HL Deb 22 February 1938 vol 107 cc801-11

Order of the Day for the Second Reading read.


My Lords, the object of this Bill is a comparatively simple one. It is to permit certain documents made before controversy of a legal kind has arisen and made by persons with personal knowledge of the facts to be admitted as evidence. I hope your Lordships will not think that the objects of the Bill are in any way technical. The present law is technical, but what the Bill seeks to do is founded on the simplest problems of common sense, as to which those of your Lordships who are laymen are just as fit to form an opinion as any lawyer. Perhaps I may say that on many occasions I have not been able to form the view that common sense is an attribute only of lawyers; I have sometimes taken a very different view.

The object of the Bill is concerned very largely with the facts, firstly, that in the past for hundreds of years our law has on the one hand declined to accept any hearsay evidence at all—differing in that respect from nearly all other systems not founded on our own—and secondly, that it has paid enormous attention to the value of an oath. One may say with some truth that our ancestors believed in oaths. At the present time I think nobody with good sense will say that if there is a statement made by somebody with no motive to tell an untruth, which has been put into writing at about the period when the event took place, it is less entitled to credit and is less probative in its value than the statement made on oath by a witness many years after when the events have become dim in his or her recollection. The curious fact is that, apart from admissions, our law has not allowed to be proved any documents in relation to various private matters other than two sorts of documents. The first is statements against interest, which means pecuniary or proprietary interest; and the second statements made in the course of duty. In both cases the maker of the statement must be dead.

Let me just give your Lordships an example of how limited those exceptions are. Let me take the first exception, the statements against interest. There is a celebrated case of Higham versus Ridgway, a case of an accoucheur more than a hundred years ago who assisted a lady in her delivery and who made a record of it in his books. Being an educated man it was written in Latin, and he noted both the date and the hour at which the birth took place, and he also noted in his book that his charge was what I think your Lordships will think the moderate charge of £1 6s. 1d. Fortunately he had written opposite this the good English word "paid." In the lawsuit in which that document was sought to be introduced the question was the age of this child, who had then, it was alleged, attained the age of twenty-one, and the material question was, Was he born on a particular date in April or on another date in April? and some evidence had been given upon it. The accoucheur happened to be dead. Well then, the conditions were satisfied that an untruth was against interest; because although it was not against his interest to say that a child had been born, it was against his interest to assert that he had been paid £1 6s. 1d.; and accordingly, he being himself dead, the document was admitted and of course was conclusive to establish the date of birth.

What your Lordships will note is that if the doctor had been alive, and if either he had been ill or could not be found, or if he was insane, or if it was too expensive to bring him to the Court and the subject of the case did not warrant his being found, or if he was beyond the seas—in all those cases the document would be rejected. I appeal to your Lordships whether there is any good sense in the notion that the assertion that he had been paid this money added to the truth of the statement, or that you ought not to be allowed to put a document in because the man was not yet dead, but there was some good reason for not calling him; or whether there are sufficient grounds for keeping to the existing law. One of the first things that is sought to be done in this Evidence Bill is to make it clear that if the man is not dead who had made a statement otherwise admissible—if he is unfit, or abroad, or it is too expensive to call him—nevertheless the document shall be admissible in evidence.

The other little story I want to tell your Lordships is about the entry in the ordinary course of business. The leading case there is a case of Price versus Lord Torrington. It related to payment for some beer which had been delivered to his Lordship and it was necessary for the plaintiff to prove delivery of the beer. Well, there was a drayman in the service of the brewer, whose practice it was and whose duty it was to deliver the beer to a number of places in the course of the day, to enter at night in his hook the fact that he had so delivered the beer and the persons to whom he had delivered it. The drayman was, fortunately for the case, dead. Well, that made the entry admissible. The entry was admissible because the person making the statement on the one hand was dead and on the other had made it in the course of duty and, with the event. There again I say it is impossible to hold that there would be no weight in the drayman's evidence if he had made the statement a couple of days later in writing, or if for some reason it could not be established that it was his duty to make this statement. In either case, as the drayman was the person who had personal knowledge of the facts and had no reason for telling an untruth with regard to them, his evidence in a document contemporaneously, or more or less contemporaneously, with the facts ought, I think your Lordships will agree with me, to be admitted in evidence for what those statements are worth.

