§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Maugham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ Clause 1:
§ Admissibility of documentary evidence as to facts in issue.
§ 1.—(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—
- (i) if the maker of the statement either—
- (a) had personal knowledge of the matters dealt with by the statement; or
- (b) where the document in question is or forms part of a record purporting to be a continuous record, made the statement in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
- (ii) if the maker of the statement is called as a witness in the proceedings:
§ (3) Nothing in this section shall render admissible as evidence any statement made at a, time when any dispute was pending involving controversy as to any fact which the statement might tend to establish.
§ (4) For the purposes of this section, a statement in a document shall not be deemed to 34 have been made by a person unless the document or the material part thereof was written or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.
§ LORD MAUGHAM moved, in subsection (1) (i) (b), after "statement," to insert "(in so far as the matters dealt with thereby are not within his personal knowledge)." The noble and learned Lord said: This is really nothing but a drafting Amendment, an observation that applies to nearly all the Amendments on the Paper. This Amendment relates to permanent records made by a person in the performance of a duty to record information supplied to him by somebody who had personal knowledge, and the only reason for the Amendment is that the subsection does not in terms cover the case where the statement or document is made partly from his own knowledge and partly from knowledge supplied to him by somebody else. It is a purely formal Amendment, because I think the clause would probably be construed to have that effect, having regard to subsection (1) (i) (a) which makes a statement valid if it complies with the other conditions, if he had personal knowledge of the matter. The Amendment is to insert the words in brackets, "(in so far as the matters dealt with thereby are not within his personal knowledge)."
Page 1, line 17, after ("statement") insert ("(in so far as the matters dealt with thereby are not within his personal knowledge)").—(Lord Maugham.)
§ On Question, Amendment agreed to.
LORD MAUGHAM moved to leave out subsection (3) and insert:
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
The noble and learned Lord said: This subsection was intended to deal with a safeguard which might have been necessary and which would be necessary, I think, in most cases, as regards statements made at a time when a dispute was pending. In other words, it is an effort to translate into English that which lawyers who love a little Latin usually describe as ante litem motam. It is not always easy to translate a phrase
into English even when the phrase is a Latin one. It was represented by my noble friend Lord Atkin, that it might be that the translation originally inserted in the subsection would not exclude statements made by a man deliberately, not while the lis was pendens but while he anticipated that there would be a lis at a very early date. Accordingly, the subsection has been redrafted, and it was also thought right to limit the exception contained in the subsection to statements made by persons interested because there might be a statement by somebody, even while the lis was pendens, who was totally disinterested in the matter in question, and whose statement might therefore be one which ought to be accepted.
The subsection as now drafted is therefore as follows:
Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
I can imagine people with a critical mind objecting to the words "by a person interested." All I can say in defence of that phrase is that it is a well-known legal phrase in other connections, and that anybody who tries to define what is meant by it would find it exceedingly difficult. The statement might be made by a litigant or by his wife, or by his daughter, or by an affectionate friend, or by an agent who had something to do with him—and I could go on mentioning persons who might prove, in the event, to be persons interested, and who would yet not be covered by any more literal and accurate formula than that adopted. At any rate the matter has been carefully considered. I do not think it will lead to very much difficulty, and the subsection now proposed is certainly better than the subsection as it originally stood.
Page 2, line 23, leave out subsection (3) and insert the said new subsection.—(Lord Maugham.)
§ On Question, Amendment agreed to.
LORD MAUGHAM moved, in subsection (4), after "written," to insert "made." The noble and learned Lord said: This is a purely drafting Amendment. For the purposes of the clause a statement in a document "shall not be deemed to have been made by a person
unless"—and now come the words used to make the document effective only if he had written it or produced it with his own hand, or signed or initialled it, or otherwise recognised it in writing as one for the accuracy of which he is responsible. Your Lordships will remember that the Bill is dealing with documentary evidence, and almost nothing else. Well, when you look at the definition of a "document" you will find that it includes books, maps, plans, drawings, and photographs; and it might be that there was something which a keen critic would say was not written or produced by the man—for instance, it might be a photograph which, in a sense, he had not produced, and yet at the same time he was responsible for. And photographs in some cases are of course of extreme value as evidence of the status quo at the date when they were made. The Amendment suggested is simply to add the word "made" after the word "written," so that it runs:
… unless the document or the material part thereof was written, made or produced with his own hand
and so on.
Page 2, line 30, after ("written") insert ("made").—(Lord Maugham.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Weight to be attached to evidence]:
LORD MAUGHAM moved to insert at the end of the clause:
(2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
The noble and learned Lord said: This is an Amendment for which, again, I am indebted to my noble and learned friend Lord Atkin. Your Lordships will be aware that there are a number of cases in civil, as in criminal, law (we being concerned here with the former) where evidence, to be conclusive or to be binding, has to be corroborated. There are such cases, for instance, as breaches of promise of marriage, and younger members of the House may be glad to know that a lady cannot bring an action against them for breach of promise of marriage unless her
evidence is in some way corroborated. To take a concrete instance, a lady might say that a young gentleman had promised to marry her, and might think that she could corroborate that statement by the manufacture of one or more documents at the time when, or just before, the alleged promise was made. In order to prevent anything of that kind, in that and other cases, it is now suggested that corroboration of the litigant whose statement needs corroboration is not to be based upon a statement made by him or her. The proposed new subsection runs thus:
For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
In other words, this Bill is not going to furnish corroboration where the statement is made by the person who requires corroboration. In other respects the matter is left just as it is at the moment.
