HL Deb 02 July 1962 vol 241 cc1100-13

3.3 p.m.

Order of the Day for the Second Reading read.

VISCOUNT COLVILLE OF CULROSS

My Lords, this Bill arises out of the Ninth Report of the Law Reform Committee, made to my noble and learned friend who sits on the Woolsack, in December, 1960. The Bill was guided through another place by my honourable and learned friend the Member for Epsom. The background to the Bill is this. In the Common Law of England there was no suit in tort between husband and wife—that is to say, no action could be brought in respect of things like negligence, defamation, assault, wrongful withholding of property, and the other more esoteric variety of torts. The reason for that was, in Blackstone's words: …by marriage the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during marriage or at least is incorporated and consolidated into that of the husband. I hasten to say that this was a concept which existed solely in the eyes of the Common Law; but none the less it is still valid.

This position was slightly relaxed by the Married Women's Property Act, 1882, in two respects: first, under Section 12, which allowed a wife, but not a husband, to sue for the protection of her own property, either by civil or criminal proceedings; and, in addition, under Section 17, which allowed either party to receive summary jurisdiction in the High Court or the county court on matters going to title in the possession of disputed property. But those were the only relaxations up to date of the law of the Common Law rule that I have quoted. This has resulted in an unjust and anomalous situation—at any rate in the view of many people.

I will explain a few of the anomalies. First, there is an extraordinary principle, which I think has arisen from judicial decisions, that, as regards torts committed between the spouses before they were married, while the wife can sue after marriage, the husband cannot. Secondly, there have been gravely unjust results from the limited protection which the wife was given by the 1882 Act. If, for instance, the wrong did not affect her property she was unable to obtain any redress. There was one case, for instance, where a wife who was living apart from her husband was arrested and lost her employment as a result of false accusation of theft made by the husband; yet she could do nothing about it.

It has also proved to be most unjust in the cases of third parties. For instance, supposing there was a motor accident in which two oars were involved and both the drivers were equally to blame, if the wife of driver "A" were injured she could sue driver "B", but his insurance company could gain no contribution from Mr. "A", in spite of the fact that he might have been very negligent; and therefore driver "B's" company would have to bear the whole of the damages payable. Equally, if I and my wife were in a car, and I injured her in an accident in which no one else was involved, she could get no redress from my insurance company under a third party policy. There are equally cases in factory accidents where husbands have injured their wives by their own negligence and the employer has been unable to get any contribution towards the damages which he has had to pay the wife.

If the noble Earl, Lord Lucan, thought that "carriageway" was quaint and old-fashioned, this Common Law doctrine might be said to be even worse in modern times. The Law Reform Committee therefore decided that something should be done. They did not wish to go back to the old rule of barring all actions between spouses, because that they considered to be unacceptable. Nor, equally, did they feel that it would be right that husbands and wives should be allowed to sue each other in cases of tort without any restraint whatever. This would only encourage petty domestic quarrels to be aired vindictively in public, and could do no good to anybody in many cases. So the recommendation made by the Committee was that there should be a right to sue in all torts, but subject to certain safeguards. This Bill implements their recommendation, with one or two changes in the actual Report that they made.

The main safeguard which the Law Reform Committee thought should be included appears in paragraph 11 of their Report. First of all, they recommend that there should be unfettered right of action except that: The court should, however, be able, either of its own motion or on the application of the defendant, to stay the action"— that is, to suspend it, without prejudice to the right to go back and start again if desired— if, having regard to all the circumstances including the conduct of the parties and the nature of the matter complained of, the judge is satisfied that the complaint is not one of substance or that it would not be in the best interests of the parties that the action should be allowed to proceed. I will come back to that formula in a moment.

The Committee also recommended that disputes affecting title and possession of property should be dealt with exclusively under Section 17 of the Married Women's Property Act, 1882—that is to say, in a summary fashion, which is there laid down without the option, as at present exists, of being able to deal with it as an ordinary tort in the ordinary way under Section 12 of that Act. As your Lordships see, the Bill gives effect to the main recommendation. Clause 1 (1) states: Subject to the provisions of this section, each of the parties to a marriage shall have the like right of action in tort against the other as if they were not married". I may say at this stage that although the Law Reform Committee was reporting only on the law of England and Wales, the situation in Scotland, both as to the law and as to the disadvantages which result from it, was so nearly the same that it was broadly acceptable that this Bill should also extend to Scotland. That is done by Clause 2, with very small and insubstantial variations of pure detail.

