HL Deb 08 July 1963 vol 251 cc1267-86

7.17 p.m.

Order of the Day for the Second Reading read.


My Lords, since this Bill is not by any means easy to understand, I hope your Lordships will forgive me if I try to explain it in a little detail this evening, particularly in view of the fact that I know the noble Lord, Lord Silkin, and other members of your Lordships' House are most interested in getting the matter right. The Bill really goes back to the time when a case named Cartledge v. E. Jopling and Sons, Limited, was first decided in the court of first instance in about 1956 or 1957. The facts appear from the speech of the noble and learned Lord, Lord Pearce, when eventually the case reached your Lordships' House, and they are as follows.

The firm of Jopling and Sons, Limited, the defendants, manufactured steel castings and Mr. Cartledge, whose widow was one of those suing as plaintiffs, had for many years been employed by them as a steel dresser. Lord Pearce went on to say that in that capacity Mr. Cartledge and his fellows worked in an atmosphere which could easily become laden with dust from the particles of fractured sand or silica inevitably produced by grinding and shot-blasting processes designed to remove sand from the steel when it emerges from the mould. In breach of…the Factories Act, 1937, the defendants had failed to provide proper ventilation from 1939, when war-time conditions created certain difficulties, until…1950. By that time, as a result…all the plaintiffs were suffering from pneumoconiosis; but (with three possible exceptions) they were unaware of it and had no reason to suspect it. From 1950 onwards the defendants committed some breaches of regulations with regard to the removal of dust from pedestal grinders. By that date, however, a new and effective mask was being worn by the workers, and the breaches…after 1950 were not of sufficient importance to produce any material contribution to the disease of the plaintiffs. They could not, therefore, suffice to support or to continue any cause of action. The writs were issued on October 1, 1956. Although it would have been possible to issue the writs within six years from October, 1950, it is not suggested that the plaintiffs were dilatory or unreasonable in failing to start proceedings earlier. That is a quotation from [1963] 1 All England Law Reports, at page 346. The plaintiffs in that case did not discover until after the relevant date in 1950 that they were suffering from the disease of pneumoconiosis. Although they got their disease from the defendants' breach of statutory duty, and would indeed have been awarded quite considerable sums in damages, nevertheless your Lordships' House found itself forced to agree with Mr. Justice Glyn-Jones, who gave the judgment in the first instance, that the Limitation Act prevented them from being able to get this money to compensate them for the sufferings and the illness which they had incurred as a result of that breach of statutory duty.

The noble and learned Lord, Lord Reid, at the end of his Opinion, said this: One thing at least is clear. The fact that the present law requires us to dismiss this appeal shows that some amendment of the law is urgently necessary". My Lords, under the Limitation Act, 1939, as amended by another Statute in 1954, the law is that there is a three-year limit within which one must bring an action for personal damages in the case of negligence, nuisance or breach of statutory duty, and after that the defendant can put up the Limitation Act as a bar and prevent the plaintiff from getting any damages from his action. It was this that was held to prevent the plaintiffs in the case of Cartledge v. Jopling from getting their due damages. This Bill which is now before your Lordships is seeking to put right the state of the law which I think all Members of your Lordships' House who were involved in that judgment thought was wrong and should be changed. It was passed through another place at the instance of my honourable friend the Member for Colchester. There was some argument about certain parts of it which I think may very well recur to-day—and it is very right that it should, because it is by no means free from difficulty.

The Bill itself results from a Committee which was set up by my noble and learned friend and by the Secretary of State for Scotland, and which was presided over by Mr. Justice Edmund Davies. This Committee reported in August of last year, and it concluded in its Report that the number of cases where this sort of difficulty arose in the law was small but it was sufficient to constitute a real problem. It is not just pneumoconiosis which is involved. There are quite a number of industrial diseases, some of them arising from things like lead poisoning; and radiation is another which could very well cause difficulty in the future. There are also ordinary accidents which are necessarily outside the industrial sphere but which, nevertheless, may occur: small accidents in the first place which may later become dangerous and even fatal. For instance, a blow on the head can cause a tumour, or epilepsy or some other disease which no one would have suspected at the time and no one would have thought of suing about; and then later, when it comes about, it is too late.

