ADMINISTRATION OF JUSTICE BILL [H.L.] (Hansard, 8 December 1955)

HL Deb 08 December 1955 vol 194 cc1234-60 1234

§ 3.10 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 EARL OF DROGHEDA in the Chair]

§ Clause 1:

§ Admiralty jurisdiction of the High Court

§ 1.—(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following questions or claims— (a) any question as to the title to or ownership of a ship or of any share therein; (f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment or of the wrongful act, neglect or default 1235 of the owners or characters of a ship or of the master of crew thereof or of any other person in the employment of the owners or characters of a ship being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of passengers on, in or from the ship;

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR) moved in subsection (1) to leave out paragraph (a) and insert— (a) any claim to the possession or ownership of a ship or to the ownership of any share therein;". The noble and learned Viscount said: It may be convenient if I say before I move the first of these Amendments on the part of the Bill that deals with the Admiralty jurisdiction, that these Amendments have all been discussed with and approved of by the noble and learned Lord the President of the Probate Divorce and Admiralty Division.

§ This Amendment, the first on the Marshalled List, is in essence a drafting Amendment to make it quite clear that a claim by the owner of a ship to have possession of it returned to him—for example, by a demise charterer whose charter had expired—can be enforced by proceedings in rem. I beg to move.

§ Amendment moved— Page 1, line 10, leave out lines 10 and 11 and insert the said new paragraph.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved in subsection (1) (f), to leave out "in the employment of the owners or charterers of a ship" and insert: for whose wrongful acts, neglects or defaults the owners or charterers of a ship are responsible,". The noble and learned Viscount said: As printed in the Bill, this paragraph refers to the acts, neglect or default of owners, charterers, the master, crew or any other person in the employment of the owners or charterers. The effect of the Amendment is to widen the range of persons whose actions, neglect or default can be the basis of a claim covered by the paragraph to include persons for whose acts, neglect or default the shipowners and charterers of a ship may be responsible, even though the shipowner or charterer may not be their employer. May I take 1236 the example of a pilot? I hope the noble and learned Earl, Lord Jowitt, did not think I had widened it to include those who form the title of one of the Gilbert and Sullivan operas. In this case I intended to say "pilot" and not "pirate."

§ Amendment moved— Page 2 line 5, leave out from ("person") to the end of line 6 and insert ("for whose wrongful acts, neglects or defaults the owners or charterers of a ship are responsible,").—(The Lord Chancellor.)

§ LORD SILKIN
To use a nautical term, the noble and learned Viscount has taken the wind out of my sails "by his statement that the President of the Court has approved these Amendments. None the less, I should like to ask him about this Amendment, on which I have some slight reservation. The noble and learned Viscount regards this Amendment as enlarging the scope of the clause. I may be quite mistaken, but on reading it it struck me that the Amendment limited the scope. The clause deals with actions which are brought in the Admiralty Division of the High Court in respect of claims, as set out in paragraph (f), and provides that there must first of all be a defect in the ship or in its power or equipment, and secondly that there must be a wrongful act, neglect or default on the part of the owner or of any other person, the master or crew, in the employment of the owner or charterer of a ship. The Amendment then provides for whose wrongful acts, neglects or defaults the owners or charterers of a ship are responsible. That seems to me to limit the class of person to those who are employed by the owners of the ship. Reading the Amendment with the paragraph, it seems to me that there are two classes of employees: those for whom the owner is responsible and those for whose actions he is not responsible. I found it difficult to visualise such persons, but the noble and learned Viscount has instanced a pilot. Subject to what the noble and learned Viscount may say, it seems to me that by the addition of these words he is cutting out the pilot. I do not say that the Amendment necessarily rules out an action against the pilot, but it could not be brought in the Admiralty Division— 1237 and the bringing of actions in that Division is the purpose of this clause. I should be grateful if the noble and learned Viscount would explain that point.

§ THE LORD CHANCELLOR
On the general point, I am afraid I did not make it clear that the Amendment leaves out the words in the employment of the owners or charterers of a ship and therefore it will read with the words to be added simpliciter. It is difficult to imagine anyone the employment of the owners or charterers of a ship who would not be caught by the words for whose wrongful acts, defects or defaults the owners or charterers of a ship are responsible, because the only way a person in their employment could get out of that would be by stepping completely outside his employment. That is what I meant by saying that the Amendment widened the scope.
So far as bringing an action against the pilot is concerned, in the ordinary way the persons responsible for acts, neglects or defaults would be more worthy of powder and shot than the person himself. May I remind the noble Lord of a branch of the law with which he and I were very familiar at one time, because in happy bygone days I acted for the noble Lord in that type of case? He will remember that under the dangerous trades section of the Factory Acts there was a section dealing with ships in dock. I merely take it as an analogy. He will remember that in that section there were provisions for saying in every case on whom the liability would fall for enforcing the regulations. Speaking from recollection, I think I am right in saying that a case can be found where the responsibility rests on the shipping company to see that the regulations are enforced although the person concerned is not in their employment. Therefore we thought that this provision widens the possible right of anyone who might have a claim. I am still convinced that we have improved it: but the noble Lord has expressed doubt, and if he sees any development of this doubt I shall be pleased to look into the matter before the next stage.

