CIVIL EVIDENCE BILL [H.L.] (Hansard, 21 March 1968)

HL Deb 21 March 1968 vol 290 cc681-9 681

§ 3.29 p.m.

§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I beg to move that this Bill be now read a third time. If your Lordships give this Bill a Third Reading, I shall then have to propose certain Amendments, but I should like to make one or two observations about the Bill at this stage. I have already thanked the Law Reform Committee for their work in the production of this Bill, and I should like, in particular, to thank the noble and learned Lord, Lord Pearson, the Chairman of the Committee, for the help which he has given the House during the different stages of this Bill.
If he will not think it an impertinence on my part I should also like to thank the noble Viscount, Lord Colville of Culross, who has, I know, done an enor- 682 mous amount of work on this Bill which has led to a number of improvements in it, and particularly on those clauses of the Bill dealing with computer evidence. In that context, I should like to thank, too, I.C.T., Limited, a computer company, and the 3M Company, who are large users of computers, for the technical assistance which they have freely given to my Department to enable us to make sure that proper provision for computer evidence was being made in the Bill. On the Report stage we had an interesting discussion on Clauses 2 and 4, and I have written to the noble Viscount to explain to him why, on full consideration, the Government are unable to accept the Amendments which were then proposed.
Finally, I refer to a point which was raised both by the noble and learned Lord, Lord Pearson, and by the noble Viscount as to whether the discretion given to the court in Clauses 2 and 4 could not be, exercised by a master inter-locutorily by rules providing for that. I have looked into that point. The -e are at least two cases in which the Court of Appeal, in relation to a similar discretion exercisable now under the Evidence Act, have said that in their view in most cases it is far more preferable that the decision should be made at an interlocutory stage so that before the trial both parties will know whether a particular statement is going to be admitted in evidence or not. There seems to be no reason why rules should not make that possible in relation to this Bill. My Lords, I beg to move.

§ Moved, That the Bill be now read 3^a. —(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS
My Lords, I am grateful to the noble and learned Lord the Lord Chancellor both for his kind remarks about myself and also for the general remarks that he has made. I, too, am aware that I have been greatly helped by advisers outside this House. Indeed, I do not see how one can deal with such a subject without that sort of advice, and those who help in this way are doing a very valuable service, I think, not only to the House but to those who are going to have to operate the Act later.
I want to make only one point on what the noble and learned Lord has said. In relation to Clauses 2 and 4 he did indeed 683 write to me most helpfully. In those cases, perhaps the rare sort, that I was talking about, and perhaps in others which are less rare, too, where it is essential that the parties should know what sort of evidence they are going to be allowed to introduce in court, the question whether or not this can be dealt with by the master is really of great importance. The noble and learned Lord, Lord Pearson, agreed about this when he spoke on Report stage. It will now be a matter for experiment, and, I hope, for the courage and daring of the masters to take this particular matter into their hands and make some solid decisions upon it. The whole of this Bill is experimental, and it will work only with a great deal of flexibility in the Rules Committee, with the proper exercise of the judges' discretion and the proper exercise of the masters' discretion. But the sort of thing the noble and learned Lord has just said about what the masters may do under existing decisions will, I think, be of immense value in getting matters straight before the case ever comes on for hearing at all.

§ On Question, Bill read 3^a.

§ Clause 9 [Admissibility of certain hearsay evidence formerly admissible at common law]:

§ THE LORD CHANCELLOR moved to leave out subsection (3) and to insert instead: (3) In any civil proceedings a statement which tends to establish reputation or family tradition with respect to any matter and which, if this Act had not been passed, would have been admissible in evidence by virtue of any rule of law mentioned in subsection (4) below—

(a) shall be admissible in evidence by virtue of this paragraph in so far as it is not capable of being rendered admissible under section 2 or 4 of this Act; and
(b) if given in evidence under this Part of this Act (whether by virtue of paragraph (a) above or otherwise) shall by virtue of this paragraph be admissible as evidence of the matter reputed or handed down;

and, without prejudice to paragraph (b) above, reputation shall for the purposes of this Part of this Act be treated as a fact and not as a statement or multiplicity of statements dealing with the matter reputed.

