RESALE PRICES BILL (Hansard, 22 June 1964)

HL Deb 22 June 1964 vol 259 cc14-30 14

§ 3.5 p.m.

§ Order of the Day for the House to be again in Committee read.

§ Moved, That the House do now resolve itself into Committee— (The Lord Chancellor.)

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The LORD MERTHYR in the Chair.] Clause 2:

§ Prohibition of other measures for maintaining resale prices (3) For the purposes of this Act a supplier of goods shall be treated as withholding supplies of goods from a dealer—

(a) if he refuses or fails to supply those goods to the order of the dealer;
(b) if he refuses to supply those goods to the dealer except at prices, or on terms or conditions as to credit, discount or other matters, which are significantly less favourable than those at or on which he normally supplies those goods to other dealers carrying on business in similar circumstances; or

(4) For the purposes of this Act a supplier shall not be treated as withholding supplies of goods on any such ground as is mentioned in subsection (1) of this section if, in addition to that ground, he has other grounds which, standing alone, would have led him to withhold those supplies.

§ LORD SHACKLETON moved, in subsection 3(b), to leave out "discount". The noble Lord said: When we were discussing the question of improper withholding of goods to price-cutters, the noble and learned Lord the Lord Chancellor explained a somewhat complicated clause, Clause 2. As I understand it, it means that if someone withholds goods simply because the retailer or the dealer is price-cutting that will be an improper act following the passing of this Bill, but that there are certain grounds which make it permissible to withhold goods, and those are set out partly in subsection (4)—and we have a later Amendment on the nature of the grounds. But in subsection (3) it is laid down that, in trying to ascertain whether the goods are being withheld properly or improperly, one has to have regard to whether instead of saying "No, you cannot have the goods because you are a price-cutter", the supplier uses some other device, by giving very unfavourable terms or conditions such as are listed in paragraph (b) of subsection (3) as examples.

§ On the last occasion we dealt with the subject of credit, and now I am moving an Amendment on the subject of discount. The noble and learned Lord the Lord Chancellor pointed out that it really makes very little difference if we in fact delete these particular examples—namely, credit or discount—since they would be mopped up under the phrase "any other matters". None the less, I am pursuing this Amendment rather as a probing one, to make sure first of all that we are clear on this particular matter and to point out that it is very difficult to judge whether in regard to discounts this is the sort of matter which should be taken into account. If I may give an example to the noble and learned Lord, it is a fact that a particular dealer may, in order to obtain the best terms, pay very much more 16 promptly and may thereby get a special discount. In this matter he will not be on all fours with other dealers who either do not seek such a discount or do not pay so promptly; indeed some dealers will even pay almost in advance in order to get 2½ per cent. discount or something of that order. I would take it—and it is on this matter I shall be grateful for the help of the Lord Chancellor—that in such circumstances that would be a perfectly proper act.

§ What worries me, and I think has worried other noble Lords, is this. If in fact an individual happened at that moment to be a price-cutter, and if also at that moment it seemed unsuitable to grant such discounts for other reasons, there is a danger that the supplier might be regarded as withholding the goods improperly. I appreciate that this clause, as the noble Lord, Lord Drumalbyn said, is a difficult clause, but it is one that one simply has to face to make this Bill effective, if it can be made effective. I should be grateful if I could hear from the Government whether my understanding is correct, and whether we can set at rest the minds of traders who will be clearly seeking to get such discounts.

§ In regard to suppliers, there is the danger that in such circumstances they may say, "Well, if I give you this discount I shall be in trouble because I am not prepared to give it to someone else who happens to be a price-cutter; and although I have good reason for not giving it to someone else I am vulnerable in this position". This would be undesirable, because clearly one wishes in this matter to have the maximum proper amount of trading and of hard business. There may be those who are able to obtain goods slightly cheaper than someone else, even if they get it only by way of a discount because they pay their bills promptly, or for other reasons for which discount is given. It is conceivable that someone might have an interest in the development of another business, and he may wish to encourage a certain type of outlet; and for that reason may give rather more favourable terms than he might wish, or be able, to give to someone else. This is the sort of difficulty with which we are confronted, and it is in order to obtain some more guidance on this matter that I am moving this Amendment.