§ EARL JOWITT
Would the noble and learned Viscount the Lord Chancellor 1238 remind me of what is the law on this matter? When I passed my Bar Examination, and I suppose when he passed his, compulsory pilotage was a defence. A shipowner had to employ a pilot, and if the pilot was neglectful in the navigation of the ship, the owner was not responsible, on the plea that he had been made to employ the pilot. I think that has now been altered, but I do not know where or when. I think that now the liability for the wrongful act of a pilot does rest on the owners of a ship. If that is so, I understand that this Bill does not increase the ambit of liability but merely says in what cases the court shall have jurisdiction. The noble and learned Viscount referred to pirates. What is the position if a ship is seized by a pirate who navigates the ship into harbour, and in the course of that navigation either runs into something or does some damage? Is the owner to be made liable for that damage?

§ THE LORD CHANCELLOR
I was trying to find in the recesses of my memory any case where that had happened, but my memory has played me false. I can only say that even the most altruistic and kindest of pirates; like Captain Hook, might have an accident while engaged on a frolic of his own.

§ LORD SILKIN
I still feel that these words may be regarded as limiting those actions which may come before the Admiralty Division. A man may find he is in the wrong court, as the person really liable is ruled out by this Amendment. But I gladly accept the proposal of the noble and learned Viscount to look at this again.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
Here the paragraph as printed refers to the loss of life from personal injury sustained in the embarkation, carriage or disembarkation of passengers. The Amendment extends this provision to persons generally so as to include, for example, those visiting a ship. I beg to move.

§ Amendment moved— Page 2, line 10, leave out ("passengers") and insert ("persons").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 1, as amended, agreed to.

§ Clause 2 agreed to.

1239

§ Clause 3 [Mode of exercise of Admiralty jurisdiction]:

§ THE LORD CHANCELLOR
Perhaps I might discuss this Amendment and the next together, because they concern the same point. These Amendments deal with the conditions under which a ship or aircraft can be arrested for a claim which does not give rise to a maritime lien on it. Under the Bill as printed, the condition is that the person personally liable must, when the action is brought, have possession of the ship or, in the case of a sister ship, possession and ownership. Under the Amendments the test will be ownership in all cases, possession being irrelevant. I think your Lordships will agree, when you consider this point, that it is right. The test of possession seems wholly wrong. It would prevent an arrest where the ship or aircraft was in the possession of a repairer with a "possessory lien" for his bill. There is no reason why an arrest should not be allowed in such a case, as the court would protect the rights of the repairer when it came to distributing the proceeds of the sale of the ship or aircraft. Conversely, the Bill as printed would enable an arrest to take place where the claim was against a demise-charterer and not the owner. I beg to move.

§ Amendment moved—

§ Page 5, line 19, leave out lines 19 to 24 and insert—

("(a) that ship, if at the time when the action is brought it is beneficially owned as respects all the shares therein by that person; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move this Amendment.

§ Amendment moved— Page 5, line 29, leave out ("in the possession of") and insert ("beneficially owned by").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 3, as amended, agreed to.

§ Clause 4 [Jurisdiction in personam of courts in collision and other similar cases]:

§ THE LORD CHANCELLOR
The purpose of this Amendment is merely to clarify the meaning of paragraph (b) of subsection (1). As the paragraph is at 1240 present worded, it might be held to include only claims arising out of collisions within inland waters in England and Wales, or within such limits of a port as lie within England and Wales, thereby excluding actions arising out of a collision which, although within the limits of a port, was outside England and Wales which might be held to mean outside low water. It is desired to include causes of action arising anywhere within the limits of a port, even if those limits extend beyond England and Wales, provided that the port itself is in England and Wales. The new wording is intended to achieve this. I beg to move.

§ Amendment moved—

§ Page 5, line 41, leave out lines 41 and 42 and insert— ("(b) the cause of action arose within inland waters of England and Wales or within the limits of a port of England and Wales; or").—(The Lord Chancellor.)

§ THE LORD CHANCELLOR
I beg to move this Amendment, which deals with the same point.

§ Amendment moved—

§ Page 6, line 10, at end insert— ("and 'limits of a port' means the limits thereof as fixed by or under the Act in question or, as the case may be, by the relevant charter or custom;").—(The Lord Chancellor.)

§ On Question, Amendments agreed to.

§ Clause 4, as amended, agreed to.

THE CHAIRMAN OF COMMITTEES (THE EARL OF DROGHEDA)
With the permission of the Committee, I will, when there are consecutive clauses that have no Amendments set down to them, move them together, both in regard to this Bill and other Bills coming up this afternoon, and I will ask any noble Lord who may wish to say anything on any of those clauses to take that opportunity of doing so.

§ Clauses 5 to 8 agreed to.

§ Clause 9 [Supplemental and transitional provisions]:

§ THE LORD CHANCELLOR
I beg to move this Amendment. This qualification is now required because of the proposed amendment to line 19 on this page to provide that "goods" include baggage. This definition is appropriate to "goods" in paragraph (g) of Clause 1 (1) but not, for example, to paragraph (m) of that subsection.

1241

§ Amendment moved— Page 8, line 17, after ("Act") insert (",unless the context otherwise requires,")—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I have already referred to this Amendment. It has been held in some cases that passengers' baggage is not goods since it is not carried as goods, but merely as an ancillary operation to the carrying of passengers. The definition makes it clear that paragraph (g) of Clause 1 (1) includes claims for loss or damage to baggage.

§ Amendment moved— Page 8, line 19, at end insert ("'goods' includes baggage;")—t(The Lord Chancellor.)

