§ 4.10 p.m.
§ Order of the Day for the Second Reading read.
§ VISCOUNT HAILSHAM
My Lords, this measure comes before your Lordships' House from another place in the modest guise of a Private Member's Bill. I think it right, therefore, to begin by saying that, despite this humble approach to your Lordships' House, it must be regarded as an important measure of law reform. And lest anyone should think that it is inadequately sponsored in your Lordships' House by a somewhat junior member of the legal profession, I must warn your Lordships that, dotted about the Chamber, there are a number of powerful, concealed batteries, ready, I hope, to open fire in favour of the Second Reading—one at least, I trust, conveniently situated upon the Woolsack itself, from which a deadly enfilade fire may be opened at any time upon the Bill's opponents. It has now received a wide measure of blessing, coming, I think, from persons of all political persuasions, and in another place speakers were able to say that it commanded the support of Her Majesty's Government, of the Law Society and of at least one of the large trade unions.
Its provisions are based largely upon the labours of the noble and learned Lord, Lord Tucker, and his colleagues of the Tucker Committee, appointed for this very purpose; and where, as they do in one important aspect, diverge from the recommendations of that Committee, they command the equally powerful support of Sir Walter Monckton's Committee on Alternative Remedies. This Bill is concerned mainly with the limitation of actions. Of necessity, therefore, it is difficult to summarise its provisions with complete accuracy. The limitation of actions is based not upon some abstract theory of justice or jurisprudence but upon the practical needs of a living commercial community. It has been found that, in practice, causes of action raised long after the event are difficult to prove or disprove, with resultant uncertainty in the outcome. Also the potentiality of new causes of complaint being raised many years after the event gives rise to an uncertainty 812 amongst the public which is to be deprecated in matters affecting their lives. But there is no ideal period based on any abstract principle and jurisprudence. There is, therefore, always an element of the arbitrary in matters affecting the limitation of actions. It is a practical question rather than one upon which abstract principles can be invoked.
There are three main objects of this particular Bill, which amends, in effect, the provisions of the Limitation Act, 1939, and other Statutes. First of all, it will bring the position of public authorities, as defendants, into line with other classes of defendants for the purposes of limitation. This has been an object canvassed by law reformers for a great number of years, and perhaps has become more urgent in recent years owing to the fact that a number of new public authorities have been created by Parliament with special periods of limitation. For instance, in the case of the nationalised industries Parliament has refused its sanction to the ordinary and general period of limitation assigned to public authorities by the Limitation Act, 1939, and has created individually a period of limitation of three years. It has also become more important because, since 1939, as I understand the matter, the law of Scotland and the law of England have been permitted to diverge, the law of Scotland retaining the shorter period of limitation of six months provided by the Public Authorities Protection Act, 1893, and the law of England having extended the period to one year, as provided by Section 21 of the Limitation Act, 1939.
The second main object of the Bill is to reduce from six years to three years the period of limitation for actions in which a claim is made for damages for personal injuries, and to bring the period of limitation for accidents under Lord Campbell's Act of 1846 (which gives a right of damages to the dependants of fatally injured persons) from one year to the same period of three years. It may at first seem to lawyers a little arbitrary to create a special category of actions described as actions for damages for personal injuries when the cause of action, in many cases, is known to differ in its technical nature, but it is a practical measure which has the support of the Tucker and the Monckton Committees and is, in fact, probably a condition of achieving the object of extending the 813 period of limitation for public authorities. The third main purpose of the Bill is to bring the law of England and the law of Scotland into line as regards the first two main objects. As I have indicated to your Lordships before, this purpose had become essential since the divergence as regards public authorities, which dates from the year 1939.