Now let me go on to tell your Lordships this. The proposed amendment of the law goes a little bit further because it suggests that documents which are not within either of the two exceptions—for instance, not proved to be made in the performance of a duty, not strictly contemporaneous, and not proved to be contrary to pecuniary or proprietary interests—should also be admitted. Let me take such cases as these, which are actual cases. The question may be—it arises in the Privy Council sometimes—whether a particular river is or was navigable or not at a particular date. There is an ancient report made by some person and produced by some public office. You may not be able to prove that it was his duty to make it. In this case the present law would reject it. Take another case. You have the report of a mining engineer, which is, not infrequently, a necessary document in the case of an action for various purposes—for instance, for misrepresentation in a prospectus—and you want to know what reports have been made with reference to a particular property. You may not be able to show that the report was made contemporaneously with the visit to the mine or whatever it was. That would be a reason for rejecting it.

You may not be able to show that the man who has made the report is dead, or if alive you may not be able to call him. I remember very well a case not so many years ago in which the mining engineer whose report it was desired to prove happened to have gone to South Africa. Under the present law you might perhaps take his evidence on commission, but he might be a witness unwilling to give any evidence which might be against the man who employed him. As soon as he is beyond our territorial limits, you cannot compel him to give evidence. But you want to get in the report. The report is in England; everybody knows about it; and you do not want to delay the trial by sending a commission at vast expense, say, to Rhodesia for the purpose of endeavouring to get this man's evidence. I appeal to your common sense to say that that is all wrong. This is a report made by an honest, decent person in performance of instructions given to him by people who are concerned with the case and, for what it is worth, you ought to be able to put his report in evidence. It is quite true that you have not been able to cross-examine him and that to some extent would qualify the value of his evidence, but for what it is worth the report ought to be in. Might I mention this? There is not a country in the whole of Europe which would not allow the documents which the Bill seeks to admit in evidence to be so admitted. It is entirely illogical to take all the steps which we have been hound for so long to employ, with only these two exceptions, for the purpose of enabling documentary evidence to be admitted.

These are the two main objects of this Bill, and although the clauses look a little complex, they are really perfectly simple. The documents to be admitted are admitted subject to a number of safeguards. The maker of the statement has, except in one case of a record with which I need not trouble your Lordships, got to have personal knowledge. If he is alive, and accessible without undue expense, you call him. If you cannot prove he is dead, you still let in his evidence for the reasons I have already mentioned—namely, stated shortly, that he is unfit or abroad, or it is too expensive to procure his attendance as a witness. Your Lordships will remember that a great many of the cases with which we are concerned in this country with regard to law are cases involving quite small sums heard in the County Courts. There may be a question referring to a bill for £20, and it seems to me a denial of justice to say that action cannot be properly brought, or alternatively, cannot be successfully prosecuted if you find you cannot get evidence from some man who has made a contemporaneous statement, but who happens to be in Scotland at the time. That is the main object of Clause 1, with certain safeguards and a discretionary power to the Judge in certain cases to admit such a statement as mentioned in the first subsection, although the maker of the statement is available but not called as a witness. In Clause 2 we are dealing simply with the weight to be attached to the evidence. It is in some cases a safeguard to tell the tribunal that all the circumstances under which a document was made must be borne in mind, because some of the documents may be of exceedingly little weight and others may be of very great probative value.

Clause 3 deals with an odd circumstance, which is that certain deeds have got to be attested and, if attestation by law is necessary, it is necessary at the present time to call the attesting witnesses. These deeds are by no means the most important and by no means the most common. For instance, you might convey property worth £100,000 without an attesting witness at all, but in respect of those deeds where an attesting witness is necessary the present law says that you must call the attesting witness, while in all other cases you prove the execution in the ordinary way. That is illogical. I may mention that it is based on an old doctrine that goes back as far as the law of the Franks, where the attesting witness, having attested, had to be ready, if necessary, to defend his evidence as a witness in battle. That is the sort of relic of antiquity which is embodied in this strange law. With regard to documents, they are now said to prove themselves, so far as execution and so on are concerned, after thirty years. I venture to think that is too long a period. We allow people to gain estates by the operation of the Statute of Limitations after twelve years, and it has been thought fit, after a good deal of consideration, to make the presumption as to documents twenty instead of thirty years. The next clause is only dealing with the question of making rules of court which the bodies who make such rules will be very careful not to misapply.

