§ 4.58 p.m.
§ Report of Amendments received.
§ Clause 2:
§ Admissibility of out-of-court statements as evidence of facts stated
§ (2) Where in any civil proceedings a party desiring to give a statement in evidence by virtue of this section has called or intends to call as a witness in the proceedings the person by whom the statement was math, the statement—
- (a) shall not be given in evidence by virtue of this section on behalf of that party without the leave of the court; and
- (b) without prejudice to paragraph (a) above, shall not be given in evidence by virtue of this section on behalf of that party before the conclusion of the examination-in-chief of the person by whom it was made,
- (ii) in so far as the court allows the person by whom the statement was made to narrate it in the course of his examination-in-chief on the ground that to prevent him from doing so would adversely affect the intelligibility of his evidence.
VISCOUNT COLVILLE OF CULROSS moved, in subsection (2), after the first "made", to insert:
if that person is called in order to give evidence as to the matters contained in the statement".
The noble Viscount said: My Lords, in speaking to Amendment No. 1, I hope your Lordships will allow me also to deal with Amendments Nos. 2, 3 and 4 because the subject matter is really common to all of them. I must also apologise if it takes me a little time to explain these Amendments; but the subject matter is not a little complex and in order to make myself clear I shall have to do it
by way of illustration. I want to take for my illustration a notional case concerning a car which was bought on hire-purchase. The plaintiff in the case is the hire-purchase company, and the defendant is the man who bought it.
§ In the first part of the illustration I simply want to draw attention to what will happen if it is wished by the plaintiff to prove that the defendant bought the car. The evidence consists of a statement which was made by a clerk in the plaintiff company, a written statement which is part of the record of his business, upon being told by the sales manager that he had sold the car to the defendant. The fact is that the car was sold, but it appears primarily in a statement made by somebody else, and it is therefore hearsay. This really comes under Clause 4 of the Bill, but perhaps this is the easy way to illustrate the matter. The plaintiff company wish to put this statement in evidence, so they serve a notice under Clause 8, upon which the defendant may do one of two things. He may either do nothing, in which case the statement is admissible as of right under the Bill as evidence of the fact that the car was sold, or he may serve a counter-notice requiring that the man who originally told the clerk that the car had been sold—that is, the sales manager—should be called to give evidence.
§ If he does that, again one of two things may happen. Either the plaintiff company may call the sales manager or they will say, in accordance with Clause 8(2)(b), that since the sales manager was dealing with the sales of cars every day over a long period of time and dealt with about 25 cars on the day concerned, and that day was three and a half years ago, he cannot reasonably be expected, having regard to the time that has elapsed since making the statement, to have any recollection as to the accuracy or otherwise of that statement. If that is established in interlocutory proceedings before the case comes on for trial, he need not be called and the statement is capable of being produced as of right under the Bill as evidence that the car had been sold.
§ Suppose that does not happen. Suppose the sales manager is called at the request of the defendant and he is asked about the sale of the car. He is an 1456 honest man and has told those who conduct the plaintiff's case that he remembers a little about it but not very much, and therefore the plaintiff has not used the provisions in Clause 8(2)(b) to keep him out of the case, but in examination-in-chief it becomes clear that he remembers very little about it and his testimony is somewhat more than shaken on cross-examination. As the Bill stands, the statement which was contemporary and which in other circumstances would have been admissable as of right, can only be put in after examination-in-chief at the earliest and then upon the discretion of the court. I think that in most cases where the plaintiff had called the sales manager and the hearsay statement was in fact a contemporary one and most unlikely to be inaccurate, the discretion of the court would usually be exercised in favour of letting the statement in, because having regard to Clause 6 of the Bill the court could put such weight on it as it thinks fit and it is not bound to be conclusive.
§ So far that is what the Bill says, and I am content. But take a further complication. Not only did the sales manager sell the car and tell the clerk who made the record, but subsequently the sales manager had to go and reclaim the car, and when he did so he found that it had no mudguards. The plaintiff also wishes to give in evidence that the car had no mudguards. This has nothing whatever to do with the other piece of evidence related to the sale of the car. Since it is desired to give the first piece of evidence in the court it is necessary to serve notice under Clause 8. If no counter-notice is served, or if the plaintiff company can rely on Clause 8(2)(b) so that for the purpose of that statement there is no necessity to call the sales manager, then ordinarily speaking that statement will be admissible as of right. But if the plaintiff company also wish to call the sales manager to give evidence of the fact, which he clearly remembers, that the car had no mudguards, then although the position is that while the plaintiff company, despite the absence of a counter-notice or the fact that the sales manager remembered nothing about it, could have put in that hearsay statement as evidence of right, they can no longer do so, because of the wording of Clauses 2 and 4.1457
§ Because of the pure chance that it was the same man who sold the car who subsequently found that it had no mudguards, the hearsay statement has been converted from one that can be admitted as of right into one admitted only by the discretion of the court, and then only after the examination-in-chief. How is the court going to exercise this discretion? No doubt it would say that had not the sales manager been called to deal with the mudguards, this statement could have been put in as of right and therefore it will exercise its discretion in favour of it being put in. But again there may be courts, and perhaps some judges, who would be stricter than others about the best evidence rule, and would say that if somebody knows something about a matter he should come and tell the court and that the court should not rely on any hearsay statement at all. Some courts may say that, notwithstanding the fact that the sales manager had not been called and this hearsay statement could come in as a right, nevertheless as the sales manager was present the court should hear what he has to say about it and not admit the hearsay statement at all. The plaintiff company would then be in the position in which they would have lost the only piece of evidence they could call as to the fact that the car was sold in the first place.
