the order is, in the words of the headnote to the report of the Anton Piller case, the preservation of,
"vital material which the defendants might destroy or dispose of so as to defeat the ends of justice",
or, as it is put in the Supreme Court Practice,
"The preservation of documents or articles which may otherwise be destroyed or concealed".
My Amendments Nos. 21 and 22 are an extension of Clause 6(1)(a) of the Bill. Clause 6(1)(a) gives the court power to make an order for the purpose of securing the preservation of evidence which is or may be relevant in a law suit. The amendment seeks to extend the power of the court so as to include not only the preservation of evidence but also the disclosure of its whereabouts.
The amendment was suggested to me by Mr. Justice Laddie, a High Court Judge with immense experience of this type of order. He was in fact counsel for the plaintiff in the Anton Piller case. His experience extends over no less than 21 years as counsel and as judge. He tells me that an order on the defendant to disclose the location of evidence or property is a very common type of case and has been since the inception of Anton Piller's particular orders. Mr. Justice Laddie has written to me as follows:
"Where infringements of copyright are concerned [such as copies of sound recordings, films or computer software] it is very frequently the case that the owner of the statutory rights has discovered a source of pirate material but he does not know where the stocks of copies are retained nor the location of the master copy which has been used for making the product which has been put on the market by the defendant. The purpose of the court order is to force the defendant to disclose the location of that material. Compliance with such an order produces a number of benefits as follows.

a) If the unlawful stock is in the hands of the defendant who is the subject of the order, the defendant will be obliged to disclose where it is. Frequently this will have the effect of restraining the defendant from hiding it. The result is that it is more likely that the plaintiff will be able to remove the stock from circulation forthwith.

b) If the unlawful stock is in the hands of a supplier to the defendant, the order will allow the plaintiff to trace back up the distribution chain. As the plaintiff goes up the chain the spread of illicit distribution is restricted.

"c) As far as the master copy is concerned, the location of this (together with the person who is using it) will help the plaintiff to stop the infringing activity at source - which is by far the most efficient and cost-effective way of tackling infringement".