What, my Lords, is the way to deal with this? The Committee considered various methods. First of all, they rejected the possibility of specifying a list of diseases which would entitle a man to get round the ordinary bar which is placed upon his action by the Limitation Act. They thought this was unsatisfactory. They also recommended that the matter should not be dealt with solely on the basis of these industrial diseases, but should take in the other sort of case—the accident cases, which I have just described to your Lordships—as well. They also rejected a maximum period, as it were, of prolongation of the limitation period in these cases because no suitable period to fit all possibilities could be found. Finally, in paragraph 44 of their Report, they recommended this: An injured person should not be liable to have his claim defeated by the operation of the Limitation Act if he satisfies the court that—(i) he could not reasonably have been expected to discover the existence or cause of his injury in time to start proceedings within the limitation period; and (ii) he has started those proceedings within twelve months of the earliest date on which he could reasonably have been expected to make that discovery". This is what the Bill puts into effect, and before I come on to the difficulties in the Bill I shall, as rapidly as I can, run through it so that your Lordships may see what is in the Bill and what there is on paper which might be subject to criticism or suggestion hereafter.

Clause 1 extends the time limit, and, in subsection (1), it does it in a way which deals with the point that I made as to its being for the defence to raise the plea of limitation. The plaintiff, of course, may bring his action at any time, and if the defence do not wish to raise the plea of limitation then they need not do so; but, as it stands, after three years it is open to them. This Bill takes away in specific circumstances the ability of the defence to do this. The circumstances are, in fact, set out in subsection (3) of this first clause. Before that, subsection (2) provides that it is the sort of cases which are dealt with under Section 2, subsection (1), of the Limitation Act, 1939, as amended, which are the ones which are covered by this particular Bill.

Subsection (3) of Clause 1 is very important, and it contains there three terms of art. The first of them is the words, material facts"; the second is, facts of a decisive character"; and the third is, outside the knowledge (actual or constructive) of the plaintiff". Those three phrases are dealt with in Clause 7. I think it will be convenient to deal with them now, because they do go entirely with subsection (1) of Clause 1. The first of them is in subsection (3) of Clause 7, and the "material facts" with which this Bill is dealing are the fact of the injury, the nature or extent of the injury or the fact that the injuries were attributable to certain things which the injured man knew happened. On the other hand, the fact that there was negligence, or the fact that there was a breach of statutory duty, or nuisance, does not come within the term "material facts"; and so, if he did not know about that at the time, then he would not be given the relaxation of the Limitation Act which this clause allows in proper cases.

The second term of art is, "facts of a decisive character". This is defined in subsection (4) of Clause 7, and it gives the injured person the benefit of the doubt. The facts which are of a decisive character are those which he would have known would give him a proper ground for action with a substantial chance of success if he had taken advice about it, and if he was reasonable in not taking advice about it because, at the time, he did not realise how serious it was. This business about advice is further dealt with in the third term of art in subsection (5) of Clause 7, where it is quite clear, I hope, that the knowledge which he need not have in order to gain the advantage of this relaxation is either the pure fact that he did not know, or that he could not have found out, or that he could not, with the appropriate advice, have found out about this.

The third is important because it means that if the man went to his doctor, and his doctor, either negligently or simply from lack of medical knowledge, was not able to advise him that there was something serious in the injuries he had received, that would not be held against him. It would not be, provided that he had been to his doctor. If he did not go to the doctor, he can take advantage of this Bill only if it was not reasonable for him to go to his doctor in the circumstances. Those are the crucial factors under subsection (3) of Clause 1 which, if they can be shown, will give an injured man the ability to defeat for a period the Limitation Act and the period which is now laid down therein. But they will allow him to do so only within a certain period; and the rest of Clause 1(3) explains what that period is. First, there is the three-year period. During that time he can quite safely bring his action without any defence being raised against him at all. Thereafter, he can bring his action and seek the benefit of this Bill if he does so within twelve months of finding out about the things that I have just explained. Then he can benefit from this Bill.

