HL Deb 01 June 1954 vol 187 cc1049-58

3.30 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.—(Viscount Hailsham.)

On Question, Motion agreed to.

House in Committee accordingly:

[The LORD TERRINGTON in the Chair]

Clause 1 agreed to.

Clause 2:

Amendment of Limitation Act, 1939, as respects personal injury actions.

2.—(1) At the end of subsection (1) of section two of the Limitation Act, 1939 (which subsection provides, amongst other things, that there shall be a limitation period of six years for actions founded on simple contract or on tort) the following proviso shall be inserted— Provided that, in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years.

LORD SILKIN moved to add to subsection (1): Provided however that where any action referred to in this subsection has not been brought within the period of the said three years, an application may be made, after the said period of three years but before the expiration of six years from the accrual of the cause of action, to a judge in chambers or to the judge of the court in which action is proposed to be brought (if not the High Court), after notice to the intended defendant, for leave to bring such an action notwithstanding the aforesaid period of three years has expired. The judge hearing the said application shall have a discretion to grant the said leave if satisfied that it is reasonable in all the circumstances so to do.

The noble Lord said: I beg to move the Amendment standing in my name. I realise that I am not going to get much assistance or encouragement from the noble and learned Lord who sits on the Woolsack, because on the Second Reading he said that if the proposals of the Tucker Committee were incorporated in this Bill he personally would be opposed to it. And I realise that I am not going to get much assistance from the noble Viscount, Lord Hailsham, who gave cogent reasons and statistics for objecting to this particular Amendment. I had hoped that I should have got some support from the noble and learned Lord the Chairman of the Committee, Lord Tucker, but he seems to have had second thoughts and actually spoke against the principle of this Amendment. Moreover, this Amendment was discussed in another place and was defeated—not even on a Division. It is against this very chilly background that I persist in moving the Amendment which, on the whole, I think is right. I do not pretend that the matter is free from difficulty—of course it is not. The very fact that the noble and learned Lord who sits on the Woolsack is opposed to the Amendment indicates that there must be strong reasons against it. But, in my considered view (I have considered the matter further since the Second Reading), the reasons in its favour are stronger than those that are against it. I still have hopes, though somewhat slight, that the question may be reconsidered.

Now what is the case for this Amendment? As your Lordships know, the present period during which one can bring an action for damages in respect of personal injuries is six years. Stripped of all refinements, the Bill proposes to reduce that period to three years. It is my submission that that may involve certain people in hardship. The type of person I have in mind who may suffer hardship is one who, through no fault of his own, possibly through the negligence of some other person, has not brought his action within the period of three years and, therefore, as the Bill now stands, is absolutely barred. He may be a person who is so ignorant (there are such people) that he has never heard of the Statute of Limitations, and has entrusted this matter into other hands; and, through some carelessness, neglect or omission of some kind, the action has not been commenced within the three years. However serious the injury may be, he is for ever barred from obtaining any remedy. That is one type of case.

The other is the kind of case where the seriousness of the injury does not manifest itself within the three years—the individual may not even know that he has a claim. As your Lordships learned in the law will know, there is the case of Archer v. Catton & Company Limited which was decided this year. That was a case where a person suffered injury by inhaling fine dust over a period of years. It was only after some years that he was advised that the injury from which he was suffering was caused as a result of his work and as a result of negligence on the part of the employers in not preventing his inhaling the dust. Apparently, if the action had been brought in proper time, the injured party would have had a perfectly arguable case—I will not put it higher than that. He was not able to bring the action in proper time because he never realised, within the period of the Statute of Limitations, that he had an action to bring. Now, under this Bill, the period is going to be still further curtailed. That is the type of action that I feel we ought not, by a limitation of the kind imposed in the Bill, to prevent from being taken. Let me say at once that I realise that it is not going to affect a large number of cases—I think the noble Viscount said that under existing law the number of cases at issue after three years was only one per cent.


Less than that.