§ EARL JOWITT
I should like to know a little about this point. The word "baggage" is a word in common use nowadays which means a mischievous young female. Am I to understand that she is to be included in future under the word "goods"?

§ THE LORD CHANCELLOR
If we were anywhere else I should ask the noble and learned Earl for his considered construction of the phrase "a nice piece of goods," but I doubt whether at the moment it would be proper to ask him so difficult a question. The positive explanation is that passengers' baggage is not "goods" since it is not carried as goods but is merely an ancillary matter to the carriage of passengers. The object of the definition is to make clear that paragraph (g) of Clause 1 (1) includes a claim for loss or damage. I am sorry to give the noble and learned Earl so pedestrian an explanation.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
Section 421 of the Merchant Shipping Act, 1894, provides that any rules made under the authority of a local Act for the avoidance of collisions shall have full effect. Subsection (2) of that section further provides that Her Majesty in Council may in certain circumstances make rules relating to navigation in specified waters, and that these rules shall have the same force as if they were part of the collision regulations. This Amendment makes it clear that the rules referred to in Section 421 of the 1894 Act have the same force as collision regulations for the purposes of this Bill, also. I beg to move.

1242

§ Amendment Moved— Page 8, line 22, at end insert ("or any such rules as are mentioned in subsection (1) of section four hundred and twenty-one of that Act or any rules made under subsection (2) of the said section four hundred and twenty-one").—(The Lord Chancellor.)

§ Clause 9, as amended, agreed to.

§ Clauses 10 and 11 agreed to.

§ Clause 12 [Appointment of deputy district registrar]:

§ THE LORD CHANCELLOR
I beg to move this Amendment. The reference to liabilities of a district registrar in Clause 12 (4) is inappropriate. I am sorry that the subsection erroneously follows the wording of Section 26 of the County Courts Act, 1934, which relates to the powers and liabilities of deputy county court registrars. They are responsible for the execution of judgments and may incur liabilities for wrongful acts done in the course of execution. Your Lordships might consider as a comparison Section 144 of the County Courts Act, 1934. District registrars have no such responsibilities and, accordingly, incur no such liabilities. Therefore we want to make this correction. I beg to move.

§ Amendment moved— Page 10, line 5, leave out from ("powers") to ("as") in line 6.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 12, as amended, agreed to.

§ Clauses 13 to 15 agreed to.

§ Clause 16 [Extension of power to make rules of court, and consequential and connected repeals]:

§ 3.31 p.m.

§ THE LORD CHANCELLOR
As drafted. Clause 16 (2) gives power by rule to restrict the right of appeal against decisions of official referees to appeals on questions of law. This leaves a doubt whether rules giving a right of appeal on questions of fact could limit the right to a particular class of cases only. The Amendment removes this doubt. I should like to remind your Lordships that a limited right of appeal on fact was recommended by the Evershed Committee to this limited extent—namely, only where a party has stated at the beginning of the reference that he desires to have a right of appeal on fact from the referee's decision. The Amendment puts the vires of any rule which might be made to implement this recommendation beyond doubt. 1243 I draw attention, as I did on Second Reading, to the fact that in this Bill we are trying to implement those recommendations of the Evershed Committee which require legislation. I beg to move.

§ Amendment moved— Page 12, line 14, after ("provide") insert ("either generally or to a limited extent").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 16, as amended, agreed to.

§ Clauses 17 to 21 agreed to.

§ Clause 22 [Temporary appointments of persons to act as fudges]:

§ THE LORD CHANCELLOR
This is little more than a drafting Amendment because the qualification which is now to be inserted was left out of the clause in error. Section 12 (1) of the principal Act lays down as the qualifications for a deputy that he should either have previously held the office of judge or be a barrister of at least seven years' standing. There should be no difference in the qualifications of deputies under that section and the persons to be appointed to act for a judge under Clause 22, and it would be inconvenient if it were not possible to appoint ex-judges in both cases. I beg to move.

§ Amendment moved— Page 14, line 45, after ("he") insert ("has previously held the office of judge or").—(The Lord Chancellor.)

§ LORD SILKIN
Of course, I have not the slightest objection to a former judge acting as a deputy, but I wonder whether those words are really required, even though they are in the principal Act. The qualification is for a barrister of at least seven years' standing, and I cannot conceive of a person who has been a judge being a barrister of less than seven years' standing. Indeed, I imagine that in order to be a judge he must have had at least seven years' standing, but I do not know the relevant section. If that is so, is it really necessary to add these words? Are they not covered already by the words, "a barrister of at least seven years' standing"? The second point is a minor one. Is it intended to mean a county court judge? There are judges and judges. I take it that if he were a judge in an agricultural show, that would not qualify him to be a deputy judge. Could you not say what kind of judge 1244 you have in mind if those words are necessary?

§ THE LORD CHANCELLOR
On the second point the noble Lord raised, I thought the provision was quite clear, but as he has raised it again I shall be pleased to look at it. On the first point, the noble Lord will remember that the Act of 1934 lays down as the qualifications for a deputy that he shall previously have held the office of judge. That being a County Court Act, clearly he would be a county court judge or a barrister of at least seven years' standing. I think it is always safer to follow the principal Act. I am not prepared to say that the noble Lord is wrong, because I have a high respect for his opinion, but I think it is always better, when one is drafting in pari materia, to follow the Act, and I ask the noble Lord to allow me to do so. I think it is safer, but I will not go any further than that.