There is the intermediate stage also covered by this subsection. If, towards the end of the three-year period he should happen to find out, then up until the end of that period he can bring an action without benefit of this Bill at all. After the end of that period it would not be right for him to have more than the rest of the twelve months from the date he discovered the facts, in which to bring his action; and this Bill, therefore, in rather complicated language but nevertheless rightly, lays down that where the period is to begin to run in the last year of the limitation period, then it will be only twelve months from the date when he found out the relevant facts. The first clause goes on to lay down that there will be no diminution of the right of a plaintiff which arises out of the special provisions of the Limitation Act on fraud or where he is under a disability. Nor will this prevent various other statutory lengths and periods of limitation from running in the ordinary way. For instance, the period under the Carriage by Air Act and the 30-years period during which he can bring his action without the defence period available under the Nuclear Installation Licensing and Insurance Act, 1959.

Clause 2, which I think is the really controversial clause, lays down a preliminary procedure, which is something the Edmund Davies Committee recommended as right, before an action can be introduced into the courts under the benefits of this Bill. The procedure which is laid down in the Bill as it stands is this. There shall be an ex parte application to a Judge and on that application the plaintiff, or the would-be plaintiff, must show not only that he has a case which is meritorious on the face of it, that is to say prima facie, but also that he can satisfy the three points in subsection (3) of Clause 1, which I have just explained to your Lordships. He has to make these two points before the Judge on an ex parte application, and if the Judge is satisfied that he has made out a prima facie case within the terms of the Bill, he can give leave to go to trial. Provision in the Bill is not needed but it is possible for the would-be plaintiff to appeal to the Court of Appeal, but not higher, if he is not granted leave by the Judge; and, in rare circumstances a potential claimant can apply to the Court of Appeal to strike out the leave which has been granted by the court below. This is an important point, as noble Lords will appreciate.

Again, as the Edmund Davies Committee recommended, the third subsection of Clause 2 provides for the possibility of leave being granted after the action commences—for instance, if the plaintiff finds, on discovery, that the cause of action upon which he bases his case accrued more than three years before the time when he issued the writ. Having so discovered, he can apply to the court for the benefit of this Bill; and again the same test will have to be gone through, except that there is a further test with which the court must be satisfied: that he did not and could not reasonably have known about the earlier period being the time relevant for his cause of action until he had brought his action. That is in the second part of subsection (3).

Clause 3 deals with the case of a plaintiff who has died, and it gives his personal representative all the powers he would have had, had he lived, under the Law Reform (Miscellaneous Provisions) Act, 1934, and also makes provision for the dead man's dependants to have their separate cause of action suitably adapted under the Fatal Accidents Act. Again this implements the Edmund Davies Committee recommendations.

Clause 4 is a general clause, a subject outside the Committee's powers, although they mentioned it. It is a clause of general application to all torts and not only with reference to the sort of cases I have mentioned. It cuts down, from six years to two years, the time in which tortfeasors can claim contributions from each other. This is quite an important point because not only does the clause do that, but subsection (2) also sets right a general doubt which has existed in the law for some time and which came to the surface in a severe form recently about the date at which damages accrue to a tortfeasor in one of these cases. I am afraid that in Committee your Lordships will be troubled with a few Amendments of a technical nature on this clause to deal with one or two things which are left out.