Less than that; I accept that. Let me say as well—because if I do not, the noble Viscount will—that in the Report of the Tucker Committee it was proposed to reduce the period to two years, not three, and there would have been even more justification for granting a discretion than there is when the period is three years. I recognise that. But, with all that, I still say that there will be a residuum of hard cases whose hearing by the courts this Bill will prevent, and a number of people will be affected. I do not know what "less than 1 per cent." represents in terms of the number of litigants, and I do not know whether all of them will be affected by this Amendment; I do not think they will. But if there are fifty people per annum, even if there are only twenty people per annum, who will otherwise be denied justice through no fault of their own, I still say that this Amendment will have been worth while.

What is the case against it? It is the somewhat academic point (I say this with all respect) that it is essential at all costs to have certainty; that it should be known for certain at the end of three years that if you have not brought your action you are doomed—nothing will avail. Certainty has its advantages in the law. But we talk about the glorious uncertainty of the law, and one certainty more or less will not make very much difference. All law is really a gamble, and we are chasing a will-o'-the-wisp if we think we can secure certainty by and large. Certainty in this one respect is not going to make any difference whatever.

The other serious objection put forward to the Amendment was that it would put an intolerable burden on Her Majesty's Judges to ask them to exercise a discretion. I am astonished that the noble and learned Lord who sits on the Woolsack should put forward that particular argument. After all, he is responsible for selecting the Judges and, on the whole, the vast majority of them are wise and experienced men who are certainly capable of exercising a reasonable discretion and who are doing it every day. In all sorts of ways they have to exercise discretion. I am thinking of one which I think is a fairly good analogy. Judges who try divorce cases have not only to exercise discretion on the question of whether a petitioner who may have been guilty of misconduct himself should receive relief. Where proceedings have been unduly delayed the Judges have discretion as to whether they will deal with the petition or not. As your Lordships know even better than I, if the petitioner has grounds for divorce he has to take his proceedings without unreasonable delay, and if there has been unreasonable delay he has to satisfy the court that there were good reasons for the delay, and the Judge exercises his discretion. I have never known Judges feel that this exercise of their discretion is an intolerable burden upon them. They take it lightly. In many other respects, as your Lordships will know, Judges and even masters of the Supreme Court have to exercise discretion about time for certain operations having been exceeded. They do it and I have never known that it was a heavy burden upon them.

I do not suggest that this discretion should be completely unfettered. I realise that in exercising discretion they have to take two things into account; and if my Amendment does not say so, and if it were thought that that was the only weakness of the Amendment, then, of course, I should be happy to discuss with the noble Viscount who is in charge of this Bill a suitable form of words. There are two things to be taken into account. One is whether the delay in taking the proceedings is due to any fault of the proposed plaintiff. He must show that he himself has not been guilty of any delay but that delay is due to circumstances over which he personally had no control. The second matter which a Judge would have to take into account is whether the proposed defendant would be unduly prejudiced if the proceedings were allowed to continue. I suggest that for a Judge to inquire into and decide upon those two matters would not be unduly burdensome. I recognise that this is one of those matters which one has to balance, and the fact that the Committee which considered it reported—I do not know whether unanimously or not—in favour of some such measure as this indicates that there is a good deal to be said in its favour. I think the arguments in favour of granting this extension are much weightier than those against, and therefore that, even though a number of noble and learned Lords have committed themselves to opposing this proposal, they will not mind saving face, on reconsideration, by agreeing to this Amendment or at any rate to the principle of this Amendment—because I am never difficult about accepting the exact words. I beg to move.

Amendment moved— Page 2, line 21, at end, insert the said proviso.—(Lord Silkin.)

3.45 p.m.


