§ 7.14 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Viscount Colville of Culross.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD AIREDALE in the Chair]
§ Clause 1 agreed to.
§ Clause 2 [Application for leave of court]:
§ LORD SILKIN moved, in subsection (1), to omit "except in so far as rules of court may otherwise provide". The 89 noble Lord said: I beg to move the Amendment standing in my name. We are fated to discuss this Bill in the most trying circumstances conceivable. On the Second Reading we addressed a very thin House after a very long and trying debate, and the same circumstances exist to-day. I hope that these circumstances will not prejudice a full and adequate discussion of the very important points that I propose to make in Committee. I was considering whether it would be possible to deal with this Amendment in conjunction with the others, but I came to the conclusion that it might confuse the issue if I tried to do so, and that it would be better to dispose of it earlier. But since I am speaking really to two or three persons informed on this subject, I can cut my remarks a little short.
§
The Bill provides that, in the circumstances set out in Clauses 2 and 3, ex parte applications shall be made. Up to a point that is satisfactory, subject to what I want to say on the second and third Amendments, but the clause dealing with ex parte applications uses the words:
… except in so far as rules of court may otherwise provide.
Reading those words on the face of them, it would look at if Rules of Court could provide that the application should not be made ex parte—and that would be very damaging to the people who are concerned: the injured parties and people who have suffered from an accident. In the concluding words of his speech on Second Reading, the noble Viscount, Lord Colville of Culross, assured me that I need not be very worried about the Rules of Court under Clause 2(1). He said [OFFICIAL REPORT, Volume 251 (No. 109), col. 1285]:
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 fully accept that that is what the noble Viscount believes, and that that is what they are intended to deal with; but on the face of it these Rules of Court could be much wider than that. They could, in fact, convert an ex parte application into something which would require the presence of both parties; and if it is the intention of the promoters of the Bill that the circumstances in which 90 Rules of Court can be made should be restricted only to cases where it would be proper that both parties should be present, then I think it should be clearly stated in the Bill itself, and that this power which is given to any Government (and the noble Viscount will not himself be framing these Rules of Court) should not be contained in these wide terms. It is for that reason that I think the proper course would be to take these words out of the Bill and to insert at a later stage any words which the noble Viscount may be advised would be appropriate to meet the particular circumstances, the very special circumstances, that he has in mind. I beg to move.
§
Amendment moved—
Page 2, line 33, leave out from ("except") to end of line 34.—(Lord Silkin.)
VISCOUNT COLVILLE OF CULROSSOn the first point which the noble Lord, Lord Silkin, made about the arrangements under which this Bill is being taken, I hope that he will recognise that to some degree we rearranged the schedule in order to take account, first of all, of the difficulties that he himself envisaged; and, secondly, of the very grave bereavement that I know he suffered. We were anxious to do all we could to ensure that the noble Lord was here. I hope, therefore, that he will forgive the arrangements which have been made.
On the Amendment itself, I stand by what I said to the noble Lord on the Second Reading of this Bill. The difficulty about his Amendment is that if the words now in the Bill were to be taken out, it would make it impossible to provide by these Rules of Court for the position that would occur under subsection (3) of Clause 2 when the application has to be made after action has commenced. In such circumstances, as I think the noble Lord recognised, it might well prove ridiculous to have an ex parte application, keeping out of it the defendant, who would, or might, in any case know all about the facts at that stage. So, if the noble Lord insists on taking these words out, that could not be done.
On the other hand he says it would be too wide as it stands. From my own point of view, I can see the force in that argument. But the noble Lord, with all 91 his skill, has not been able to suggest anything better, and I am relieved to a large degree by the fact that my noble and learned friend, the Lord Chancellor, who has heard all the discussions in this House and no doubt has read all those in another place and is fully informed about this Bill, would be a vital person in the procedure for making these Rules. I should be surprised if he were to tell the Committee that he envisaged any situation by which the prospective defendant would come into the preliminary application by Rule of Court, thus thwarting the intention in the Bill as it stands.