§ Amendment moved— Page 3, line 19, leave out ("discount").— (Lord Shackleton.)

§ THE LORD CHANCELLOR (LORD DILHORNE)
I think it might be helpful to the Committee if I sought to answer the noble Lord at this stage. I hope that he will not take it amiss if I say that I think that the subject he has raised—namely, the giving of discount —really arises on subsection (4) of this clause. I will put the matter in perspective in this way, if I might remind your Lordships of the object of the clause. If resale price maintenance is to be put an end to in relation to goods which are not exempted, it will not suffice merely to say that any term or provision in a contract fixing resale prices shall be void. That is done, of course, by Clause 1. But it is necessary to go on and make it unlawful to engage in conduct which is designed to secure that prices continue to be maintained. Subsection (3) does no more than specify various types of conduct which can conceivably be followed to that end.
First of all, in paragraph (a), there is the refusal or failure to supply goods; secondly, there is paragraph (b), which is the imposition of discriminatory terms, and in particular in that paragraph the words "credit" and "discount" are mentioned; thirdly, there is in paragraph (c) discrimination by conduct. Those are three ways in which sanctions could be imposed to secure the maintenance of prices. All those three ways are to be treated as "withholding supplies"; so that, from the point of view of this Bill, the expression "withholding supplies" is really a term of art. All we are concerned with in subsection (3) is the content of that term of art.
It is, I should have thought, quite obvious that one way in which someone might seek to secure that the prices of his goods continued to be maintained would be by reducing the discount which he formerly gave on those goods. Another way, of course, is by reducing credit. Putting that in its context here, I would say that a retailer may feel that he is being discriminated against on the terms of his trade on the grounds specified in paragraph (a) and (b) of subsection (1). If he establishes that, then that discrimination is unlawful. It is when one gets to subsection (4) that one has a further 18 exception upon this. I hope that I am not going too far at this stage, but I think it may be helpful to the noble Lord.
Under subsection (4), as your Lordships will see, if the action which the supplier has taken comes within subsections (1)(a) and (b)—that is to say, has been taken on the ground that the dealer is or might be a price-cutter—such action may still be lawful if it would have been taken by the supplier on another ground which, standing alone, would have led him to take that action. Therefore, the questions the noble Lord asked me about discounts and traders wanting to know what would happen about discounts really arise for discussion, I think, upon the next Amendment put down by noble Lords opposite —that is, to insert the words "another ground or". I think it might be for the convenience of the committee if I sought to deal with that particular provision and endeavoured to meet the noble Lord on that Amendment.

§ LORD SHACKLETON
I accept that, and am grateful to the noble and learned Lord. I ask leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ 3.17 p.m.

§ LORD SILKIN moved, in subsection (4), after "has" to insert "another ground or". The noble Lord said: I hope that the tenth Amendment will meet with a more favourable reception than the previous nine. To a large extent this is drafting. The noble and learned Lord the Lord Chancellor has just explained, in a way, the purpose of subsection (4). The language he has just been using is: "if there is another ground," and it is sufficient, in fact, if there is one ground on which the supplier can refuse to supply, other than the ground that the dealer is a price-cutter.

§ Subsection (4) is in the plural and, taken literally, would read as if there has to be more than one ground. What we want to make quite sure of is that one other ground alone would be sufficient to justify the supplier in withholding supplies. If the noble and learned Lord the Lord Chancellor tells me that "grounds" includes the singular, and that that is how it would be interpreted, I am quite satisfied. But my understanding of it is that, taken literally, there 19 would have to be more than one ground to justify the refusal to supply. For those reasons, I beg to move.

§ Amendment moved— Page 3, line 32, after ("has") insert ("another ground or").—(Lord Silkin.)