My Lords, if noble Lords will permit me I will say the few words I should say before the noble Viscount behind me defends his Bill. I do so because I have to absent myself in a few moments. There is, of course, something to be said for the Amendment which the noble Lord, Lord Silkin, has moved: that has always been recognised, and, as he said, it is a balance that has to be weighed. It was weighed in 1937, when another Committee considered this very matter, and that Committee, whose Report resulted in the Limitation Act, 1939, said this—and it gives full weight to the considerations which the noble Lord has raised. You will forgive my reading it, but it is exactly the argument I will put before your Lordships' House. The Report says: We recognise the obvious advantages of giving a discretion of this kind to the court to extend the period of limitation. It would obviate the cases of hardship which are bound to occur under any rigid system of limitation, however well devised. And it would enable shorter general periods to be prescribed, without the danger of increasing those cases of hardship. There are, however, formidable objections. The exercise of such a discretion would no doubt present difficult problems to the court, and it is not easy to foresee how it would operate. In so far as it came to be exercised along well-defined principles, its chief merit, flexibility, would tend to disappear. On the other hand"— and this is my point— if it were made more or less impossible to predict from one case to another how the discretion of the court was going to be exercised, the fundamental benefit conferred by statutes of limitation, namely, the elimination of uncertainty, would be prejudiced. If I may be forgiven for saying this, it is a matter upon which judicial experience is entitled to have a great deal of weight with your Lordships. I do not pretend that I have consulted all my brethren, but I am specifically authorised by my noble and learned colleagues, Lord Oaksey, Lord Morton of Henryton and Lord Cohen, who cannot be here—they are sitting in the Judicial Committee—and whom I consulted, to say that they take the view strongly that this is a discretion which ought not to be inserted in the Bill. I thought the argument which the noble Lord, Lord Silkin, put forward exemplified in the most emphatic way the truism that hard cases make bad law. I do not deny that there may be such cases but I am sure There will be more if it is left to the court—and I repeat the words used on Second Reading—because you say, "Do what is reasonable in all the circumstances" but you do not and cannot define what are the circumstances. There is the hardship which might be entailed for a plaintiff if a solicitor has been negligent, but that is not a matter you are really entitled to take into consideration when you are considering the hardship to a possible plaintiff when an action is being brought by him after a term of years.

The noble Lord, Lord Silkin, has quite properly referred to instances where a Judge has to exercise discretion. Of course, we are all familiar with that, and from the earliest days a large part of equitable jurisdiction was based upon the discretion vested in the courts. But in time that came to be paralysed in rules as rigid as the rules of Common Law; and that might very well be the result here. As to the examples given of discretion being exercised by the courts, I do not think one can base anything upon the discretion vested in the Divorce Court. That stands on a special footing of its own. In other cases where discretion is exercised—extending the time for the registration of a mortgage or whatever it may be—an order is always made without prejudice to the rights of any other persons. Now that you cannot do where you are extending the period of limitation, for by doing that very thing you will be prejudicing the legal right of the proposed defendant. I do not think it is useful to argue from other cases where discretion is exercised. Therefore, with what weight I may carry from long experience of the Bench and from the assistance which I have obtained from the advice of my colleagues, I can only advise your Lordships that this is not an Amendment which ought to be accepted. May I conclude by asking your Lordships' indulgence if I now leave the House.

3.50 p.m.


My Lords, I must say that the noble Lord, Lord Silkin, who moved this Amendment, opened his Bible at the Book of Lamentations. He complained bitterly of the lonely position in which he found himself. I think it was even worse than he supposed, because one noble Lord who put his name to the Amendment—I refer to the noble Lord, Lord Chorley—seems to have deserted him altogether, whilst the noble and learned Earl the Leader of the Opposition was not only against him on this issue but expressed himself in the Second Reading debate in favour of a firm period of two years as against the more generous period of three years which the Bill, as drafted, gives. Therefore the noble Lord, Lord Silkin, is in splendid isolation on this matter, and I certainly do not envy him.

In my submission he is mistaken about this particular matter, and the first witness I would call against him is himself. During the Second Reading debate it is true that he declared himself in some sympathy with the principle underlying the Amendment, but his chief complaint about the Bill was—I quote his own words (OFFICIAL REPORT, VOL. 187 (No. 73), col. 820): I still wonder, … whether it is right that it should be possible for an action to be brought against a public authority within three years. His concern was for a specially privileged class of defendant. But now, by a feat of mental agility which it is almost impossible to exaggerate, the noble Lord feels himself compelled to propose an Amendment the effect of which would be to leave those same public authorities open to attack for six years if a Judge in his unfettered discretion proposed to allow it. This is, of course, a feat of intellectual contortionism which, I suppose, is logically possible, but I confess that I find it a little difficult to follow.