However, this is not the only sort of scenario in which such orders are used. For example, it is also known to obtain an order that the defendant disclose where he keeps computerised backups of his trading records. This not only helps the plaintiff discover other rungs on the distribution ladder, both up and down, but better enables him to seek appropriate damages. Furthermore, orders have been made in the past requiring the defendant to disclose where stocks of packaging materials are kept. The seizure of such items also helps to reduce the prospect of the continuation of the infringing business".
It is in these circumstances that I should like to add the words I have mentioned to Clause 6 of the Bill.
If the amendment is not accepted, it would seem that the Court will have to cease making orders, which I will call "location orders", which it is now making, orders which have not been successfully challenged for want of jurisdiction during the past 21 years. It is the intention of Clause 6 to reflect the existing practice of the judges and not to curtail the practice.
I turn to Amendment No. 25. Clause 6(4)(a)provides that an Anton Piller order may direct the respondent to permit a named person to carry out a search for, or an inspection of, anything described in the order. Amendment No. 25 seeks to include not only a search or/and inspection, but also a test of anything described in the order. Mr Justice Laddie says:
"This sort of order is useful in cases in which the plaintiff is in possession of an incriminating or fraudulent document and it is necessary to see where it came from. In the days when typewriters were more common than they are now, an order allowing for the testing of typewriters in a defendant's power or possession might well help to locate the equipment on which such incriminating material was produced. … Testing equipment for 'fingerprints' … however is not limited to typewriters. Even modern laser printers sometimes develop idiosyncratic errors which can be confirmed by testing. To some extent this type of order also overlaps orders directing the defendant to `dump—
I am afraid that word is new to me—
"(i.e. make a copy of) the contents of his computers' memories so as to discover whether or not incriminating data is located there."
Clause 6(4)(a) at present reads:
"to carry out a search for or inspection of anything described in the order".
To bring this in line with the existing practice of the courts it should read,
"To carry out a search for or inspection of or test of anything described in the order."
Again, this amendment is needed if the existing practice of the court is not to be curtailed.
Before I formally move the first of the two amendments, perhaps I may mention a thought which occurred to me after my noble and learned friend, Lord Donaldson, had spoken. If a wise defendant says, "I want you to do nothing on my premises until I have been to the court and sought to set aside your order—and the noble and learned Lord, Lord Donaldson, suggested that the position might be held by putting somebody on the premises to see that nothing was destroyed or removed—what might happen in an appropriate case is that the defendant would telephone his suppliers and instruct them to destroy whatever incriminating material they had. So it is not at all easy to cope with the scenario which my noble and learned friend suggests to your Lordships. I beg to move Amendment No. 22.
The Lord Chancellor: I would certainly wish to consider these proposals emanating from such a distinguished source. In doing so, I would just like to remark that this is an area obviously fraught with difficulties because as soon as any solution is tentatively suggested, a further difficulty remains. These are certainly difficult issues and I certainly wish to have time to consider them. I hope we will be able to resolve them, at least substantially, before Report stage.
Lord Brightman: In the circumstances, I beg leave to withdraw Amendment No. 22.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 23:
Page 3, line 19, leave out ("a party") and insert ("a plaintiff or defendant or any other party").
The noble Lord said: I beg to move Amendment No. 23 and at the same time to speak to Amendment No. 24. Amendment No. 23 goes to Clause 6(2) and seeks to clarify the law in this area. Anton Piller orders are invariably made ex parte without notice to the respondent because the applicant fears that if notice were given of his application, property or revenues would be destroyed or hidden by the respondent.
Under the existing court rules for an act of placement for an injunction—I refer to Order 29, Rule 1(i), 1 (ii) and 1(iii)—it appears that a defendant in proceedings cannot make an ex parte application for an injunction. I refer to the Supreme Court Practice at 29/1/8, page 507, third line from the top of the page. It does not seem right in principle to deprive a defendant, particularly one who may be making a counter-claim against the plaintiff, of the right to make an application against the plaintiff either for the preservation or removal of evidence or for the return of property he claims to own and which is the subject matter of his counter-claim.
I entirely appreciate that the existing wording of Clause 6(2) is arguably wide enough to achieve this purpose; but I call attention to Clause 6(7), which states:
"This section is subject to any provision which may be made by rules of court".
Accordingly, even where the existing subsection is wide enough to encompass defendants it must be strongly arguable that it could not do so because of the existing court rules. In any event, in an important matter involving the jurisdiction of the High Court there should be clarity in the language of the provisions of the Bill. That, too, I hope is a matter which the noble and learned Lord will also wish to consider.
I now speak to Amendment No. 24. This applies to Clause 6(3). Again, it does not appear to me that this subsection reflects actual practice in the area of Anton Piller relief. The modern form of Anton Piller order first introduced by Practice Direction (Mareva Injunctions and Anton Piller Orders) [1994] 1 WLR 1233 and recently amended by a further practice direction, requires not only a "respondent" to an order to permit entry onto premises, etcetera, but also requires such entry to be permitted by an employee of the "respondent" or by other persons,
"appearing to be in control of the premises and having authority to permit the premises to he entered and the search to proceed".
That is a reference to Standard Form Anton Piller Order paragraph 1(ii). The execution of an Anton Piller order may, of course, be entirely frustrated if the respondent named in the proceedings or in the order is not actually present and cannot be reached when the order comes to be served. Hence the provision in paragraph 1(ii) of the standard form. It is one of the exceptional features of the Anton Piller jurisdiction that a party not identified by name in the order may nonetheless be required to comply with it and the purpose of this amendment is to suggest that this exceptional feature should be reflected in the wording of Clause 6(3). That is what I say in speaking to Amendment No. 24. I beg to move Amendment No. 23.
Lord Donaldson of Lymington: The only comment I wish to make is largely irrelevant, but it will give comfort to my noble and learned friend Lord Brightman. He, apparently, was overruled by the noble and learned Lord,