§ On Question, Amendment agreed to.

§ Clause 22, as amended, agreed to.

§ Clauses 23 to 27 agreed to.

§ Clause 28 [Goods protected from seizure in execution]:

§ THE LORD CHANCELLOR moved to leave out Clause 28. The noble and learned Viscount said: It may be convenient if we deal with this Amendment to leave out Clause 28 and, if I may speak on it, with the new clause which your Lordships will find on the next page which I desire to insert after Clause 37. The object of these two Amendments is to replace Clause 28, which raises the limit on the value of goods exempted from execution in the county court, by a new clause applying to execution in the High Court as well as in the county court. The Evershed Committee agreed with the Austin Jones Committee that, in view of the fall in the value of money, the present limit of £5 on the value of goods exempted from execution should be substantially raised. They thought that whatever figure was taken for the county court should be applied also to the High Court. That means that different Acts have to be affected, and, as I say, I am introducing that position in the High Court too. Clearly, it is a matter of common sense that the figure of £5 ought to be raised, and the position is that the new clause to be inserted after Clause 37 is 1245 the same as Clause 28, except that it includes a reference to Section 8 of the Small Debts Act. 1845, in addition to Section 121 of the County Courts Acts, 1934. That brings in the High Court as well as the county court. It says that the sum may be raised to £20, or such larger amount as may be prescribed by order of the Lord Chancellor. Although this Amendment is in substance merely an Amendment to Clause 28, a new clause is necessary because Clause 28 appears in Part III of the Bill which applies solely to the county courts. That is the only reason that l put the new clause down. I beg to move—

§ Amendment moved— Leave out Clause 28.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clauses 29 to 35 agreed to.

§ Clause 36 [Power of courts to impose charges on land of judgment debtor]:

§ THE LORD CHANCELLOR
This is really a drafting Amendment. The words to be inserted make it clear that the judicial determinations mentioned in subsection (4) are not an exhaustive list. For instance, a decreet of a Scottish court, although not referred to in terms, falls within the subsection. I beg to move.

§ Amendment moved— Page 22, line 42, after ("award") insert ("(however called)".—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ 3.40 p.m.

§ THE LORD CHANCELLOR
Clause 36 gives the county court power to enforce judgments of a county court by imposing a charge on the judgment debtor's land, but omits to enable the court similarly to enforce judgments of other courts removed into the county court for enforcement. The Amendment cures the omission. Your Lordships will remember that judgments of sheriffs' courts of Scotland and inferior courts of Northern Ireland may, under the Inferior Courts Judgments Extension Act, 1882, be registered for enforcement in a county court in England. Judgments of local courts for amounts not exceeding £20 may be removed into the county court for enforcement under Section 6 of the Borough and Local Courts of Record Act, 1872. I think this Amendment fills up a gap 1246 which was troublesome before. I beg to move.

§ Amendment moved— Page 23, line 3, after ("Court') insert ("or the county court").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment is the same as No. 16. I beg to move.

§ Amendment moved— Page 23, line 4, after ("Court") insert ("or the county court").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 36, as amended, agreed to.

§ Clause 37 [Receivers]:

§ THE LORD CHANCELLOR
This again is really a drafting Amendment. The words to be deleted are intended to describe an order which may be made by the court under Clause 36. The description is wrong as an order under that clause does not enforce the charge arising from a judgment but imposes a charge in order to enforce the judgment. The Amendment corrects this mistake. I beg to move.

§ Amendment moved— Page 23, line 16, leave out from ("section") to second ("a") in line 17 and insert ("imposing a charge for the purpose of enforcing").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 37, as amended, agreed to.

§ THE LORD CHANCELLOR moved, after Clause 37 to insert the following new clause:

§ Goods protected from seizure in execution

".—(1) In section eight of the Small Debts Act, 1845, and section one hundred and twenty-one of the County Courts Act, 1934 (which protect wearing apparel, bedding and tools to the value of five pounds from seizure in execution) for the words "the value of five pounds" there shall be substituted the words "the prescribed value".
(2) The prescribed value for the purposes of the said sections eight and one hundred and twenty-one shall be twenty pounds or such larger amount as may be prescribed by order of the Lord Chancellor, and section nine of the Employers and Workmen Act, 1875, and section four of the Law of Distress (Amendment) Act, 1888 (which provide, by reference to the said section one hundred and twenty-one, a similar protection in the case of certain distresses ordered by a court of summary jurisdiction and in the case of distress for rent) shall have effect accordingly.
(3) The proviso to section one hundred and fifty-two of the County Courts Act, 1934
(which relates to execution under an administration order and protects household goods, wearing apparel, bedding and tools to the value of twenty pounds) shall cease to have effect, and section one hundred and twenty-one of that Act shall apply accordingly on an execution under the said section one hundred and fifty-two.
(4) Any order of the Lord Chancellor under this section may be varied or revoked by a subsequent order of the Lord Chancellor.
(5) The power of the Lord Chancellor to make orders under this section shall be exercisable by statutory instrument.
(6) Any such statutory instrument shall be laid before Parliament after being made."

The noble and learned Viscount said: I have already described why this new clause is necessary. I think your Lordships will allow me to deal with it formally after that explanation. I beg to move that this new clause be inserted.