§ In these four Amendments I have attempted to deal with the matter in this way. If the sales manager is called to give evidence about the original sale of the car, then both Clauses 2 and 4 should stay as they are, with the same rule as is in them now; but if he is called incidentally to give evidence about something else, there should be rules of court which could, if necessary, make some differentiation from the strict rule in Clauses 2 and 4. The rules would possibly be complex. The complexity of the matter is such that I do not think that proper criteria could be put in the Bill itself, but this is just the sort of thing rules are for, and they can be changed if they seem to be wrong. I would suggest that, instead of tying the whole of this situation to the strict rule in the Bill, we ought to relax it a little so that in these circumstances a plantiff who wishes, perfectly properly, to rely on hearsay evidence, may not find, when the matter gets to court, that he does not know whether he 1458 will be able to put it in or, if he is unlucky about the view the court takes, that he will not be able to put it in.
§ This is a practical problem, which is not quite so obscure as it may sound to your Lordships as I have explained it. I should be grateful to the noble, and learned Lord the Lord Chancellor if he could tell me what solution he may have to this. Perhaps it is in the Bill already, or perhaps we need an Amendment. I apologise for not putting these Amendments down on Committee stage, but at that time I had not fully appreciated the difficulties that might arise. I beg to move Amendment No. 1.
Page 2, line 4, after ("made") insert ("if that person is called in order to give evidence as to the matters contained in the statement").—(Viscount Colville of Culross).
§ 5.10 p.m.
§ THE LORD CHANCELLOR
My Lords, I agree with the noble Viscount that with this Amendment there should be discussed the three following Amendments. Their object, as I understand it, is to exclude the court's discretionary powers to admit or reject an out-of-court statement the maker of which is called, or proposed to be called, by the party seeking to adduce the statement in order to give evidence from the witness box, but only on matters not dealt with in the statement.
VISCOUNT COLVILLE OF CULROSS
My Lords, with respect, it is not to remove the court's discretion. It is to allow rules to be made which may produce a different exercise of the discretion in different circumstances. I have not gone so far as to suggest that the court should have no discretion. I am simply saying that the court should not have in the Bill a discretion every time.
§ THE LORD CHANCELLOR
It is saying that we will not have any discretion in the Bill; we may or may not let the courts have discretion by rules.
As drafted, the Bill makes the admissibility of such statements subject to the court's discretion. If the statement is not a "record", it is the calling of the maker which renders it admissible only at the discretion of the court. In the case of a record, the discretionary powers of the court arise only if the informant, as 1459 opposed to the recorder, is called (or proposed to be called), as a witness; in either case the statement cannot, unless the court otherwise directs, be put in before the conclusion of the maker's—or informant's, as the case may be—examination-in-chief. In any event, the admissibility of the statement is subject, under the Bill, to the notice and counter-notice procedure. The reasons for bringing in the court's discretion are set out in paragraphs 35 to 39 of the Law Reform Committee's Report, which make it clear that there was a division of opinion about this—and I will refer to that later. The Bill implements the majority recommendation that such statements should be admissible if the court in its discretion so allows, subject to the conditions referred to above.
The noble Viscount's proposals are based on the principle that, where the witness, or potential witness, is called to give evidence of some matter entirely divorced from the contents of the statement, there is no point in bringing in the court's discretion. In particular, the party concerned may either (i) have served, in respect of the statement, a notice which has provoked no counter-notice; or (ii) whether or not a counter-notice has been provoked, be in a position to show that the maker of the statement (or the informant in the case of a "record") cannot be expected to have any recollection of the matters stated. In the example of the car hire-purchase which the noble Viscount took, the position under Clause 4 is that the plaintiff can give notice of his intention to rely on the statement recorded by the clerk and (as long as he does not call the manager) can adduce it as of right if either (i) the defendant does not give a counter-notice, or (ii) the plaintiff can show that the manager cannot reasonably be expected to remember the details of the transaction. As I follow it, the noble Viscount argues that the plaintiff should not be prejudiced in adducing the statement merely because he wishes to call the manager to give direct evidence of the condition of the car.
At first sight, this seems an attractive argument, but I suggest that the noble Viscount's Amendments would lead to considerable difficulty, because, first, although there may be some cases where 1460 it is perfectly clear that the evidence the plaintiff wants the manager to give from the witness box has nothing to do with what is contained in the statement recorded by the clerk on the manager's information, this will not always be the case; the distinction is likely in many cases to be blurred. Secondly, it is probably anyhow difficult enough for the plaintiff to say, at the beginning of the trial, whether he intends to call the manager at all. To say that he intends to call the manager to give evidence of fact A but not of fact B may well be impossible. In the example the noble Viscount has taken the plaintiff may not know until the clerk has been cross-examined whether he needs to call the manager to say what the details of the transaction were, and it is almost certainly more convenient to all concerned for the plaintiff to prove the terms of the hiring before proving the subsequent condition of the goods on their return.
