§ 2.50 p.m.
§ Amendments reported (according to Order).
EARL JOWITT moved, after Clause 13, to insert the following new clause:
.The Court of Appeal shall have power to review the amount of damages awarded in any action for libel or slander and, if they consider the amount either grossly inadequate or grossly excessive, to substitute such a sum as should in all the circumstances of the case have been awarded.
The noble and learned Earl said: My Lords, at least there is this to be said about this Opposition: having regard to what has just taken place, no one can say that they are unreasonably obstructing the proceedings of the House. I certainly have not the least desire to obstruct the passage of this Bill, but as I have said before, this is art important Bill, and I feel that it has certain blemishes. I have therefore thought it right on the Report stage, to put down an Amendment which I will now briefly describe to your Lordships. I would say, first of all, that there is nothing of a Party controversy about this Bill. Everybody is perfectly entitled to take his own line about the matter, and in the line which I have taken about it I have been speaking for myself
entirely and not necessarily for anybody else.
The position to-day, as I see it, is this—the noble and learned Viscount, Lord Simon, will check me if I am wrong. Where there has been a trial by a jury of a libel action you find damages awarded. I should suppose that the experience of every counsel is this. It is impossible to formulate with any particularity what the damages should be, and the result is that sometimes the most astounding damages are awarded, one way or the other: they may be very high, or they may be very low. In no branch of the law, I should say, speaking for myself—and I am bound to say that I have a considerable experience in this particular branch of the law—is it more difficult to forecast what the damages are going to be than in this branch, and in no branch of the law do the jury sometimes go more wildly wrong. What happens at the present time if a person who has had heavy damages awarded against him goes to the Court of Appeal? Where you have had a trial by jury—I think I am right in saying this, but I invite correction—if the Court of Appeal think that the damages are grossly excessive they can do nothing except order a new trial. The result is that the parties are put to the frightful expense of having the whole matter tried again. I think I am right in saying that if it is tried by a judge, the Court of Appeal can vary the amount awarded by the judge, because an appeal from a judge is a re-trial. But if it is an appeal from a jury, the Court of Appeal, even if they think the jury must have gone absolutely mad, can do nothing except order a re-trial, thereby putting the parties to the lamentable expense of a new trial of the proceedings. I will read to your Lordships my Amendment. It says:
The Court of Appeal shall have power to review the amount of damages awarded in any action for libel or slander and, if they consider the amount either grossly inadequate or grossly excessive, to substitute such a sum as should in all the circumstances of the case have been awarded.
From my long experience, that power seems to me to be exactly what is needed. It was a precise recommendation of the Porter Committee, though I confess that I have slightly altered their recommendation by putting in the adverb "grossly."
It is not my intention that the Court of Appeal should be substituted for the jury, but that they should have a power of correction if they think it obvious that the jury have gone completely wrong, without rendering it necessary to have a new trial. That is my proposal.
§ I believe—and this is a matter for your Lordships—that all lawyers would agree that this is a reasonable power. I believe that up to that point everybody who has studied this matter will agree that this is right. But—and this is the argument against me—since the Porter Committee was appointed, I, when I was Lord Chancellor, appointed what is now the Evershed Committee, who have the general remit which calls upon them to consider how they can reduce the costs of litigation in the High Court. And, of course, one of the subject matters of actions in the High Court is libel and slander actions. Therefore, it is perfectly true that within the general remit of the Evershed Committee there comes this question of what should be done with regard to the functions of the Court of Appeal in libel and slander actions. The Evershed Committee have been sitting for a long time—I do not complain about that, because they had an immense task to carry out—and what provisional conclusions they have come to (and they can be only provisional) I have not the least idea. It may be that they will say that this is right, and that this power should be extended to all classes of actions; or they may say that it is wrong and should be extended to no class of action.
§ If they adopt the latter course, I venture to say that we, as a legislative Chamber, must make up our own minds about this. If we think it right in this limited case, we should say so, and not wait upon the Report of a Committee, however eminent that Committee may be, to determine for us what we ought to do about this matter. If, on the other hand, the Evershed Committee are going to say that this is a sound principle, and should be extended to all classes of litigation, then no harm will be done by first of all introducing in this Bill, which deals with libel and slander, this sound principle. And let us by all means, when the Evershed Committee have reported, with that celerity which is customary after a Committee's Report, extend the principle to all other classes of actions.501
§ We have a principle in the law generalia specialibus non derogant. Surely, for the reasons which I have given, it is wrong to say that you should not deal with a particular case just because there is some Committee which may in the future deal with the general case. Therefore, I ask your Lordships to support me in this matter. I say, quite frankly, that this is the attitude I should adopt. I suggest that we should send this Amendment down to another place for their consideration—they have already got to consider various other Amendments. If there is trouble about this Amendment, and they will not accept it, then, in order that the Bill may pass—and I certainly have not been trying to prevent it from passing, although I think it a very disappointing Bill—I should agree with them. There fore, we shall not imperil the Bill in the least by doing this. I suggest that we send the Bill down to another place with this Amendment for their consideration. If they accept it, well and good, and the Bill will be rather better than it is; if they reject it, then let us accept their rejection and get the Bill without this Amendment. I suggest to your Lordships, for the reason which I have given, that this ought to be done.