§ Amendment moved— After Clause 37, insert the said new clause.—(The Lord Chancellor.)

§ On Question, Amendment agreed to. Clause 38 agreed to.

§ Clause 39 [Execution of High Court judgments and orders in county court]:

§ THE LORD CHANCELLOR
This Amendment is consequential. I beg to move.

§ Amendment moved— Page 24, line 10, after ("award") insert ("(however called)").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 39, as amended, agreed to.

§ THE LORD CHANCELLOR moved, after Clause 39 to insert the following new clause:

§ Judgments of courts outside England and Wales

§ "—Section five of the Debtors Act, 1869, as amended by any subsequent enactment, and the Bankruptcy Act, 1914, shall have effect as if—

(a) any judgment of the High Court of Northern Ireland or decreet of the Court of Session a certificate of which has been registered in the High Court under section one or section three of the Judgments Extension Act, 1868; and
(b) any judgment, as defined in Part II of the Administration of Justice Act, 1920, which has been registered in the High Court under the said Part II; and
(c) any judgment, as defined in the Inferior Courts Judgments Extension Act, 1882. a certificate of which has been registered in the High Court or in a county court under that Act, 1248 were a judgment of the High Court or, as the case may be, of that county court, and proceedings may be taken under those Acts accordingly."

§ The noble and learned Viscount said: This new clause enables proceedings under the Debtors Act, 1869, and the Bankruptcy Act, 1914, to be founded on certain judgments of courts in Scotland, Northern Ireland and the Commonwealth, which have been registered in the High Court in England for the purpose of enforcement. This is a curious lacuna and perhaps your Lordships will allow me to say a few words about it. Under the Judgments Extension Act, 1868, judgments of the High Court of Northern Ireland and decreets of the Court of Session of Scotland may be registered in the High Court in England. The High Court has the same control and jurisdiction over a registered judgment or decreet as it has over a judgment of its own, but subject to these words: but in so far only as relates to execution under this Act. These are the words of Section 4, and they have been interpreted as excluding enforcement by means of a judgment summons under the Debtors Act, 1869, since the power of committing a debtor, or of ordering him to pay by instalments under that Act, is not execution. Similarly, bankruptcy proceedings cannot be brought on a registered judgment or decreet because the proceedings are not, strictly speaking, a form of execution.

§ The Scottish authorities have pointed out that judgments of the English High Court registered under the Act of 1868 for enforcement in the Court of Session are, under Scots law, enforceable in every respect like judgments obtained in Scotland, and have requested that the Scottish decreets registered in England should be given the same treatment. I propose at the proper stage to take similar steps to make the position exactly the same with regard to Northern Ireland. So far as the Commonwealth is concerned, the enforcement by the High Court of judgments of Commonwealth Courts registered under Part II of the Administration of Justice Act, 1920, is also restricted to execution in the same terms as those used in the Act of 1868, and the enforcement of judgments of inferior courts of Scotland or Northern Ireland registered for enforcement in the High Court or the county court, under the Inferior 1249 Courts Judgments Extension Act, 1882, is restricted to execution in terms which have the same effect. This clause enables proceedings by judgment summons or in bankruptcy to be founded on all these judgments. I am sure the position ought to be reciprocal. It is part of the ordinary comity between the countries in the Commonwealth. I beg to move.

§ Amendment moved— After Clause 39, insert the said new clause.—(The Lord Chancellor.)

§ LORD SILKIN
I should like a word of explanation. First, as regards a judgment summons, I take it that the clause means that if a debtor who is normally resident in the Commonwealth or in Scotland happens to find himself in England, then he can be dealt with provided that the judgment is registered in England. That seems to me fairly simple and understandable. But in the case of bankruptcy does it apply only to the goods which he happens to have in England? How would the bankruptcy operate? Is he declared bankrupt in this country in respect of goods he may have in the Commonwealth, or in respect of goods in this country alone? It does not seem very clear to me.

§ THE LORD CHANCELLOR
Of course, it would also apply to the person who is resident in this country who has had a judgment given against him in Scotland or the Commonwealth; once it is registered and the bankruptcy notice is given and the man becomes bankrupt, he would certainty be bankrupt in regard to any of his property here. As I understand it, it would then be for his trustee to try to get into the assets of the bankruptcy any property which he had in the Commonwealth, if that could be done. That is the way it would work. Of course, with a judgment summons he would be brought up in the ordinary way for an examination as to his means.

§ On Question, Amendment agreed to.

§ Clause 40 agreed to.

§ Clause 41 [Power to extend Part IV to inferior courts]:

§ THE LORD CHANCELLOR
This Amendment is consequential on the new clause on goods protected from seizure in execution which is to be inserted in Part IV. I beg to move.

1250

§ Amendment moved— Page 24, line 33, after ("Act") insert (",which are not otherwise applicable").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 41, as amended, agreed to.

§ Clause 42:

§ Jurisdiction in relation to collisions, etc., in inland waters and ports

§ 42.—(1) It shall be competent for any court having Admiralty jurisdiction to entertain, as against any defender, an action to which this section applies if the occurrence out of which the action arose took place—

(a) within the area for which the court acts, and
(b) within inland waters or within the limits of a port,

notwithstanding that the defender would not, apart from this section, be subject to the jurisdiction of the court.