Having brought in this general rule, the Bill then makes two modifications of the Report of the Law Reform Committee. The first of these is not, I think, a very difficult one and is one which has not so far aroused much criticism. The Bill allows that if there is a dispute about title or possession of property there shall be an option either to bring an action under Section 17 of the old Act, so that it can be dealt with summarily, or, alternatively, to bring an ordinary action in tort. There is also a provision in the Bill for making rules to implement these powers; for the court to decide at a later stage whether or not the action should continue as a proper action or should revert to the old procedure and be dealt with summarily. This method of dealing with it introduces a great deal of flexibility, which I think is necessary in this field.

It is difficult to make hard and fast lines as to the distinction between damages for trespass and damages for detinue, which is, broadly speaking, what the distinction must be. For instance, if I were to take my wife's car, or my wife's china, and merely withhold it, that would be detinue. If I were to smash the car or break the china it would be trespass. In both cases, how- ever, my wife would have to prove her title, and this would be a preliminary in either case. At the beginning stages of the action it is not always possible to tell what form the action is going to take. Matters of this nature often become very difficult, intricate, and possibly unpleasant, and it is a good thing, I am sure, that the summary procedure may be reverted to in the middle, as it were, of the action, if the judge thinks this is necessary.

The other distinction, the difference from the Law Reform Committee's Report, lies in the formula which has been proposed by the Bill for a judge to stay the action. I read out the one which was suggested by the Law Reform Committee, but the one which is now in the Bill appears in paragraph (a) of subsection (2) of Clause 1, which says that the judge can stay the action if it appears to him that no substantial benefit would accrue to either party from the continuation of the proceedings;". This has not been at all an easy matter. There are many considerations involved, and your Lordships will see that the Bill as it stands has cut down a number of things which the court will take into consideration. For instance, the conduct of the parties, as recommended by the Committee, is not now one of the matters taken into account, and I think that, on balance, this is right, because it cannot really have anything much to do with the legal rights of the matter. The question of substance is still, however, left in, and this is intended to mean something on these lines: that the benefit should be of practical and financial benefit to the parties, or to one of the parties, and not that it should involve prospective moral or ethical matters quite devoid from the practical and financial level. That is the basis of the formula as it now stands.

Your Lordships will also observe that the question of the best interests of the parties has also been left out. This has been done, in the first place, because in an action the best interests of both parties can hardly ever be implemented; and, secondly, because it would open the door to the courts having to deal with the difficulties of the marriage it-self and the whole question of conciliation of the interests of the parties in their matrimonial state. My Lords, this is probably not the right tribunal or the right instance for this to be done, and it has been thought better to leave that aspect of it out of it altogether. However, this matter is by no means free from difficulty, and if I have sketched some of the reasons which have led to the inclusion of this particular formula in the Bill, this is by no means the end of the matter; and if your Lordships wish to pursue it further there will be opportunity for so doing.

In the end it is not thought that this Bill will mean any very great increase in the number of actions in courts between husbands and wives. Very largely, no doubt, it will be used in connection with insurance policies. I may say, at this stage, that the insurance companies were invited by the Law Reform Committee to submit evidence, but did not think fit to do so. Nor have they commented on it since, so that I do not believe they consider themselves to be prejudiced by this Bill. I do not think your Lordships need fear endless actions for defamation between spouses in the court for one very good reason; that legal aid is not given for these matters, so that the risk would probably not be worthwhile. In fact, it is not thought that the situation will change very much from that which now pertains, except that injustices should be removed by the Bill and a more harmonious state of affairs brought about in fitting in with the modern concepts that we have of marriage and husband and wife in modern life. I hope, therefore, that your Lordships will think this Bill to be a good Bill, and I beg to move that it be read a second time.

Moved, That the Bill be now read 2a.—(Viscount Colville of Culross.)

BARONESS SUMMERSKILL

My Lords, while thoroughly agreeing with the principles of his Bill, may I ask the noble Viscount whether his researches have revealed how many wives have sustained injury in any recent year in accident cases where the husband has been involved?

VISCOUNT COLVILLE OF CULROSS

My Lords, I am afraid that I have no figures at the moment, but I will certainly see whether I can find out and tell the noble Lady as soon as I can.

3.18 p.m.