Perhaps I may now deal with the main provisions of the Bill as they appear in its clauses. The first main object of the Bill is carried out by the repeal of the Public Authorities Protection Act, 1893, and of the corresponding provisions in the Limitation Act which superseded part of its provisions as regards England. In this respect, the matter follows the recommendation of the Tucker Committee and also that of, I think, the Monckton Committee on Alternative Remedies, the Monckton Committee, in particular, having reported as follows:… injustice will be done unless adequate time is given to the injured person or his dependants before they are compelled to commence proceedings. For example, some time may elapse before the extent and the effect of the injury can be ascertained, or before the injured third party has secured sufficient funds to launch an action which may involve heavy costs, particularly if it raises issues which the defendant wishes to take to appeal. If the plaintiff is forced to commence his action before he is in a position to prosecute it to trial, it may be dismissed for want of prosecution without a decision on the merits. For these reasons the time limit of one year''—and I add, in parenthesis, a fortiori the period of six months which obtains in Scotland—which is prescribed in actions brought in connection with the performance of a public duty and in actions brought under the Fatal Accidents Act, 1846, seemed to us too short. We recommend that in employment cases brought in the lifetime of the defendant, including those brought under the Fatal Accidents Act, 1846, and those to which Section 21 of the Limitation Act, 1939, at present applies (i.e., actions brought in connection with the performance of a public duty), the time limit for commencing an action should be three years.The Tucker Committee, which was appointed to deal in detail with this very subject, principally among others, reported at length, and with admirable clarity, in terms which I do not quote only because they are rather long to permit the exact quotation. I am glad to see that the noble and learned Lord, Lord Tucker, is in his place in the House to-day. The Tucker Committee, which is the 814 principal source from which the provisions of this Bill are obtained, diverged from the Monckton Committee in proposing what I may describe as a two-tier system of limitation for defendants in cases of personal injuries. The absolute period of six years under the recommendations of that Report was to be retained and a discretionary bar was to be imposed after a period of two years. I confess that, in my humble way, I was greatly attracted to those proposals, but I think there is no doubt that, after a long discussion by those far more competent than I am to judge of the matter, the advantages of greater certainty were found ultimately to prevail. And the Bill, as it has seen the light of day, has provided for a fixed period of three years, as recommended by the Monckton Committee on Alternative Remedies.
The disadvantages of the existing Statute relating to public authorities are manifold, and I will not trouble your Lordships with them only because I can see among your Lordships a number of noble Lords far more qualified to discuss the subject than myself; and others will find the disadvantages set out, with admirable clarity for the most part, in the Report of the Tucker Committee. The period of limitation for public authorities is now to be the same as that for other defendants, and I think it may be said that this proposal has met with a wide measure of public approval. One of the other consequences of repealing the Public Authorities Protection Act will be that the special provisions as regards the costs which enure for the benefit of public authorities and which are now considered obsolete, will be removed. It is thought that there is no real advantage in giving public authorities a protection which is not accorded to ordinary defendants. I think that that is a matter which has aroused little controversy, and will call for little controversy in your Lordships' House.
A necessary practical corollary (although I would at once concede that there is little theoretical connection) of withdrawing the special protection in matters of limitation which has been accorded to public authorities, has been the reconsideration of the period of limitation applicable to actions for personal injuries. Leaving aside special matters, which are within your Lordships' knowledge but which I think are 815 too technical to be relevant to this immediate discussion, the time-honoured period of limitation in England since 1623 has been six years. It has been thought undesirable to disturb the period of six years as regards actions of contract. That is not a matter about which all people are universally agreed. Indeed, the evidence before the Law Reform Committee which preceded the Limitation Act, 1939, was extremely conflicting; but Parliament having in fact pronounced upon it as recently as 1939, it was thought improper to include any general alteration of that principle in this Bill.
It is also impracticable (so it has been thought) to distinguish between actions of contract and actions of tort as such, the reason being that there are a number of actions which are really similar to one another where it is extremely difficult to tell exactly where the line of division lies. But there does appear to be a class of cases, arbitrarily chosen, perhaps, to the legal theorist, but none the less easily recognisable in practice, in which the prayer for relief includes or contains exclusively a claim for damages for personal injuries. Many authorities have from time to time maintained that six years is too long a limitation for that class of action. The public authorities certainly think so, and I have some reason to believe that had this Bill simply contained a provision that actions against public authorities should be put in the same category as actions against other defendants, without making any special provision for a shorter period of limitation in cases where there was a claim for damages for personal injuries, this Bill would not have had the easy passage which has so far been accorded to it, and which I hope it will receive in your Lordships' House. That is the real explanation and justification for the creation of this special class of actions defined more precisely in Clause 2 of the Bill.
