§ 4.20 p.m.
§ 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 LORD MERTHYR in the Chair]
§ Clauses 1 and 2 agreed to.
§ Clause 3:
§ Savings for adverse claims, etc.
§ (2) No proceedings shall be begun by any person to enforce his right to any property by virtue of the foregoing subsection after the expiration of one year beginning with the date of the passing of this Act or the date when the right first accrues to him or to some person through whom he claims, whichever is the later, unless the right (before or after its accrual) either—
- (a) has been concealed by the fraud of some person administering the imperfect trust provision or his agent; or
- (b) has been acknowledged by some such person or his agent by means of a written acknowledgment given to the person having the right or his agent and signed by the person making it, or by means of a payment or transfer of property in respect of the right;
§ This subsection shall not be taken as extending the time for bringing any proceedings beyond the period of limitation prescribed by any other enactment.
§ (3) For the purposes of the foregoing subsections, a right by reason of the invalidity of a disposition to property comprised in, or 841 representing that comprised in, the disposition shall not be deemed to accrue to anyone so long as he is under a disability or has a future interest only, or so long as the disposition is subject to another disposition made by the same person, and the whole of the property or the income arising from it is held or applied for the purposes of that other disposition.
§ LORD NATHAN moved, in subsection (2), to omit all words from "Act" down to the end of paragraph (b). The noble Lord said: I know that the noble and learned Lord, the Lord Chancellor, arranged for the postponement of the Committee stage from Tuesday until today in view of the fact that I, who am interested in this Bill, was abroad. I am grateful to him for that. It was for the same reason that the Amendments standing in my name on the Order Paper could not be put down until yesterday, and I trust that that: fact has not been an inconvenience to any of your Lordships. The matters dealt with by these six Amendments are really the same point or, rather, the same point, looked at from somewhat different angles. The Bill, the Second Reading of which took place on January 19, has as its object the removal, for the benefit of trustees and beneficiaries of charitable trusts, of uncertainty as regards trusts which combine both a charitable and a non-charitable purpose and which in the ordinary course of law therefore might be held to be invalid.
§ The Bill seemed to me, except in one particular, to answer admirably the purpose at which it was directed. The exception was this. Whereas the Bill provided that in general the period of uncertainty should be limited to a year from the date of the commencement of the Bill, during which legal proceedings might be taken, an exception was made for the benefit of those under disability, such as infants, who were permitted a longer period—in the case of infants until they were twenty-one; as regards others under disability until the disability ceased; and as regards persons in whom rights had not actually accrued, until their rights had accrued. That meant that: whereas the general period of one year would apply, in particular instances a much longer period might elapse. It is quite possible—I could give many instances of this but I will not weary your Lordships with them unless the noble and 842 learned Lord, the Lord Chancellor, so desires—that a period of fifty or sixty years in certain circumstances might pass daring which uncertainty might persist.
§ The purpose of these six Amendments—which are only one Amendment divided into a number of Amendments so as to effect the object I have in mind—is to limit the period of uncertainty for all purposes so that all persons, whether under disability or not, should alike be limited to a period of one year within which to make any claims they have by reason of the fact that the trust appears to be invalid.. In other words, they must begin proceedings, or must give express notice of their intention to begin proceedings, within one year of the commencement of the Bill. The Bill as drafted provides, as I have said, for what is in effect an extension of time in the case of those under disability; but there have been instances in legislation in the past—legislation of rather a different character, it is true—where no such extension of time has been given to infants and others under disability. I quote the Fatal Accidents Act, to which I referred on the Second Reading of this Bill, where the period is six months after the death, during which a claim has to be made, without any reservation in favour of infants or others under disability. There is the Copyright Act, in a different kind of field, where the period is three years. But the Act which appears to me to have the greatest analogy to the present Bill is the Inheritance (Family Provisions) Act, 1938, under which it is provided that claims must be made within six months of the grant of letters of administration of the estate of a deceased person. Parliament deliberately on that occasion, or at any rate in fact, made no provision in favour of infants or others under disability. When the period thereby allowed—six months from administration—had elapsed, claims were barred.
§ The effect of the Amendments upon the Order Paper would be that infants and others under disability in the case of these imperfect trust instruments would in principle be the same as under the Inheritance (Family Provisions) Act, and that there would be a limitation to one year, not only in the general cases but as regards those under disability. The 843 great advantage of that would be that trustees and beneficiaries of imperfect charitable trusts would, at the end of the year, know where they stood. It is the main object of this Bill to ensure that that purpose should be fulfilled. There is this gap at present in the fulfilment of that purpose. I hope the noble and learned Lord may find it possible to accept these Amendments, which will, as I think, fit in with the general scheme of the Bill and fulfil the object which all concerned have in mind. I beg to move.
Page 3, line 1, leave out from ("Act ") to end of line 11.—(Lord Nathan.)
I hope Her Majesty's Government will not accept this Amendment, for two reasons. The first is that, if I understand the Bill aright, it refers to imperfect trusts that may be formed in the future as well as those that have been formed in the past—
Very well. My second reason still stands. If the noble Lords carries his Amendment, he puts the representatives of minors in the position that they have to act within a year or not act at all, but it leaves the minor, when he attains his majority, the right of action against his trustees in case they have acted wrongly in refraining from pursuing their right under this Bill. That would put the trustees in the position of being practically forced to take action which otherwise they might avoid.
§ 4.27 p.m.