At the outset I was not strongly prejudiced against the proposal embodied in the Amendment. Indeed, when I originally read the Report of the Tucker Committee some time ago I felt a certain attraction towards it. But I must say that I have now come to the conclusion that there is nothing in the Amendment at all. To begin with, we have now had several years' experience of the three-year period of limitation: the great new nationalised corporations, I think, almost without exception—certainly this applies to coal, gas, transport and electricity—come under the three-year period of limitation. I have never heard the noble Lord, Lord Silkin, complain that there are even fifty people a year who might have brought actions against the National Coal Board but who are debarred from doing so by the three-year period. There is no evidence in front of anyone that this period of three years has done any injustice against the great nationalised corporations. The truth is that, with the best will in the world, the noble Lord fundamentally adheres to his prejudice in favour of privileged defendants; and it is, in fact, the purpose of this Bill to destroy the position of privileged defendants.

Now what is the politics of it? The politics of it is this. The real purpose of the Bill is to put all potential defendants in actions for damages for personal injuries, whether they are the Crown—which has consented to it—or public authorities, or insurance companies, or railway companies, or nationalised corporations, or individuals, in the same boat. We do not think there ought any longer to be privileged classes of defendants. And, as numerous noble Lords said during the Second Reading debate, that does away with what those of us who have been practising in the law for years have recognised as a very great injustice, not to fifty but to hundreds and possibly even to thousands of people, who were affected adversely by the protection enjoyed by public authorities over a period of years. The fact of the matter is that the consent of the Crown, as we heard from the Lord Chancellor, or of the public authorities would not have been forthcoming to this Bill if it contained a proviso such as that which the noble Lord proposes. This Bill would not survive for an instant if I were to give way to the noble Lord in his Amendment. It would be opposed both by the Government and by the local authorities. The truth of this matter, the politics of this matter, is that, for the sake of an imaginary less than 1 per cent. of potential plaintiffs, for the sake of an imaginary fifty people, the noble Lord is prepared to perpetuate injustice to hundreds and possibly even thousands because he wants to retain his class of privileged defendants.

I beg him, with all respect, to see the light in this, because there is no real advantage, so far as one can tell from statistics or evidence, in the two-tiered or double-decker system of limitation which he proposes, and which reflects the recommendations of the Tucker Committee, but there will be a great deal of disadvantage in losing the Bill. The Lord Chancellor has already reminded your Lordships that the Law Reform Committee before the war examined precisely this proposal and came to an adverse conclusion—so did the Monckton Committee on Alternative Remedies. Lord Tucker, who may be described as the father and mother of the two-tiered proposal of which the noble Lord makes himself the sponsor in your Lordships' House, expressly disavowed his offspring in the Second Reading debate and told as, in effect—I paraphrase his words—that he really put in this proposal only in order to get an agreed Report as between two divergent groups in his Committee. There remains the noble Lord, who once thought it was too much to give in the case of local authorities a longer period than one year, and who is apparently unmoved by the spectacle of national industries with a three year period, yet who now wishes, at the Committee stage of this Bill, to make provision for a period of limitation of six years, subject to the unfettered discretion of a Judge. I ask your Lordships not to accept the Amendment.

3.58 p.m.


My Lords, I am not going to press this Amendment to a Division. I will only say to the noble Viscount, with all respect, that he has hardly addressed himself at all to the merits of the Amendment. He has sought to show that I have been inconsistent by referring to arguments which I put forward about local authorities on the Second Reading, but he has not addressed himself to the merits of this Amendment. I suppose his strongest point is that if this Amendment were accepted it would mean an end of the Bill. I do not want to kill the Bill because I think there is a good deal in it. I am sorry about this Amendment, but I do not object to its being negatived.

On Question, Amendment negatived.

Clause 2 agreed to.


My Lords, may I interrupt the proceedings of the Committee to move that the House do now resume, so that I may make a statement? I beg to move that the House do now resume.

Moved, that the House do now resume.—(The Earl of Selkirk.)

On Question, Motion agreed to, and House resumed accordingly.