Clause 3 of the Bill provides for the assimilation of causes of action under the Fatal Accidents Act to that of actions for personal injuries, and that I am sure your Lordships will agree is a logical step. Clause 4 of the Bill deals with a separate matter which is highly technical and involves a modification of the Law 816 Reform (Miscellaneous Provisions) Act, 1934. As I think is stated in the clause, it is provided that actions of tort, which prior to that Act had normally died with the potential defendant, could survive against the estate of a deceased person if the cause of action arose not earlier than six months before the death of the deceased. That special provision relating to the period of six months is withdrawn by Clause 4 of the Bill; and that, again, is in accordance with the general sense of the Tucker Committee's recommendation, although I think it is not exactly identical with it. Clause 5 deals with the application of the Bill to the Crown. The principal provision is that it shall bind the Crown. Subsection (2) withdraws the exception in favour of ships of war and other Crown ships from Section 8 of the Maritime Convention Act, 1911. The period of limitation under that Act is a matter of international agreement and cannot therefore be modified by this proposed Statute. Subsection (3) provides special protection in the case of postal packets, and that, I understand, is also a matter which commands general assent.
Clause 6 provides for the application of the Bill to Scotland. I think I have said enough—very nearly as much as I am capable of saying—on the law of Scotland (which has taken rather a different course from the law of England) to indicate that there is a case for assimilating the law of Scotland and that of England in the new proposed law in this respect; and because each system sustains different amendments under this Bill I hope that the change will not be considered in any way an affront to Scottish nationalists. Clause 7 deals with transitional provisions. It is slightly different from the provision which existed when the Bill was first drawn, but since it is more generous to those with potential causes of action I trust that the transional provisions will not cause offence. There is an application to Northern Ireland which is of a highly technical character. The reason why the Bill does not apply straight out to Northern Ireland is that most of the matters covered by the Bill are within the competence of the Northern Irish Parliament, and the transitional provisions found, I think, in Clause 5 (4) of the Bill are those which 817 require legislation by the Imperial Parliament in order to give them effect.
I commend the Bill to your Lordships' House. It is, of course, difficult in a highly technical matter of this kind, covering a number of different subjects, to give a clear Second Reading speech in order to commend it. I have therefore thought it right to go through briefly the individual provisions and generally to explain the reasons of policy which underlie their inclusion. I therefore beg to move.
§ Moved, That the Bill be now read 2a.—(Viscount Hailsham.)
§ 4.31 p.m.
§ EARL JOWITT
My Lords, I had come here to-day determined to ask your Lordships to give this Bill a Second Reading. That was before I knew that if I said anything to the contrary powerful concealed batteries would operate upon me, so that I am not deterred from that course by the information which has been given by Lord Hailsham. I want just to say a word or two, however, because I played some little part in this matter, in that I appointed both the Monckton and Tucker Committees. We are dealing now primarily with the Tucker Committee, and I should like to say how valuable I thought was the work which they did. That is not to say that I entirely agreed with their conclusions, because I did not; but I did feel that the whole thing needed tidying up, and I felt, further, that six years was altogether too long a period to allow. After all, did we not have the old maxim Vigilantibus non dormientibus subvenit lex—The law helps those who are speedy about asserting their remedies? In "running down" cases and cases of that sort, it is very desirable that people should bring an action with reasonable promptitude, and surely two years is a reasonable time to allow to issue a writ? Incidentally, I think I am right in saying that a writ can be served within a year of issue, so that in practice the period allowed is three years. The Report of the Tucker Committee was that with regard to these "running down" cases two years was the appropriate time. There was an escape clause, which I did not much like, escape clause, which I did not much like, which provided that, notwithstanding that two years had elapsed, it should be open to a Judge in Chambers to allow 818 the action to be brought if he thought it reasonable.