§ THE LORD CHANCELLOR
The noble Lord has rather surprised me by his brevity in moving this Amendment, because I was rather holding out the idea that we may have a debate on the whole operation of Clause 4(4). It may meet the wishes of the Committee to do that on the Question that the clause shall stand part, in which case I can deal shortly with the point which the noble Lord has made. It is the same point that the noble and learned Lord, Lord Gardiner, raised in the course of his Second Reading speech. He, having read out the words [OFFICIAL REPORT, Vol. 258 (No. 80), col. 837] other grounds which, standing alone, would have led him to withhold those supplies said that he did not know what those words meant. He went on to say: One ground, apparently, is not good enough, because it says, 'grounds'—and I suppose it means what it says. The noble Lord, Lord Silkin, raised the same point. I can only say that the noble and learned Lord, Lord Gardiner, must temporarily have forgotten the Interpretation Act, 1889. Section 1 of that Act provides that words in the singular include the plural, and words in the plural include the singular, unless the contrary intention appears. I should be interested to know whether it is the considered opinion of the noble Lord that in this case the contrary intention appears, for I pay great attention to his considered views. But he did not say so in the course of his Second Reading speech, nor has the noble Lord to-day said so, and I cannot see that the Bill contains or displays any contrary intention. It is the usual practice to rely on the Interpretation Act which was an Act for shortening the language used in Acts of Parliament generally; and indeed there is little point in having such an Act unless it is habitually relied on—and it is relied on in this case.
Therefore, the grounds here, by virtue of the Interpretation Act, must be interpreted as meaning one ground by itself or more than one ground, all covered 20 by the words "standing alone". So I do not think there is really any need to make any amendment. I am sorry the noble and learned Lord is not here, but if he or Lord Silkin thinks that there is in the context of this Bill any indication of a contrary intention then I will gladly reconsider the matter, because one does not want there to be any doubt on the point. I hope what I have said will resolve that doubt.

§ LORD SILKIN
I must admit that in moving this Amendment I had not in mind the Interpretation Act, 1889, but provisionally I would say that the noble and learned Lord's explanation is conclusive and I would therefore withdraw the Amendment. If I should find it necessary, after consultation with my noble and learned friend, to put it down again at a later stage, I will, of course, do so.

§ THE LORD CHANCELLOR
The noble Lord perhaps will get in touch with me, because if there is real ground for feeling that there may be a possible misunderstanding I will certainly consider it.

§ Amendment, by leave, withdrawn.

§ LORD SHEPHERD moved, in subsection (4), to leave out "other grounds which, standing alone, would" and insert: either any of the grounds mentioned in Schedule (Grounds which are, in terms of Section 2(4) of this Act, to be taken as sufficient for leading a supplier to withhold supplies) to this Act or one or more other ground which, in the opinion of the court, would, standing alone,".

§ The noble Lord said: Perhaps it would be for the convenience of the Committee if I deal also with Amendments Nos. 12 and 55. On re-reading the Proceedings during the Committee stage last Thursday, most Members of the Committee will have a closer appreciation of what the Government had in mind in regard to Clause 2, particularly from the words that fell from the noble and learned Lord the Lord Chancellor. I am quite sure the Committee would welcome a statement from the Lord Chancellor in regard to subsection (4), for I feel that if he were able to do so in reply to these Amendments it might be that this Committee can relieve many traders—respectable and responsible suppliers and retailers—of any concern in this matter. 21 I think it is right to say that subsection (4) of Clause 2 was a Government Amendment moved on Report stage in another place. At that time Clause 2 certainly gave the impression that the existing position between a supplier and retailer was going to be much changed. At present a supplier or trader is free to enter into a contract with another on the basis of contract; that is to say, the position of a willing buyer and a willing seller. There has been no statutory requirement anywhere that one person should trade with another. In Clause 2(1)(a) the position was fairly easy to understand as there was a relationship already established. If the man was a price-cutter and he was already trading, then the supplier was under some responsibility and there was some relationship between the two people. But paragraph (b) was the one which created most fears, because it appeared possible for a completely new customer to go to the supplier on the basis of (to use the words of the noble and learned Lord, Lord Gardiner), "You will be surprised that you have another new customer!" As I see it, paragraph (b) would require a supplier to open new accounts when he might not wish to have them.