THE LORD CHANCELLOR (LORD SIMONDS)
I am sorry to say that I cannot on behalf of Her Majesty's Government accept this Amendment. I do not think the noble Lord thought that I would. I venture to think that he has approached the matter from a somewhat wrong angle. This is a Bill which is intended to confer great benefits upon charities, and this is the benefit substantially which it confers. It does not deal with cases in which there is any dispute, but, on the contrary, it confirms an invalid disposition: that is to say, one giving to a charity or charitable institution property which in law it is not 844 entitled to hold. We may or may not like the law, but that is the position. The Bill is aimed to rectify what is regarded as a grievance, but to rectify it by conferring a title on charities which at present they do not have. It is thought —rightly, I think—that that benefit ought not to be conferred without some qualification: that is to say, that those who were in a position to challenge the validity of the disposition under which the charity purports to hold, and reclaim property which is in law theirs, should not be debarred from making their challenge and recovering their property as long as their demands were not stale.
Accordingly the Bill saves the rights of those to whom the rights accrued less than six years from the relevant date—December, 1952—and provides, further, that in any case the claim must be made within one year after the coming into force of the Act. Then the question arose which divides the noble Lord from myself: what is the position of persons under disability? We can confine it, I think, for the purposes of this argument, to the case of an infant. The position of an infant has always been safeguarded in law, in regard to the right to recover property, with a single exception with which I will deal and to which the noble Lord referred. Always his rights are preserved until he has attained his majority and can assert them. That is what, in effect, we do here, because we say that, in the case of an infant, he shall be able to assert his rights within one year of being able to assert them —that is to say, attaining the age of twenty-one years. I venture to think that, in legislation of this kind, which is, in a sense, of a retrospective character and which confers upon institutions property to which they are not in law entitled, that is the least we can do for an individual whose rights are being taken away from him.
Secondly, I would say this to the noble Lord. I venture to think that, if he had his way, it would be much worse for the charity than if he did not—and for this reason. I conceive a probable case to be that, when an infant comes of age, and is in a position to assert his claim, he will appreciate, as those who are now adults appreciate, that he might be defeating the intention of the testator or settlor by asserting his rights, and will refrain from asserting them. That is a common case, 845 no doubt, to-day. If you put it upon the infant, within one year of the date when the Bill comes into force and becomes an Act, to assert his rights, that means that the rights must be asserted, if by anybody, by his guardian: and most assuredly his guardian will not take upon himself the responsibility of saying: "I will not recover for the infant the property which is lawfully his." Accordingly, I should imagine that in every case where the infant was the person entitled, the guardian would take steps to recover the property. There is, of course, the other case, where there is no guardian—at any rate, no natural guardian, a parent, father or mother—and where a guardian might have to be appointed by the court. Are we to go through that sort of process in order to find somebody who can claim on behalf of the infant? I suggest not. It would be doing a grave injustice in that case, as I think, to the infant himself. In those circumstances, I venture to hope that, in the interests of the charities which he so ably represents, the noble Lord, Lord Nathan, will think fit to withdraw this Amendment, or at any rate, will not press it.
With regard to the Acts to which he has referred, he has very fairly staled that they are in a rather different context. For instance, in regard to the Inheritance Act, which deals with a very different situation, you have somebody who is making a claim on something which is not, in law, his. He seeks to set aside the will, which is a valid will, of the testator, in order that, under the provisions of the Inheritance Act, he may recover certain relief. Surely it is right that, if he seeks to set aside the provisions of a will, he should do so within a limited time. The Fatal Accidents Act stands on a footing of its own because it is clear that the facts must be investigated within a short time of the fatal accident. Otherwise, of course, the evidence would not be available and the circumstances would have changed. The Copyright Act provided for three years. I am bound to say that I do not quite know why that was so, but it clearly stands in a context of its own. For these, amongst other, reasons—I will not detain your Lordships any longer—I cannot assent to the first Amendment which the noble Lord proposes. I think the noble Lord will agree with me that, in dealing with the first, we cover them all, 846 because the others are, in effect, consequential. I am sorry that I cannot accept them.
§ LORD NATHAN
I have listened with great respect to what has been said by the noble and learned Lord the Lord Chancellor and by the noble Lord, Lord Saltoun. I hope they will agree that, although I put forward a case with which they do not agree, nevertheless I put it forward reasonably. I regard the answers that I have received, and the comments to which I have listened, as convincing. In those circumstances, I beg leave to withdraw this Amendment; and with that Amendment the others fall.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLOR
This is an Amendment which is intended to fill a gap in subsection (5) of Clause 3. The Bill preserves, in certain cases, the right of the beneficiary to sue the trustees who have been administering the trust if they have been doing so in disparagement of his rights after having had notice of that.
As the clause is drawn, it provides that the preceding clauses shall not prejudice the beneficiary's right, by virtue of his interests in the property, to damages in respect of any dealing with the property. The relief which the claimant in such a case might have might be by way of damage, or it might be by invoking the equitable jurisdiction of the court and asking for the administration of the trust and account; or it might be for other relief, such as an injunction. Accordingly, all that we propose is that after the word "damages" we should insert the words "or other relief." So the clause will now read…damages or other relief in respect of any dealing with the property.…I think that the noble Lord, who has interested himself in this case, will agree that this is a necessary addition. I beg to move.
Page 3, line 40, after ("damages") insert (" or other relief").—(The Lord Chancellor.)
§ LORD NATHAN
All I will say is that I accept the views of the Lord Chancellor that this seems to be a most desirable Amendment.
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Remaining clauses agreed to.
§ House resumed.