LAW REFORM (MISCELLANEOUS PROVISIONS) BILL. [H.L.] (Hansard, 2 May 1934)

§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, I beg to move that this Bill be now read a second time. There are embodied in our law a number of maxims, many of them expressed in Latin, which have served the country well for long periods, but which from time to time need reconsideration and revision because they have become no longer suitable to modern conditions and present Acts of Parliament. It seems 989 wrong that it should be left to private individuals to secure such revision by bringing cases in the Courts at their own expense; indeed, it is not always possible to achieve this result in this way, for some of the maxims have been enshrined in judgments of your Lordships' House, although in many of such judgments the Law Lords have expressed their regret that they were compelled to give effect to them. Consequently, on January 10 of this year a Committee of distinguished lawyers was set up, to whom four maxims were referred for consideration and report. Two members of your Lordships' House sat on that Committee, the noble and learned Master of the Rolls, Lord Hanworth, and Lord Wright. The Committee have now unanimously reported in favour of revision of two of these maxims, and the object of this Bill is to ask your Lordships to join in giving effect to their suggestions.
The first of these maxims is the one that lays down that a personal action does not survive or ceases upon the death of the party who has caused or suffered the injury complained of—the familiar and well-known principle actio personalis moritur cum persona. May I be permitted to explain this in the shortest possible way but without pledging myself to rigid accuracy? The rule of the Common Law is that if an injury has been clone, either to the person or the property of another, for which unliquidated damages only could be recovered, the action dies with the person to whom, or by whom, the wrong was done. The very great number of motor car accidents now unfortunately happening has made the revision of this maxim an urgent public necessity. For instance, if a negligent driver of a vehicle is killed in any collision due to his negligence, the rights which those seriously injured would have had against the negligent driver, if he had not been killed, are extinguished by his death. It follows that the liability of the insurance company under the third-party risks policy comes to an end. Neither the sufferers, if alive, nor their dependents, if the victims are dead, have any redress.
The maxim is peculiar to English law and to the law of those countries which have adopted our English Common Law. It has no place in Scots law. Public opinion has compelled the Legislature from time to time to pass Acts of Parliament 990 creating exceptions to the maxim, and a great authority has described the rule as one which has been made at all tolerable for a civilised country only by a series of exceptions. While, however, it remains a part of the established law of the land, it must be recognised and receive effect in the Law Courts, but the Committee in their Report rightly say that there is no logical explanation or vindication of it. It may have originated in the peculiarities of English law, mainly because of rules of procedure long since obsolete. "Where there is no remedy there is no wrong" became almost a maxim of English law, and it may not be uninteresting to your Lordships to know what the real reason for this doctrine was.
That great lawyer, Sir William Holds-worth, in his monumental work on the History of English Law, volume 3, page 582, says with regard to it: We may well wonder that the law of this period tolerated so restricted a view of the executor's liability for the acts of the deceased. That it produced inconvenience we can see from the applications made to the Chancellor at the end of this period. We may remember, however— this is the explanation— that it was in practice mitigated by very frequently recurring directions in wills that executors were to pay debts and to make restitution for wrongs done by the deceased, while if a person dies intestate, the administrator was bound to employ part of his estate in pious uses for the good of his soul, and the payment for debts and restitution for injuries were recognised by some as pious uses. The Legislature intervened to give the executor right of action at a much earlier date than it intervened to place him under legal liability, and the direction of testators in their wills to redress injuries the powers of administrators to do their best for the soul of the deceased rendered the absence of legal liability less onerous in practice than the absence of legal right to sue would have been. As far back as 1846 an Act known for many years as Lord Campbell's Act, and now styled the Fatal Accidents Act, enabled an action to be brought on behalf of certain classes of dependants of a deceased man whose death had been caused by the negligence of the defendant, although before that Act no action could have been maintained at all. The Act, however, limits the kind of damages which can be claimed—for instance, medical or funeral expenses, even if actually incurred, cannot be claimed and recovered.