I do not think it would be altogether satisfactory if there were no power to deal with the preliminary stage other than when it came about after the action had commenced. This is a novel procedure. I do not think that anybody knows exactly how it will work. Rather than leave the situation as one in which it would be necessary to seek amending legislation, I have the feeling that it is wise to have fairly wide powers in the Bill, with the knowledge that they will be exercised only with the greatest restraint and under the supervision of the noble and learned Lord the Lord Chancellor or his successors. I hope that the noble Lord will feel that, in the absence of anything better, this is the right thing to do; and that the Bill should be left as it is.
§ THE LORD CHANCELLORMay I add a word? We are moving here into a somewhat novel field and, as I think the noble Lord, Lord Silkin, knows, certainly it is my view that the application should be made ex parte by the plaintiff. At the same time, I think it would be unwise not to make provision for dealing with the situation by Rule. One instance my noble friend has already given would be where the action has already started. We are not quite certain—no one can be—how it will work. If it did not work satisfactorily and if it were thought, after experience, that another system would be better, then there is something to be said for taking the power in the Bill rather than having to come back for amending legislation. That "taking the power" is subject to this safeguard, as the noble Lord will know: that any Rules of the Supreme Court which have to be made are subject to the Negative Resolution procedure and 92 so are subject to Parliamentary control. I have been reminded that I have on occasions in another place had to defend decisions of the Rules Committee when questions have been raised about Rules. That is in addition to the safeguard to which my noble friend referred: the Lord Chancellor having a responsibility in the matter. It is not the case that Parliament, if it passes the Bill in its present form, will not have control over the Rules that are made. I say firmly to the noble Lord that my view—and I am rather glad to find that he agrees with me—is that these applications should be ex parte; but I think the position where the application is made late and after the action has started requires consideration, and I should like to have—and my noble friend has made clear the case—some degree of flexibility. In the light of that explanation, I hope the noble Lord will feel it right to withdraw his Amendment.
§ LORD SILKINThe unfortunate thing is that neither the noble and learned Lord who sits on the Woolsack nor the noble Viscount is likely to have any control over these Rules of Court. We do not know who is going to make them. Things said here are of no account at all. I am sure it is not the intention to provide for ex parte applications, on the one hand, and then to make Rules of Court which would contradict and conflict with that arrangement. But that is the plain meaning of the words here. I am just referring to what is said in subsection (1):
Any application for the leave of the court for the purposes of the preceding section shall be made ex parte, except in so far as rules of court may otherwise provide.That is quite unlimited. I am not the framer of this Bill. The noble Viscount has suggested that I might have found words. I do not know what he had in mind. I was suggesting to him that if he is satisfied these words are too wide and will give cause for apprehension, he might himself think of words to restrict the operation of these Rules of Court to what he stated he had in mind. That is all. I had hoped that he would be able to do that.
§ THE LORD CHANCELLORI should have thought that, when you get this form of words, the main principle is that they should be ex parte. That is emphatically stated. You can cut into the general application of that principle in so far as the Rules otherwise provide. I do 93 not think, as a matter of construing the Statute, that under these words it will be possible to make Rules saying that there should not be ex parte applications as a generality. Certainly, I think that my noble friend will be only too ready to look at and to improve on the words; although it seems to me that the wording as it stands is adequate. While I welcome the opportunity to say something about it, I stress that those Rules of Court made under this subsection are subject to Parliamentary control.
VISCOUNT COLVILLE OF CULROSSPerhaps I may put in another word or two. It is no use taking out of the Bill the power to make Rules for the purposes of subsection (3) of this clause. It is no use taking out the power to allow the defendant to come in if it is thought right. The leave that the noble Lord, Lord Silkin, refers to, is the same leave in the case of subsection (2) as in the case of subsection (3). In subsection (3), it may be that the defendant ought to be there and quite harmlessly can be there. Therefore one cannot take out of the Bill the power to make Rules to allow him to be there and do away with the ex parte nature of the application; so it is not possible to strike out of the Bill that particular power in the Rules. Unless the noble Lord seriously thinks that Rules will be made on the subsection (2) applications which will defeat the whole point of this Bill, I think it can be safely left to my noble and learned friend the Lord Chancellor and the Negative Resolution procedure, and that all will be well. But I will think about it again and respond to what the noble Lord opposite has said and what my noble friend has suggested. But at the moment I cannot think of any way to meet the noble Lord's point without doing damage to the Bill.