Moreover, the noble Viscount's Amendments are aimed at a difficulty which it is thought will not occur. Irrespective of the court's discretion, the manager will almost certainly be able to use his recorded statement to refresh his memory, and, if there is any real controversy about its accuracy, it will be put in evidence and, under Clause 3, become evidence of the facts stated. The manager will in most cases have had to use a note to refresh his memory about the condition of the goods on their return. Secondly, and more importantly. the court will, in its discretion, let the statement be put in at whatever is the most convenient moment, unless there is any good reason for refusing. The noble Viscount's Amendments are directed at a comparatively unusual case. The underlying assumption of the Bill is that, where the admissibility of a statement is made dependent on the discretion of the court, that discretion will be exercised sensibly. If that assumption were not well founded, the Bill would he unacceptable in toto.
The second Amendment is intended to leave it to rules of court to provide for the time at which a statement may be admitted in a case such as that to which the noble Viscount referred. It is not easy to see how this could work in practice. In some cases the natural order in which the plaintiff's story is told will require the statement to be put in before the maker 1461 or informant is called; and this is particularly likely to happen when the statement is contained in a written "record". In other cases, this will not be so. The circumstances are so various that the rules could do little more than leave it to the discretion of the court, which is what the Bill as drafted already does.
The second Amendment also enables rules to provide for "any discretion of the court subject to which" a statement is to be admitted if the maker is called to give evidence on some point other than that dealt with in the statement. The precise significance of these words is not readily apparent. If the noble Viscount's object is to make the statement admissible as of right (subject only to compliance with the notice and counter-notice procedure), it is inconsistent with this object to bring in any further discretionary powers of the court. If this is not his object, there seems no point in his Amendments, since the Bill already gives the court discretionary powers. I am myself always strongly in favour, as cases differ so much, where necessary, of leaving things to the discretion of the court. The majority view of the Committee was expressly in these terms. They said that they consider that, whether consistent or inconsistent with the witness's oral testimony, a previous statement made by him should be admissible at the judge's discretion, which could be exercised where circumstances justified his taking this course. They attach considerable importance to conferring on the judge a residual discretion to admit statements as evidence of the facts which they tend to establish; and they give various reasons why, for example, a statement by an eye-witness shortly after the event may be more accurate than his recollection at a trial some time afterwards.
My Lords, I confess to a prejudice in favour of the view of the majority of the Committee, because I do not believe in the law of evidence at all. In a sense (I am not going to say that I am disappointed with this Report, because it is a magnificent Report), the Report itself is very complicated. What is said in this House is on record, and I will go on record as saying that I am quite sure that within twenty years we shall have no law of evidence at all. Most legal systems do not—all those that follow the Napoleonic Code. A French judge 1462 is astounded to find what a rigmarole our law of evidence is. He listens to whatever is put before him, and attaches such weight to it as he thinks fit.
Our existing law of evidence really comes only from the time, not long ago, when no judge was ever allowed to decide questions of fact: he could decide only questions of law. Even when I was called to the Bar, nearly all the injury cases were done by juries in the county courts. You had your county court jury in the days of Martin O'Connor—as no doubt the noble Viscount, Lord Colville of Culross, will remember—and I think this is just a survival of a time when it was felt that juries might be misled by evidence which was not really reliable. Hence the hunt for the best evidence, no hearsay, and so forth. Therefore, if I have any choice, I naturally personally favour, on a point like this, which would hardly ever arise, leaving it to the judge's discretion, and not to omit that provision in the Bill and say, "Later on, if it is not too complicated, we might give him some discretion under the rules". It is for those reasons that I respectfully ask the House to reject the Amendment.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am much obliged to the noble and learned Lord for his explanation, but I have one thing to say about it—it may be because I misheard him, but it is also possible that the noble Lord has missed one point in the Bill. I cannot believe that to be so, but it seemed so to me from what he was saying. If he would accept for one moment that circumstances such as I describe could occur, then, as he rightly said, in the course of telling the story to the court it would certainly be sensible to introduce the matter of the sale of the car before the condition in which it was when it came back was dealt with. Under the Bill that cannot be done.
If the noble and learned Lord would be so good as to look at Clause 4(2), he will see that if the plaintiff is going to call the sales manager to deal with the question of the condition of the car, then the statement by the clerk about the sale of the car is certainly allowed to be put in at the court's discretion. But, under paragraph (b), it cannot be put in before the end of the examination-in chief of the sales manager. Now, he is 1463 going to be called to deal with the condition of the car. What the noble and learned Lord said was that the natural course of events is to have the hearsay statement by the clerk in beforehand. But, as I understand it, if you look at the word "and", between paragraphs (a) and (b), this is exactly what you cannot do with the Bill drafted as it is.
I am not asking for one moment that the House should accept that my Amendments are correct. Very few of my Amendments ever are, and I should not be surprised if the same were true on this occasion. But I believe that, if the noble and learned Lord is really the convert he has confessed himself to be, he must upon examination of this matter come to the conclusion that—perhaps in the rare circumstance—this Bill is too tightly drawn and that a further relaxation (how this is to be done I do not know) ought to be provided in it. Indeed, I have no idea what the case would be if the statement had already gone in and then the plaintiff called the sales manager, because that would break every axiom underlying, not only the Report of the Law Reform Committee but Clauses 2 and 4 of the Bill. I do not know what would happen in this situation, and I should have thought it essential that this matter should be considered a little more. I am sure that the noble and learned Lord, with his usual courtesy, will do that.