LORD SILKIN

My Lords, I am sure that the House will wish me to congratulate the noble Viscount both on introducing this Bill and on the manner in which he has introduced it. He has made the Bill abundantly clear, unlike the last matter to which we gave our attention, and we are very grateful to him for it. As a matter of fact, although this Bill has passed through all its stages in another place this is the first time it has been explained to Parliament at all. It is one of those aberrations of Parliament that this very far-reaching measure obtained its Second Reading in another place without any discussion at all: it was passed "on the nod". It went through the Committee stage in half-an-hour and the Report stage and Third Reading in one and a quarter hours. So this is really the first occasion on which Parliament has taken the opportunity of discussing this Bill both in principle and in detail.

In fact, of those people who took part in the discussion on the Third Reading, everybody, apart from the mover and the Solicitor General, who gave it his blessing, was somewhat critical of the provisions of the Bill although only one speaker was actually in opposition to the Bill in principle. I think nearly every speaker expressed the hope—and this is very complimentary to this House, for a change—that we should do the work which they had omitted to do in the other House, which is give the Bill a thorough examination. I hope that we shall, and I have no doubt that the Government, and the noble and learned Viscount on the Woolsack in particular, will give us all the time necessary—although I do not envisage a great deal of time will be wanted to discuss this Bill—so that we shall get it through before the Recess. I have said that we welcome this Bill, and I am sure everybody will welcome the principle behind it. We have been moving, perhaps all too slowly but steadily, towards equality of the sexes. Perhaps the most outstanding example of the lack of equality is in this House itself, but even equality here may come one day.

However, in some directions we have moved too far in the opposite direction, and this Bill redresses the balance in certain directions where the law has gone too far against the male sex. We have to realise that this is not a Bill to give more freedom to women; it is a Bill which enables husbands to sue their wives for tort and wives to sue their husbands, and we must not get into the way of looking on this as a one-way traffic. To me this Bill will be a Godsend—I hope not really—as I am one of those people who allow their wives to drive; I do not drive myself. So if this Bill comes to operate at all I shall be the beneficiary. It works both ways, and in certain directions will be of advantage to the husband rather than to the wife. I am sure my noble friend will not object to that, being in favour of sex equality.

I was glad the noble Viscount referred to the section of the Report which tended to regard with disfavour complete freedom for husbands and wives to bring actions against one another. I am old-fashioned enough, as I am sure many other noble Lords in this House are, to regard it as a bad thing that a husband or wife should be able to bring an action for defamation at all, in any circumstances. I should like to test the feeling of the House as to whether, if that is the view of the majority in the House, we should not in terms exclude actions for defamation. I cannot conceive any circumstances—but no doubt the noble Viscount will be able to explain what circumstances might arise—where it would be of advantage to either party to bring an action for defamation of character. There are other kinds of torts that I should also like deliberately and definitely to exclude, bearing in mind, as I have said, that this is not a sex matter but would apply equally to husband and wife.

There are other matters in the Bill which I think are not an improvement on the recommendations of the Advisory Committee. I think that we might have accepted their advice, and unless there are very good reasons for rejecting them I think we should have been far better advised to accept what they recommended. I observed in the speech of the Solicitor General in another place that, where he was supporting the views of the Law Reform Committee, he was holding the members out as men who were speaking with very great authority, Lords of Appeal, High Court Judges, men of vast experience in the courts and so on, and saying that we ought to accept their advice. But I thought that on some of the most material questions the advice was not being accepted. As a matter of fact in another place the Solicitor General was suggesting that men of the calibre of the Law Reform Committee were perfectly competent to decide these difficult questions which are set out in the Bill, particularly the difficult question in practice of deciding whether any substantial benefit would accrue to either party from the continuance of the proceedings, when in fact the decision will not, generally speaking, rest with the Judges at all but with the registrars of the county court and the Masters of the High Court. And although I have great confidence in the capacity of either of those tribunals, it is not correct to say that these decisions will be made by men of the highest judicial calibre. However, I do not want to anticipate some of the Amendments that I think might usefully be considered in this House.