§ LORD SILKINWhen the noble Viscount has had as much experience on Committee stage as some of us, he will realise that one puts Amendments down and one has a discussion. One hears both sides expressed and then one is probably able to do a deal. I said straight away that there may be circumstances where it is right to make Rules of Court applicable. By admitting that, I concede my Amendment cannot succeed—I accept that. But I had hoped to get some narrowing of 94 the circumstances in which they will rise. However, the noble Viscount is not in a mood to be very conciliatory about this. I will withdraw my Amendment; but I will return to the attack and put something down later. I hope that he will consider the point in the meantime.
§ Amendment, by leave, withdrawn.
§
LORD SILKIN moved, in subsection (2), to leave out all words from the first "if" down to the end of the subsection, and to insert:
it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled".
The noble Lord said: Here we are dealing with what has to be put before a court in an ex parte application. First a plaintiff has to satisfy the court (I am speaking very broadly) that the conditions have been satisfied: that the plaintiff could not have been aware within the proper time of his right of action; and, secondly, that he has a prima facie case. It is to the second point, and only to the second point, that my Amendment is directed. I think it is unfair to the person who applies to the court that, as a condition of getting leave to bring an action or to continue an action, he should have to produce a prima facie case. I think it is putting him in an unfavourable position as compared with any other plaintiff. I do not know of any precedent. The noble Viscount mentioned Order 14 procedure, but that is certainly not a precedent for this; it is not comparable. In Order 14 proceedings the defendant has already had a prima facie case made in an affidavit by the plaintiff on a debt. That is quite a different matter, and he has to show that he is entitled to defend the action, not to bring the action.
§ This is an extraordinary course to take. If we are purporting to remedy what is an injustice, and that is what we are doing here—and I am very grateful that we are—we ought not to make it too difficult for the person who is seeking justice. We are giving him only one year from the date he discovers that he has a right of action, as against the three years given to a normal person. We have all heard the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, in which he referred to the case which has given rise to this Bill.
§ This unfortunate person was not aware, and could not possibly have been aware, that he had a right to take proceedings 95 until long after three years had passed. Under the Bill he has not three years from the time when he becomes aware of his right of action—only one. So he is still at a disadvantage as compared with the normal plaintiff. To put him to the further disadvantage that he must show a prima facie case, something that no other plaintiff in similar circumstance is required to do, is, I suggest, putting an unfair burden on him. Having to get evidence at this stage means an additional expense; and it might involve a possible premature disclosure of his case—again something that no other plaintiff is required to do.
§
I realise that the noble and learned Lord, Lord Morris of Borth-y-Gest, takes a different view, and so do the Committee; but, in spite of that, I feel that we are not putting the parties on equal terms. To put them on equal terms, the plaintiff ought to have three years from the time when he first becomes aware of his right. I should like to quote a few words from a memorandum issued by the Law Society on this very point. The Law Society are an impartial body, who have no particular feelings about this one way or the other. They say:
It would involve issues which would be more conveniently dealt with at the trial of the action. These issues would necessarily depend on evidence of fact and of opinion and to make them the subject of a preliminary hearing would result in additional expense and duplication of work without any corresponding advantage.
They also make the point, which the noble Viscount made as well in his Second Reading speech, that the corresponding clause for Scotland, originally Clause 9, had been removed, so that this does not apply to Scotland.
§ I do not know whether I have made an overwhelming case for this Amendment. I realise that there can be a different opinion. But I should like to say that the Government have been generous in sponsoring this measure, in encouraging it, and in trying to remove an injustice. I give them credit for doing it as quickly as they possibly could. But often one can spoil a generous gesture by not going the whole way, and I suggest that by compelling a plaintiff to make out a prima facie case you are creating a feeling among those concerned with the interests of workers and among the trade unions particularly which will lessen the effect of this 96 gesture. They feel very strongly about it and asked me to take it up in your Lordships' House, and I do so because I believe that they are right and that this would spoil the Bill.
§ It is not a matter that is vital to the Bill. I listened to the reasons that were given for including this provision. It was said that it would be some measure of protection against irresponsible action. But, after all, there is a measure of protection if action is brought within three years; and I am trying to put these unfortunate people, so far as I can, in the same position as if they had become aware of their disability and their right to bring an action within the three years.