§ No doubt we shall hear from the noble and learned Viscount, Lord Simon, and probably from the noble and learned Lord the Lord Chancellor on this matter. I ask them both to make plain to your Lordships whether or not they think this Amendment as it stands is a good Amendment. I venture to think that you will probably find that they both think it is; and I venture to think, also, o that you will probably find that they will both say that the objection to the Amendment is that the Evershed Committee are covering the whole field. If that is right, then I ask your Lordships to say that, even although the Evershed Committee are covering the whole field, there is no reason why in this particular corner of the field we should not erect this little provision, which, as I believe, is a perfectly sound provision. There is nothing of a controversial or a Party character about this matter, and I submit myself to your Lordships. It is a matter upon which the non-lawyers can decide just as well as tile lawyers.
§ It sometimes happens that a jury have gone "haywire" (if I may use the 502 American vulgarism) about damages, and the matter comes to the Court of Appeal and the Court of Appeal say: "No sensible jury could possibly have awarded this sum of damages; they must have gone wrong somewhere." When this has happened, is it not in the interests of everybody that the Court of Appeal should then be able to say: "The proper sum of damages which the jury ought to have awarded is £x instead of the £y they did award"?—that is the function and power which the Court of Appeal have wherever the case is heard by a judge alone, and which they have not got where it is heard by a jury. As I have told your Lordships, this was an actual recommendation of the Porter Committee, and I expect to hear that everybody is very sympathetic to it. I expect to hear no one who has a word to say against it, except on the ground that this matter is being considered in the wider ambit of the Evershed Committee. In my submission, that is no reason whatever why we should not make this Amendment here. I beg to move.
After Clause 13, insert the said new clause—(Earl Jowitt.)
§ 3.1 p.m.
§ VISCOUNT SIMON
My Lords, we are all grateful to the noble and learned Earl for presenting this matter to us on the Report stage of the Bill so clearly and, as always, in such measured terms. I most warmly confirm an early observation in his speech—that there is nothing which involves political Parties in this matter. We are just trying to return this Bill to the Commons in the best form we can. I share the view of the noble Earl that there are some things in the Bill which might have been rather differently expressed, and there are some things not in the Bill which one might have been glad to see there. We are dealing with something sent to us from another place, and we have to consider what it is we ought wisely to do before we send the Bill back there. The Bill already contains one or two small Amendments, and therefore it will go back to the House of Commons in any case.
With regard to this particular proposal, as your Lordships know—though I do not think the noble and learned Earl actually stated this to-day—this matter was raised by him on the Committee 503 stage, and we had a considerable discussion. He put his case, as he was sure to put it, most persuasively. The Amendment was not in quite the same form, and I think myself that the form in which he has now moved the new clause is more attractive than that in which he moved it on Committee. As the clause now proposed stands, it may be urged that it does not make any very substantial change. It certainly would be correct to say that if the Court of Appeal had before it a case which was not tried by a jury, and which involved an award of damages, the Court of Appeal would, if it felt the case required it, according to its ordinary practice substitute its own notion of what should be done. I think, too, it is a definite merit, if other things are equal, and if it is right for the Court of Appeal to exercise a wider discretion, that their decision should lead to a conclusion rather than to the ordering of a new trial.
But there are, I think, one or two difficulties. I shall not speak with the noble Earl's confidence that one view as opposed to the other is right. I shall try to serve the House by making one or two observations and quotations in order that it may measure the matter maturely, and naturally we shall want to know what the Lord Chancellor has to say. I think it would be convenient if I read to the House the actual passage in the Porter Report which deals with this matter. Your Lordships must, of course, remember that the Porter Committee was reporting before the Evershed Committee was appointed. This is what the Porter Committee said on page 38 of its Report:We are satisfied that, so long as the jury system remains part of the English law of procedure, actions for defamation should be tried, if either party so desires, before a jury. We consider, however, that the Court of Appeal should exercise wider powers in relation to the amount of damages awarded by juries in actions for defamation, and should be empowered, if it thinks fit, itself to reassess the damages on appeal instead of necessarily ordering a new trial.If I may say so, I think the noble and learned Earl is completely justified in saying that his Amendment, in proper Parliamentary language, is addressed to putting that recommendation into effect.