Perhaps he could also consider this. I am not altogether concerned with the question of what happens at the hearing. I have no doubt whatever that the courts will exercise their discretion in a sensible fashion; again, they always do. But there is the point about the preparation of the case. How does the plaintiff know what he is going to be able to do in the second circumstance, where there are the two points in evidence that had to be given? How does he know, when he gets to the door of the court, whether he will be able to prove the hearsay statement?
Perhaps the noble and learned Lord could consider this. Would it be possible for this matter, if it is clear enough at any rate, to be dealt with at an interlocutory stage outside the court and before the matter comes up for hearing? If the Master could exercise the discretion, at least in a clear case, 1464 then when it came to the hearing a great deal of time would be saved. The plaintiff would know where he was. And if, as the noble and learned Lord agreed, the situation would be that, if it were not for the manager being called to prove something else the hearsay statement could have gone in anyway, then in practice it will in fact go in anyway as all right; and what I am seeking to achieve will probably have been achieved. Perhaps the noble and learned Lord (I know that this is the Report stage, and I cannot invite him to speak again) would, if I withdraw the Amendment, look at those two points, because I still think that there may be something in them and that they are not altogether fanciful. If the noble and learned Lord would do that, I would certainly at this stage beg leave to withdraw this Amendment.
§ THE LORD CHANCELLOR
My Lords, if I may, with the leave of the House, speak again before the Amendment is withdrawn, may I say that I do not think the point is sound, because both subsection (2)(a) and subsection (2)(b) of Clause 4 expressly make the admission of the statement subject to the discretion of the court. But I will certainly consider the matter. I do not know whether it is proper for me to ask whether the noble and learned Lord, Lord Pearson, as Chairman of the Committee, would wish to assist the House on this matter at all.
§ LORD PEARSON
Yes, my Lords. I was much impressed with the extreme lucidity with which the noble Viscount was able to explain this rather intricate matter. I think I ought to say that what the Committee mainly had in mind in dealing with this matter was to preserve, so far as possible, the usual method by which evidence is given orally on any matter which is in dispute. The important thing was to prevent a witness from handing in his mere proof of evidence, instead of giving his evidence orally. It is very important, to operate the usual system of oral evidence, that the witness should give his evidence-in-chief without being able to read it out from some previously prepared document, which may have been well or ill prepared, fairly or unfairly prepared; and that is the main object of the special provisions, the special safeguards, for the case in which the maker of the statement is himself called to give evidence.
1465 I should not have thought that any serious difficulty is likely to arise in a case like this. If there is a written record of what happened, and some witness, who has himself either made the record or been responsible for it by giving the information on which it is based, is going to be called, I should not have thought that there was any substantial risk of that written record not being permitted to be given in evidence. It would be the most obvious case, I should have thought, for the exercise of judicial discretion in favour of that record being admitted. So I should not have thought there was great risk. On the other hand, if I may say so, I was impressed by one of the last observations which the noble Viscount made: that it is important for the party to know in advance of the trial whether or not he can rely on certain evidence. I think it might be advisable to consider whether there should be a power at the interlocutory stage for such a record to be admitted, that is to say, for an interlocutory decision that such a record can be admitted at the trial.
Also, I should like to say that I was impressed by what the noble Viscount said, that it is desirable to have these rather complicated matters settled, so far as possible, by rules of court, rather than by Act of Parliament. I think it might be right to give a little more consideration to that aspect of the matter. The obvious advantage of rules of court is that they are more of an experimental character than statutory provisions can be, and if it is found that they do not work in practice they are relatively easily altered. I think that, with a Bill of this kind, which has to be to a considerable extent of an intricate character, there is something to be said for considering that aspect of it.
May I say, in defence of this Bill, in so far as it is based on the Committee's proposals, that we are here dealing with a subject which has been developed partly in the ordinary Common Law manner, and partly also by Statute, over a period of two or three hundred years, and the existing state of the law has considerable complexity. And I do not see how in this Bill, which is seeking to alter it, one could have hoped to get anything very simple. But what matters is not simplicity in the form of the Bill itself, but simplicity in the ultimate operation of the provisions; that when the provi- 1466 sions are put into operation one does have a hope that they will work in a relatively simple manner. I should have thought there was something to be said for considering whether some provision should be made in the Bill for rules of court to be made; and perhaps they should go a little further than they do now.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Admissibility of statements produced by computers used for put poses of any regular activities]:
§ 5.31 p.m.
§ THE LORD CHANCELLOR moved, in subsection (1), to leave out paragraph (a). The noble and learned Lord said: My Lords, in moving this Amendment I invite your Lordships to consider at the same time Nos. 6, 7 and 8. These linked Amendments substitute, for the provision in the Bill whereby immaterial defects in a computer are to be disregarded for the purpose of ascertaining whether the computer was operating properly, a provision whereby it becomes a condition precedent to the admissibility of a computerised statement that throughout the material period the computer was operating properly or that, if it was not operating properly, any defect in its operation was not such as to affect the production of the document or the accuracy of its contents.