§ There has been no suggestion that the normal defendant requires protection against irresponsible action. The noble and learned Lord on the Woolsack said that we must avoid tilting the Bill against potential defendants and that the Bill is about right. With great respect, I think that we are tilting the Bill against the potentital plaintiff a little by giving him only one year, instead of the normal three years, and I think it would be about right if he were required to show that he could not possibly have been aware that he had a right of action, and not required to put up a case as a condition of being allowed to try it. I hope that the noble and learned Lord and the noble Viscount will see their way to accept this Amendment. I know that they may not be entirely influenced by this argument, but it would be something for which everybody concerned with this Bill would be most grateful. I think it is important that a measure of this kind should be welcomed wholeheartedly by those whom it is desired to benefit. I beg to move.
§
Amendment moved—
Page 2, line 37, leave out from ("if") to end of subsection (2) and insert the said new words.—(Lord Silkin.)
VISCOUNT COLVILLE OF CULROSSThe last thing I want to do in presenting this Bill to your Lordships is to spoil the ship for a ha'penny worth of tar, and if I could I certainly should be very glad to yield to what the noble Lord, Lord Silkin, has said. As the noble Lord invited me to do on Second Reading, I have thought again carefully about this matter to see whether I could go any distance at all to meet him on this point, but I am sorry to tell the noble Lord 97 that I still think that, on balance, what is in the Bill is right.
I think it would be of some value if I went back to look at the history of the three-year limitation period—I promise not to detain your Lordships very long on this aspect—to see why it was, in the first place, that this three-year provision was put in. To start with, it came in in a Private Member's Bill in 1954, and it was at that time something in the nature of a bargain between public authorities, against whom there was a very short period of limitation, so that would-be plaintiffs ran up against the bar very quickly (in the case of some corporations it was six months, or perhaps a year) and, on the other hand, the general six-year rile that applied to the rest of torts. When that Bill was introduced, I was interested to see that the noble Lord, Lord Silkin, said that he was in agreement generally that the normal period of three years was long enough. The noble Lord did, in fact, on the Committee stage of that Bill try to extend it for two purposes, one of them exactly the purpose that this Bill is now engaged in, and another, for some hard cases where he thought that negligence had kept the plaintiff from his rights, with which I think there are other methods of dealing. At any rate, the noble Lord thought that the three-year period was about right.
I was also interested to see that the noble and learned Lord, Lord Reid, said that it is almost unheard of that any Bill should be brought up to the long twenty years' Scottish period of limitation which then existed; and he said [OFFICIAL REPORT, Vol. 187, col. 822]:
… indeed, it is extremely rare that any action is brought even after three years".He went on to say:But the change does, I think, confer a substantial benefit on those who might be sued. They now knew that after three years it will no longer be necessary for them to preserve evidence or hold themselves in readiness to defend an action if it is raised.It is not only the would-be plaintiff in this case, meritorious as his case may be, who has to be considered, but also the potential defendant. It is also not only a question of a case being brought four years after the action preferred. It may be for a very long period indeed that the defendant hears nothing about it, and suddenly twenty years later he is 98 faced with this application or writ which is being brought against him, something of which he has no knowledge any more; all his witnesses have gone, and all his papers have been destroyed. I really think there is a great deal to be said for looking at his point of view also. It is this balance that the Edmund Davies Committee were seeking to obtain. I should be hesitant in going against the recommendations of a committee of that stature, with the great breadth of knowledge and vision possessed by those who sat on it.Nevertheless, the noble Lord, Lord Silkin, raised some particular points which I think I ought to answer. He said that this requirement that a prima-facie case should be made out was unfair, particularly coupled with the one-year provision. I think the one-year provision is part of the defendant's rights of not being sued outside the ordinary limitation period. It may be unprecedented that this sort of thing should happen, but it is also unprecedented that the general law of limitation should be breached at all in the way that this Bill does. Where such a relaxation exists, I think it should be attended with considerable safeguards.