The noble Viscount who has introduced this Bill in your Lordships' House has just said that, by the nature of things, this limitation of periods is arbitrary. I thought it better that they should be fixed and certain. I was not, therefore, happy about a proposal to have a procedure under which the period might be enlarged. I do not quite see how a Judge would decide whether to enlarge the time or not. I did not propose, when I was Lord Chancellor, to accept the suggested escape clause. I was in favour of the abolition of the special limit for public authorities so long as the new limit was not too high. I was greatly in favour of trying to get the same limit applied to all torts, and, indeed, to all contracts, and I was prepared to extend the limit of two years which the Tucker Committee adopted in favour of something quite simple, a three years limit, applying to contracts and torts. Of course with regard to torts there may be objections and difficulties of which I am not aware; but when I tried to see whether I could do something on those lines with regard to contracts the strongest objections were raised and notified by the Tucker Committee. The two instances they gave were banking contracts and long building contracts, which would extend over a considerable period of time. I explored this position and found the objections were very strongly entertained.
Then I played with the idea of allowing people to contract out of statutory limitation, of saying that it should apply to all contracts unless a contract especially provided that the Statute of Limitations should not apply. But that idea met with no approval either. Finally, I came to the conclusion, though I did not like it very much, that contracts and torts should be separated. I then realised that that is a very difficult thing to do, because it is extremely difficult to define in any particular action whether it is a contract or a tort. It was easier to differentiate these "running down" cases, personal injury actions, and, although it was not logical in practice, it was probably easier to split those off from the general bulk. Having explored that course, I finally came back to the procedure and principles which the Tucker Committee enunciated. And there I 819 think I must rest. I would rather the period had been two years instead of three years, but I am not going to fight or quarrel about that.
It is rather an odd fact, if I correctly understand the position, that if you have an accident at the present time and you personally sustain injuries you must bring your action within three years under this proposal, whereas if your car sustains injury you can bring your action within six years. That is not a very satisfactory state of affairs, but I have nothing better to offer, and in those circumstances. I should advise your Lordships to accord this Bill a Second Reading, not on the grounds that it is ideal, nor on the grounds that it is completely logical, but on the grounds that it proposes a sensible working principle which will apply and I think will be better than the system which we have to-day.
§ 4.38 p.m.
§ LORD SILKIN
My Lords, there are just one or two matters in this Bill to which I should like to refer. I agree with the noble Viscount who introduced it that this is a very far-reaching measure. I do not think he needed to apologise for his own personal inadequacy in introducing it, but, with all due respect to him—and I hope he will agree with me—I feel that the Bill is of such importance that it would have been better if it had been a Government measure. I feel that great legal and constitutional changes are better effected by means of Government legislation than through the instrumentality of private individuals. However, we have this Bill and we now have to consider it on its merits. The noble Viscount gave a list of its supporters. I do not know whether or not the adoption of eiusdem generis applies here, but he did not mention a series of organisations which are vitally concerned, organisations of local authorities. I do not know whether they have, in fact, been consulted, and whether they approve of the abolition of their privileged position.
I well remember the Public Authorities Protection Act of 1939. I took some part in the discussion in another place—I believe that the noble Viscount, Lord Hailsham, did, too. At that time, the Government of the day were very concerned about retaining the position of 820 local authorities and advanced strong reasons why the local authorities should be protected by the one year limitation, as the noble Viscount says. One year was then an extension from six months. In spite of the feeling of a considerable number of people overwhelming reasons were given why local authorities should not then be put in the same position as private individuals. There may be good reasons why that position has changed to-day—I am not sure. I have a nostalgic feeling, possibly due to the fact that I was a member of a local authority for a great part of my life, that local authorities are still to-day in a special position. They are much more vulnerable, much more liable to be "shot at." Moreover, there is a general feeling that local authorities have plenty of money, and therefore they are more likely than a private individual to have unjustified actions brought against them.