But there are one or two things which have to be considered which rather weigh 504 the other way. Why is it that we feel in this country that actions of defamation should be tried by a jury? I think it is mainly because the question as to what the damages ought to be is, strictly and scientifically speaking, an insoluble question. It is not very difficult to measure the amount of damage for many breaches of contract and even for some torts, but, whatever the tribunal may be, how much or how little a plaintiff should get for defamation is one of those questions which it is much easier to ask than to answer. Speaking, if I may, like the noble Earl, Lord Jowitt, with a good deal of knowledge in the past of this sort of litigation, I should say that the reason why I look to a jury to do it is because juries will give you answers to completely insoluble problems.
How much money should a woman get for a broken heart owing to a breach of promise of marriage? I do not think there is any scientific means of measuring that. Our system is to choose twelve—a very good number—men and women, who give up their daily occupation and devote themselves, in all honesty, like good citizens, to trying to fix the figure. Of course, people say that juries are unanimous, but in point of fact one can easily see that inside the jury room there may usually be different figures and, I dare say, sometimes a sort of average. But at least they give an answer; and I do not think it at all follows that because, in that answer, the jury sometimes go very wide—and they certainly do—the Court of Appeal will be equipped with a scientific instrument which will measure the right amount. There are three members of the Court of Appeal. I am not at all sure that, if we were let into the secrets of that tribunal, we should find that they are always agreed with one another in private. But they have to reach at any rate a majority conclusion when they give their judgment. Therefore, I think it is fallacious to suppose that, by going to the Court of Appeal, you really go to a body which, owing to its training and special equipment, is able to answer a question which really and truly is a question which nobody can answer by any scientific measurement.
I do not know in the least what views may be hereafter expressed by the Evershed Report. It is conceivable that 505 the consideration I have mentioned may be considered by them as of some weight and may lead to the view that there should not be this extension. I mention that as one of the considerations which I think might fairly weigh in our minds. It is only right to add that if the matter were left entirely to myself—I am trying to answer the noble and learned Earl with complete straightforwardness—I do not think that I should feel any great objection to what he has now proposed. It is rather difficult to decide, but I am certainly not going to take up a strong attitude as to where the merits lie. There is this to be said, however. In the debate which we had in Committee, if I remember rightly the noble and learned Lord, Lord Porter, took part, and when it came to this particular proposal, notwithstanding the fact that he and his Committee had recommended it, Lord Porter took up the position that in view of the situation which now existed he would not urge the House to make this change. That was most powerfully reinforced by what was then said by the Lord Chancellor, the head of the Law, and who has to keep a very wide survey of the whole subject. I imagine the Lord Chancellor is now going to express his view on this subject, and, for my part, I am bound to pay the greatest respect to the view which he takes. I hope I do not appear to be havering between two things—I do not wish to do so. I have said what my personal reaction would be, but at the same time, before I could decide what to do, I should want to know what the Lord Chancellor, with his special means of judging this matter, thought to be the wise course for us to take.
I do not think that this is an Amendment which was proposed in another place. It is an addition to the Bill. Whether it is a wise addition or not is a question which we now have to decide, and I shall be greatly governed in my ultimate view by the view which the noble and learned Lord on the Woolsack now takes. It is quite true that we are not going to do anything desperate or final if we support this Amendment: it could always be recalled, after further consideration, by other legislation, if necessary. But it is an important consideration that the whole extent of the powers of the Court of Appeal are now being reviewed by an authoritative Committee appointed more recently than the Porter 506 Committee. When the noble and learned Lord, Lord Porter, spoke on this Bill the other day, he was not advocating that this change should be made at this stage; and it may be that the Report from the Evershed Committee will throw a stronger light on the subject than is thrown upon it at present. Nothing could be more reasonable than the way in which this matter has been presented by the noble and learned Earl—I say that in all sincerity. This is not a Party matter—we all want to get this Bill into the best shape we can—and I should like to hear what the Lord Chancellor says before I make up my own mind. I think that will be the attitude of all your Lordships who are good enough to attend here—some of you, I am afraid, at some inconvenience at this hour in the afternoon.
§ 3.12 p.m.