I hope your Lordships will not think this Bill of mine, in the realm of domestic politics, is of little importance. That is not at all the view I take. We are all of us deeply indebted to the law for living a safe and comfortable life and having a reasonable amount of liberty. I would not like to represent the law as a sort of beautiful guardian angel that watches over all of us, but I hope that, however repulsive you may think the law is, you will recognise that it is of the very greatest value to every member of the public. What I would observe with reference to this Bill, in submitting it to your Lordships, is this, that it is because I am convinced that it will to some extent assist in the attainment of justice, and in quite a number of cases tend to reduce the costs of litigation, that I urge your Lordships to give it a Second Reading. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Maugham.)


My Lords, I am sure all of us will be very grateful to the noble and learned Lord for introducing his Bill to effect improvement in the administration of justice. With certain safeguards which, I think, still have got to be inserted in it, I think his Bill will serve that purpose. At the same time it has to be remembered that this country has won an unrivalled reputation for the administration of justice and for the certainty with which truth is attained in the tribunals of this country, and that is very largely due to the fact that our system of evidence requires the best evidence. I do not think that anybody, I do not think my noble and learned friend is proposing to introduce into our system that system of evidence which is to be found in systems of administering justice over the water. I am bound to say I am conservative enough to think that our own system is unrivalled and has worked very well. Changes no doubt can be made, and improvements can be made. It is probable that the changes in the Bill will not be revolutionary.

My noble and learned friend has not, of course, thought it necessary to point out that at the present moment, according to our procedure, a Judge has got power to order that any facts may be proved by the production of any document or copy of a document, and that would seem to meet a good many of the points to which he has referred. But what one wants to be sure is that there is going to be reasonable certainty in ascertaining the truth. Personally I do not think I like very much the idea that an employee by merely making an entry in his book that he has delivered a cask of ale at a customer's house, thereby affords evidence that he has in fact delivered that cask of ale at a certain house. He may very well have delivered it at the house of a friend of his, and if he is in Scotland apparently nothing more is needed: the entry is evidence that the ale came to the customer. I think, too, I see danger in any provision that in the case of a fraudulent prospectus, the directors who are alleged to have been fraudulent may produce the report of a man who has gone out of the country and who has given them a fraudulent report, and that as long as he is in, say, South America that report can be produced as evidence of facts said to be contained in it. I think myself that would be somewhat dangerous. Yet that is the position.

But speaking generally, on matters of ordinary cost no doubt the proposals in the Bill may produce some alleviation of cost, and provide evidence which otherwise would not be forthcoming. There are, however, two matters which I think are of essential importance. I wish to call your Lordships' attention to them now, and I wish to call the attention of the Lord Chancellor to them, because it is obvious that a Bill of this kind, altering an important form of procedure in our Courts, is a Bill which requires to have the support, of His Majesty's Government. The first is that there has been a provision in our law which is of the very essence of the administration of justice and of vital necessity to secure that truth shall prevail. It is that in two cases at least corroboration is necessary of evidence given by the complainant. And when I mention them to you your Lordships will, I know, agree. The first is in actions for breach of promise of marriage. No one can tell what abuses are possible and what abuses have been avoided by the fact that that condition of corroboration is laid down as part of the law of evidence. It will now apparently be perfectly possible for the lady who wishes to make a claim on a gentleman (against whom she has other claims) who has promised to marry her, to write a letter to her friends and say: "I am glad to be able to tell you that this day Tommy" (or whoever he is) "has promised to marry me." Now if that were really capable of being used as corroboration and as meeting the demands of the Statute, to my mind it would destroy the whole effect of the Statute which requires corroboration.

The second kind of case in which corroboration is necessary is the bastardy case. Everybody knows, unfortunately—I do not like to speak of the practice, but how often it has happened that a girl has made a claim against a man improperly that he is the father of her child. It is quite a common claim to make, for instance, against the employer when he is not really responsible at all. If it really could be said that a letter written by a girl at any time to any of her companions the effect that "so-and-so was the father of my child" was to be evidence and corroboration of that story, I think the whole value of the provision about corroboration would be defeated. That is one point that I thank ought to be dealt with.