§ The Amendments are designed to meet points raised on Second Reading by the noble Viscount, Lord Colville of Culross. Your Lordships may remember that he criticised Clause 5 on the following two grounds. The first was subsection (1)(a) requiring the computer to have been operating properly at the time when the document was produced. This might be argued, not be the only relevant time, since the production of the document might follow some material part of the operation of the computer at a considerable interval, and what really mattered was whether the computer had been operating properly throughout the period during which the information from which the statement was derived had been processed. Particularly in a case in which, as was common practice, a computer l ad been used to "up-date" records, a defect occurring long before the eventual printout was produced might have affected the accuracy of a statement contained in that print-out.1467
§ Second, the noble Viscount argued that subsection (4)(d) enables an immaterial defect to be disregarded for the purpose of determining whether a computer was operating properly. In practice, he said, this would mean that the computer party would be the sole judge of whether a defect was immaterial, because he would simply certify that the computer was operating properly and his opponent would never even know that there had been any question of defective operation. He thought that the opponent ought to be informed of the defects, so that if, in the light of such expert knowledge as he might have, he thought they were not immaterial he could make use of that knowledge.
§ The Amendments meet the noble Viscount's first point entirely. The new paragraph inserted in Clause 5(2) makes it a condition of admissibility of the computerised statement that the computer was operating properly throughout the material period, or, if it was not operating properly, that any defect was not such as to affect the production of the document or the accuracy of its contents. Thus, the party seeking to put in the computerised statement will have to prove these facts, which he may do either by calling evidence of somebody responsible throughout the period for the operation of the computer or by putting in a certificate from such a person (or several such persons) under subsection (3). He will thus have to cover the operation of the computer over the whole of the relevant period.
§ The Amendments go most of the way to meet the noble Viscount's second point. They do not, however, go so far as to require the computer party to set out in terms every respect in which the computer was defective and which he contends was immaterial to the issue. To do this would be impracticable and could only lead to a waste of time and money. Moreover, even if the computer party could comply with such a requirement, in 99 cases out of 100 it would be of no real value to his opponent to learn that the computer had suffered from defects which he would almost certainly be incapable of understanding. In all such cases it would be desirable to require the computer party to state in his notice 1468 under Clause 8(2)(a) whether he is contending that (i) the computer operated properly throughout or (ii) although it was defective, the defects were immaterial. If that were done, the rules could also entitle the opponent to ask for particulars in the second case. In practice, however, such particulars would probably be useful only in the exceptional cases where the opponent is in a position to assess the importance of any defects of which particulars might be given.
§ I hope that the noble Viscount will feel that this Amendment and the following Amendments clearly meet his point. I beg to move.
Page 4, line 5, leave out paragraph (a).—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSS
My Lords, I am very grateful indeed for these Amendments, which certainly meet my point. In so far as the noble and learned Lord suggested that my second point had not been entirely met, I do not think I agree with him. I would certainly not suggest that one should be required to give in every case a complete history of all the troubles and tribulations (if there had been any) of the computer throughout the period, whether it was material or not. All I wish is to do very much what the noble and learned Lord has just said.
§ LORD CONESFORD
My Lords, in thanking both my noble friend and the noble and learned Lord the Lord Chancellor for the great consideration given to this clause and the possible dangers of computers, perhaps I might bring to the attention of the House (if your Lordships are not already acquainted with it) the fact that, although the possible dangers of computers have not, I think, been the subject of any case decided in our courts, they are the subject of an important case in fiction. The case was tried by Mr. Justice Squirrel in the year 1963. It is the case of Haddock v. The Generous Bank Limited and Others. It would be wrong for me to go into the details of the case, but among the parties, apart from the Bank, were the computer itself, the company from which it was hired and the Central Electricity Board. The facts were these. Mr. Haddock wished to buy a flat. The property company 1469 asked for a banker's reference. Mr. Haddock's bank referred this request to their computer, which issued the following three messages:Mr. Haddock's account is overdrawn in the sum of £51,000 7s. 3d. The market value of the securities he holds is £2 0s. 8½d. What is more, he owes the Inland Revenue £159,000 6s. 2d.My Lords, all these statements were inaccurate. This was caused by the fact that the computer was consulted about the time of the mid-day meal and many people had turned on their electric cooking apparatus, with the result that the voltage fell below the safety level of the computer. The defences were ingenious. The bank said that they were not liable for the action of their servant, the computer, because it could not be their servant since they were unable to exercise any control over it. The company which supplied the computer said there was nothing wrong with the computer (which was true) and the Central Electricity Board—I need hardly say—had a statutory defence. In those circumstances, the court decided that if you brought a thing as dangerous as a computer on to your premises the stern doctrine of Rylands v. Fletcher must be held to apply, and the person who so brought the device on to his premises was under an absolute liability for the consequences.
There is one passage in the judgment which I wish to read to the House:As we have seen, the suggestion that these monsters are 'infallible' can hardly be sustained. Nor is it only such physical accidents as a reduction of voltage that weaken the claim. Given a mass of correct and relevant facts the machinery may produce the right answer to the questions put much sooner than the human mind, and the nature of that answer is uncontrollable by puny men. But given a mass of erroneous information its answers must be wrong, for it is not capable, like man, of distinguishing between the false and the true; yet it would still, within the limits of the facts available to it, be giving a correct, and, if the word be appropriate, an honest answer. It is proper then, to imagine what would follow if unscrupulous, ambitious, persons deliberately fed into a machine which had won the public confidence information which was untrue or twisted.The wording of that judgment is not unworthy, I think, of a speech in this House, sitting in its judicial capacity; and against the dangers to which the judgment calls attention I believe that the learned draftsman and the noble and 1470 learned Lord the Lord Chancellor have done their best to guard us.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, this Amendment has been covered in the preceding argument. I beg to move.