I still wonder, therefore, whether it is right that it should be possible for an action to be brought against a public authority within three years. Of course, that goes to the root of this Bill. On the whole, I should have preferred that the protection given to local authorities and other public bodies remained as it is. Having said that, I must add that I am in considerable sympathy with the proposal of the Tucker Committee that the period should not be absolutely final, and that there should be a right on the part of a Judge in Chambers to extend it if he considers it advisable.
In the course of my own very long practice as a solicitor, I have come across a great many cases—and I mean a great many cases—where people have lost their right to bring an action through no fault of their own. The matter, perhaps, has been in the hands of a solicitor; the solicitor has carried on negotiations with the local authority or with some other body that was protected. In some cases, through the inexperience of the solicitor, he has been "led up the garden," so to speak; negotiations have been protracted until the protection has become operative, and then the local authority have said, "We are sorry, but we are precluded by the Public Authorities Protection Act from paying compensation, and if we do so we shall be surcharged by the Public Auditor. "That sort of thing is reprehensible, but in my experience it has 821 frequently happened. It is true that the poor unfortunate victim who has been injured may have a cause of action against the solicitor for negligence. But the solicitor may not always have been negligent. In any event that is a very unsatisfactory kind of remedy which people do not like to enforce, although in such cases the person who has suffered injury has no other remedy. I should like to give the courts a jurisdiction—which I am sure they would exercise most sparingly—which would enable them, in really hard cases, where they were satisfied that what had happened was not due to the fault of the individual, himself, to extend the period for a limited time to enable proceedings to be commenced.
That is all that I wish to raise on this Bill. I am in agreement generally that, normally, the period of three years is long enough. Again, in my own experience, while I have frequently come across the kind of hardship which I have mentioned, where individuals, either inadvertently, through ignorance, or through the ignorance or negligence of people acting for them, have lost their right of recourse to law in the type of case of which I have been speaking, I do not remember hardship in any other cases. Therefore, I should like to discuss at another stage of the Bill this question of providing a possible extension—that is, to revert to the recommendation of the Tucker Committee. Subject to that, I think this is a good Bill and I give it my support.
§ 4.45 p.m.
§ LORD REID
My Lords, I should like, as a Scots lawyer, to say a few words of welcome to this Bill. On the first point, that relating to the Public Authorities Protection Act, as my noble friend has said, we have not the benefit of any mitigation such as England has had for the last ten or fifteen years, and I believe that that measure has always caused a great deal of trouble, both to lawyers and to others in Scotland. It has caused a certain amount of hardship and, indeed, some injustice of the type which the noble Lord who has just spoken has mentioned. And I do not believe that the position has been of substantial value to local authorities. I know that there are some who are somewhat apprehensive about the loss of their privilege, but I think that in a short time they will find that the net result is very small. On the whole, I believe that few 822 will mourn the end of these enactments.
I should like also to say something about Clause 6, which provides for the application of this Bill to Scotland. It reduces to three years, in almost the same manner as in England, the period during which an injured person can bring an action. But it is apparent that in Scotland the effect is much greater than in England, because the period of prescription in Scotland at present is twenty years. Of course, it is unheard of that an action should, in fact, be brought after any delay of that kind—indeed, it is extremely rare that any action is brought even after three years. Therefore, although the change appears to be very great, in fact I believe that, so far as pursuers are concerned, the change will prove to be negligible.
But the change does, I think, confer a substantial benefit on those who might be sued. They now know that after three years it will no longer be necessary for them to preserve evidence or hold themselves in readiness to defend an action if it is raised. It is on that point that I venture to think—though the arguments are nicely balanced—that the provision in the Bill making a hard and fast limit is better than provision for a shorter limit, with the power to extend the period in certain cases, because with the latter method no defender would know whether that power might or might not be exercised in the particular case in which he was interested. It is very much in the interest of those who may be sued that the limit should be hard and fast. If it is to be hard and fast, it cannot be drawn very narrowly. I would agree at once that two years is ample—and, indeed, more than ample—for 95 per cent., or even 99 per cent., of the cases that can be raised. It is not difficult, however, particularly in view of the fact that injury includes disease, to imagine cases in which even three years might be barely long enough to enable an injured person to bring an action without there being any imputation of delay on his part. I think that in the hundredth case two years would clearly be too short. Therefore, although, as I say, the arguments are narrowly balanced, I have come quite clearly to the opinion that, having regard to conditions as I know them, the provisions in the Bill are the best, or at least are better than others which have been suggested.