Clause 5 makes it clear that the Bill is binding on the Crown; and Clause 6 is a transitional provision which is something in the nature of a compromise. It would not be right to apply this Bill only to cases where the cause of action accrued after the passing of the Bill into law; because, by the nature of things, these causes of action often do not turn themselves into actions for a long time, be- cause people do not discover that they have suffered the damage. Equally, it would not be right to back-date the Bill in such a way that it might mean reopening actions that had already been satisfactorily settled. This clause says that the Bill applies to a cause of action which has arisen before the Bill comes into effect, but has not finally been adjudicated upon by the court of first instance. Where final judgment has been given, even where an appeal is pending, the Bill cannot apply. Otherwise if the action has not arisen, or has not reached that stage, the plaintiff will be able to get the benefit of this Bill. I have already dealt with Clause 7; and I hope that your Lordships will have understood what that implies, although I am afraid that it appears complicated.

Clause 8 and the subsequent clauses of the Bill apply to Scotland; and this fact also has the Committee's recommendation, because it is a United Kingdom measure. The Scottish provisions are almost exactly the same as the English ones in content, although the law of Scotland is different. There is not, for instance, any difficulty about fraud. There are no special provisions about fraud that have to be legislated for. On the other hand, the saving for plaintiffs under a disability had to be dealt with under Clause 8(4). Again, the actions where the plaintiff has died are dealt with in Scotland under Common Law and not under Statute, as in England, and the particular part of the Bill has had to be adapted in that way. Similarly, the contributions between what in Scotland are called wrongdoers are not subject in Scotland to the limitation of six years; the period is 20 years, and this also has been cut down to two The only other point I want to make on the contents of the Bill, so far as Scotland is concerned, is in Clause 12, where the Committee recommended that these cases should not be tried, as they usually are, by jury. Consequently, as was recommended, the power to try by jury has been taken away.

The main difficulty about this Bill is on Clause 2. The Bill provides for ex parte application on the merits, and also on matters in Clause 1(3). Although have taken a great deal of advice and thought a lot about this aspect, I am very much inclined to think that what is in the Bill is best, but it is a matter which is not in the least straightforward and anything your Lordships say will be of great value to me in making up my mind which way this should finally go. I think that I should point out to your Lordships the four possibilities there are for dealing with this. First of all, there is the possibility of doing nothing in the way of preliminary hearing at all—no filter through which these actions must go. This was something which the Edmund Davies Committee thought was wrong. What they said was: It has appeared to us important that any general relaxation of the three-year rule should be accompanied by safeguards designed to exclude from its beneficial operation actions of an unmeritorius, speculative or fraudulent character. They went on to say later on: Although we are confident that the courts"— if they were given unfettered discretion— would do their utmost to exercise such discretion wisely, we are not in favour of such a fundamental amendment to the existing law. From the practical point of review, an unfettered discretion would encourage optimistic claimants to institute proceedings which in truth had no chance of success and thus to waste their own, the defendant's and perhaps the taxpayer's money on pointless litigation. More serious is the objection based on the principle that the law should be certain and the area of judicial discretion therefore narrowed as far as is possible. We were impressed by the practically unanimous opposition of the legal witnesses to the conferring on the courts a wide discretion. We think this opposition is well-founded. They therefore decided that they would not support the idea of a complete discretion for the courts to accept or review these cases whenever they came before them.

The alternative is to have the full treatment which is in the Bill, to have a preliminary application on which the would-be plaintiff would have to satisfy the judge not only on the merits but also on the Clause 1(3) conditions, if I may so describe them. This not only has the advantage of showing the court that the conditions in Clause 1(3) of the Bill are justified, but also makes certain that there is a proper case, a case in which it is right that the ordinary protection of the defendant under the Limitation Act is to be suspended. This again is something which the Committee dealt with, in these words: We contemplate leaving leave to sue out of time operating so as to relieve the plaintiff from the operation of the Limitation Act in respect only of those incidents specified in his application: in effect, he will be given leave to go back to, but not beyond, a specific date. We do not think this would cause any hardship to the plaintiff: by the time he makes his application he ought to know what case he seeks to present; indeed, it might be advisable to require him to produce to the judge to whom he applies a draft of the statement of claim he proposes to deliver if leave to proceed is granted. Therefore, it seems to me that the Committee at any rate thought that this matter, which is written into the Bill, was fairly balanced between the plaintiff and the defendant in the circumstances.

