LAW REFORM (JURISDICTION IN DELICT) (SCOTLAND) BILL (Hansard, 22 June 1971)

§ BARONESS TWEEDSMUIR OF BELHELVIE
My Lords, I beg to move that the Law Reform (Jurisdiction in Delict) (Scotland) Bill be read a second time. This is a small but useful and, I believe, entirely uncontroversial measure, the need for which has been brought to attention by the Law Society of Scotland, whose members have experienced difficulty in dealing with the type of case to which the Bill would apply. The purpose of the Bill is to extend the jurisdiction of the Scottish courts in matters of delict. As noble Lords who are not Scots will recall, "a delict" is the Scottish legal term approximating to what in England is known as "a tort". The terms, while not exactly the same, mean a wrongful or negligent act or omission by someone resulting in physical or other injury to another person or to his property. The effect of this small Bill would be to confer on the Scottish courts jurisdiction in actions for damages arising out of any delict committed in the area in which their jurisdiction is exercised, even though the delinquent neither resides in the area nor has been cited in the area. The best example is a tourist who may be a foreigner and a motorist involved in a road accident.
Your Lordships will be aware of the two elements which must be considered in questions of jurisdiction. First, there is the nature of the action. An action for damages in respect of delict may competently be brought in either the Court of Session or in the sheriff court, and the Bill makes no change in this respect. Secondly, there is the question of whether the person against whom the action is raised is subject to the jurisdiction of the Scottish courts. The position at present is that the Court of Session have jurisdiction to entertain an action for damages in respect of a delict committed in Scotland only if the defender is resident or is cited personally within 847 Scotland; and the sheriff court requires residence or personal citation within the sheriffdom before it will assume jurisdiction over the particular defender. There are other grounds on which jurisdiction may be assumed, but these are found in relatively few cases. For example, if a person is injured in a road accident by a foreign driver and the driver returns to his own country before an action can be raised against him, then the injured party cannot bring his claim for damages before the Scottish courts. He can, of course, pursue the matter through the foreign courts of the country concerned, but this has been described by the Law Society as a course so daunting that it must seldom if ever be followed out. The present lack of jurisdiction of the Scottish courts in such cases, therefore, can and does cause difficulty, and not infrequently hardship, to injured parties in Scotland.
The Scottish claimant is in this respect at a considerable disadvantage compared with his counterpart in England and Wales, where personal service or citation within the jurisdiction is not required; and a person injured in an accident South of the Border can raise an action in the English courts irrespective of where the defendant may live. In such circumstances, responsibility for meeting any award made by the court is accepted by the Motor Insurers' Bureau or by the motorist's own insurance company, since the Motor Insurers' Bureau. in terms of its constitution, can meet claims in cases of dispute only on the basis of a court judgment. Of course, in many cases claims arising out of motor traffic accidents are settled without recourse to the courts, but where there is doubt or dispute as to liability or the amount of damages then there is no basis on which a settlement can be made, and in these circumstances the injured party in Scotland has, in effect, no remedy. To meet this situation, the Bill provides that for the Court of Session or the sheriff court to have jurisdiction in any proceedings founded on delict, it shall be sufficient that the delict was committed in Scotland or in the sheriffdom, as the case may be. In such circumstances, rules of court will ensure that a defender who is resident outwith the area of the court's jurisdiction is given due to notice of the raising 848 of an action against him and is afforded the opportunity to defend the action.
My Lords, the provisions of the Bill refer to any proceedings founded on delict, and are not therefore confined to claims arising out of road accidents. It is, however, in this field of road accidents that the proposed legislation will have easily its greatest effect, particularly in view of the large and happily increasing volume of tourist traffic in Scotland. We have carried out consultations with the interests mainly concerned, including the insurance interests, and we are assured that this measure will be widely welcomed. I trust that what I have said is sufficient explanation of this Bill, which as noble Lords will see is short, and, above all, of the need for legislation in this field. I accordingly commend the Bill to the House and beg to move that it be now read a second time.

§ LORD HUGHES
My Lords, I am feeling more and more satisfied that I carried my last Amendment on the Education Bill to a Division, because the succeeding Sheriff Courts Bill and now this Bill have put me in the position of agreeing so regularly with the noble Baroness that I almost feel that I am forming a Coalition Government with her in Scottish legal matters. When this Bill was read a first time (I think it was the Government Chief Whip who moved it. but I am not certain) and " the Law Reform (Jurisdiction in Delict) (Scotland) Bill " was read out, one of my noble friends said, " What is this—Jurisdiction in Delicate in Scotland?". I said it was not that but that I did not know what it meant. I looked it up; and I am quite certain, of course, that the full and very reasonable explanation which the noble Baroness has given of this word "delict " was only for my information, that all the rest of your Lordships already knew exactly what it meant, and that it was really wasting your time to have it stated. Therefore, to those of your Lordships who are knowledgeable in these matters it must have been a source of great relief to see Clause 1(3) of the Bill and to know that In this Act 'delict' includes quasi-delict. That must have relieved the fears of a great many of your Lordships.
849 Incidentally, I am told that it is not at all clear nowadays when it is "delict" and when it is "quasi-delict". It used to be regarded that it was "delict" if there was some element of criminal matter in the offence and "quasi-delict" if it was merely negligence. In any event, I looked it up. I did not know that the noble Baroness was to explain the term so clearly, and I went to the dictionary to find out what it was. I found something very similar to what she has said, though not quite so legal. It said that "delict" was The violation of a law or a right, an offence or a delinquency ". It also managed to work in what I am quite certain it conveyed to at least one of my noble friends and perhaps to a number of your Lordships, and that is the reference " in flagrante delicto". It is not particularly concerned with that, I would hasten to assure your Lordships. "Quasi" was defined in the dictionary as: As it were; almost; resembling, but not really the same as ". So we have now got everything—the offence and something that looks like it but is not it—being included in this way.
Seriously, my Lords, this is a very worthwhile little measure. I am not always very enthusiastic about proposals to bring the law of Scotland into line with the law of England. Sometimes I am quite happy when it is done the other way round, because that is an obvious improvement. But in this case the law of England is very much ahead of Scottish law, and we are now going to find that people who have been the subject of an act which entitles them to raise an action will have one less difficulty placed in their way in Scotland than has been the position hitherto. I can assure the noble Baroness that it will give me great pleasure to help her expedite this measure through your Lordships' House.

§ BARONESS TWEEDSMUIR OF BELHELVIE
My Lords, I thank the noble Lord for his welcome of the Bill. There is one advantage in he and I both having held the position of Minister of State and not being legally qualified: it means that we have to have things explained carefully to us. Oddly enough, I too asked what was the difference between "delict" and "quasi 850 delict". I was told that the most commonly accepted distinction to-day is that "delict" is intentional wrongdoing and "quasi delict" is negligent wrongdoing. With these words, I hope that this Bill will receive a Second Reading.