If it is to be unfair on the potential plaintiff, in what way will it be unfair? Certainly there may be a certain amount of extra expense. But one thing I do not think is that he will be prejudiced by premature disclosure of his case. This is the whole object of making it ex parte. On this sort of application the defendant will not know until the state of discovery anything of what he said to the Judge. But, further than that—and this is, I think, the important point, and the one into which I have gone as fully as I could—even at that stage it will not be necessarily everything that goes before the Judge on the ex parte application which will then be available to the defendant on discovery. Many of the papers or the statements or other things he wishes to rely on, including the medical evidence, would, I think, normally be exhibited in the affidavits before the Judge in chambers. I think the law on this is now clearly that this would not be available on discovery to the defendant. What would be available would be the rough outline of the case: I think the Edmund Davies Committee 99 envisaged something in the nature of a statement of claim, perhaps a little amplified.
But then, as my noble and learned friend Lord Morris of Borth-y-Gest said on Second Reading, if that be there, it can be seen; and if it is a good case, so be it, and if a bad case, then there is no reason why the defendant should not be in a position to shake it. I have thought about this carefully. I cannot think that any harm will come out of this procedure. I do not believe the noble Lord need be afraid that there will be injustice caused to would-be plaintiffs.
Finally, I might remind the noble Lord that he was, I think, mistaken about the position in Scotland. I did explain this on Second Reading. It is true that the specific clause has been taken out of the Bill, but Scottish procedure is such that almost the same thing would happen as is envisaged on this sort of ex parte application by the normal practice of the Scottish courts. There will be an opportunity to take the preliminary point, and I should have thought it would always be taken on the initial stages of the action before anything else was discussed. This will, in fact, also extend on occasions to a dispute on the prima facie merits of the case. So that, in practice, the procedure in Scotland will be exactly the same as under this Bill. Another reason why I thought it would be a good thing to keep the Bill as it is, was that, if one could avoid a discrepancy between the law in Scotland and that in England and Wales, particularly in a case which in its nature would be the same in both countries, that should be done. I therefore hope the noble Lord, Lord Silkin, will feel able to withdraw the Amendment, because on such consideration as I have been able to give it—and that, I assure him, is quite a lot—it is not necessary, and the Bill is right.
§ THE LORD CHANCELLORI should like to add a word to what my noble friend has said. I have also considered this matter carefully and, I hope, objectively after the debates in another place. I have no desire to tilt the balance against plaintiffs any more than I have to see the balance tilted against defendants. For the reasons that my 100 noble friend has so clearly expounded, I must say that I came to the conclusion that this provision was fair and right and would avoid the balance being tilted one way or the other. One has to take account of the position of the defendants. It may be that twenty years after something has happened the defendant suddenly finds himself being sued, and he may have destroyed all his records dealing with the matter. He ought not to be open to what one might call somewhat speculative actions, which if he had the material he would be only too ready to fight. The test that will have to be applied must be a reasonable one, and I must say I do not think it will prejudice the plaintiff one iota.
I listened to the speech made by my noble and learned friend Lord Morris of Borth-y-Gest, and I found that a compelling reason for supporting the view that the Bill as it is is right. I would, therefore, although I was interested indeed to hear the opposite point of view so clearly and persuasively put forward by the noble Lord, Lord Silkin, ask him if he would, in the circumstances, withdraw the Amendment.
§ LORD SILKINI am in difficulty, because I have no choice: I am not able to press the matter futher. There is no House here. I could not get a Division if I wanted one, and in the circumstances I must allow the Amendment to be negatived. I only hope that we can carry this matter further on the next stage of the Bill, and that we can have the Report stage at a time when we can obtain a better attendance. I am not suggesting for a moment that there is nothing in what the noble and learned Lord or the noble Viscount have said. I accept the full force of their arguments, and I hope they accept the full force of mine. One point is the political one. It really is a good thing, as the noble Viscount said, not to spoil the ship for a ha'p'orth of tar. This is a generous gesture, and you are spoiling it. I think we may say here that the trade unions and the people who will be interested in this measure feel that the balance is weighted against them. However, that is the decision of the noble Viscount in charge of the Bill, and I can only hope that we get a Report stage better timed, when we can discuss this matter with other noble Lords taking part in the discussion.
§ On Question, Amendment negatived.
101§ On Question, Whether Clause 2 shall stand part of the Bill?