On the other hand, in another place a proposal was put forward to limit the application to the conditions under Clause 1(3). It was said that it would not be fair for the plaintiff to disclose his case on the merits at this stage, or any rate at the stage of discovery. The honourable Members who put forward this view said that in any case there would be considerable protection on the merits for the plaintiff in the fact that either a legal aid committee or committee of a trade union which was going to support the action would have had a look at the facts first before deciding whether or not they would give financial help for the case to go forward; or alternatively, the argument runs, if there is no such backing it follows that the plaintiff will be a person of some financial substance and therefore he can safely go ahead, even if his action is ill-founded, because the defendant would be able to recover his costs from him.

On the other hand, I wonder whether an ex parte application at the beginning and the certain amount of trouble it will cause would be worth it, simply for the Clause 1(3) points, or whether there would be any prejudice worth talking about so far as the plaintiff is concerned if he did have to put forward his case on the merits to be looked at at the time of discovery. After all, this is not very much for him to give way at this stage, when the defendant is being deprived of his ordinary protection under the Limitation Bill. Those are the arguments on that point.

There is one final point of difficulty: that is the form of the application itself. The Committee certainly thought that this should not be addressed to the person booked for final hearing and should be ex parte; and the would-be defendant should not be represented and it should not be argued at that stage. This, I am certain, is right. But then, on the other hand, should the hearing be ex parte, in the sense that the documents will later go on the court record and become available on discovery to the defendant, or should the plaintiff's case be kept so secret by this method that there would be no record of what he put before the judge on his ex parte application? It seems to me that the latter is almost impossible, because, as I have explained to your Lordships, there may be cases where these ex parte applications go to appeal, and if you try to keep the whole thing secret in the normal case this would clearly be impossible where the plaintiff had to go to the Court of Appeal to get leave to proceed. The same would arise if the would-be defendant sought to get leave granted by the judge set aside by the Court of Appeal. In any case, there is a very good system, under what is known as the Order 14 procedure at the moment, whereby a similar sort of thing occurs. In that case, it is not at all infrequent for the case that a defendant has put forward to the Master, under Order 14, on affidavit for leave to be compared later with the defence he puts up in the court; and if there is any discrepancy between the two there is at any rate something for considerable comment. If the ex parte application under this Bill were to be secret, then there would be nothing, either on the record for the court itself, or indeed the defendant, to look at to see whether, in fact, the plaintiff was putting forward the same kind of argument when the case came to the court as he had addressed to the judge who granted him leave. Indeed, it may not be the same case at all.

It seems to me that the Bill, which provides that the affidavit, or whatever document goes before the judge on ex parte application, should not be kept secret and should be open for discovery when it comes to the right point in the trial, is about right. I will add this: I do not think that the plaintiff would, in fact, be very much prejudiced, because, although some of the facts would be in his affidavit, there would be annexed to it such things as his medical evidence, which I think would not be available on discovery anyway as being privileged. So I doubt whether the form which is in the Bill would cause injustice to anybody; and if there is to be a balance, my own inclination is to keep it as it is, this being about the fairest.

I would add one final comment. As the Bill was originally introduced in another place this ex parte proceeding was applied to Scotland also. It is not now, because the Scots asked that it should be omitted. This does not mean that there will be no similar filter in Scotland. The reason is a technical one: that in Scots law there is a procedure by which the points that arise under Clause 1(3) of the Bill can be dealt with as a preliminary point, in much the same way as they would be on an ex parte application in England; and it might also be that the merits also would be dealt with as a preliminary point. It seems to me that there is, at any rate, something to be said for having as similar as possible a procedure North and South of the Border. That being the case in Scotland, it accords very well with what is in the Bill for England and Wales, and it affords one reason far keeping the Bill as it now stands. However, on this difficult matter I shall welcome anything your Lordships may have to say, and I shall be particularly glad to hear what my noble and learned friend the Lord Chancellor, the noble Lord, Lord Silkin, and the noble and learned Lord, Lord Morris of Borth-y-Gest, may say. I think your Lordships would agree that, subject to this small difficulty, the Bill is doing a good thing. It is setting right a clear injustice, and I hope your Lordships will give it a Second Reading. I beg to move.