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Lord Denning. Perhaps if we still had the noble and learned Lord, Lord Denning, we would not have problems with this clause. He was overruled by the noble and learned Lord, Lord Denning, and that gave rise to the Anton Piller order. I can do better than that; the first application ever made for a Mareva injunction was made in the commercial court and I refused it on the grounds there was no jurisdiction to make such an order. It was promptly reversed by the noble and learned Lord, Lord Denning. That case was not called the Mareva case. That was followed by the Mareva case, where I again refused on the grounds of no jurisdiction and suggested that the judgment of the noble and learned Lord, Lord Denning, was per incuriam, and set out a number of questions which needed to be answered on the judgment if he was to insist on there being such jurisdiction. The noble and learned Lord, Lord Denning, promptly reversed me again and never answered the questions.
The Lord Chancellor: We have endeavoured to make the position plain in Clause 6(2). I do not think the conditions specified in the rules of court would, once this clause comes into effect, be allowed to contradict that. My recollection so far as the other matter is concerned is the same as that of my noble and learned friend Lord Donaldson of Lymington. What I said earlier applies to all of this and I want to consider it quite carefully. If one takes the full order this would be a very large section before it were finished. I am anxious to try and keep the statute book reasonably succinct and that is the principle that will underlie consideration of these matters.
Lord Irvine of Lairg: On that basis I beg leave to withdraw the amendment. Of course it is desirable to keep the statute book economic; it is also necessary when dealing with an existing jurisdiction to ensure that it gets it right.
Amendment, by leave, withdrawn.
[Amendments No. 24 to 26 not moved.]
6.15 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 27:
Page 3, line 38, leave out subsection (6) and insert—
("( )An order under this section—

(a) is to have effect subject to such conditions as are specified in the order, and

(b) may include, in addition to any relief specified in this section, any other order or direction which the court has jurisdiction to make relating to the preservation or delivery up of evidence or property or any other subject matter of the proceedings or any question arising on which may arise in the proceedings.").

The noble Lord said: Nowhere in the present clause is any provision made for other interlocutory orders or directions to be included with the basic Anton Piller search, inspection and removal provisions. In the vast majority of cases where Anton Piller orders are sought the applicant will need additional relief against the respondent; for example, an injunction restraining the respondent from destroying or defacing or hiding or parting with his possession of any materials or articles which are subject to the Anton Piller order. If such a provision does not exist, a respondent can, before inviting the applicant's representatives on to his premises to
CWH 38
conduct their search, inspection or removal, make off with or destroy or hide these materials or articles. In an unreported case where exactly that happened a judge held that the respondent was not in breach of the Anton Piller order because he had in fact permitted the search to go ahead.
There are inevitably other forms of injunctive relief which, depending on the nature of the course of action which the applicant may have against the respondent, will need to be granted in conjunction with the Anton Piller relief itself—injunctions restraining infringements of copyright or other intellectual property rights; injunctions to restrain breaches of employment contracts, etc. It is of crucial importance that in providing a statutory basis for the Anton Piller order Parliament does not limit or erode the existing powers of the court to grant interlocutory relief to applicants.
The object of this amendment is to propose the division of subsection (6) into two sub-paragraphs, the first containing the existing provision, the second empowering the court to grant other forms of relief in conjunction with the Anton Piller order. I beg to move.
The Lord Chancellor: So far as this goes, I entirely agree with the result that is sought to be obtained, but my belief is that we have not damaged that. This clause gives power to the court; in other words, it confers jurisdiction to make this order; but it does not exclude any other jurisdiction of the court to make any other order. If the court has jurisdiction to make two orders, there is no reason why we should not have a composite order with the two parts in it. So I certainly had not intended by these divisions to damage the possibility which I entirely agree exists and is frequently used to combine the Anton Piller order with other interlocutory relief, including that of the kind the noble Lord, Lord Irvine, has mentioned. So our intentions I believe are absolutely the same. The only question is whether the drafting has achieved that and at the moment I have no reason to doubt that.
Lord Donaldson of Lymington: I support the noble and learned Lord the Lord Chancellor. People know what an injunction is: it has a definite meaning. But an Anton Piller order is purely descriptive of classes of order. The fact that we may here have outlined the requirements of an Anton Piller order could not, I should have thought, prevent a court from making any other order, possession or anything else, provided it has independent jurisdiction for that particular part of the order.
Lord Irvine of Lairg: I entirely accept that the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Donaldson of Lymington, may be right. I would certainly like to reconsider the matter, but I hope that, in the spirit which has informed the reception by the noble and learned Lord on the Woolsack of all these amendments, he will give thought to this one too. I note the noble and learned Lord is assenting on that basis, and I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 28:
Page 3, line 40, leave out subsection (7) and insert—