§ 4.50 p.m.
§ LORD GREENHILL
My Lords, I confess that I enter into this debate with very great hesitation indeed, first, because I am not a lawyer, and, secondly, because I have no brief to support me in what I have to say. But because I have had some experience as a member of a local authority, and because I have also had some experience as chairman of the Transport Committee of that local authority, this particular question of limitation has come to my notice. I am sorry to see from the Tucker Report that neither the City of Glasgow, nor the City of Dundee, nor the County Cities Association appear to have put forward any memorandum on this question. It would appear that either they have no observations to make or they could not agree on what they should put before the Committee. So, relying entirely on my own impressions, I would say that on the whole, as my noble friend Lord Silkin said, a local authority tends to be regarded as a target at which one can always shoot without fear of being injured in return. Therefore, claims are made on behalf of injured people which would not always be supportable if it came to an actual fight. On the question of the period of limitation, my impression is that the period for injury was six months—I hope I shall be corrected if I am wrong.
§ VISCOUNT HAILSHAM
My Lords, the period now is six months for local authorities in Scotland, and one year in England.
§ LORD GREENHILL
My Lords, my intention was to indicate that I was referring to Scottish conditions only. I feel that six months is by no means too short a period, because in practice a local authority has to keep the matter alive for that fairly long period. If an injury has been suffered and the injured person has gone to a lawyer to put up his case, presumably the lawyer would have to prepare his case for submission to the local authority, particularly when the local authority undertake to cover the cost of compensation for injuries without going to an insurance company to cover the liability. I hope that when the Bill comes to Committee stage these reservations, which are my personal reservations, will be taken into consideration, so 824 that local authorities in Scotland should not by some mischance be overlooked.
§ 4.52 p.m.
My Lords, I am not going to make a speech, but may I ask one question? What happens in the case of a man who receives an injury from another—a blow, perhaps—which does not develop for a long time and then a growth develops in consequence of the blow and he suffers serious injury? What happens in the case of a woman who is enceinte and in some accident the child receives an injury which does not become manifest until some time after it is born? It seems to me that these are very hard cases, particularly the last one. I see in the Bill provision for succession to claims of dead men, but I see nothing for establishing claims for a man who is yet unborn. I do not say the Bill is wrong in the provisions it makes in regard to these matters; I ask this question only in order to make sure that, whatever we do, we do it with our eyes fully open.
§ 4.54 p.m.
§ LORD TUCKER
My Lords, it was only at mid-day to-day that I realised that this Bill was coming before your Lordships so I am not so fully briefed on this matter as I should have been and I am not in a position to deal with some of the matters which have been raised. I was rather shocked when the noble Lord, Lord Greenhill, indicated that we had overlooked some people in Scotland who should have been consulted, because my recollection was that we had given very full consideration to the needs of Scotland. We had two Scottish members on the Committee and we received memoranda from those representing the Scottish local authorities. I see that we had memoranda from the Association of County Councils in Scotland, the Convention of Royal Burghs, the City of Edinburgh, the City of Aberdeen and the Faculty of Advocates. If it occurred that Glasgow and Dundee were perhaps overlooked, I am sorry.
I welcome the Bill because it removes what I consider, and have long considered, to be a grave injustice. I think that time and again the Public Authorities Protection Act has been found to be one which stood in the way of compensation being received by people for grievous injury through no fault of their own. In some cases it might well take six months 825 before the litigant could find out, in the first place, who were the proper defendants, and, secondly, whether they were or were not a public authority within the meaning of the complex authorities which have been discussed. The result was, putting aside any omissions on the part of his legal adviser, that occasionally grave injustice was suffered. Therefore, I would welcome almost any Bill which abolished that Act, even if it meant accepting some compromises and some anomalies.