§ THE LORD CHANCELLOR
In this Amendment we are getting on to the portion of the Bill which deals with the Admiralty jurisdiction in Scotland. This Amendment is really verbal. It is designed partly to draw attention to the qualifications in the following provisions of this Part of the Act, Clause 44, and partly to substitute for the words it shall be competent for a court to entertain the much more explicit phrase: a court shall have jurisdiction to entertain. I think it improves the drafting, and I beg to move.

§ Amendment moved— Page 25, line 4, leave out line 4 and insert ("Subject to the provisions of this Part of this Act any court having Admiralty jurisdiction shall have").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ 3.52 p.m.

§ THE LORD CHANCELLOR moved, in subsection (1), to leave out all the words after "applies" and to insert: but only if—

(a) the defender has his habitual residence or a place of business in the area for which the court acts, or
(b) the cause of action arose in the area for which the court acts and either within inland waters or within the limits of a port, or
(c) an action arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined by the court, or
(d) the defender has prorogated the jurisdiction of the court, or
(e) the jurisdiction of the court over the defender has been established by means of the arrest of a ship or a share in a ship."

§ The noble and learned Viscount said: This Amendment, together with that to omit Clause 43, which is Amendment No. 25, results in a positive and consolidated statement of the circumstances in which the courts will have jurisdiction in the cases in question. I think this is clearer than the provisions of the Bill as introduced, which effect alterations in the existing law but do not re-state what is unaltered. The Amendment also brings the Bill into closer alignment with the Convention by using as nearly as possible the same language as is used in the Convention. If I may refer the Committee to this matter, paragraph (a) corresponds to Article 1 (1) (a) of the Convention; paragraph (b) to Article 1 (1) (c); and paragraph (c) to Article 3 (2) of the Convention. Paragraph (d) re-states existing law and, so far as the Convention is concerned, is covered by Article 2. Paragraph (e) corresponds to Article 1 (1) (b) of the Convention. At present jurisdiction can be established over a defender by the arrest within the court's area of any movable property belonging to the defender. A ground of jurisdiction altogether abolished by the Bill, so far as the cases in question are concerned, is the ownership of an interest in heritable—that is, real—property situated within the court's area. In the Bill as introduced this appears in Clause 43. I think this is not only a tidying of the Bill but is much clearer, and sets out the law in the way that I have described. I beg to move.

§ Amendment moved— Page 25, line 6, leave out from ("if") to the end of line 11 and insert the said new words.—(The Lord Chancellor.)

§ LORD SILKIN
I congratulate the Government and the draftsmen on introducing this Amendment. I will not call it an innovation but at any rate it is unusual to find advantage taken of the amendment of the law to set out the law afresh in a clear way so that it all appears in the Statute. Except in consolidation measures that is somewhat unusual, and I commend and recommend it as a course to be taken in future legislation whenever it may be possible.

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§ THE LORD CHANCELLOR
I am grateful to the noble Lord. We shall try to carry out his advice.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment prevents proceedings from being brought in Scotland while proceedings are pending in any court outside Scotland. It implements Article 1 (3) of the Collision Convention, and it is new so far as it goes beyond the general effect of a plea of forum non conveniens. I commend it to the Committee.

§ Amendment moved—

§ Page 25, line 11, at end insert— ("() No court in Scotland shall entertain as against any defender an action to which this section applies until any proceedings previously brought by the pursuer in any court outside Scotland against the same defender in respect of the same incident or series of incidents have been discontinued or otherwise come to an end.")—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is a drafting Amendment, consequential on the use of the word "incidents" in the new paragraph (c) which was accepted a few moments ago. I beg to move.

§ Amendment moved— Page 25, line 13, leave out ("occurrences") and insert ("incidents").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment is necessary because in the case of certain harbours in Scotland the power to make charges is derived not from an Act of Parliament but from a charter. I beg to move.

§ Amendment moved— Page 25, line 28, after ("Act") insert ("or charter").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment corresponds with the English Amendment as to the limits of a port which I mentioned to the Committee earlier on. I beg to move.

§ Amendment moved— Page 25, line 30, at end insert ("and 'limits of a port' means the limits thereof as fixed by or under the Act in question or, as the case may be, by the relevant charter or custom").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

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§ THE LORD CHANCELLOR
This Amendment is intended to make it quite clear that the provisions of this clause do not apply to real actions under the law of Scotland. I beg to move.

§ Amendment moved—

§ Page 25, line 34, at end insert— ("() For the avoidance of doubt it is hereby declared that any reference in this section to an action for payment of reparation does not include a reference to an action to make good a lien.")—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 42, as amended, agreed to.

§ Clause 43 [Restriction of jurisdiction based on ownership of interest in, or possession of, heritable property, and on arrestment of moveable property]:

§ THE LORD CHANCELLOR
It is proposed that this clause should be left out. The substance of the clause is now incorporated in Clause 42, as I explained when I was dealing with an earlier Amendment. We have been able to save a little print and study by leaving out this clause, and I beg so to move.

§ Amendment moved— Leave out Clause 43.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 44 agreed to.

§ Clause 45 [Arrest of ships on the dependence of an action or in rem]:

§ THE LORD CHANCELLOR
This is a small point, that the appropriate word in Scottish law should be "issued" and not "granted," as in the Bill: it is simply a correction. I beg lo move.

§ Amendment moved— Page 26, line 9, leave out ("granted") and insert ("issued").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is the same point. I beg to move.