§ Amendment moved—
Page 4, line 22, leave out ("and") and insert—
("( ) that throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was cut of operation during that part of that period was not such as to affect the production of the document or the accuracy of its consents; and").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
Page 4, line 31, leave out from ("device") to end of line 33.—(The Lord Chancellor)
§ On Question, Amendment agreed to.
Page 5, line 14, leave out from ("equipment") to end of line 20.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 8 [Rules of Court]:
THE LORD CHANCELLOR moved, in subsection (2)(a), to leave out "recording or production of the statement" and insert:
or recording of the statement or, in the case of a statement falling within section 5(1) of this Act, of any person who was in any manner so specified concerned as mentioned in section 6(3)(c) of this Act".
§ The noble and learned Lord said: My Lords, I beg to move the Amendment which stands in my name and to invite your Lordships to consider with it Amendment No. 10. They are linked Amendments which require rules of court made under Clause 8(2)(a) to provide that a "computer party" is to include in his notice particulars of any person who was (in such manner as may be specified by the rules) concerned with the 1471 supply of information to the computer or with the operation of the computer or any equipment by means of which the document containing the relevant statement was produced by the computer.
§ These Amendments meet a point made by the noble Viscount, Lord Colville of Culross, on Second Reading. He criticised Clause 8(2)(a) on the grounds that it referred, in the case of a computerised statement, only to persons connected with the production of the statement and thus excluded those concerned with the earlier stages, such as the supplying of information or the operation of the computer before the document was produced. This criticism I thought was well founded because of the narrow sense in which "production" is used in Clause 5. Accordingly the Amendments bring in those who were concerned with the earlier stages. They do this by attracting the formula used in Clause 6(3)(c), which requires the court, in estimating the weight to be attached to a computerised statement, to have regard to the question whether anybody concerned from the beginning to the end had any incentive to conceal or misrepresent the facts. The substantive Amendment is the Amendment to Clause 8(2)(a); the Amendment to Clause 8(2)(b) is consequential. I beg to move.
Page 7, line 43, leave out ("recording or production of the statement") and insert the said new words.—(The Lord Chancellor.)
VISCOUNT COLVILLE OF CULROSS
My Lords, I am grateful to the noble and learned Lord for these two Amendments. I hope he will allow me to comment that in fact it was not only on Second Reading that I dealt with this matter and also the matter covered by the previous group of Amendments; I had one of my ineffectual efforts to produce Amendments which would have these effects. I agree that these Amendments are much preferable. They entirely meet the point, and I am glad that the noble and learned Lord has moved them, or at any rate the first of them.
I would ask the noble and learned Lord whether he could say one other thing in a moment. There is no Amendment down, either in his name or in 1472 mine, to Clause 10 at this stage, but there is still an unresolved matter which the noble and learned Lord said he would look at—that of a peculiarly abstruse type of computer problem relating to the definition of visual and non-visual productions of computers. I hope he will say that this matter is still under consideration, because I believe that somewhere in the Bill and at some stage—it may be in another place—something may have to be done about it. But I am quite content if it is still being thought about with the necessary experts. I should be glad if the noble and learned Lord could say what has happened.
§ THE LORD CHANCELLOR
My Lords, if I have the permission of the House to speak again, may I say that that matter is still under consideration. The fact is that my computer expert has been overwhelmed with work and I have not been able to get the benefit of his advice, but we have the point still in mind.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR
My Lords, this Amendment is consequential on the preceding Amendment. I beg to move.
Page 8, line 10, leave out from ("connected") to ("and") in line 11 and insert ("or concerned as aforesaid").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 9:
§ Admissibility of certain hearsay evidence formerly admissible at common law
§ In this subsection "admission" includes any representation of fact, whether made in words or otherwise.
§ (3) In any civil proceedings a statement which, if this Part of this Act had not been passed, would by virtue of any rule of law mentioned in subsection (4) below have been admissible as evidence of any fact stated therein shall be admissible as evidence of that fact by virtue of this subsection in so far as that statement is not capable of being rendered admissible as evidence of that fact under section 2 or 4 of this Act.
§ (4) The rules of law referred to in subsection (3) above are the following, that is to say any rule of law—1473
§ 5.48 p.m.
§ VISCOUNT COLVILLE OF CULROSS moved to omit from subsection (2), "In this subsection 'admission' includes any representation of fact, whether made in words or otherwise", and the whole of subsection (3). The noble Viscount said: My Lords, if it is possible, these two Amendments—I should again like to speak to both—raise a point of even greater difficulty than the first four I dealt with, but I may be able to explain it slightly more briefly. Clause 9 deals with a number of Common Law rules of evidence which constitute exceptions to the present hearsay rule. What the clause does in subsections (1) and (2) is to say that the rules listed in subsection (2) shall be preserved as they are now, and then it goes on, in subsections (3) and (4), to say that certain other Common Law exceptions to the hearsay rule shall be preserved as they are now except in so far as they are dealt with under Clause 2 or Clause 4.
