HL Deb 29 November 1938 vol 111 cc204-11

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF ONSLOW in the Chair.]

Clauses 1 and 2 agreed to.

Clause 3:

Limitation in case of successive conversions and extinction of title of owner of converted goods.

3.—(1) Where any cause of action in respect of the conversion or wrongful detention of goods has accrued to any person and, before he recovers possession of the goods, a further conversion or wrongful detention takes place, no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "goods" and insert "a chattel." The noble and learned Lord said: The reason for this Amendment is that there is some ground for thinking that the term "goods" is a much more limited term than the words "a chattel." For example, it is suggested that though there might be conversion of, say, a cheque or some other instrument of that kind, that would not be "goods." The intention is that the clause should apply to anything which is capable of conversion according to the Common Law. This is in effect a drafting Amendment. I beg to move.

Amendment moved— Page 2, line 36, leave out ("goods") and insert ("a chattel").—(The Lord Chancellor.)

On Question, Amendment agreed to.


The next Amendment is drafting and consequential.

Amendment moved— Page 2, line 38, leave out ("goods") and insert ("chattel").—(The Lord Chancellor.)

On Question, Amendment agreed to.


The next Amendment is also consequential.

Amendment moved— Page 3, line 6, leave out ("goods") and insert ("chattel").—(The Lord Chancellor.)

On Question, Amendment agreed to.


The last Amendment to this clause is also consequential.

Amendment moved— Page 3, line 7, leave out ("goods") and insert ("chattel").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4 agreed to.

Clause 5 [Accrual of right of action in case of present interests in land]:


Clause 5 deals with accrual of right of action in case of acquisition of an interest in land. I am asking myself if there is any provision made in this clause, or even in the Bill at all, for the case of possession of land by one co-owner to the exclusion of his co-owners. Will not the omission of a definite reference create some doubt whether there has been a reversal of policy of the law as settled perhaps a hundred years ago? That is the short point. It is a very technical one, and as I am not very competent to explain it I have typed out in further detail what I should like your Lordships to consider. It seems to me that by this Bill the existing law, as settled by the Act of 1833 and by later judicial decisions, may no longer be relied upon; and the question may emerge in future as to how far the old Common Law rule which was reversed in 1833 may be relied upon.

Another question may also arise: whether the policy of the law as settled for over a hundred years is to be reversed. I would suggest that it would be likely to save litigation and might be advisable, if this Bill should specifically deal with the position of co-owners of land. I suggest, if I am in order, that the point might be considered by the noble and learned Lord Chancellor between now and the Report stage.


I confess that I am a little taken aback by an Amendment on Clause 5 of this measure, because I have had no notice of this at all. I have had notice of an Amendment to Clause 7, but we have not yet reached Clause 7.


May I interrupt just for a second? I have not made myself clear. I am not moving an Amendment to Clause 5 at all. I am merely asking the noble and learned Lord if he would consider the point which I have just put to him: if he would consider putting into the Bill some reference to the position of co-owners of land arising out of this Bill.


I can only say that I shall be most happy to have the point carefully considered before the Bill comes before your Lordships again.

Clause 5 agreed to.

Clause 6 agreed to.

Clause 7:

Provisions in case of settled land and land held on trusi.

(5) Where any land held on trust is in the possession of a person having a beneficial interest therein or in the proceeds of sale thereof, his possession shall be deemed for the purposes of this Act to be the possession of the trustees, or if the person in possession is both a beneficiary and a trustee, his possession shall be deemed for the purposes of this Act to be that of a trustee.


In Clause 7 I have a manuscript Amendment by the noble Lord, Lord Mancroft: on page 5, line 39, after "purposes," insert "of Clause seven".