§ Amendment moved— Page 26, line 13, leave out ("granted") and insert ("issued").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment deals with the point of the case of a warrant to arrest on the dependence of an action—that is, while the action is pending, and as your Lordships will see it speaks for itself. The two exceptions are where the ship is the ship 1254 with which the action is concerned or the shares in the ship are beneficially owned by the defender against whom the conclusion is directed. I drew your Lordships' attention to this matter on Amendment No. 28, and I need not trouble you with it again. I beg to move.

§ Amendment moved— Page 26, line 14, at end insert ("and in the case of a warrant to arrest on the dependence of an action, unless either—

(a) the ship is the ship with which the action is concerned, or
(b) all the shares in the ship are beneficially owned by the defender against whom that conclusion is directed.") — (The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This Amendment contains the many words which your Lordships will see on the Marshalled List, and deals with the position in regard to the various matters mentioned there. Your Lordships will remember that this clause corresponds to the English provision; which I mentioned when dealing with an earlier clause, and I do not think I need trouble your Lordships with an elaborate discussion of the Amendment. There are some differences in t he law of Scotland, and we have tried, I believe successfully, to fit these in carefully with the contents of the Convention. I beg to move.

§ Amendment moved— Page 26, line 18, leave out from ("injury") to end of line l9 and insert ("sustained in consequence of any defect in a ship or in her apparel or equipment or of the wrongful act, neglect or default of the owners or charterers of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners or charterers of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, unloading or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This and the following Amendment might conveniently be discussed together. The words proposed to be left out from line 43 were taken from Article (1) (i) (c) of the Arrest Convention, but from the context it is clear that the real meaning is, as indicated by the proposed Amendment, to insert the words "ownership cc right to possession." Both the Scottish 1255 and the English sections are now in accord with the real meaning of the Convention, and I beg to move.

§ Amendment moved— Page 26, line 43, leave out ("title to or ownership") and insert ("ownership or right to possession").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I formally move this Amendment.

§ Amendment moved— Page 26, line 44, after ("or") insert ("as to the ownership of").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is a drafting Amendment. I beg to move.

§ Amendment moved— Page 27, line 10, leave out ("action") and insert ("proceedings").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is also a drafting Amendment. I beg to move.

§ Amendment moved— Page 27, line 12, leave out ("the court may grant a warrant") and insert ("a warrant may be issued").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is also a drafting Amendment. I beg to move.

§ Amendment moved— Page 27, line 19, leave out ("it shall not be competent to grant") and insert ("there shall not be issued").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This, also, is a drafting Amendment. I beg to move.

§ Amendment moved— Page 27, line 31, leave out ("granted by virtue of this section") and insert ("issued by virtue of paragraph (b) of subsection (3) of this section").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is a drafting Amendment. I beg to move.

§ Amendment moved— Page 27, line 33, leave out ("granted") and insert ("issued").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

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§ THE LORD CHANCELLOR
Under the existing law a ship may be arrested only when it is in harbour or at a roadstead. This Amendment makes it clear that none of the other provisions of the section shall be taken to disturb this rule. I beg to move.

§ Amendment moved—

§ Page 27, line 39, at end insert— ("() Nothing in this section shall authorise the arrest, whether on the dependence of an action or in rem, of a ship while it is on passage."}—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 45, as amended, agreed to.

§ Clause 46 [Interpretation of Part V]:

§ THE LORD CHANCELLOR
In case any of your Lordships are anxious to learn what is a "pecuniary conclusion," I may tell you that this conclusion is the end of the summons which starts proceedings under Scots law. A pecuniary conclusion is one that claims a sum of money, better known to the noble Lord, Lord Silkin, and myself under the sublime name of "costs." I beg to move.

§ Amendment moved— Page 28, line 11, at end insert ("and pecuniary conclusion 'does not include a conclusion for expenses").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This corresponds to the English Amendment, Clause 9, which I explained fully when it arose. I beg to move.

§ Amendment moved— Page 28, line 30, at end insert ("or any such rules as are mentioned in subsection (1) of section four hundred and twenty-one of that Act or any rules made under subsection (2) of the said section four hundred and twenty-one").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This, again, corresponds to the English Amendment which excited the interest of the noble and learned Earl, Lord Jowitt. I beg to move.

§ Amendment moved— Page 28, line 30, at end insert ("'goods' includes baggage;").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 46, as amended, agreed to.

§ Clauses 47 and 48 agreed to.

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§ THE LORD CHANCELLOR moved after Clause 48 to insert the following new clause:

§ Modification of Foreign Judgments (Reciprocal Enforcement) Act, 1933, in relation to certain parts of her Majesty's dominions.

§ "49. Where an Order in Council is made extending Part I of the Foreign Judgments (Reciprocal Enforcement) Act, 1933, to a part of Her Majesty's dominions or other territory to which Part II of the Administration of Justice Act, 1920, extends, the said Part I shall, in relation to that part of Her Majesty's dominions or other territory, have effect as if—

(a) the expression "judgment" included an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the place where it was made, become enforceable in the same manner as a judgment given by a court in that place;
(b) the fact that a judgment was given before the coming into operation of the Order did not prevent it from being a judgment to which the said Part I applies, but the time limited for the registration of a judgment were, in the case of a judgment so given, twelve months from the date of the judgment or such longer period as may he allowed by the High Court in England and Wales, the Court of Session in Scotland, or the Court in Northern Ireland;
(c) any judgment registered in any of the said courts under the said Part II before the coming into operation of the Order had been registered in that court under the said Part I and anything done in relation thereto under the said Part II or any rules of court or other provisions applicable to the said Part II had been done under the said Part I of the corresponding rules of court or other provisions applicable to the said Part I."