VISCOUNT COLVILLE OF CULROSSI think I should point out that Amendment No. 3 relates to Clause 2. There has been a printing error.
§ LORD SILKINI will not move Amendment No. 3, because I imagine I shall hear the same speech.
§ Clause 2 agreed to.
§ Clause 3 agreed to.
§ Clause 4 [Time-limit for claiming contribution between tortfeasors]:
§ 7.52 p.m.
§ VISCOUNT COLVILLE OF CULROSS: moved, in subsection (1), after "shall" to insert "(subject to subsection (3) of this section)". The noble Viscount said: This is a paving Amendment, and it goes with Amendments Nos. 7 and 8. Your Lordships will remember that this clause is one of general application, dealing not only with these personal injury cases but with the contributions of joint tortfeasors in all varieties of tort. I think I indicated also to your Lordships on the Second Reading that there were certain technical defects in the clause as it stands and these Amendments are, to some degree, intended to put them right and there will be others.
§ May I speak to the three Amendments together? The new subsection which is set down as Amendment No. 7 includes in the scope of Clause 4 Sections 22 and 26 of the Limitation Act, which are the two sections dealing with, first, disability, and, secondly, fraud, which have an effect upon the running of the period of limitation and also import the Limitation (Enemies and War Prisoners) Act, 1945, which is an Act which again suspends the running of the limitation in the case of a man who is an enemy or a prisoner of war. The Amendments bring within the scope of the two-year rule for joint tortfeasors these exceptions where they are applicable. The only thing I ought to point out to your Lordships is that the inclusion in the proviso of the words of limitation to Section 22 is something which now brings the whole matter together with the Law Reform (Limitation of Actions) Act, 1954, which was the beginning of the step towards taking away this extension of the period where a person who was a minor or a lunatic, or under some similar disability, was 102 in fact in the charge of a parent. The law as it will be under this Amendment is that the two-year period is not suspended if such a person is in charge of a parent, because the parent or person in charge will know, at the time when the action is brought which establishes the liability, all the facts necessary for them to continue in a normal way. Therefore, that exception has now been made general in all these cases under the new law for joint tortfeasors. I do not think there is anything else except technicalities in this matter, because, as I have said, it is simply a series of Amendments in order to bring these three exceptions into the general rule under Clause 4. I beg to move.
§
Amendment moved—
Page 4, line 40, after ("shall") insert the said words.—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSThis Amendment brings in the question of arbitration. It also goes with Amendment No. 6. I think I also said to your Lordships that the question of arbitration was not dealt with in this clause as it should be. It has now been altered in such a way that the arbitration provisions are included. It also defines the date for arbitration, as well as for other actions, from which the two years is deemed to run, which has been difficult in the law heretofore. I beg to move.
§ Amendment moved—
§
Page 5, line 1, leave out from ("if") to end of line 5 and insert ("the tortfeasor is held liable in respect of that damage by a judgment given in any civil proceedings, or an award made on any arbitration, the relevant date shall be the date on which the judgment is given, or the date of the award, as the case may be;
(b) if, in any case not falling within the preceding paragraph, the tortfeasor").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 5, line 13, after ("judgment") insert ("or award given or made").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSThis is the main Amendment for which Amendment No. 4 was the paving one. I beg to move.
§ Amendment moved—
§
Page 5, line 14, at end insert—
("(3) Sections 22(1) and 26 of the Limitation Act 1939 (which make provision for cases of disability, fraud and mistake) shall each have effect as if any reference therein to that Act included a reference to subsection (1) of this section, and section 2(1) of the Limitation (Enemies and War Prisoners) Act 1945 shall be amended by adding at the end of the definition of 'statute of limitation' the words 'subsection (1) of section four of the Limitation Act 1963';
Provided that the said subsection 22(1) shall not apply to any action by virtue of this subsection unless the plaintiff proves that the person under the disability was not, at the time when the right to recover contribution accrued to him, in the custody of a parent, and, where it so applies, shall have effect as if for the words 'six years' there were substituted the words 'two years'."—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 5, line 25, leave out from ("action") to ("and") in line 29, and insert ("to section 22(1) or section 26 of the Limitation Act 1939, and to subsection (2) of section 5 of the Carriage by Air Act 1961, shall be construed as including references respectively to an arbitration, to the said section 22(1) or, as the case may be, section 26 as applied to arbitrations by section 27(1) of the Limitation Act 1939, and to subsection (2) as extended by subsection (3) of section 5 of the Carriage by Air Act 1961.").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clauses 5 to 9 agreed to.