§ This clause, like the rest of Part I of the Bill, is not drafted by the Committee itself, who did not produce a draft for their Thirteenth Report; but they dealt with the matter in paragraph 42, and, preceding that, paragraph 41. I have looked very hard indeed but have failed to find any distinction made by them in those paragraphs between the two sorts of Common Law rules dealt with in the two parts of Clause 9. Indeed, in paragraph 42, the first of the rules which they illustrate, admissions made by the parties to the suit or their agents in that behalf, appears in the list in subsection (2), so it is going to be admissible as of right in any event, as before. But the other three instances which they give appear for some reason in subsection (4), where they are going to be admissible henceforth only if they are not dealt with and to the extent that they are not dealt with by Clauses 2 and 4. I fail to understand the distinction, unless it be one of tidiness.
§ I think that this matter can best be illustrated, if I can only get this exceedingly difficult matter right, by reference to a pedigree case, which occurs in subsection (4). As I understand the rule in Common Law at the present moment, as evidence of the fact that your great-aunt was married you are allowed to 1474 call your mother to say that she was there at the time. You may also call your mother to say that it was the reputation in the family that great-aunt was married. You may also call somebody who is not a member of the family to say that it was the reputation in the neighbourhood where great-aunt lived that she was married. What you cannot do is to call somebody who is not a member of the family to say that he heard from somebody else or from great-aunt. that she was married.
§ These rules are immensely difficult, and I do not believe that anybody truly understands the full extent of them. There is a difficult case called Sheddon v. The Attorney General, which appears in the Law Journal, Probate Divorce and Admiralty Reports, volume 30, at page 217, and there is a most interesting passage, I think in the course of argument, by Sir Cresswell Cresswell, beginning at the bottom of the right hand column of page 231, and I hope that that says what I have told your Lordships.
§ My argument is this. Supposing that I wished to call my mother to say that she heard that her great-aunt was married and it was the general reputation in the family, this is not a case which is caught, as I understand it, by Clause 2, because it is not hearsay of any one given sat of facts, but it is a statement relating to common parlance in the neighbourhood or in the family which cannot be pinned down sufficiently to turn it into a statement which is covered by Clause 2. As I understand it, that situation will continue to be dealt with under the Common Law rule, and no notice and counter-notice procedure will have to be undertaken.
§ If, however, I wish to call my mother to say that she was at the wedding, or if I wish to produce a statement by my mother that she was at the wedding, then I can do that only in two ways: I can either call my mother, or I can show that she is dead, or that for some other reason under the counter-notice procedure in Clause 8(2)(b) she cannot come to give that evidence. The situation as to the stranger to the family is much the same, because I would still he able to call the stranger to the family to show that the reputation in the district where he lives was that great-aunt was married.1475
§ In some cases now we are to have the notice and counter-notice rule, and in some cases we are not. I think that in most of the cases where the notice and counter-notice rule will be applicable, certainly in pedigree matters, the person who made the statement will not in fact come, because the only circumstances in which the statement could be given are also circumstances which would operate the procedure whereby under Clause 8(2)(b) that person could not be called. The most notable, of course, is that the person is dead.
§ So therefore, although we have the whole rigmarole of Clauses 2 and 8 being involved in this matter we shall not get the witness before the court at all; and therefore, as I understand it, the only advantage of making a separate list in Clause 9(4) is that in some cases my opponent will have noticed that I am going to put in, or seek to put in before the court, a certain first-hand, secondhand or even third-hand hearsay matter relating to the pedigree, and he will therefore have an opportunity to call counteracting evidence because he knows about it.
§ In the cases where the evidence is most likely to be correct, such as a statement that my mother was at the marriage, or the statement of a member of the family who was at the marriage, which is more likely to be correct than a statement of a stranger as to the reputation, it would be in the first case only that my opponent will have notice. In the case of the more dubious type of evidence, perhaps that of reputation, there will be no notice and counter-notice procedure, and my opponent will have no notice to put him on his guard.
§ With the greatest respect to those who drafted this Bill, I should have thought that this was making it more complicated than is necessary. If the rules, such as they may be, which have governed these matters heretofore have not been criticised by the Law Reform Committee in their Thirteenth Report, as I believe is the case, then why not leave them alone? Why not leave the present rules on these matters to operate as they have done before, instead of complicating them by in some cases, and not in others, insisting upon the notice and counter- 1476 notice procedure whether in fact it results in anybody being brought to give evidence or not?
§ Therefore, I have sought to amalgamate the list of rules in subsection (4) with the list of rules in subsection (2). The result of that would be that all these rules would be governed by the existing rules of law, and not by the notice and counter-notice procedure which precedes them in this Bill. The second Amendment is purely consequential. I should be glad to hear what the noble and learned Lord has to say in support of what seems to me to be an illogical and probably a most tiresome distinction. I beg to move.
Page 10, leave out lines 12 to 22.—(Viscount Colville of Culross.)
§ 5.58 p.m.
§ THE LORD CHANCELLOR
My Lords, the noble Viscount has the habit of raising most complex points on what is admittedly a complex Bill, and it will take me a little time, I think, to deal with this Amendment. The two Amendments, this and the following one, would make hearsay evidence which is admissible under any of the Common Law rules referred to in Clause 9 admissible under the Bill independently of the "procedural safeguards". As drafted, the Bill draws a distinction between evidence admissible (a) under the rules described in Clause 9(2) and (b) under those described in Clause 9(4): the former is admissible independently of the procedural safeguards; the latter is so admissible only to the extent that it is not covered by Clause 2, first-hand hearsay, or Clause 4, records.