§ I believe that the Government recognise the position in view of speeches which were made in another place. They moved an Amendment, which is subsection (4), which means, as the noble and learned Lord the Lord Chancellor has said, that if a supplier had other grounds standing alone he can withhold goods even if the dealer is a price-cutter. On Second Reading, in reply to a point I made, the noble Lord, Lord Drumalbyn, said that there might be a number of grounds why a supplier might feel he should lawfully withhold goods. It might be a question of a dirty shop; it might be that there were already sufficient outlets for the supplier; it might even be a question—and I think this point was made in reply to my illustration of a textile manufacturer offering a design—that there were already sufficient outlets for a particular design and that the supplier should be permitted to restrict its sale.

§ He also went on to say that, if there was a contract existing whereby a particular line was reserved to the main or first buyer, then that contract should be allowed to continue and that would be another ground. In fact, if I may use 22 the words of the noble Lord, Lord Drumalbyn, at column 1309 [OFFICIAL REPORT, Vol. 258 (No. 85)], he said this: Nothing under this Bill will prevent a manufacturer or supplier from undertaking to supply only a particular dealer. He can make a contract perfectly easily and perfectly validly to supply a particular dealer only, under this Bill. I would, however, ask the noble Lord whether, if this were clearly a contract made with one of the larger chain-store buyers (presumably the motive is to prevent competition in the line), that would still be valid. The noble and learned Lord the Lord Chancellor at a later stage intervened and said, in column 1310: What my noble friend"— that is Lord Drumalbyn— said was, in my view, entirely accurate. … Then he went on to say, in col. 1312: … I would confirm that, in my belief, as the Bill now stands, a manufacturer would be able to adhere to a particular policy, if he wished it, as to the distribution of his goods, by saying for instance, 'My policy will be to have not more than one dealer in this particular line at any particular time'. It seems to me that this is very much in line with what Mr. Heath, the Secretary of State, said in another place: that it is not the Government's intention to upset the existing arrangements of distribution, but that the supplier should be free to market his goods as he thinks fit in the interests of his company. If that is so, then it would appear to me that everything depends upon the definition put by the courts upon the words "on other grounds". The Government's intention is clearly laid down, but we know that the courts do not take account of what is said in Parliament. I think the noble and learned Lord the Lord Chancellor corrected my noble friend Lord Stonham some days ago by saying how wrong it would be for Parliament or the Government to tell the courts how they should act on legislation which is already passed.

§ THE LORD CHANCELLOR
I think it was the noble Lord, Lord Lucas of Chilworth.

§ LORD SHEPHERD
Was it Lord Lucas of Chilworth? I think it was also my noble friend Lord Stonham. It was one of those days when the Lord Chancellor was laying about him. But, as I understand it, it will be the courts 23 of first instance who will have to decide what are "other grounds". Would it not be true to say that with no definition of "grounds" at all we may get different decisions made in different parts of the country? For instance, there may be cases in Bristol and in Newcastle with, perhaps, much the same sort of basis of fact, but the courts will construe subsection (4) differently and, therefore, we shall get a different attitude in trade. As I understand it, we shall not be likely to get Case Law until the matter has been taken to the Court of Appeal or, perhaps, brought to your Lordships' House.
I think it is right to say that when we pass this legislation we should try to see that we put in it sufficiently clearly what Parliament intends. We now know what the Government have in mind in regard to "other grounds", and I would ask the Committee this afternoon: how will the courts construe these grounds? I would suggest that there is one way of overcoming this difficulty, and that, of course, is to put the "grounds" into the Bill. I appreciate the difficulty—that there may be a wide range of grounds which traders may wish to raise for the withholding of goods, and it may be very difficult to put them all into the Bill—but this is one way of doing it. I also recognise the difficulty that matters may change, which would therefore strengthen the case for my Amendment No. 12, giving power to the Board of Trade to add or take away grounds from the Schedule, according to the way matters progress in the courts.
I appreciate that the noble and learned Lord, the Lord Chancellor will shoot down these two Amendments quite squarely, in the sense of the difficulty of writing all the possible grounds into the Bill, but I would ask him if, between now and the next stage of the Bill if he cannot give an assurance this afternoon, he would see whether we cannot give a better—"direction" would be the wrong word—indication to the courts of what we have in mind about "other grounds". If this could be dealt with, I think a great many of the fears that are to be found, not only in this House but within trade itself, could be avoided. I beg to move.