991 The position of the law as it now exists may be thus summarised. In contract, claims for debt or for breach of contract, or in respect of bonds, deeds, or other obligations, are unaffected by the death of a party except in the peculiar case of actions for breach of promise to marry. In cases of tort in general, this is the special sphere of the maxim which applies on the death of either party to claims for wrong sounding in unliquidated damages, such generally as personal injuries, fraudulent misrepresentation, defamation, trespass to goods or land. I will not weary your Lordships with a number of other exceptions, but the Committee say they can sec no valid reason why a man's estate should not be liable to pay compensation for wrongs committed by him during his life, just as a wrong-doer would be liable to do if still alive. They add that the law should be that the estate is liable just as the deceased would have been if he had not died. It is obvious, however, that the remedy of the injured person must be pursued promptly, otherwise the winding-up of the deceased's estate might be indefinitely prolonged. The Committee, therefore, add the recommendation that it is desirable, in the interests of the due administration of the deceased man's estate, that there should be a limitation of six months after representation is taken out for the bringing of the action.
The Bill as drafted carries out these recommendations, but does not extend to every case. In actions such as libel, slander or seduction, where the presence of the plaintiff or of the defendant may be of the greatest importance, the Committee are not able to suggest any change. For example, no action will be able to be brought for a libel on a dead man. The day may come when this particular matter may have to receive further consideration, but it is not necessary to complicate the present Bill with it, as it would introduce considerations of a controversial character. With regard to the damages, it is not thought that it should be in the power of the Court to award what are known as vindictive damages. The term "vindictive damages" is of a somewhat technical character. In cases of contract, damages are supposed to be compensation, though frequently not a very adequate one. In cases of tort to property, where there are no circumstances of aggravation, they are generally 992 the same. Where, however, the injury is to the person or character or feelings, and the facts disclose violence or cruelty, damages are supposed to operate as a punishment for the benefit of the community and as a restraint to the transgressor. There are numberless cases in which damages have been given which can only be accounted for on this principle. In the case of Bell versus the Midland Railway Company in 1861 a distinguished Judge laid down the rule that: where a wrongful act is accompanied by words of contumely and abuse the jury are warranted in taking that into consideration and giving retributory damages. This is the meaning of the term "vindictive damages." The Committee recommend that where death has supervened the damages should be proportioned either to the loss to the estate or to the dependants, or possibly in some cases, both heads of loss.
I turn now to the clauses. Clause 1, subsection (1), amends the law as to the effect of death in relation to causes of action. Section (2) deals with the measure of damages. Subsections (3) and (4) deal with the limitation of time. Subsection (5) deals with certain subsections of the Administration of Estates Act of 1925, which will not now be necessary. That Statute deals only with injury to property. Clause 2 extends the benefit of the Legislature to any illegitimate child or any adopted child of a deceased person. The remaining part of the Bill deals in Clause 3 with the state of the law relating to the right to recover interest in civil proceedings. This is the second of the maxims upon which the Committee have unanimously reported. Originally in our law no claim could be made for interest on a sum due, but just as in the case of the first maxim so in the case of the second one, exceptions grew up. For example, if the claim was on a contract and the contract had art express or implied term under which interest was payable, interest could be recovered. Again, from time to time Statutes were passed giving a right to interest—for example, the Civil Procedure Act of 1833, the Bills of Exchange Act of 1882, the Partnership Act of 1890; I need not trouble your Lordships with a full list of these Statutes. Interest might also be claimed by the general custom of merchants or 993 the custom of a particular trade or business.
The exceptions which have been made both by the Statutes and various decisions have made a serious inroad upon the maxim, but there still remains a very large number of cases where interest cannot be claimed. Attention has repeatedly been drawn to the anomalous state of the law in your Lordships' House. Lord Herschell, who was then Lord Chancellor, in the case of the London, Chatham and Dover Railway Company versus the South-Eastern Railway Company, said: I confess that I have considered this part of the case with every inclination to come to a conclusion in favour of the appellants, to the extent at all events, if it were possible, of giving them interest from the date of the action; and for this reason, that I think that when money is owing from one party to another and that other is driven to have recourse to legal proceedings in order to recover the amount due to him, the party who is wrongfully withholding the money from the other ought not in justice to benefit by having that money in his possession and enjoying the use of it, when the money ought to be in the possession of the other party who is entitled to its use. Therefore, if I could see my way to do so, I should certainly be disposed to give the appellants, or anybody in a similar position, interest upon the amount withheld from the time of action brought at all events. But I have come to the conclusion, upon a consideration of the authorities agreeing with the Court below, that it is not possible to do so. The law of England on this point is not the same as the law of Scotland as one of the Scottish Law Lords pointed out.