THE LORD CHANCELLOR (LORD SIMONDS)
My Lords, I concur in what the noble and learned Viscount has said as to the moderation with which the noble and learned Earl has presented this Amendment to your Lordships. He has, like the good advocate whom I have known for so many years, forestalled the argument which I proposed to put before your Lordships as to why this Amendment cannot be accepted. This is a very great change in the law which is proposed—let there be no doubt about that. I will presently venture to tell your Lordships why; but it is a change which, if it affects any tort, should affect all torts. I use a word which nay perhaps not be familiar to all of your Lordships. What the lawyers mean by "torts" is wrongs in respect of which a civil action lies, such as libel, breach of promise, negligence or anything of that kind. It is one of the subjects which the Evershed Committee now have under consideration.
Whether this grave change—for as I have said, it is so—is to take place, that very powerful Committee set up by the noble and learned Earl is now considering. I have the advantage of seeing the learned Master of the Rolls who presides over that Committee, and he tells me that, without pledging himself in any way, he hopes that their Report may be out by the end of the year. He further tells me, again without pledging himself in any way, that even if the Final Report is not issued, it is possible that there may be an Interim Report covering this particu- 507 lar matter. I cannot but think that your Lordships, appreciating that the matter is now under the consideration of that Committee, set up for that very purpose, will feel this question should not be considered further until we have had an opportunity of knowing what is the result of their very weighty consideration of the matter. It is for that reason that I respectfully suggest to your Lordships that we should not accept this Amendment.
If the fact is, as the noble and learned Earl has suggested, that no lawyer would disagree with the reasonableness of his proposal—a statement from which I differ profoundly—then we shall assuredly have a unanimous Report from the Evershed Committee which will be in favour of his Amendment, and in due course, we can legislate accordingly. But I venture to think that, after these many hundreds of years, there is no particular hurry. If the Committee are in favour of the noble Earl's Amendment, we can, as I say, legislate accordingly; but supposing, having given the matter all the consideration it deserves, they come to a contrary conclusion, what is our position? Can it be pretended that this House has given the matter all the consideration it deserves? I venture to think that it has not. We have not heard one word from another place on this matter; we have heard none of the evidence on which the Evershed Committee will come to a conclusion, and we are invited in this particular branch of the law to come to such a decision. That, I am sure, is not the right way to treat so important a matter. There is a further possible solution. It may be that the Evershed Committee will say that there should not be this right to go to the Court of Appeal. Or they may say that there should be a right that, for instance, if both parties agree the Court should have the power to assess the damage. All these possibilities will be taken into account by the Evershed Committee in considering this matter, possibilities which we have had no opportunity of considering. Therefore, we should not come to this conclusion until we hear what the Evershed Committee have to say.
This is, as I have said, a grave change in the law. A plaintiff who thinks he has been defamed has an historic and 508 traditional right to have his character vindicated by a jury of twelve persons. He is not only entitled to have his character vindicated by a jury assessing damages; he is entitled, just as a man who is on trial is entitled, to the verdict of twelve men or women who are a cross-section of the community, and he is not bound to put himself on the opinion either of a judge or of three judges, whose background and training and outlook will be something different from the twelve jurymen or jurywomen. So to say that, the matter going to the Court of Appeal, it shall be for three judges to say how much damage he has suffered would mean depriving him of the right to which he is entitled. It would mean depriving him—it is not too much to say it—of his birthright. This is a right to which a person is entitled, whether that person be a man claiming damages for libel or a woman who is claiming damages for breach of promise of marriage. It is a right to which any one of your Lordships is entitled: to claim to have damages assessed if he suffers injury from some accident. These are claims which we are entitled to have assessed by twelve jurymen or jurywomen. I therefore hope your Lordships will feel that this is a matter which is entitled to graver and longer consideration than we have been able to give to it as an Amendment moved to this Bill. We shall have ample opportunity of considering it in due course, when we have the Evershed Committee's Report.
Although I personally feel some sympathy with the noble and learned Earl, Lord Jowitt, yet I would, on the whole, class myself amongst those who would not accept this Amendment, even if the matter were not under discussion by this Committee. I do not claim to speak with the experience of the noble and learned Earl but, on the whole, I think it is better that a man who alleges that he has been defamed should have his damages assessed by twelve jurymen, and by no others. If it happens that the matter goes to the Court of Appeal and the Court of Appeal have to send the matter down for a retrial, then I think that the noble and learned Earl will agree with me that what happens in more cases than not is that the parties will have received sufficient guidance and will come to a settlement. For these reasons—I am 509 afraid I have detained your Lordships at some length—I cannot accept the Amendment which the noble and learned Earl proposes, and I ask your Lordships to resist it.
§ 3.22 p.m.