§ Amendment moved— Page 3, line 32, leave out from ("has") to ("have") and insert the said new words.—(Lord Shepherd.)

§ THE LORD CHANCELLOR
Again, I think it might be to the convenience of the Committee if I replied to the noble Lord without delay. I should like to start by saying that what we have sought to do by this clause—if I may generalise for a moment—while seeking to make unlawful action to secure the maintaining of prices where the goods are not exempted, is not otherwise to interfere at all in the legitimate conduct of their businesses by business men. That is the broad approach. That is why the clause starts by saying that it is only withholding in the sense expressed in subsection (3), on the grounds mentioned in paragraphs (a) and (b), which is made unlawful. Again paraphrasing the clause, it is the imposition of sanctions by the supplier to secure price maintenance which is made unlawful. Subsection (4) is, in my view, a very well-drawn provision and, as I see it, this is how the clause will operate.
The retailer may think, and have reason to suppose, that he has been discriminated against because he is not maintaining the prices as they used to be maintained. He is selling, perhaps due to his increased efficiency or for this, that or the other reason, and selling profitably, at prices lower than they were when price maintenance was on. If he thinks he has been discriminated against in that way, that sanctions have been imposed on him because he is reducing the prices, he can then, as we shall see, start proceedings on that account. That course of conduct engaged in by the supplier will be unlawful only if it is done on the grounds mentioned in Clause 2(1)(a) or Clause 2(1)(b). What we do by Clause 4 is to say that, even if the action taken by the retailer is on the grounds mentioned in Clause 2(1), none the less that action will not be unlawful if the supplier had other grounds which, standing alone, would have led him to withhold those supplies. There may be many reasons, of course, for a change of policy by a supplier, but if he merely decides to change his policy and it is not related at all to price-cutting then Clause 2 does not bite at all. He may have decided to take 25 a certain discriminatory course on account of price-cutting, and he may also have said to himself at the time, "Quite apart from that, I am going to take this course because the retailer is in my view no longer creditworthy. I hear that there are a lot of judgments out against him in the county court", or something like that. So you can conceivably get a course of conduct taken by the retailer on more than one ground.
To bring him within the Bill one ground must be that mentioned in subsection (1), but if he would have taken the same action on other grounds, or on another ground standing alone—that is to say, disregarding the price-cutting aspect—then that action will not be unlawful. That is how we believe the Bill should be enacted. The result will be that the supplier—I must always be right about the supplier and the retailer—will be free to conduct his business as he likes, provided that he does not seek to impose sanctions for maintaining prices on the retailers. Even if he is seeking to impose sanctions on the retailers to maintain their prices, he could still follow the same course of conduct if, irrespective of price-cutting, he would have taken the same action.
I put it this way, looking at it from the other angle. The question to be asked under the clause as it stands is simply this: would the dealer have got the goods if he had not been, or been thought likely to be, a price-cutter? I am talking here about the particular instance of complete withholding. If the answer is, "Yes", that he would have got the goods if he had not been thought to be a price-cutter, then the withholding is unlawful. But the supplier may have had another reason for withholding supplies, and you simply cannot, in my belief, produce a complete list of the many other genuine reasons for a particular course of conduct.