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

7.52 p.m.


My Lords, I can relieve the noble Viscount's mind straight away. This Bill will, so far as I am concerned, receive a Second Reading, and I do not imagine that anyone else would wish to oppose it. It is a good Bill, on the whole, and I think, after the unkind things that were said on the previous measure this afternoon, I can congratulate those who introduced this measure, and the Government who supported them, on the promptness with which the recommendations of the Committee were sought to be implemented. The Committee reported in September, 1962. It is not many months since the Report was made, and here we are in this House discussing this Bill. I should also like to congratulate the noble Viscount on the way in which he introduced this most difficult, complicated and technical measure. He has done it so well that I do not propose to follow him or to try to elaborate on any of the points he has made. However, I have one slight comment on his observation that the number of cases to which this Bill would apply would be small. The noble Viscount has no means of knowing that. He knows quite well that, as the law stands at the present time, when a person is seeking advice about his rights, and the Statute of Limitation applies, he is told that he is not in a position to institute proceedings, and that is the end of the matter. No record is kept.


I was actually quoting from the Committee's Report.


I know. But I still say that nobody can know the number of cases which have not come to the courts or to which this applies. If a person goes to a solicitor for advice after the three years, he is told: "I am sorry, but the Statute of Limitations applies, and I cannot advise you to commence proceedings." Nobody can know, not even this eminent Committee, the number of cases to which it applies. My own view is that it applies to many more cases than the Committee suspected. That is a small point, but it makes this Bill much more important.

There are a number of matters which possibly I shall deal with at some length at a later stage. For instance, I see no reason why the period should be one year. After all, for many years the period of limitation was six years in all. It is now three years. Surely the equitable thing would be to give a person who is affected by this Bill the same rights from the time when he becomes aware of his rights as he originally had; that is, three years and not one year. I may say that this is the view of the Law Society, and the evidence that they gave on this point was to the effect that there should be a three-years period from the time when the person first became aware of his rights, and not twelve months.

Then there is the very troublesome point of whether a person taking advantage of this should have to make a prima facie case to the court. I rather felt that the noble Viscount—I hope he will not mind my saying this—came down far too heavily in favour of the person making the prima facie case. In fact, in another place the matter was, as I understood it, left completely open. An assurance was given that this matter would be properly considered in this House, and, as I thought, both the Solicitor General and the promoter of the Bill were perfectly prepared to give favourable consideration to this question of a litigant's not being compelled to make a prima facie case.

Then there is the point about Rules of Court. This is all subject to Rules of Court, and one does not know what Rules of Court may be introduced in the Bill. I hope at a later stage to get a fuller explanation of what kind of Rules of Court are contemplated, because they might completely take away the ex parte provision and make it a public hearing. But at this stage I do not want to argue the merits of what I propose to put down at a later stage. I should like to explain that many of the Amendments I should have liked to put down I am not going to put down, because my honourable friends in another place are so anxious to get this Bill through that they do not want anything to be done which will cause it delay. However, they feel strongly about the necessity of having to make a prima facie case, and, therefore, I hope it will receive rather more sympathetic consideration than the noble Viscount gave it this afternoon.

The noble Viscount was quite right in saying that there need be no fear of frivolous or vexatious actions. He said that there would be very few, and the Committee say that, too. If that is right, it cannot be a very difficult matter, anyway. However, there are two other factors. In the majority of cases of this kind, as the noble Viscount said, the person seeking redress would have to get aid of some sort, either through the legal aid provisions or from his trade union, and there are effective safeguards against frivolous actions in either case. I should have thought that the disadvantages of requiring a person to make a prima facie case within twelve months, without necessarily having all the data available, would far outweigh the possible disadvantage to the defendant of the elimination of this machinery.