I beg to move, in subsection (5), after "purposes," where that word first occurs, to insert "of Clause seven." May I be allowed to draw your Lordships' attention to this subsection? It seems to me that by some oversight there may have been and may still be a drafting error. Surely this subsection (5) must apply only to Clause 7 of the Bill of which it is a part, and not to the whole Bill? As the subsection is now worded, I think it will be made or construed to apply to the whole Bill. If that is so, I am wondering whether it is the intention of Parliament that we should be carrying out what is, in my opinion, no less than a revolutionary change in the law. If the Bill with subsection (5) as it now stands is allowed to become law, it will mean that a beneficial owner of land may find himself faced with a challenge to his possessory title as far ahead as twenty, thirty or forty years, when such title ought to be assured to him at the conclusion of the statutory period. Is this the situation which is contemplated by His Majesty's Government? If it is not, then I venture to ask to be allowed to import the words "of Clause seven" to limit subsection (5) to operation only so far as Clause 7 is concerned. I beg to move.

Amendment moved— Page 6, line 39, after ("purposes") insert ("of Clause seven").—(Lord Mancroft.)


This Amendment, in the view I have to put before your Lordships, is misconceived. Whether there is any such danger as the noble Lord suggests is a matter which I am perfectly willing to consider; but to insert the words "of Clause seven" in the places where the noble Lord wishes them to be inserted is wrong. The purpose of the subsection is this—and it is an important purpose. Suppose there is one beneficiary out of a number who is entitled under a trust for sale to certain rights, the land being vested in the trustees and the beneficiaries being entitled to a division of the proceeds of sale when it shall take place. That is a very common event, and it is not uncommon that, pending the sale, one beneficiary is allowed to go into the property until a suitable moment arrives for putting up the land for sale or for contracting for a sale by private contract. The object of this subsection is to prevent that beneficiary who is there permissively from setting up a title against the trustees and so defeating the title of his fellow-bene- ficiaries—it may be his brothers or his sisters.

That subsection does not operate by making his possession one deemed to be a possession for the purposes of Clause 7, because the earlier parts of Clause 7 are not material to this purpose. The clause as it stands will operate so as to make the possession of that person be deemed to be the possession of the trustees for all purposes of the measure, including in particular the purposes of Clause 4 and those of Clause 19, which deal with the position of trustees. It would therefore be quite wrong to confine the operations of this subsection to cases where the possession was to be deemed to be, for purposes only of Clause 7, the possession of the trustees.

The other point is, I think, met by the fact that the subsection does not affect the substantive law governing the interest of beneficiaries and trustees in such a case. All that we are concerned with here is a period of limitation which is going to give a particular beneficiary under a trust for sale, or some other trust relating to land, a title after a certain number of years. It is obvious that a beneficiary who is in that position should not be able to gain a title to the land, or the proceeds of sale, in question when he has only been admitted to possession in the circumstances which I have previously mentioned. I must therefore resist the Amendment.


I am much obliged to my noble and learned friend for the explanation. Am I to gather that, in layman's language, a beneficial owner of land will be protected from being put in the position twenty, thirty or forty years hence of being challenged as to his possessory title instead of being allowed to hold that title at the conclusion of what is now the statutory period? If I could receive that assurance, I should be quite content to ask your Lordships to allow me to withdraw the Amendment.


I am not absolutely convinced that I know how my noble friend confines his question, but this I am prepared to tell him. If land is held on trust for sale, or otherwise upon trust, for a number of people, and the particular beneficiary who is allowed to go into possession remains in possession for twenty years, the other people who may have an interest in the property not objecting in any way, at the end of twenty years the beneficiary who has been allowed to be in posession all that time ought not to be able to set up a title against the other people who have permitted him to be there, and the title to the land during that period ought to be deemed to be, as the clause provides, a possession of the trustee. If the trust has come to an end, and there is a single beneficiary, and he remains in possession, then the provision in the earlier two lines of the clause ceases to apply. The land will not then be held in trust for the person in possession, because there will no longer be a trust, and I am not at present able to see in what circumstances the danger which the noble Lord apprehends can arise. On the other hand, I admit that the subject is technical, and that the whole of this Bill is very difficult for a layman to follow—I may add also for a lawyer—but I shall be quite happy to consider before the next stage whether there is any difficulty arising from the particular point to which I understand my noble friend wishes to call attention.


That being so, I beg to thank the noble and learned Lord and to ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clauses 8 to 15 agreed to.