With regard to the period, I do not think I am revealing any secrets when I tell your Lordships that on the Committee, once they had come to the conclusion that the proper course was to limit the period in regard to personal accident cases, there was a difference of opinion about whether that period should be two years or three years. I think the acceptance of two years, with discretionary power to the Judge in Chambers, represented a compromise between the two views but for which we should not have had a unanimous Report from the Committee—and it is always valuable to have a unanimous Report. I have no strong views on this subject, but I incline to favour some fixed period. That being so, I think two years would be dangerously short, having regard to the exceptional kind of case, such as that referred to by my noble and learned friend Lord Reid. I am glad to know that generally speaking the Bill receives a favourable reception from your Lordships and I hope it will have a swift and safe passage in your Lordships' House. In conclusion, addressing myself to the noble Lord, Lord Silkin, may I say that sometimes judges are in favour of some alterations in the law which they think desirable?
§ 5.0 p.m.
§ THE LORD CHANCELLOR
My Lords, I shall detain your Lordships for only a short time. It is true that this is not a Government measure, but it imports a substantial change into the law affecting a great number of persons, and accordingly it is right that on behalf of Her Majesty's Government I should express a view upon it. The view which I venture to express is this: that I welcome it wholeheartedly. I would take this opportunity of thanking the noble and learned Lord, Lord Tucker, and his colleagues for the devoted work which 826 they gave to the preparation of their Report. Believe me, it is not easy for a Judge occupying the position which Lord Justice Tucker (as he then was) occupied, or for his legal colleagues, to give the necessary time that is required for the preparation of these Reports. It is a remarkable thing, if I may venture to say so, that you will never fail to find those of Her Majesty's Judges who are willing to give of their leisure to the assistance of the reform of the law. I should also like to thank the noble Viscount, Lord Hailsham, for introducing the Bill in such clear terms.
I want to say only two or three words upon the merits of the Bill. In the first place, so far as the assimilation of the position of public authorities to private individuals is concerned, I believe it is a long overdue reform, and that the noble and learned Lord, Lord Tucker, did not exaggerate when he said that for years there have been many cases of grave injustice because the position of local authorities has not been so assimilated. It is a significant fact that although in the past local authorities have asserted that this privilege should be theirs, yet since this Bill was first introduced there has, as I believe, been no voice raised by public authorities, in the Press, or in the other place, or, indeed, until the noble Lord Lord Silkin, spoke in this House, which suggested that this privilege should still be theirs. I believe that they have come to realise that there is an injustice which ought not any longer to be perpetuated. It is significant that there has been no objection made; and perhaps I may add that the local authorities would not have been in a strong position to raise any protest when one realises that the Crown itself has consented to be bound by the Bill.
There has been some little conflict of opinion upon the question whether there should be a rigid time limit, or a time limit subject to a discretionary extension by a judge. I may be wrong about this, but some fifty years in the law have impressed upon me more than anything else that the most valuable thing in our system of law is certainty; and there can be no certainty in the law if at the whim of a Judge in Chambers the period of limitation may be extended. I use the word "whim," because no yardstick is laid down. No suggestion that I have ever heard has indicated upon what 827 materials a Judge in Chambers is to exercise his jurisdiction and say to a plaintiff: "You shall have your period of two years or three years extended." What factors is he to take into consideration? The noble Lord, Lord Silkin, suggested one example of a case where solicitors have negotiated. Well, it seems to me that it is extremely unlikely that even the most pertinacious solicitor would negotiate for three years, which is now the period. I would venture to think that the rigid, hard and fast period of three years, so as to let every would-be plaintiff know that that is the limit of his time, and to let every possible defendant know that three years is the limit of time in which he may preserve his evidence, keep in touch with his witnesses, and so on, is sufficient. I, for my part, would go so far as to say that I would not support this Bill if it gave a discretionary jurisdiction to a Judge in Chambers to enlarge the time, because there is nothing that I dislike so much as the granting of a discretionary jurisdiction with no yardstick whatever by which it is to be measured. However, better counsels have prevailed, and in the Bill there is no discretionary jurisdiction but a term of three years, which I think is ample. With those few words, I welcome the Bill on behalf of Her Majesty's Government and wish it a speedy passage.