As I say, I do not propose to argue the matter at this stage, because I hope we can have a rather fuller discussion on this point and other points that I propose to raise. But I want to give notice, as the noble Viscount himself anticipated, that this will be a matter which will be seriously debated, and I hope the noble Viscount will find himself in a position to agree with the contentions we put forward. In the meantime, I want to give the Bill a cordial welcome, and I hope it will go through as speedily as possible.

8.2 p.m.


My Lords, may I be allowed to add the hope that your Lordships will give a favourable reception to this Bill? should like, if I may most respectfully do so, to express my appreciation of the speech of the noble Viscount, Lord Colville of Culross, in introducing in so helpful a manner for your Lordships' assistance the provisions of this Bill. I rise to express my general hope that your Lordships will receive it favourably, because I was a Member of your Lordships' House who determined in January of this year the case to which the noble Viscount has referred, Cartledge v. Jopling, which led to the appointment of the Committee under Mr. Justice Edmund Davies. The facts have been clearly detailed by the noble Viscount, and from what he has told your Lordships it would appear that there is striking support from the events and facts of that case for the view that some amendment of the law is desirable. The noble Viscount has quoted what Lord Reid said. There were similar expressions of opinion by Lord Evershed and Lord Pearce, and I added my own expression of opinion to the same effect.

The facts really were rather striking, as the noble Viscount has said. There were certain breaches of the Factory Act before October, 1950. They were breaches because there had been failure to provide proper ventilation. Mr. Cartledge in that case was a steel dresser. The evidence showed how minute particles of silica may enter somebody's lungs, may gradually cause damage to the lungs which will continue, and there may be permanent injury occurring of which the sufferer is entirely unaware. The result in that case was that there was a breach of the Factories Act before October, 1950. There was no breach after that date. It was shown that Mr. Cartledge suffered physical injury before October, 1950, although he was quite unaware of it, and he was neither negligent nor dilatory in being unaware of it. The learned Judge who tried the case held that a cause of action accrues when damage is done consequent upon a breach, and not when the plaintiff first learns that it has been done. In cases of that kind, there is insidious industrial disease giving no indication of its presence in its early stages, and someone may be a sufferer and have a cause of action, be quite unaware of it, and yet, under the law as it stands, may find himself defeated by the plea of the Statute. I hope, therefore, that your Lordships will form the view that there is in general a strong case for some amendment of the law.

As regards the actual procedure, I am quite sure your Lordships will pay great heed to anything that has been said, or that may be said, by the noble Lord, Lord Silkin, either now or in the future. I would just say at this stage that I feel that the proposed procedure is acceptable and satisfactory. I appreciate the force of what the noble Lord, Lord Silkin, has said, but I do not myself think that if a plaintiff is to be given the right to overcome the difficulty that at present is in his way he would regard it as unreasonable that he should satisfy a judge that he has a prima facie, a good, case. It seems to me that possible defendants, who otherwise could succeed because of the lapse of time, are entitled to have some measure of protection against irresponsible claims, and such measure of protection as this proposed procedure would ensure.

I would add this. On the point that has been indicated—the point that is felt by some—that a defendant may become aware on discovery of the way in which the plaintiff puts his case, I cannot think that that involves any hardship to a plaintiff. If he has a good case, then it can stand the light of scrutiny and investigation. A good case does not become a weak case by being revealed. If it is a weak case or a bad case, then it should fail. I would suggest that the course of justice is not thwarted if a defendant, by having adequate time and notice, is able to demonstrate that a case does in fact lack merit. I hope your Lordships will favourably receive this Bill.

8.8 p.m.