§ EARL JOWITT
My Lords, I do not want to keep up this controversy unduly. I do not accept at all the statement which the Lord Chancellor has made. If it were a question of surrendering the right to be tried by a jury and to have a jury fix the damages, of doing away with that and having three judges in the Court of Appeal, I should be against this Amendment. I would rather have the damages assessed by a jury. But, with the greatest respect to the Lord Chancellor, that is not the point at all. The Court of Appeal do not interfere with the verdict of a jury merely because they would not have found that amount, or because they feel that the jury were either too generous or too niggardly. Not at all. The Court of Appeal interfere only if they think the jury have gone completely wrong. It is only in those circumstances to-day that the Court of Appeal will interfere.
To-day, what happens is that the Court of Appeal say: "These damages cannot possibly stand. That being so, we have to send the case down for a new trial." Of course, if the parties agree that the
|Jowitt, E.||Bingham, L. (E. Lucan). [Teller.]||Macdonald of Gwaenysgor, L.|
|Burnham, L.||McEntee, L.|
|Hall, V.||Dorchester, L.||Mathers, L.|
|St. Davids, V.||Faringdon, L. [Teller.]||Milner of Leeds, L.|
|Stansgate, V.||Greenhill, L.||Shepherd, L.|
|Henderson, L.||Silkin, L.|
|Ammon, L.||Kenswood, L.||Sinha, L.|
|Amwell, L.||Lucas of Chilworth, L.|
|Simonds, L. (L, Chancellor.)||Morley, E.||Ashburton, L.|
|Munster, E.||Ashton of Hyde, L.|
|Sutherland, D.||Onslow, E.||Belstead, L.|
|Wellington, D.||Radnor, E.||Brand, L.|
|Selkirk, E.||Brassey of Apethorpe, L.|
|Cholmondeley, M.||Waldegrave, E.||Carrington, L.|
|Reading, M.||Ypres, E.||Clanwilliam, L. (E. Clanwilliam.)|
|Salisbury, M.||Cohen, L.|
|Allenby, V.||De L'Isle and Dudley, L.|
|Albemarle, E.||Bridgeman, V.||Dowding, L.|
|Alexander of Tunis, E.||FitzAlan of Derwent, V.||Ellenborough, L.|
|Cromer, E.||Hudson, V.||Fairfax of Cameron, L. [Teller.]|
|De La Warr, E.||Long, V.||Foxford, L. (E. Limerick.)|
|Dudley, E.||Maugham, V.||Hampton, L.|
|Fortescue, E.||Swinton, V.||Harris, L.|
|Grey, E.||Trenchard, V.||Hayter, L.|
|Howe, E.||Hylton, L.|
§ Court of Appeal should then fix the damages, the parties are absolutely the masters of the situation; you do not need an Evershed Report or anything else to tell you that, and, in those circumstances, everything can be amicably fixed. But it does sometimes happen that the parties do not agree, and I maintain that it is a real misfortune that, that being so, in those rare cases where the Court of Appeal are satisfied that the jury have gone absolutely wrong, the Court of Appeal should not have the right to say: "Well, to save the parties the trouble, the anxiety and the expense of all this going back for a new trial, in those circumstances we ourselves will fix the amount of damages." That is the proposition and I hope that a considerable number of your Lordships, notwithstanding the opinions which have been expressed, will agree with me in saying that this is an Amendment on which this House ought to insist, and that this House ought not to surrender its functions and its legislative decisions to any committee, however eminent that committee may be. If this House thinks that my Amendment is right, then the House ought to insert it in the Bill.
§ On Question: Whether the proposed new clause shall be there inserted?
§ Their Lordships divided: 21; Not-Contents. 73.511
|Jessel, L.||Monck, L. (V. Monck.)||Saltoun, L.|
|Jeffreys, L.||Morton of Henryton, L.||Sandford, L.|
|Killearn, L.||Newall, L.||Strathcona and Mount Royal, L.|
|Kindersley, L.||Oaksey, L.|
|Leathers, L.||Ormonde, L. (M. Ormonde.)||Teynham, L.|
|Leconfield, L.||Palmer, L.||Turnour, L. (E. Winterton.)|
|Llewellin, L. [Teller.]||Rennell, L.||Wakehurst, L.|
|Lloyd, L.||Rockley, L.||Waleran, L.|
|Mancroft, L.||Rotherwick, L.||Wolverton, L.|
§ Then, Standing Order XXXIX having been suspended (pursuant to the Resolution of July 17):
§ Moved, That the Bill be now read 3a.—(Viscount Simon.)
§ On Question, Bill read 3a, with the Amendments, and passed; and returned to the Commons.
§ House adjourned during pleasure.
§ House resumed.