Clause 16 [Extinction of title after expiration of period]:


If I do not trespass upon your Lordships' time, may I call attention to Clause 16, dealing with the extinction of title? The clause deals with the provisions of Clause 7 of this Bill and of Section 75 of the Land Registration Act, 1925, as appears printed in this Bill. I am not quite clear to what extent this Bill will apply to registered land. If this Bill is not an amending Bill, and if the 1333, 1837, and 1874 Acts are repealed entirely by the present Bill and re-enacted, and not amended, then Section 75 of the Land Registration Act, 1925, becomes inoperative, and registered land will be subject to this Bill, and the title of a registered owner, as I see it, will, as a consequence, be wiped out in the same way as the title of any other owner of land. This seems to me to be likely to upset the whole machinery of the Land Registration Act, 1925. If there is doubt about it, ought it not to be made quite clear that that Land Registration Act will not be touched by this Bill? I have had a detailed note made so that I might support that contention, and with the permission of the Committee I would like to read it. By Section 3, subsection (12), of the Land Registration Act the "Limitation Acts" are defined as the "Real Property Limitation Acts, 1833, 1837 and 1874, and any Acts amending those Acts"—I would draw your Lordships' attention to the word "amending." The three Acts I have just named are entirely repealed by the present Bill, and then substantially, re-enacted. It seems doubtful, therefore, whether this Bill is an amending Bill within the meaning of the definition contained in the Land Registration Act, 1925. The point is whether this Bill is an amending Bill or not. The whole thing seems to hinge upon that.


In my opinion undoubtedly this is an amending Bill. You have only got to read it with care to see that, and it is entitled "An Act to consolidate, with amendments, certain enactments relating to the limitation of actions and arbitrations." Therefore in my opinion it is an amending Bill, but here again this question is rather, I will not say sprung upon me, but comes upon me without notice, and I have not had an opportunity of considering it. It will, however, be considered before the Bill comes before the House again.


I am very much obliged to my noble and learned friend.

Clause 16 agreed to.

Remaining clauses agreed to.

Schedule [Enactments repealed]:

THE LORD CHANCELLOR moved to insert:

"17 & 18 Geo. 5. c. 21. The Moneylenders Act, 1927. Paragraph (d) of subsection (1) of Section thirteen and the word 'and' at the end of paragraph (c) of that subsection"
The noble and learned Lord said: The object of this Amendment is to cure a slip. The Law Revision Committee, to whose very careful labour this Bill is due, considered amongst other things the question of the disabilities which, where they are so allowed, permit an extension of the time of limitation. There was a disability in a number of cases arising from the absence of the defendant beyond the seas. That was created by 4 & 5 Anne, cap. 3—that was, I suppose, in 1706 or 1707—and it applies in the case of actions falling within the purview of the Limitation Act, 1623, and the amending Statutes. Since modern times, and I think during my lifetime, Order 11 of the Rules of the Supreme Court, in practice, enables process to be served abroad in all cases which would be likely to create hardship by reason of difficulty in serving a writ in this country, and the reason, therefore, for the disability of absence of the defendant beyond the seas, so as to enable the plaintiff to have further time, so that the law of limitation should not run against him until after the defendant had returned, no longer applies with any force.

The Law Revision Committee came to the conclusion that it would be better that the disability of absence beyond the seas should be abolished. Accordingly the Schedule rules out, or rather repeals, those cases where that disability had been permitted. An addition, however, was made to provide for a clause to amend the Moneylenders Act, 1927, the clause being inserted in the right-hand part of the Amendment as printed—namely, the part that will come in the column headed "Extent of Repeal." The paragraph of subsection (1) there referred to enacts, with certain amendments or qualifications with which I need not trouble your Lordships, the disability arising from absence beyond the seas. We had all long intended that that, like other cases of the particular disability in question, should be abolished for the future, and accordingly this Amendment purports to bring in the Moneylenders Act, 1927, to the extent mentioned in the Amendment, and enables the Schedule to carry out an object originally intended without an omission which was unintended when the Schedule was drafted.

Amendment moved— Schedule, page 24, line 17, at end insert the said words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Schedule, as amended, agreed to.