CWH 39
("( ) An application for an order under this section shall accord with any provision which may be made by rules of court.").
The noble Lord said: The object of this amendment is to call attention to Clause 6 subsection (7) and to gain some understanding of what the current subsection (7) seeks to achieve. Subsection (7) reads:
"This section is subject to any provision which may be made by rules of court".
At first Lush it would appear to render primary legislation subject to subordinate legislation, which does not strike one as right. Under the existing subsection (7), a rule of court could in theory be made which abrogated the Anton Piller jurisdiction altogether. Plainly, what must be intended is that the court should be free to make rules dealing with the form of, and procedures for, obtaining Anton Piller orders. This amendment is put forward in the spirit of inviting the noble and learned Lord to consider whether the proposed amendment reflects that intention more clearly than the existing subsection. On that basis, I beg to move.
The Lord Chancellor: The intention of the present subsection (7) is to leave the detailed rules of procedure to be settled by rules of court. The clause provides the jurisdiction and one has to bear that in mind when it says:
"which may be made by rules of court".
The rules of court are made under the powers described earlier, and these are to make rules of procedure not to abolish rights or anything of that kind. It is simply emphasising the fact that we are trying to be simple in preparing the jurisdiction. The procedure under which that jurisdiction is to be exercised will be found in the relevant rules of court. But I am happy to consider further any amplification of that which may be required.
Lord Irvine of Lairg: The issue is whether the undoubted intent could be better expressed. On the basis that the noble and learned Lord will consider the matter, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No 29:
Page 3, line 41, at end insert—
("( ) Nothing in this section shall abrogate, modify or limit any rule of law or statutory provision constituting or excluding any privilege against self-incrimination.").
The noble Lord said: I would submit that it is necessary to introduce into subsection (8) a new subsection, which would presumably be a new subsection (8), which makes it clear that Parliament does not intend in this clause to make any changes to the existing law relating to the privilege against self-incrimination. Existing subsection (8) would then have to be renumbered subsection (9).
The existing Clause 6, subsection (5)(a) provides that the order may also direct the respondent:
"(a) to provide any person named in the order … with any information described in the order."
Your Lordships' House, in its judicial capacity, has ruled that Anton Piller orders requiring the disclosure of documents or the immediate answer to questions can be contrary to the well-established principle against self-incrimination. That is the Rank Film decision [1982]
CWH 40
AC 180. Therefore, an ex parte Anton Piller order for the seizure of documents ought not to be made if, on the facts alleged against the defendants in the civil proceedings, a prosecution for conspiracy to defraud might be brought against the defendant and the documents might tend to incriminate the defendant on a conspiracy charge: Tate Access Floors (Incorporated) case [1990] 3 ALL ER 303.
Various means exist for safeguarding a respondent to an Anton Piller order against the risk of self-incrimination. These are referred to in the decisions of this House in its judicial capacity at [1993] 1 AC 45, AT&T Istel Limited v Tully. These safeguards, however, are neither so comprehensive nor so clear that in every case the risk of self-incrimination can be eliminated altogether.
Your Lordships should also note that the privilege against self-incrimination in civil proceedings has been much criticised and is already the subject of a number of statutory exemptions—for example, Section 72 of the Supreme Court Act 1981. However, the fact that Parliament has not yet seen fit to abrogate that privilege entirely in any legislation thus far must mean that it does not intend to achieve that purpose as a side wind to creating a statutory basis for the Anton Piller jurisdiction. I do not doubt that the noble and learned Lord on the Woolsack will inform your Lordships that there is no such intention, but I would respectfully submit—and this is the purpose of the amendment—that this very important matter should be made clear on the face of the Bill. I beg to move.
6.30 p.m.
Lord Meston: This is an important amendment. It is noticeable that the most recent practice direction—that of 31st October 1996—adds to the specimen form of order a notice to the defendant that he may be entitled to refuse to permit disclosure of any documents which may incriminate him, or to answer any questions if to do so may incriminate him. It goes on to say that it may be prudent to take advice, because if he does so refuse his refusal may be taken into account by the court at a later stage. That is included in a body of paragraphs of notices to the defendant, but it seems to me that this is one of the most important notices and it is only recently that it has become standard form in the Anton Piller order. I shall therefore certainly support the amendment or something like it.
The Lord Chancellor: I simply confirm that it is not my intention to alter the present law and so I am happy to consider these matters further.
Lord Irvine of Lairg: I accept entirely that the noble and learned Lord, the Lord Chancellor, has no such intention; indeed, I said that in my own observations. Again, it is a matter of getting the statute book clear, and beyond that a matter of great importance to individuals. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 30:
Page 3. line 43, after second ("Court") insert—