There are some people who take advantage of this omission of the law by defending actions to which they have no real answer. May I give you a concrete example? Suppose a person incurs a debt, and after a lapse of a year his creditor issues a writ against him; suppose further that owing to a great pressure of work at the Law Courts, as often happens, the action does not come on for nine months, by the hypothesis the debtor gets twenty-one months for payment and he has had the use of the money, or the equivalent of the money, for the whole of that period. It is true that he may have to pay some legal costs, but if he likes to settle a couple of months before the action is tried these costs may not amount to much, certainly in some cases to less than the interest he ought to pay. The Committee recommend 994 that the old and rigid rule should be altered and that the Courts, including all appellate tribunals, should have the power to award interest in every case in their discretion where it is not already provided for by Statute or by the contract. They further add that the power to award this interest should be, in the discretion of the Judge trying the case, and it should be left to him to state whether interest should in a particular case be payable and, if so, at what rate. It is not a discretion which Judges would feel any difficulty about exercising. Clause 3 of the Bill carries out this recommendation. In conclusion, permit me again to emphasise the fact that the Committee's Reports are in both cases unanimous, and the reforms appear to have been long overdue and are not likely to raise any controversy. I beg to move that the Bill be now read a second time.

§ LORD DANESFORT
My Lords, I think the House at large and the community outside will be most grateful to the Lord Chancellor for having brought in this Bill to remedy certain grave defects in the existing law. I understand that two Committees of lawyers are considering other grave defects, especially the provisions of the law with regard to married women, many of which are entirely out of date according to modern views. I do not go into them now because they are not relevant. I sincerely trust the Lord Chancellor will bring in a Bill in due course dealing with those points.
I propose to refer very briefly to two points only upon Clause 1. The first is this. This Bill does not deal with cases of defamation—that is, libel and slander—and after it is passed it will be open, as it is to-day, to any malignant person to publish a most atrocious libel upon, possibly, some distinguished man who has recently died, and there is no remedy whatever either in damages or by way of injunction to stop that publication. I dare say there are some reasons for excluding these actions for defamation from the scope of this Bill, but for the moment I hope the Lord Chancellor will consider very carefully whether it would be possible to extend the right to have 995 damages in cases of these defamations. I think that the practice of libelling by atrocious libel dead men who have no opportunity of answering—it is done very often by irresponsible people who want to make a little money—should, if possible, be dealt with by the law and the right to damages given to the dependants or the surviving relatives of the person so defamed.
The only other point on this Clause 1 to which I wish to refer is the question of breach of promise of marriage. If I remember rightly—I have not looked it up lately—there was a case in the Courts a good many years ago in which it was sought by a lady to recover damages for breach of promise of marriage against the representatives of a dead man in a very bad case, and the Court came to the conclusion that this doctrine of actio personalis moritur cum persona applies to breach of promise of marriage. It is a little singular because, after all, breach of promise of marriage is a breach of contract. I forget why the Court so decided, but that is the law to-day. Now that is to be altered, but altered only to a very limited extent. The Bill says an action for damages in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry. In many cases it was very difficult to show that there hail been any loss at all to the estate. Without giving vindictive damages for breach of promise to marry, I should have thought that it would be possible to extend the right to damages somewhat further than this Bill does. With those two comments, may I say how entirely I agree with the Bill, and that I trust your Lordships will pass it into law with the least possible delay?

§ THE LORD CHANCELLOR
My Lords, I am much obliged to the noble Lord for his remarks with regard to the Bill, and I will take them into very careful consideration. The only difficulty is that the question of allowing an action for a libel on a dead man is a controversial one. I hope to bring before your Lordships other Bills which, like this one, are of a noncontroversial character.