§ The noble and learned Lord said: My Lords. I hope that it may be convenient to the House to discuss Amendments Nos. 2, 3 and 4 together with Amendment No. 684 1, for they are consequential upon it. These linked Amendments meet to some extent the criticisms of Clause 9 made on Report stage by the noble Viscount, Lord Colville of Culross, by providing that, first, "reputation" is for the purposes of Part I of the Bill to be treated as fact and not as hearsay; and, secondly, that any out-of-court statement as to the existence of reputation or family tradition, which is made admissible under Part I, is to be admissible as evidence of the fact reputed or handed down.

§ The new subsection (3), substituted by the first Amendment, preserves the principle embodied in Clause 9(3) as drafted; namely, that a distinction is to be drawn between such out-of-court statements which fall within Clauses 2 or 4 as being "first-hand hearsay" or "records" and those which, being "second-hand hearsay", would not qualify under those provisions but would, apart from the Bill, be admissible at Common Law under one or other of the "Clause 9(4) Rules" and are made admissible under paragraph (a) of the new subsection (3). Paragraph (b) provides that, whether admitted under paragraph (a) or under any other provision in Part I, such statements are admissible as evidence of the facts reputed or handed down.

§ The concluding part of the new subsection (3) provides that reputation is to be treated for the purpose of Part I as fact, not hearsay. There is a conflict among the authorities as to whether reputation, where admissible at all, is admitted under an exception to the hearsay rule or is original evidence. This conflict is considered by Cross on Evidence, Third Edition, page 457, whose conclusion is that where reputation is admitted as evidence of a reputed fact it is so admitted as an exception to the hearsay rule. The noble Viscount drew attention to this conflict on Report stage and observed that it could lead to uncertainty as to the applicability of Part I, and therefore of the procedural safeguards, to evidence of reputation, whether given directly from the witness box or by proving an out-of-court statement. Such uncertainty is undesirable. Accordingly, the new subsection (3) resolves the conflict by providing that, for the purposes of Part I, reputation is fact and not a statement or statements of the matters reputed.

685

§ Clause 9(3), as proposed to be amended, does not, and is not intended to, alter the law as to the circumstances in which reputation or family tradition, once proved, may be used to establish a reputed or traditional fact. It does, however, alter the law governing the way in which the existence of the reputation or tradition may be proved. I could expand on that with a substantial number of examples, but I do not think I need trouble your Lordships with them, at least at this stage.

§ The Amendments do not adopt the noble Viscount's suggestion, embodied in the Amendments he moved on Report, that the existing Common Law rules should be preserved as they stand in parallel with the Bill. He argued that these rules had worked well and that the distinctions introduced by Clause 9(3) would complicate the law unnecessarily. For the reasons which I then ventured to give in reply, the noble Viscount's proposal would have made the law even more complicated, while the Bill simplifies it considerably. Under the Bill, the party seeking to prove an out-of-court statement in a pedigree case, and so on—the others are mainly public rights cases—has only to ask himself these questions: first, "Am I putting my witness in the box to prove an out-of-court statement of a relevant fact (including reputation) made by X of X's own knowledge?". If so, the evidence is admissible subject to notice. And secondly, "Am I putting my witness in the box to prove an out-of-court statement about reputation, family tradition, etc., made by X otherwise than of X's own knowledge?". If so, the evidence is admissible only if it would have been admissible at Common Law, but no notice is required. My Lords, as I have said, the second, third and fourth Amendments are consequential. I beg to move.

§ Amendment moved— Page 10, line 14, leave out subsection (3) and insert the said new subsection.—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS
My Lords, I hope the House will accept these four Amendments, because I, for one, consider that they make a great improvement to the Bill. It is quite true that they do not meet the point I 686 made on Report—at any rate, the first point I made—but they do pick up something that I said, I think in reply to the noble and learned Lord the Lord Chancellor, and it is plain that that particular matter, which has never had to be clarified before, certainly ought to be made plain for the purposes of this Bill, because otherwise it would, I think, have caused some confusion until it was settled.
I do not think that the questions that the advocate is going to have to ask are really quite as simple as the ones the noble and learned Lord put, because, although that is the beginning of it, he has still to go back to the Common Law, and the Common Law is difficult enough, in all conscience. I am quite prepared to believe the noble and learned Lord when he says that what I was suggesting would have been more complicated than what is now in the Bill. On the basis that the whole of this measure is really an experiment to see whether we have it right—with, perhaps, the possibility that the noble and learned Lord suggested, that in due course we shall have no rules of evidence at all—I would certainly recommend the House to accept these Amendments to Clause 9.