§ Clause 10 [Time-limit for claiming contribution between wrongdoers]:
§
VISCOUNT COLVILLE OF CULROSS moved, after subsection (1) to insert:
(2) Section 6(2) of the Law Reform (Limitation of Actions, etc.) Act 1954 (which modifies the time-limit of three years for bringing an action in the case of persons under legal disability) shall have effect as if any reference therein to subsection (1) of that section included a reference to subsection (1) of this section:
Provided that in relation to any action to which the said section 6(2) applies by virtue of this subsection it shall have effect as if for the words 'three years' therein there were substituted the words 'two years'.
§ The noble Viscount said: Clause 10 is the Scottish equivalent of Clause 4, and there are a variety of Amendments which have been necessary to bring this into line with the English provision. There 104 is in Scotland a provision, Section 6(2) of the Law Reform (Limitation of Actions, etc.) Act, 1954, which provides that where a person bringing an action for damages in respect of personal injuries is under a legal disability when the right of action accrues to him, there is a time limit of three years within which he must bring his action, when he ceases to be under this disability—unless, that is, he is in the custody of a parent in the same circumstances which I explained to your Lordships. The effect of this Amendment is to change the period allowed from three years to two years, to bring it into line with the English clause. I beg to move.
§
Amendment moved—
Page 9, line 42, at end insert the said subsection.—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSThis also is a drafting Amendment to ensure that the provisions of Section 6(2), as amended by this Bill, are applied to actions for contribution from a carrier and arbitrations under Section 5 of the Carriage by Air Act, 1961. The same modifications have been made in the Bill also in Clause 4 for England and Wales. This is the Scottish provision. I beg to move.
§ Amendment moved—
§
Page 9, line 42, at end insert—
("(3) The preceding provisions of this section, and the provisions of section 6(2) of the said Act of 1954 as extended by the last preceding subsection, shall have effect in relation to an arbitration to recover from a carrier a contribution in respect of damages to which Article 29 in Schedule 1 to the Carriage By Air Act 1961 applies, as they have effect in relation to an action for that purpose.")—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSThis Amendment is consequential on the one I have just moved. I beg to move.
§
Amendment moved—
Page 9, line 44, leave out subsection (2).—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSSThis Amendment is also consequential on Amendment No. 10. I beg to move.
§ Amendment moved—
§
Page 10, line 21, at end insert—
("(4) In relation to wrongful acts or omissions falling within the said Article 29 this
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section shall have effect in substitution for the limitation imposed by section 5(2) of the said Act of 1961; and accordingly the following provisions of that Act are hereby repealed, that is to say, in subsection (2) of section 5, the words from 'but no action' to the end of the subsection; and, in paragraph (a) of section 11, heads (i) and (iii).")—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ 8.0 p.m.
§ VISCOUNT COLVILLE OF CULROSS moved, after Clause 10 to insert the following new clause:
§ Amendment of s. 1(1) of Limitation (Enemies and War Prisoners) Act 1945
§ ". Section 1(1) of the Limitation (Enemies and War Prisoners) Act 1945 as set out in section 4(a) of that Act (which provides for the suspension of the limitation period for bringing an action where a party was an enemy or was detained in enemy territory) shall be amended by adding at the end of the said section 1(1) the words section six of the Law Reform (Limitation of Acts, etc.) Act 1954, subsection (1) of section ten of the Limitation Act 1963'."
§ The noble Viscount said: This new clause is necessary to deal with the same point that I described to your Lordships on Clause 4 about the 1945 Act, which elongates the period of limitation in the case of a man who is either an enemy or a prisoner-of-war and it does so for Scotland. It provides that the period of three years imposed as a time-limit by Section 6 of the 1954 Act shall not be deemed to run while he cannot have access to the courts because he is an enemy or a prisoner-of-war. Therefore, the Amendment brings the position in Scotland into line with what your Lordships have already approved for South of the Border. I beg to move.