I think that it is the duty of every noble Lord to look very closely at this Bill, because I hope I am not exaggerating when I say this is a revolutionary measure in the relationship between husband and wife, and that we all of us have a responsibility for seeing that this Bill will not have the effect of making matters worse in the relationship between husband and wife. The noble Viscount said that the effect of this Bill would be small as regards matters other than insurance claims, and that is apparently the view of the Government. I am not so sure, and on a matter of this kind I suppose a humble solicitor is as well qualified to form an opinion as even the highest Law Officer of the Crown. We have to deal with these matters of relationship between husband and wife in a far more personal and intimate way than any Law Officer; and I would not subscribe to the view that this will have a minimal effect. I think once it becomes known and people are advised that they have a right of action against one another there will be a substantial number of cases where husband and wife will take their torts to court and will want to get a decision, not necessarily for the sake of financial benefit at all but in order to ventilate their feelings and passions and emotions. However, having said that—and I say these things merely in order to emphasise the need for very close scrutiny of this Bill—I give it a cordial welcome. I think it is timely and I hope that in due course it will receive assent.

3.28 p.m.

LORD CHORLEY

My Lords, may I just add a word to what my noble friend has just said, and also congratulate the noble Viscount who introduced this Bill? I think anyone who has practised at all in accident cases in the courts must have seen a substantial number of cases where wives, particularly, though sometimes, as the noble Lord said, husbands, have failed to obtain redress for very serious injuries sustained in motor car accidents as a result of the application of the Common Law rule. I certainly, although I never had a large practice in this type of case, saw quite a number of cases of this kind. I very vividly remember the case of an unfortunate woman who was smashed up so seriously that she was crippled for the rest of her life in these sort of circumstances, being driven by the husband; and the daughter sustained minute injuries which were compensated by a £10 note because the rule did not apply to her. The unfortunate mother, who was sitting alongside, who became a cripple for life, was unable to obtain any relief at all as a result of the operation of this rule.

I must say that that case has stayed in my mind ever since it came before me for an opinion when I was quite a young barrister in the 1920s. It is quite impossible to tell how many cases of this kind there are. The noble Baroness, Lady Summerskill, put a question to the noble Viscount who introduced the Bill, but I should say it is just not possible to form any real estimate of the number of these cases without sending a questionnaire round to the solicitors who practise in these accident cases. Therefore, for my part, I very strongly and sincerely welcome the introduction of this Bill.

It may well be that there are a number of points one should look at, as the noble Lord, Lord Silkin, has said. I cannot say I was altogether satisfied with his caveat in respect of defamation cases, because I have known one or two cases where spouses have become completely at loggerheads, separated, and then one of them—I will not say the wife or the husband—has maintained a campaign of vituperation of a very serious kind, which certainly ought to be checkable by means of the law of defamation. If there is to be some safeguard in respect of this matter in the Bill, I think it will have to be thought out very carefully, otherwise it might well lead to the continuance of a situation which I am quite sure a number of lawyers could, even more than myself, impress on your Lordships as being a very serious one. With these few observations I wish to support this Bill.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I am sure that I am voicing the opinion of the whole House when I express to my noble friend Lord Colville of Culross my gratitude to him for introducing this Bill, and I would add my congratulations on the lucidity and persuasiveness with which he moved its Second Reading. I should also like to take this opportunity of saying in public what I have already said in private—namely, how much I am indebted to my noble and learned friend Lord Jenkins and his colleagues on the Law Reform Committee for the admirable Report on which this Bill is based; and I do not think it is improper to say I am also very grateful to my honourable and learned friend Mr. Rawlinson for introducing it in another place.

My Lords, as I have indicated, the Government welcome this Bill as a valuable measure of law reform. The anomalies caused in this field by the present law have been so clearly exposed by the Law Reform Committee's Report and by the noble Viscount in his speech to-day, as well as by the noble Lord, Lord Chorley, in his speech a moment ago, that there is no need for me to rehearse them again. I need only say I am persuaded that this branch of the law ought, for the reasons given by the Committee, to be reformed and that this Bill is the right measure to achieve this object. Your Lordships will not expect me to go over again the ground my noble friend has covered so thoroughly, but I think I ought to express my views on the one point on which most doubt has been expressed. I refer to Clause 1 (2) (a), where, as my noble friend explained, the Bill departs from the recommendations of the Law Reform Committee. I would just ask your Lord-ships to consider this for a brief moment because I think it is important that we should get our thoughts clear on that point.