CWH 41
("inspection" includes the inspection of data stored in computer readable form and references to permitting inspection include permitting access to any such data,").
The noble Lord said: In moving Amendment No. 30, I shall speak also to Amendment No. 31. I shall do so briefly and that will bring to an end my contributions on the Anton Piller jurisdiction.
Amendment No. 30 goes to Clause 6(8). If it were thought necessary to accept the preceding amendment, the existing Clause 8 would have to be renumbered Clause 9. As I earlier indicated, the proposal is that two further definitions should be added within this subsection.
The first is a definition of the word "inspection". What is proposed is to clarify the position as regards information stored in computer systems or otherwise in computer readable form and to ensure that a respondent or other person can be required to give access to any such information.
The second definition of "record" is again aimed at clarifying the rights of an applicant to call for and remove print-outs or to make copies of floppy disks. That is the object of the amendments. I invite the noble and learned Lord the Lord Chancellor to agree that he will give them his consideration on the same basis as he has indicated in elation to the previous amendment. I beg to move.
The Lord Chancellor: I confirm that I shall do that. One of my concerns in this connection is that over time the meaning of "inspection" and "record" has grown. I would not wish to cast doubt on the impact of such words in earlier legislation, where modern developments are taken account of as they happen without the need for express reference. But that is one of my concerns in considering what should happen in respect of these amendments. But I shall certainly consider carefully what the noble Lord has said.
Lord Irvine of Lairg: On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Clause 6 agreed to.
Clauses 7 to 10 agreed to.
Schedule 1 [Civil Procedure Rules]:
[Amendment No. 32 not moved.]
Schedule 1 agreed to.
Schedule 2 [Minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 33:
Page 6, leave out lines 37 to 42 and insert—
("( ) for subsections (5) and (6) there is substituted—
"(5) Special rules may apply—

(a) any rules made under this section, or

CWH 42

(b) Civil Procedure Rules,

to proceedings to which the special rules apply.
(5A) Rules made under this section may apply—

(a) any special rules, or

(b) Civil Procedure Rules,

to proceedings to which rules made under this section apply.
(6) Where rules may be applied under subsection (5) or (5A), they may be applied—

(a) to any extent,

(b) with or without modification, and

(c) as amended from time to time.", and").

The noble and learned Lord said: In moving Amendment No. 33 I speak also to Amendment No. 34. These are technical amendments. Section 84 of the Supreme Court Act is relevant both to rule-making powers for civil and criminal cases in the Supreme Court, and to other special rules applying to Supreme Court proceedings—that is, family proceeding rules made by other committees under other enactments. These amendments contain the powers of the different rule authorities to apply rules made by other rule committees if so desired. Their effect is to provide special rules, rules made by any committee or rule-making body other than the civil procedure rule committee and the Crown Court rule committee. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 34:
Page 6, line 43, leave out from ("(9)") to end of line and insert ("for "Supreme Court Rule Committee" there is substituted "Civil Procedure Rule Committee" ").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 35:
Page 7, line 2, leave out ("subsection (1) is") and insert ("subsections (1) and (2) are").
The noble and learned Lord said: This amendment is concerned with the further rule-making powers, which we can dispense with. Section 87(2) of the Supreme Court Act 1981 is aimed at how proceedings are undertaken against the estate of a person. That will be filed as an exercise in county court rules and rules of the Supreme Court. It will be sufficient for the future to rely on paragraph 1 of Schedule 1 which makes plain that the scope of rule-making powers extends to all matters which were governed by the former rules of the Supreme Court and county court rules. Therefore, in the interests of economy in the statute book I beg to move.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Bill to be reported with amendments.
The Committee adjourned at twenty-three minutes before seven o'clock.