Clause 9, save in so far as it covers admissions, is based on paragraph 42 of the Law Reform Committee's Report, which recommends the preservation of the Common Law rules under which second-hand hearsay is admissible. Such evidence would not be covered by Clause 2 nor, unless it constituted a "record", by Clause 4 and, without Clause 9, would be totally excluded by Clause 1. The policy underlying the Bill is that all the Common Law rules under which hearsay is admissible should be superseded by the Bill and subjected, where appropriate, to the procedural safeguards provided by the notice and counter-notice system. 1477 Those safeguards cannot be applied to the types of hearsay covered by Clause 9(2)(b), (c) or (d), because it would be impracticable to ascertain whether they were first-hand, second-hand or more remote hearsay and, in any event, the public nature of the documents in question makes the notice procedure inappropriate.
Clause 9(4), however, covers evidence of reputation, and such evidence, which can include first and second-hand hearsay, may be admissible to prove the existence of the reputed fact—such as a marriage, a genealogical issue in a pedigree case, or a public or general right. The existing Common Law is highly technical and, particularly in pedigree cases, obscure. The main rules are these. First, a witness may give direct evidence of reputation as to any of the matters covered by Clause 9(4); for example, the existence of a marriage. Secondly, the declaration of a deceased person as to such reputation can be proved, subject to the qualification which I will mention shortly, in pedigree cases. Thirdly, except in pedigree cases, no such declaration is admissible if it relates to a specific fact, as opposed to general repute, from which the reputed fact might be inferred. Fourthly, in a pedigree case, the declaration of a deceased person is admissible either as to general family repute or as to a specific fact, but only if the declarant was a member of the family.
Lord Colville's Amendments would preserve these rules as they stand, whereas the Bill as drafted, first, does away with the need to distinguish between members of the family and strangers when considering the admissibility of first-hand hearsay relating to a pedigree issue; secondly, does away with the distinction between pedigree and other cases relating to the admissibility of statements of specific facts as opposed to reputation; thirdly, renders all statements of fact which the maker could have given from the witness-box admissible subject to the notice and counter-notice procedure, thus letting in statements by persons who are still alive but who are either unavailable, or not the subject of a counter-notice, or in respect of whom the court exercises its residual discretion.
The noble Viscount's Amendments would not simplify the law: it would 1478 remain necessary for the party seeking to put in an out-of-court statement to take into account these Common Law distinctions for the purpose of deciding whether a notice was necessary. Under the Bill as drafted the party's task is simpler: he has only to resolve the question, "Am I calling "X" to speak of his own knowledge as to what the general reputation was, or am I calling him to prove either what "Y" told him of the general repute or what "Z" told him about a specific fact relevant to the reputed fact?" In the former case, no notice is necessary; in the latter, notice must be given.
As to the information of the marriage in the example which the noble Viscount took, I would respectfully suggest that the argument is not a sound one. If one takes a person who is going to say that when he was young the family reputation was that the marriage had taken place, the reason why his evidence of repute does not require a notice is that a notice could not do any good. It could not sufficiently identify either the original sources of the reputation or the occasion on which the relevant statements were made. But this is not true of the person who can say that when he was young another relative, now deceased, had told him that he had been present at the wedding, nor does the fact that that person is dead make a notice useless. It enables the opponent to ascertain before the trial whether that person was a reliable person or somebody who had contradicted himself on the matter so that his statement could be challenged by calling evidence under Clause 7.
As to the contention that the plaintiff could get round the notice by getting the last person referred to to tell his story to somebody else—which I rather gather the noble Viscount was suggesting—that, on the authorities, would seem to be wrong. The current law would not let him recount what the other person had told him, because a declaration as to a specific fact or as to general repute is admissible only if the declarant is dead. For those reasons, I would advise the House not to accept this Amendment.
VISCOUNT COLVILLE OF CULROSS
My Lords, I think it is very plain that this is not an easy matter. I should like carefully to study what the noble and learned Lord has said before I attempt to come to any conclusion upon this 1479 matter. I agree that he has set out a number of advantages, and indeed changes in law, which would ensue from making certain of the present rules into cases which are covered by Clauses 2 and 4. At the same time, he has not dealt with my point about actually getting the best evidence. In almost every case, if not in every case, the net result through the notice and counter-notice procedure will not be actually to produce a witness, but it will be merely to put the other side on notice. I think I am right in saying that he will be put on notice where the evidence is more likely to be right, and not put on notice where the evidence is a matter of reputation—which is therefore much more likely to be something which he would wish to produce evidence to challenge.
The other difficulty which may arise—I hope I am wrong about this—is that I do not believe it has ever before been settled, for the simple reason that it has never had to be, whether the evidence as to reputation is first-hand hearsay, or is second-hand, or indeed is not hearsay at all. If it is found to be first-hand hearsay—and I think that this will require judicial decision, because the Bill does not say one way or the other—then notice and counter-notice procedures will need to be given in those cases as well. The noble and learned Lord said he thought that it was not because the identity of the person from whom the news came and the time and place were not expressly specified. But it will be required to be decided, for sooner or later some party in some case will object to the production of this evidence on the grounds that it is, after all, first-hand hearsay and ought to have been subject to the notice and counter-notice procedure. I think that that is a case which, on the procedural point, will come before your Lordships in another capacity.
There is no question of my pressing the Amendment to-day, but I am not at the moment satisfied that the matter has been completely cleared up. I should like to go away and study what the noble Lord has said, read some more books, and have leave perhaps to deal with it again on Third Reading next week. In the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.