The Committee recommended that the court should have a discretion to stay an action in tort between husband and wife on the grounds that the complaint is not one of substance or that it is not in the best interests of the parties that the action should proceed"; whereas, under the Bill, the test is whether or not any "substantial benefit" is likely to accrue to either party from the continuation of the proceedings. I want to assure your Lordships that I give the most careful consideration to the precise wording of any Bill based on a report of the Law Reform Committee, whether it be a Government Bill or a Bill, as is this one. introduced by a private Member. Therefore, I have examined in great detail the arguments for and against departing from the formula suggested by the Committee in favour of that contained in the Bill. I am convinced that the wording of the Bill is to be preferred, although, of course, I am always ready to consider any fresh approach to the matter. I am not going to be long on Second Reading and go into details of drafting which we can better examine in Committee, but I should like to make clear that this wording was arrived at only after an exhaustive consideration of the Committee's own formula and of other alternatives which were suggested.

If I might put the matter very briefly, the Committee's formula, in my view, would require the Masters and registrars of the High Court and county courts to assess the future prospects of the parties' marriage and to weigh the advantages and disadvantages, as well as the chances, of a reconciliation or a parting. The "best interests" of the parties—I am quoting the phrase used by the Law Reform Committee—is a very comprehensive phrase and I do not see how one could exclude from its ambit the circumstances I have mentioned. I ask your Lordships to consider that point because to include them would, in my opinion, impose on the ordinary courts of law a task for which they are not suited and which they could not properly be invited to undertake, especially at an early stage of the case. Your Lordships will appreciate that a stay is valuable only if given at an early stage in the case, and to investigate the question of the likelihood of the continuance of the marriage and whether it is a good thing or a bad thing for the marriage to continue or break up, would, I think, be a matter of extreme difficulty.

May I just say one word on the formula in the Bill, and the point which I think is worrying the noble Lord, Lord Silkin? The phrase we are now considering in the Bill is much narrower and more precise. Plainly, it includes financial benefit. That will probably be the main class of case in which the test is applied, but I should construe it as entitling the courts to take into account the usefulness of granting an injunction, for example, to restrain one spouse from publishing a libel or repeating a trespass. I think that, on reflection, the House will see that that might be important. We have this extremely irritating position, which the noble Lord, Lord Chorley mentioned, where, after trouble, one of the parties to the marriage goes on repeating one libel after another. It makes no difference to the matter whether it foe the husband or the wife, but, if it is a serious matter, it can be extremely unpleasant. I need not give examples because examples will occur to everyone's mind. I think it might well be a good thing to be able to bring the action, in order to get an injunction to stop it. The same thing applies to cases of trespass in similar situations. Therefore, I believe that our formula would cover the main matters that are likely to arise, without going into the extremely difficult question of the continuance of the marriage.

My Lords, I shall be very happy to deal with the matter at greater length—I do not think this is the time to do it—if Amendments are put down at the Committee stage. I was only anxious to explain to your Lordships that the change has not been made without very serious consideration. I support my noble friend, and I hope the House will give the Bill a Second Reading.

VISCOUNT COLVILLE OF CULROSS

My Lords, I thank your Lordships for your reception of this Bill. If I may say so, I think that it has also been particularly valuable that my noble and learned friend the Lord Chancellor has explained what, an his view, would be the probable ambit of the formula in the Bill, which would enable the courts to stay proceedings in this field. This is, of course, a very difficult matter, and, if I might briefly mention a few of the points made by the noble Lord. Lord Silkin, I think there are good reasons for having changed the formula from that suggested. And his noble and learned friend Lord Chorley, as well as the noble and learned Viscount the Lord Chancellor, has given reasons why it could be dangerous specifically to exclude defamation from the scope. I think it would be a mistake so to do. and I think that the general power to stay, where the case falls within the formula, should be enough to cover the type of unfortunate case which the noble Lord has in mind. Of course, he is quite right in saying that the discretion would have to be exercised by the Masters and Registrars at the stage of a summons for directions, or the equivalent in a county court; but, with respect to them. this would perhaps be a reason for keeping the matter on a fairly narrow basis, particularly at that early stage of the proceedings.

I think that the restrictive formula as it stands has advantages over that which was set out in the Law Reform Committee's Report. For instance, to take only one example, if the best interests of the parties in their matrimonial concept were concerned, might it not happen that the Master would feel himself bound to stay an action where the marriage was on the verge of breaking up, but would allow it to go on if he was convinced that the marriage was happy enough to withstand the assault on it involved in the action; or, alternatively, would let it go on where the marriage had irrevocably broken up? This seems to me to be such a difficult jurisdiction that it would be wrong for it to come into the Bill at all. However, these matters could be examined usefully on Committee stage, so I hope that the House will give this Bill a Second Reading in order that that may be done.

On Question, Bill read 2a, and committed to a Committee of the Whole House.