In the course of our debates several reasons have been put forward. There may be a doubt about creditworthiness, or there may be a variety of factors. One reason may be that the shop in which the goods are to be sold by the retailer is not as clean as it ought to be. It may be that the retailer has not been looking after the manufacturer's goods as well as he should have looked after them, 26 and that that has led to their being sold in a damaged condition, to complaints coming back to the manufacturer and to injury to the manufacturer's reputation. One can think of a wide variety of circumstances which, quite apart from price-cutting, would lead a seller or manufacturer to withhold supplies or alter his terms of credit. We do not want to interfere with them and that is why the test really is: would the dealer have got the goods if he had not been, or been thought likely to be, a price-cutter? If the answer is, "No, he would not have got the goods all the same", then the withholding of the goods will not be unlawful.
I hope I have made that clear to the noble Lord as shortly as I can—I quite agree it is not an easy matter to expound shortly—and I should now like, if I might, to turn to the Amendments which he moved. In Amendment No. 55 he has produced four paragraphs setting out grounds on which goods could properly be withheld. I do not think that that list is in any way exhaustive. I do not believe an exhaustive list can be compiled; and I do not myself think that, so far as hearings in the courts are concerned, it will be the slightest advantage to produce an exhaustive list. The question is: has the supplier another ground on which, if that ground stood alone, he would have taken the course of action he did take? If that be so, then that course of action is not unlawful.
Of course, the examples the noble Lord has given: That the premises in which it is likely that the product will be sold are unsuitable by reason of size, internal arrangements, or lack of hygiene. That the premises … are too close to other premises in which the product is already being sold. That … there already exist sufficient outlets for the sale of the product. and that the supply would be likely to lead to a breach of any express or implied condition …", may each be regarded as another ground for the course of action, whether it is under paragraph (3)(a) or (3)(b) or (3)(c), that the supplier takes. I do not think the courts will have any difficulty in interpreting the meaning of this clause. I do not think there is any need to produce for them a list of the possible grounds that would come within Clause 4(4). 27 I do not want to take any point on the drafting in the noble Lord's Amendments —I know how difficult it is—but I would just point this out to him, because it may not have been perceived. In fact, his Amendments would seriously weaken Clause 2 as it now stands. As I said, we think the right question is: would the dealer have got the goods if he had not been selling below the recommended resale price? If the answer is, "Yes, he would", then a withholding must properly be regarded as on the ground of his price-cutting. A supplier may have another, minor, motive, but if this alone would not have influenced him to withhold supplies, it should not be held to render the withholding lawful.
As the Amendment is drawn, it would mean that a supplier could lawfully withhold supplies provided he was genuinely influenced, to the most trivial degree, by the fact that the dealer had a dirty shop, even if he had been prepared to supply that dirty shop if the dealer had not been cutting prices. We think that goes much too far. We think there must be a reason which, standing alone, would have led him to take that course of withholding supply. Of course, if he puts forward a reason that seeks to come within subsection (4), it will be for the court to say whether, in the light of the explanation which he has given, they are satisfied that it is in fact a genuine reason. If they are so satisfied, then a withholding will be lawful provided it is an independent reason unrelated to the price cutting which justifies that action.
I hope I have made myself clear, and I hope, too, that what I have stated will allay some of the anxieties expressed by the noble Lord. If I might just summarise it, the words "other grounds", which cover the other ground, are deliberately not defined, so as to permit of its being put forward that the action taken was on another ground unrelated to price cutting, whatever that other ground might have been—whether because of a change of policy of the manufacturer, whether because of the conditions of trade or whatever it might be. It is as wide as it can be, and I think it is right to leave it as it is.

