PROCEEDINGS AGAINST ESTATES BILL [H.L.] (Hansard, 3 February 1970)

§ LORD LLOYD OF HAMPSTEAD
My Lords, this Bill is the result of a Report of the Law Commission presented to Parliament in April, 1969. In their Report, the Commission adhered to their excellent practice of annexing a draft Bill, and the present Bill follows that draft, save for certain points of detail. The matter is a highly technical one, very much in the field of what is called "lawyers' law", but not lacking in importance on that account. The Report itself, as your Lordships will be aware, sets out with admirable lucidity the nature of the problem and the pro-posed solution, and those interested will undoubtedly have already studied the Report, so that I need not trouble the House with lengthy introductory explanations. I will, however, attempt to outline very briefly the background and purpose of the Bill, which itself possesses the unusual merit of brevity.
The matter stems from one of those unhappy instances where lawyers become entangled in their own formulas, and where it has required the intervention of Parliament after many centuries to disentangle them and thereby relieve the community of a number of intolerable injustices. The offending maxim in this connection is characteristically expressed in mediaeval Latin, and reads "actio personalis moritur cum persona"; that is to say that a personal action dies with the person. This rule, curiously enough, was never applied to contract but applied to tort. It covered, in particular, the field of actions for negligence resulting in personal injuries, and it applies both to plaintiffs and defendants, so that the death of either party prevented proceedings from being brought or maintained.
The manifest absurdity of this rule became sufficiently apparent with the advent of the motor car. The grotesque result was that if you were injured in an accident and the defendant happened to die, your action could no longer be maintained, whereas if he remained alive you could go on with your action, regardless of whether there was an insurance company behind the dead man or not. This led to so ridiculous a result that the Law Revision Committee in 1934 recom- 616 mended the abrogation of the rule, and that was done by the Law Reform (Miscellaneous Provisions) Act 1934.
The position then was that if this rule had simply been abrogated the ordinary limitation period, whether three years or six years, or whatever it was, would of course have applied. In 1934 the Law Revision Committee were very much exercised over the case where the defendant has died, because they felt that the possibility would then arise, if the ordinary limitation applied, that the administration of deceased tortfeasors' estates might be delayed for very long periods; and therefore they recommended what has come to be known as the six-months rule in the case of proceedings against the estate of a deceased person. That six-months rule was modified to a minor extent (and I need not detain your Lordships with this aspect of it) by the Law Reform Act 1954, Section 4; so that the existing law as it now stands is that a writ must either have been issued before the death or not later than six months after the grant of representation to the deceased's estate.
This very short period of six months can cause considerable hardship. The normal limitation period for personal injury is three years. But a person may be involved in an accident and may not know for a considerable time that his injuries are of a serious character. But if the defendant has died and representation has been granted to his estate, the plaintiff has still to issue the writ within six months. Curiously enough, another consequence of the existing law creates an anomaly in the opposite direction, because in certain circumstances a claim may be brought long after the expiry of the normal three-year period. I shall not develop that point at length, but it came about as a result of a decision in 1958 and it is explained very clearly in the Report. It suffices simply to under-line the fact that very strange anomalies do exist, and anomalies in opposite directions.
As a result of this state of affairs, the Law Commission examined the position very carefully, and considered first whether the best thing might be to modify in some way the six-months rule. They considered various possibilities: giving the court discretion, providing for registration of pending claims, and so on. But 617 their detailed scrutiny led them to the conclusion that none of these solutions by modification would be satisfactory, and they turned to consider the more radical solution of abrogating the six-months rule altogether. After very careful consideration, and in particular considering the arguments which weighed with the 1934 Committee about holding up administration of deceased's estates, they came to the clear conclusion that this aspect had been rather exaggerated. They were particularly influenced, not unnaturally, by the view of the Law Society, representing solicitors who of course have immense experience of these matters, and also by the views of the Masters of the Queen's Bench Division, who also felt that there was no real case for maintaining the six-months rule. Therefore the Committee have recommended the abrogation of this rule, and that is contained in Clause 1 of the present Bill.
So far, my Lords, I have confined my remarks to Clause 1. Clause 2 deals, in a sense, with more minute and technical matters of a procedural character not concerned directly with limitations. It involves an attempt to deal with certain technical problems that have arisen when attempts have been made to launch proceedings against the estate of a deceased person. For instance, the writ may be issued without the knowledge that the person is in fact dead. There is fairly substantial authority for the view that, as the present law stands, such a writ would be a nullity, and if in the meantime the limitation period had passed then it would be too late to re-issue the proceedings. There are a number of other procedural difficulties which are set out with great clarity in the Report, and it would be unnecessarily detaining your Lordships to go into the details. Accordingly, Clause 2 recommends that certain powers be granted to the rulemaking body to modify the existing rules and clear up these procedural difficulties.
As regards Clause 3, the original proposal of the Law Commission was that the Act should come into operation three months after the date it was passed, but as this would not really be appropriate where rules of court have to be made which might take a little time, there has been substituted a provision that the Bill shall come into effect on a day to be 618 appointed by the Lord Chancellor. Clause 3(3) also deals with the position regarding causes of action arising before the passing of the Act, and lays down that the Act will apply to them provided that it will not affect proceedings which had ceased to be maintainable before the commencement of the Act. That follows the normally accepted principle that retrospective legislation is acceptable in matters of procedure, but not so as to affect substantive or vested rights. Lastly, this clause specifies that the Act does not apply to Scotland or to Northern Ireland. So far as Scotland is concerned, the Scots, with their customary wisdom, have never applied the general rule that death extinguishes a cause of action, and accordingly have never been bothered with the subsidiary rule relating to six months from probate. As regards Northern Ireland, the matter has been dealt with in part by a Statute of theirs in 1958, and it was doubtless thought wisest to leave it to their Parliament to do any further tidying up which may be needed. I beg to move.