§
Amendment moved—
After Clause 10, insert the said new clause.—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 11 [Transitional provisions]:
VISCOUNT COLVILLE OF CULROSSThis is a transitional provision for the case that I have just mentioned. It will, in fact, apply the relaxation of the rule under the 1945 Act only in the future, and it will apply the relaxation under Section 6(2) of the 1954 Act in the future also. I do not think that there is any reason why these parts of the Bill, which are of general application, should be made retrospective as are the special parts which we have been discussing in 106 the main in this Bill. No one has suggested that this should be retrospective and, certainly in the case of the enemy and the prisoner-of-war, there is nobody who will be affected in any event. Therefore, I think it is right that this provision should be put in making the point quite clear that the new rule would come into force only on the passing of this Bill. I beg to move.
§
Amendment moved—
Page 10, line 28, leave out ("the last preceding section") and insert ("section 10 thereof and section (Amendment of s. 1(1) of Limitation (Enemies and War Prisoners) Act 1945) so far as it relates to the said section 10").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Clause 12 agreed to.
§ Provisions as to Northern Ireland
§ ".—(1) Section 5 of the Limitation (Enemies and War Prisoners) Act 1945 (which, in relation to Northern Ireland, restricts the application of that Act to periods of limitation prescribed by enactments in force at the date of the passing of that Act) shall have effect as if for the words 'in force in Northern Ireland at the date of the passing of this Act' there were substituted the words 'for the time being in force in Northern Ireland'.
§ (2) If the Parliament of Northern Ireland enacts legislation whereby the right to recover contribution conferred by section 16 of the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937 is made subject to a period of limitation of two years, and that period of limitation is not liable to be extended or postponed except in circumstances, and to an extent, corresponding to those provided for by section 4(3) of this Act, no limitation or restriction imposed by the Government of Ireland Act 1920 on the power of that Parliament to make laws shall be construed as preventing that Parliament (either by the same or any subsequent legislation) from repealing, in their application to Northern Ireland, the words repealed in relation to England and Wales by section 4(4) of this Act.
§ (3) If, in accordance with the last preceding subsection, the Parliament of Northern Ireland repeals those words in their application to Northern Ireland, that Parliament shall not have power to enact legislation whereby, in relation to torts falling within Article 29 in Schedule 1 to the Carriage by Air Act 1961, the period of limitation applicable to the right to recover contribution conferred by the said section 16 or by any enactment whereby that section is superseded, would be reduced below, or increased above, two years, or would be liable to be extended or postponed otherwise than as mentioned in the last preceding subsection."
107§ The noble Viscount said: It was thought right in this Bill that the Northern Ireland Parliament should be enabled to pass any legislation that it thinks fit in order to bring the law in Northern Ireland into line with that which is contained in this Bill. Although this Amendment looks very complicated, in fact it merely enables the Northern Ireland Parliament, to a limited extent, to bring their own law, if they want to, in line with what will now be the law of England, Wales and Scotland under this Bill. I hope that your Lordships will not expect me to go through the technicalities of this clause as they are very complicated, but I think that in all respects it will give the Northern Ireland Parliament the freedom which they would want in this matter. I beg to move.
§
Amendment moved—
After Clause 12, insert the said new clause.—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 13 agreed to.
§ Clause 14 [Short title and extent]:
VISCOUNT COLVILLE OF CULROSSThis Amendment deals with the extension to Northern Ireland of the new clause which I have just moved. It is therefore necessary to put in a special extension to Northern Ireland for that part of the Bill. I beg to move.
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Amendment moved—
Page 12, line 11, after ("Act") insert ("except section—(Provisions as to Northern Ireland) thereof").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Clause 14, as amended, agreed to.
§ The Title:
VISCOUNT COLVILLE OF CULROSSThis Amendment is also necessary to deal with the extension to Northern Ireland of these extra powers. I beg to move.
§
Amendment moved—
In the Title, line 11, after ("1940") insert ("to make further provision as to the application of the Limitation (Enemies and War Prisoners) Act, 1945, to Northern Ireland").—(Viscount Colville of Culross.)
§ On Question, Amendment agreed to.
§ Title, as amended, agreed to.
§ House resumed: Bill reported with Amendments.