My Lords, it gives me particular pleasure on behalf of the Government to welcome this Bill. I should like to thank the noble Viscount, Lord Colville of Culross, for introducing it so clearly and explaining it so well. I am sure the House will join with me in thanking the very distinguished Committee which, under the chairmanship of Mr. Justice Edmund Davies, examined and reported on the problem which lies at the root of the Bill. The noble Lord, Lord Silkin, has already drawn attention to the remarkable speed with which the state of the law is being put right, and no one will argue that the present state of the law in this aspect is in the least degree satisfactory. The solution of the problem is not an easy one, and I think the Edmund Davies Committee did some valuable work indeed upon it.

I do not propose at this late hour to detain your Lordships with a long speech on this subject, but there are one or two things I should like to say. The first point I should like to make is that although one cannot tell whether there are more cases than the Committee thought should be kept alive by this Bill, that strengthens the argument, I should have thought, for some kind of filter. Although the majority of cases may be cases of industrial disease, the Bill applies to personal injury of any kind. Although in a large number of cases there may be scrutiny of the claims by a trade union or by a legal aid committee, that does not exclude the possibility of unmeritorious, speculative, actions being initiated.

In view of what the noble Lord, Lord Silkin, has said, I should like to give him this assurance. I have myself read all that was said in the other place in relation to this Bill, the speeches made by the promoter of the Bill the honourable Member for Colchester, and what was said by my honourable and learned friend the Solicitor General. I find the question of whether you have a filter, and, if so, what form of filter, very difficult, but I can assure the noble Lord, Lord Silkin, that I have given as much consideration to it as I can. That does not, of course, exclude the fact that I shall listen with the greatest interest to anything he cares to put forward as regards this in the later stages, as I am sure my noble friend Lord Colville of Culross will, too. It is, I think, extremely important that we should avoid tilting the balance too much against potential defendants, and my own view (and I say this quite frankly) is that the Bill is just about right, because there should be safeguards, I think, for defendants, to protect them from unfounded threats of litigation.

I do not propose to take up any time in expanding all that tonight. The only other point to which I wish to allude is the proposal to introduce a two-year limitation period for claims for contribution. I have always felt that the current six-year period is too long, because it starts only when the plaintiff's original action is disposed of, so that the unfortunate second tortfeasor may find himself resisting a claim based on something that happened twelve or more years before. If we did nothing about it, the time could, in cases to which the Bill applies, be even longer. I do not believe that the shorter period can cause any hardship and I welcome it.

There are a number of points arising on the details of the Bill which we can more suitably discuss in Committee, and, in the meantime, I join with the noble Viscount in hoping that the House will support him and give the Bill a Second Reading. I commend it to your Lordships as a Bill which puts right a very unsatisfactory state of the law in one respect, and I hope its passage to the Statute Book will be as speedy as possible for that very reason.


My Lords, I am very grateful indeed for the support which this Bill has been given, I think from North, South, East and West in this House, and I am also very grateful, too, for the advice which, as I had hoped might be the case, my noble and learned friend, Lord Morris of Borth-y-Gest, and the noble Lord, Lord Silkin, have given. I had not intended in the least to suggest to the noble Lord opposite that my mind was made up. I was merely seeking to put forward some arguments, as I think it is my duty to do having introduced the Bill in the form in which it stands; but this by no means indicates that I shall not consider seriously and fully anything he might say, if I have not done so already. I think I am entitled to some opinion on it, which is, I am glad to say, the same as that of my noble and learned friend the Lord Chancellor; and, as we are not unknown to disagree upon certain matters, this is a very pleasant thing to happen.

Of course, the point of the noble Lord, Lord Silkin, about the length of period of one year has some bearing upon this, too, and I think it should also enter into the sphere of consideration at a later stage. I do not think that the noble Lord need be very worried about the Rules of Court under Clause 2(1). These would be necessary for cases where leave had to be given in the middle of an action, but I think that is what those were intended to deal with, and not with any sense to change an ex parte case to something else. I should like to thank your Lordships once again for the welcome that has been given to this Bill.

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