VISCOUNT COLVILLE OF CULROSS
My Lords, I do not think I need detain the House much longer than the noble Lord, Lord Lloyd of Hampstead, has in his admirably clear and lucid speech, if I may so call it. He pointed out that this matter is most carefully explained in Cmnd. 4010, which I hope will be studied by those in the legal profession and the insurance companies who are likely to become involved in it. There is really no need, as he said, to go into the details.
It appears that the situation is summed up in the Latin maxim which the noble Lord quoted, where it applied—and it did not apply in a very large field. It did have certain application, for instance, in negligence, and matters of that kind. The situation was looked at very carefully in the 1930s. The legislation then passed dealt most gingerly with the idea of abrogating in any way this maxim. Then it became apparent by 1954 that they had been too careful, and now it appears that again what we are left with as a result of those two Acts is still too careful and causes too much difficulty.
619 I imagine that on each occasion—I have not looked up the references—that Parliament discussed the 1934 Act and the 1954 Act there were always doubts about difficulties that would arise if the situation were relaxed a bit further; and the Law Commission, in Part V of the Report, deal with those difficulties. Some of them are very theoretical and seem to deal with branches of the law about which there are very few authorities, but they are certainly there. However, there are also practical suggestions as to how to avoid difficulties, and I believe that this will help personal representatives and others who are dealing with this matter. As the history of this particular subject has gone forward, it looks as though the difficulties feared at each stage have not materialised, and I hope that they will not materialise as a result of this Bill.
The second clause, as the noble Lord again said, deals with a slightly different and much broader point, because it brines in all actions where the defendant dies. This, of course, is only a skeleton. What I find interesting about the Law Commission's paper on this particular point is the appendix where they set out, with some little particularity, the various problems which remain to be dealt with by rules of court. I think this is a first-class idea. It is only a few weeks ago that we were dealing with the Administration of Justice Bill, and so much of that had to be dealt with by rules of court. This is no criticism of the noble and learned Lord the Lord Chancellor, because it is not normally done, but he did not produce, and there was no machinery whereby he could produce, any exposition of the rules of court that were likely to be made; and yet the whole issue depended on those rules. One could not make head or tail of the workability of it unless one knew what the rules of court and the administrative procedures were going to be. Indeed, one did not have much idea of what the problems were likely to be that the rules of court were to solve. Here the Law Commission have dealt with this point. They have told us what the problems are. They have not drafted the rules, but they have told us the ambit of the matter to be covered by them. I hope— it does not seem to take up a great deal of print or paper—that this will be a 620 precedent followed in other cases as technical as this and where there are matters of this importance. I am pleased to have had their guidance on this subject. I am sure it has been most helpful to other noble Lords, and will remain helpful.
I cannot imagine that this is a Bill that will be widely amended in its passage through Parliament. It should, therefore, remain of use to practitioners and others who wish to deal with the problem, and it is certainly a Bill I would recommend to the House. I very much hope that the noble and learned Lord will be making equally encouraging noises when he makes a speech in a moment.

§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords. I too should like to thank my noble friend Lord Lloyd of Hampstead for having introduced this Bill, and also for the lucid way in which he has explained it to the House. I am sorry that the subject does not seem to have been as exciting, judging by the numbers of noble Lords present, as the last Bill.
Here is another example of the Law Commission's work. Sometimes it is a big Bill on a large scale, but in this case it is a short Bill dealing with simply one anomaly. It was brought to their attention originally by the Law Society because solicitors had found that there were cases of real hardship. Anybody can understand that if you have been injured in an accident you may be in hospital for weeks and may not be in a condition to instruct solicitors. If you do, and your solicitors find out the name of the defendant's insurance company, that company may not know that their own client has died, and you suddenly find that you are Statute barred. I think the remedy proposed by the Law Commission is the right remedy.
I do not want to take up any further time. The Government welcome and approve of this Bill, and I hope that it will have a clear course in this House through its different stages.