§ 5.5 p.m.
§ VISCOUNT HAILSHAM
My Lords, I should like in a few words, by way of reply, to thank those of your Lordships who have welcomed the Bill, since after the support of the noble and learned Lord, the Lord Chancellor, it would be impertinent for me to add anything. However, I should like just to say this to the noble Lord, Lord Silkin, and the noble Lord, Lord Greenhill, as to their fears for local authorities. I believe those fears to be utterly unreal. I cannot conceive that a local authority is more a target for litigation than an insurance company, a railway company, the National Coal Board—which has a three years' limitation—the Electricity Boards, the London Transport Commission, or any other of the great Corporations which are the classic parties to modern litigation. Modern litigation is largely a fight between a legally assisted person and a great corporation of some kind, and there 828 seems to me to be absolutely no distinction, in principle, as regards target, between any of these potential, large, wealthy defendants who form the great mass of defendants at the present time.
It must be remembered that local authorities are only a proportion—and perhaps not the largest proportion—of persons who are protected by these Acts. A doctor has been held, in certain circumstances, to be protected by these Acts; in certain circumstances, too, a hospital is protected by these Acts. The Wheat Commission is protected by these Acts, but the Milk Marketing Board is not. A local authority is not protected by these Acts when it sells coke, but it is when its servant drives a lorry to remove refuse, and so forth. These Acts are, in fact, a morass of inconsistencies and uncertainties. I am sure the Crown was wise to consent to being bound by the Bill, and I feel certain that the local authorities will be equally wise.
I should like to add this piece of experience as a possible added comfort to the noble Lords. A large Scottish bus company, wealthy, and obviously a desirable defendant to potential pursuers, afforded the Tucker Committee a few statistics about the periods within which actions were brought. They said that their experience over a period of five years showed that approximately 10 per cent. of actions were raised within nine months of the accident—that, I think, should go far to discount Lord Greenhill's theory that six months was sufficient—50 per cent. between nine months and one year; 30 per cent. between one and two years; 9 per cent. between two and three years; and only 1 per cent. after more than three years. If their experience is any guide—and I am sure it is—only a fine proportion of actions will be brought after the limitation period.
§ VISCOUNT HAILSHAM
I think to personal injuries. At any rate, an enormous proportion of actions taken against bus companies—the noble Lord can take this from me—are actions for personal injuries.
There is one thing I should like to say to the noble and learned Earl, Lord Jowitt, because there is one point on 829 which I felt he was perhaps unduly in favour of a two years' period. There is a provision of this Bill which, perhaps from motives of conciseness, I wrongly omitted from my summary of the provisions when I opened: that is, the provision relating to persons under a disability—in other words, primarily to infants. Undoubtedly, we are taking away from infants the provision of the Limitation Act in relation to personal injuries which does not allow that the limitation period should run during infancy but provides that the time runs after infancy has ceased. Where that is—as in the great majority of cases—the infant is under the care and protection of a parent. My experience has been—and I have now some considerable experience of actions in which there are claims for damages for personal injuries—that, particularly in children's cases, it is quite impossible to crystallise the injury which has been received by the child, if it receives that injury very young. Very often, in the interests of the child it is not desirable to hurry proceedings on at all; and it is sometimes quite impossible to realise how serious things may be. Moreover, my experience has also been that parents are often extremely lax in pursuing the rights of their child, because they render themselves liable to orders for costs if they are not successful. Personally, I am glad that the period is three years if it is going to limit the rights of children in this matter.
To my noble friend Lord Saltoun I would say this. I absolutely agreed with the point underlying his questions, and it is largely for that reason that I regard the existing periods, one year in England and six months in Scotland, as much too short. But when we have a three-year period, the particular problem he had in mind about the mother who was enceinte, or the problem when the seriousness of injuries appears on the surface only after a period, really disappears. Therefore, this Bill will take care of the points which he had in mind. For those reasons, I am very grateful to your Lordships for the points raised.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.