The other question is in relation to commercial law. My noble and learned friend did not tell your Lordships, but it is apparent in the Bill, that this alteration in the law of evidence does not apply to the trial of criminal cases. That, of course, at once introduces a little anomaly into the law, because you will have a different law of evidence in the one class of case from that in the other. I think that is fully justified; it is a very wise provision to make. But then it has to be remembered that day by day, at any rate week by week, charges involving criminal offences are tried in the civil court—cases arising out of policies of insurance, fidelity guarantees, wrongful dismissal, libel and slander. Cases constantly have to be tried in the Courts of whether a man has been guilty of arson, whether he has been guilty of forgery, falsification of books, thefts and crimes of that kind, and we have always been the habit of telling juries, and instructing ourselves, that the case ought to be as fully proved by just as satisfactory evidence where the charge is brought in a civil court as when it is brought in a criminal court. I think some provision of that kind ought to be made, and I hope very much that my noble and learned friend will be in a position to exempt the application of his law from cases where a criminal charge is involved in a civil case. I rose really to say with great respect that the Bill requires a few more safeguards, and I did not rise to oppose it at all. I think within its proper and reasonable application it may be of great use.


My Lords, my noble and learned friend Lord Atkin said that this was a Bill which required the support of an examination by the Government. The Bill has had that examination, and I am authorised on behalf of the Government to express the Government's thanks to my noble and learned friend Lord Maugham for introducing the Bill and to express the view that it will be a useful alteration of the law. I do not deal now with the points raised by my noble and learned friend Lord Atkin, because I will leave them as Committee points to be dealt with by my noble and learned friend Lord Maugham. I was, however, rather surprised to hear the noble Lord suggest that the law of corroboration would be affected. I did not think that it would.


I am glad to hear it. I hope it will not.


I do not think that the manufacture by a lady of a letter by her to a friend stating what she stated in the witness box will afford corroboration of her statement.


I am very glad to hear it.


I do not understand that that is the proposal of my noble and learned friend Lord Maugham. However, these are Committee points. I only rise to express the approval of the Government, and to say that if the Bill is passed by your Lordships' House and goes down to another place, although the Government cannot hope to pass any measure through another place if there is substantial opposition, because their programme is already congested, I hope that in this House we shall make the Bill so perfect that it will not excite opposition in another place. In that I hope we shall have the assistance of my noble and learned friend Lord Atkin, and of others of your Lordships who are learned in the law, and indeed of other noble Lords who are practised in the administration of the law, because experience of ruling on evidence and of considering the questions to which my noble and learned friend Lord Atkin referred is by no means confined to lawyers. I hope that those who regard the Bill as a valuable reform and do not think that it goes far enough will not make the mistake of treating half a loaf as negligible because it is not a whole loaf, and will not cast away the substance of what I think is a useful reform for the shadow of an ambitious measure. I hope noble Lords on both sides of the House will combine in Committee to make the Bill practicable. I know the Bill was considered by the Council of judges and I know that it was approved by the Peel Commission on the despatch of business in the Common Law. I hope that the Bill, if it is enacted, will reduce the costs of litigation, which are rising and which ought to be diminished.


My Lords, with regard to what has fallen from my noble and learned friend Lord Atkin may I say that I am fully conscious that this Bill in its present form is not perfect. I hope that with his assistance I shall be able to introduce some amendments at the Committee stage which will satisfy him. That, at any rate, is my intention. The noble Lord has already spoken to me about these points, but I did not mention them in introducing the Bill because of a certain reluctance to steal his thunder. But may I add a point which I should have mentioned before? The Bill has been incubated for a period of seven years, which perhaps your Lordships will think almost long enough for a legal Bill. A committee of judges consisting of Lord Justice Greer, Mr. Justice Avory, Mr. Justice Roche and Mr. justice Langton considered the Bill, and I am proud to think that Sir Horace Avory had a great share in drafting this Bill and strongly approved it. Another Judge whose name I might mention is the late Lord Tomlin, who also thoroughly approved the principle of the Bill. Although, as I agree, the Bill is not perfect, and amendments are possible, I hope I have said enough to show your Lordships that it is not a hasty sort of measure produced without consideration. As a matter of fact it has been before the Bar Council and several of the law societies in the country, and nearly always, subject to minor suggestions, it has met with complete approval. I was very glad to hear what the noble and learned Viscount on the Woolsack said with regard to the Bill. I hope that it may be so amended in Committee that it may pass into law.

On Question, Bill read 2a, and committed to a Committee of the Whole House.