Page 3, line 15, at end insert the said new subsection.—(Lord Maugham.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clauses 3 and 4 agreed to.
§ Clause 5:
§ Explanation of s. 99 of 15 & 16 Geo. 5. c. 49 and s. 99 of 24 & 25 Geo. 5. c. 53.
§ 5. It is hereby declared that Section ninety-nine of the Supreme Court of Judicature (Consolidation) Act, 1925, and Section ninety-nine of the County Courts Act, 1934 (which relate to the making of rules of court) authorise the making of rules of court providing for orders being made at any stage of any proceedings directing that specified facts may be proved at the trial by affidavit with or without the attendance of the deponent for cross-examination, notwithstanding that a party desires his attendance for cross-examination and that he can be produced for that purpose."
§ VISCOUNT BERTIE OF THAME moved to leave out "notwithstanding that" and insert "unless" The noble Viscount said: Whilst I fully agree with the general objects of this Bill in seeking to lower the cost of litigation, I do not consider that it should be done at the expense of what may appear to be, even if it is not in fact, an injustice. A party to a lawsuit has now, and has had for a long time, the right to have a witness cross-examined on any document which is 38 tendered as evidence against him. Under this clause in certain circumstances this inherent right may be taken away from him, even against his consent. Surely that is going too far. It must be borne in mind that both Judges and juries are influenced to a great extent by the demeanour of a witness when he is under cross-examination, and if this clause is passed in its present state the Judge and jury may be deprived of the privilege of watching the reactions of a witness to any questions which may be put to him in cross-examination. The right of cross-examination has existed for a long time, is a most useful weapon, and ought not to be abolished against a party's consent, even to save expense. I have discussed this with several learned members of the Bar, and most of them are against the clause in its present state. One learned King's Counsel whom I consulted on the matter shook his head and told me that he thought the proposal was highly dangerous.
Page 3, line 39, leave out ("notwithstanding that") and insert ("unless").—(Viscount Bertie of Thame.)
§ LORD ROCHE
Perhaps I might be permitted to say a word or two to allay the suspicions and anxieties of the noble Viscount who has moved this Amendment. I think he will be consoled if he sees that at line 37 it is only provided that "specified facts may be proved" in a certain way without cross-examination. That does not mean that cross-examination is to be abolished from our Courts. It merely leaves it at the discretion of Judges to do what I can assure him has been done for a number of years by the Judges taking the commercial list—namely, allowing formal matters to be proved by affidavit instead of by oral evidence and generally by commissions to go abroad. A provision dispensing with the right of cross-examination in these cases is merely to bar the way, not to a person who genuinely desires to cross-examine a witness, but to one who desires to say "You cannot prove that fact in an inexpensive way because I will stop you cross-examining and so prevent the matter being proved at all." Inasmuch as the clause is purely discretionary, and inasmuch as I do not think the House need have any apprehension that a Judge will allow such a fact to be proved in any 39 way by affidavit without cross-examination if it ought to be proved orally and with cress-examination, your Lordships would be wise to allow the clause to stand as it is.
§ LORD MAUGHAM
May I add one word before my noble friend answers that criticism? If your Lordships will look carefully at the clause you will see that it only authorises the making of Rules of Court providing for these orders being made. In other words, the Rules Committee, which perhaps has this right at present though it is not clear it has got that right, is going to make a rule providing for these orders being made at any stage of the proceedings. It does seem to me that there really is not much risk of the Rules of Court being framed by a body like the Rules Committee which would show the views of my noble friend to be correct, and also it is unlikely that the Rules of Court will be so drafted that the Judge is in the least likely to make an order directing that specified facts which ought to be subject to cross-examination are left in such a position that they will be proved by affidavit without cross-examination. In other words, there is a two-fold safeguard here against any wrongful infringement of what my noble friend correctly thinks is a very valuable part of our evidential law.
§ VISCOUNT BERTIE OF THAME
The two noble and learned Lords who have spoken have allayed my fears to a great extent. My noble friend Lord Roche said it was only formal matters which could be proved without a witness being produced. The clause itself does not say "formal matters." If the clause said "formal matters" that would meet my view entirely. I do not know whether the ingenuity of my noble friend can put in something about formal matters. I would be very much obliged if he could.
§ THE LORD CHANCELLOR (VISCOUNT HAILSHAM)
If I may try to assist my noble friends in allaying the noble Viscount's fears still further, I should like to say that this power is exercised by the Rules of Court Committee already. I am Chairman of the Rules of Court Committee, and I know that such rules have been made, and it is to try to make their legality quite beyond dispute that this 40 clause has been framed. The clause does not go any further than the rules go. The rules order that specified facts should be proved by affidavit, and the order specifies the facts, and the Judge will always have the power to call for cross-examination if he suspects that the affidavit is inaccurate. In other words, notwithstanding any order having been made under rules made under this clause, the Judge at the trial has the discretion to say that any fact is unsatisfactory, that it is now apparent that the affidavit evidence is not sufficient, and then to order that the affidavit shall be subject to cross-examination. I hope my noble friend will not press his Amendment, because it would largely destroy the value of evidence and also no doubt destroy the useful power which has been exercised by the Rules of Court Committee without criticism or objection for a great many years.
§ VISCOUNT BERTIE OF THAME
I am very much obliged to my three noble and learned friends for their full explanations, and I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Remaining clauses agreed to.