§ The noble and learned Viscount said: I hope I shall not detain your Lordships for very long, but this is a somewhat important Amendment, because it amends the Foreign Judgments (Reciprocal Enforcement) Act, 1933, so as to remove defects which have prevented its extension to those Commonwealth countries with which arrangements for reciprocal enforcement already existed prior to 1933 under the Administration of Justice Act, 1920. To put it shortly, it is one of those curious points where the Act of 1933 was taking the place of the Act of 1920 but, owing to the absence of suitable transitional provisions, it has not been possible to use the later Act. We are here trying to make that possible, Your Lordships will see that paragraph (a) of the new clause in effect provides that, in relation to Commonwealth countries to which the 192.0 Act has been applied, the 1933 Act is to operate on arbitral awards in the same way as on judgments, provided the awards 1258 are enforceable like judgments by the law of the place where they were made. Paragraph (b) makes the 1933 Act apply to judgments given before as well as after the coming into operation of an. Order in Council extending the Act to a country to which the 1920 Act has been applied.

§ As I informed your Lordships, a transitional provision of this kind is needed because Section 7 (2) of the 1933 Act provides that as soon as an Order in Council is made extending the Act to any part of the Commonwealth, the 1920 Act shall cease to have effect. Paragraph (c) provides that judgments registered under the 1920 Act at the time of the coming into operation of an Order in Council under the 1933 Act are to be treated as if registered under the 1933 Act, and compliance with the rules applicable to the earlier Act is to satisfy the requirements of any rules under the later Act. I have deliberately kept this explanation as short as I can. I pause for a moment to thank your Lordships for giving time to discussing the Bill. The noble Lord, Lord Silkin, will agree with me that it is unfortunate that when a mistake of this sort is made and a lacuna is left it is so difficult to find Parliamentary time to fill it up. I am grateful to your Lordships for allowing it to me this afternoon. I beg to move.

§ Amendment moved— After Clause 48 insert the said new clause.—(The Lord Chancellor.)

§ LORD SILKIN
We are all very much obliged to the noble and learned Viscount for the way in which he has explained these very difficult provisions. They are difficult for one who has some slight experience of the law, and I imagine they are indeed somewhat more difficult for those who have not. I should like to ask the noble Viscount this question. I take it that the purpose of this new clause is to enable judgments which in the past, for one reason or another, have not been capable of being enforced, at long last to be enforced in this country. This will particularly apply to judgments which were given before 1933—or, at any rate, may well do so. I assume that there is no time limit for the enforcement of these judgments, and that a judgment which, for one reason or another, has not been capable of being carried into effect because of the lacuna is not now incapable 1259 of being enforced because of the time that has elapsed. But are any further words necessary to make that quite clear?

§ THE LORD CHANCELLOR
I do not think that any words are necessary, but, again, I shall be pleased to make absolutely sure of the point. It arises really on matters rather of procedure. It was possible to enforce judgments, but only under the 1920 Act. The extraordinary circumstance is that Part II of the Act of 1920 provided a method of reciprocal enforcement of judgment between Commonwealth countries. It was extended by Order in Council to many parts of the Commonwealth between 1920 and 1933, including Australia and New Zealand. Then, in 1932, a Committee under the Chairmanship of Lord Justice Greer, as he then was (afterwards a Member of your Lordships' House as Lord Fairfield), considered reciprocal enforcement of judgments and reported in favour of a uniform system of reciprocal enforcement for both foreign and Commonwealth countries, and this was embodied in Part I of the Foreign Judgments (Reciprocal Enforcement) Act of 1933. Section 7 of the 1933 Act provides for its extension to Commonwealth countries by Order in Council. The Act replaces the 1920 Act in any country to which it is extended, and by a general Order in Council made in 1933 (under powers conferred by Section 7 (1)) Part II of the Act of 1920 can no longer be extended to any new part of the Commonwealth. But in the event—this is the extraordinary point—the 1933 Act has never been extended to any Commonwealth country to which the 1920 Act had previously been applied because of the absence of suitable transitional provisions. That is what we are doing to-day. I will certainly do everything I can to make sure with regard to the point which Lord Silkin has raised, and if any difficulty arises I will inform the noble Lord.

§ On Question, Amendment agreed to.

§ Clauses 49 and 50 agreed to.

§ Clause 51 [Short title, repeal, extent and commencement]:

§ THE LORD CHANCELLOR
The next two Amendments are consequential on what I have explained. I beg to move.

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§ Amendment moved— Page 29, line 37, after ("Part V") insert ("and section (Modification of Foreign Judgments (Reciprocal Enforcement) Act, 1933, in relation to certain parts of Her Majesty's dominions)").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move the next Amendment.

§ Amendment moved— Page 29, line 39, leave out from beginning to ("in") and insert ("Section (Modification of Foreign Judgments (Reciprocal Enforcement) Act, 1933, in relation to certain parts of Her Majesty's dominions) of this Act shall extend to Northern Ireland, but save as aforesaid this Act shall extend to Northern Ireland only"). —(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Remaining clause, as amended, agreed to.

§ Schedule agreed to.

§ House resumed.