§ LORD SILKIN
May I just put this to the noble and learned Lord, the Lord Chancellor, merely by way of elucida- 28 tion? If one thought of every other conceivable ground for withholding supplies and put them into the Schedule, but forgot one ground, would the courts look at the Schedule and say, "This is not one of the grounds; therefore he is not entitled to withhold supplies"?

§ THE LORD CHANCELLOR
I think the answer to that would be, Yes. I think they would say, if you specify a complete list: "We have to look at the list and we cannot go outside it". If it is left as it is, with the words "other grounds", then I think the matter is quite clear, and the court will have to say whether or not they are satisfied that those other grounds are genuine.
I do not know whether your Lordships want to carry on with this discussion, but there is a Statement to come at a convenient moment.

§ LORD SHACKLETON
Could I ask just one question? Suppose a supplier happened to be a very strict teetotaller and saw his price-cutting dealer going into a public-house. Presumably, if the court thought this was a genuine feeling —whether it be prejudice or whatever it may be—this would be regarded as a ground under this particular subsection.

§ THE LORD CHANCELLOR
If the court was satisfied that the teetotaller concerned would genuinely have withheld supplies because of his abhorrence of seeing his retailer going into a publichouse—that is to say, if the court was satisfied that that was the particular manufacturer's outlook, and that it was a genuine reason why he would have withheld supplies—then the withholding of supplies will not be made unlawful under Clause 2.

§ LORD SHEPHERD
I am most grateful to the noble and learned Lord the Lord Chancellor for the manner in which he has dealt with these Amendments. We will look at what he has said with the greatest care, and I think we shall find that many of our fears may have gone. But I hope that the views that the noble and learned Lord has expressed will receive fairly wide circulation among traders, because it is they who are concerned; it is they who have doubts. The noble and learned 29 Lord may have convinced us: the difficulty will be to put this across to the trade, so that we can avoid litigation and many other matters. But, on that—

§ LORD CHORLEY
Before the noble Lord withdraws his Amendment, may I just put a point about this matter? It would, I imagine, from what the noble and learned Lord has said, be quite possible for the supplier to rely on some other ground of this kind at a much later stage. The noble and learned Lord knows that, in this sort of litigation, as soon as the matter gets into the hands of lawyers they scratch around (to use a colloquial expression) for other grounds. I should have thought that, while it is not perhaps quite within the terms of this Amendment, there was a good deal to be said for requiring that the supplier should, in fact, make known all the grounds on which he is relying at the relevant time and not think them up afterwards. One of my noble and learned friends referred to a "lawyers' paradise". Surely this is one of the areas in which the Bill will become a lawyers' paradise if it is not a good deal tightened up. It is only fair, if the supplier is going to rely on grounds—whether they are teetotalism or something better—that he should in fact indicate them at the time he is refusing to supply and not later on when it comes before the courts.

§ THE LORD CHANCELLOR
I can answer that quite shortly. The noble Lord will appreciate that this is a pure question of fact as to what were the grounds for a particular course of conduct. Whatever the noble Lord may say about lawyers, it would be a complete breach of professional etiquette for a lawyer to advise his client to invent evidence to sustain a finding of fact.

§ LORD CHORLEY
I am not suggesting that he should invent evidence; but that he will, in fact, look around for it.

§ THE LORD CHANCELLOR
I am glad that the noble Lord interrupted, otherwise his remarks might have been inferred to mean that the lawyer was concocting evidence. But there is no harm in his looking round to see what evidence there is. It would be for the court to decide whether or not there was a genuine independent ground. The supplier who is wanting to assert that 30 will improve his case very much if he states the grounds at the beginning and long in advance of any possible litigation. I should have thought that that would have been obvious. I would not go so far as to agree with the noble Lord on putting an obligation on all manufacturers or suppliers when they withhold their goods or alter their terms of trade to have to give written explanation of all the reasons leading them to take that course to the trader with whom they are in correspondence. I appreciate the noble Lord's point, but I do not think those fears are very serious.

§ LORD SHEPHERD
I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ House resumed.