ADMINISTRATION OF JUSTICE (SCOTLAND) BILL [H.L.] (Hansard, 9 March 1972)

§ THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE)
My Lords, I beg to move that this Bill be now read a second time. The purpose of the Bill is to effect a number of useful reforms in the law regarding the administration of justice in Scotland. The Bill is designed to make it easier to obtain and preserve evidence both before and during litigation, to allow a right of appeal to the House of Lords in certain civil actions where no such right exists at present, to allow appeals from decisions of arbiters on questions of law, and to amend outdated legislation relating to the rate of interest to be allowed on monetary awards by the sheriff court.
220 The provision concerning the disclosure, recovery and preservation of evidence is contained in Clause 1 of the Bill. At present, the courts will in general make an order concerning the production or inspection of documentary or other evidence only after the closing of the record in any action; that is to say, when the written pleadings of the parties have been finally adjusted. While there are exceptions to this rule, there is, I understand, dissatisfaction with the present law and practice and, in particular, with the courts' powers in this respect. The proposed reform is directed towards making as much relevant information as possible available to the parties to litigation at a sufficiently early stage to enable them to prepare their cases properly and to expedite settlements and trials.
The Bill would extend the powers of the court to order the inspection of property, the recovery of documents before the closing of the record, or indeed, before proceedings have been started, if the circumstances so warrant. Safeguards are incorporated to prevent abuse of the proposed new procedure—for instance, by using it to engage in what is termed a "fishing diligence"; that is, to recover documents in the hope that they will reveal that a party has a case. Parties applying for an order must satisfy the court that the property or document about which an order is sought is relevant to existing proceedings or to proceedings which are likely to be brought. Present rules in relation to confidentiality and privilege of documents, for instance, are of course retained.
Clause 2 of the Bill would remove present restrictions which prevent an appeal being taken to the House of Lords from an interlocutor of the Court of Session granting or refusing a new trial in civil jury cases. The matter is at present governed by Section 6 of the Jury Trials (Scotland) Act 1815, which allows appeals to the Court of Session on a variety of grounds; but the section goes on to provide that the decision of that Court shall not be subject to review by appeal to the House of Lords. The Government feel that it is wrong in principle that appeal to the House of Lords, which is available, generally speaking, over the whole field of civil actions, should be excluded in the case of actions 221 tried by jury, for questions both of liability and quantum can arise in jury trials and a litigant ought not to be deprived of the opportunity of having such questions considered by the highest tribunal, particularly since so many of the cases which come before a jury will have arisen under the Factories Acts and related legislation which ought to apply in the same way throughout the United Kingdom.
The Bill would establish a right of appeal to the House of Lords on the same grounds as those at present available in the case of an appeal to the Inner House of the Court of Session as provided by the 1815 Act. The proposed provision would also confer on the House of Lords the power, at present confined to the Court of Session, simply to reverse a decision of the lower court if they were satisfied that the verdict under review was contrary to the evidence and that they had before them all the evidence that could reasonably be expected to be obtained relevant to the action under consideration.
My Lords, Clause 3 provides that any question of law arising during the course of an arbitration, or after the arbitral award has been made, may be referred by way of a stated case for the opinion of the Court of Session. While accepting that the relative speed and finality of arbitration proceedings should not lightly be discarded, it is the Government's view that where an arbiter has made a patent error in law it should be possible to correct that error on appeal; but in order to preserve so far as possible the present advantages of this method of settling disputes, the provision is expressly confined to questions of law. On questions of fact the arbiter's award is, and would remain, final. Certain Scottish statutory arbitration codes, for instance the code under the Agricultural Holdings Acts, and statutory arbitrations in England, make provision for such appeals. The clause therefore brings Scots law into line with these statutory codes.
Lastly, my Lords, on the question of interest rates, Section 9 of the Sheriff Courts (Scotland) Extracts Act 1892 provides that where interest is included in a decree or extract decree, it shall be deemed to be at the rate of 5 per cent. per annum unless otherwise stated. The prescribed rate of 5 per cent. seems no 222 longer suitable as a general rule, and Clause 4 of the Bill would enable the Court of Session to direct that Section 9 of the 1892 Act shall be amended so as to substitute a more appropriate rate of interest than that specified in that Act.
My Lords, we have consulted widely on these proposed provisions and we are satisfied that the Bill will be welcomed by the legal profession in Scotland. Therefore I invite your Lordships to support the proposed measure. I beg to move.

§ LORD HUGHES
My Lords, I frequently start my remarks when following those of the noble Baroness, Lady Tweedsmuir of Belhelvie, by saying that I am grateful to her for the explanation that she has given. In this case I can say that with the very greatest sincerity. I have read this comparatively short Bill, not in its entirety, but I got quite a long way through it and recognised, with one exception, that there were no particularly difficult words; yet I got to the end of Clause 1 without really knowing what the thing was about. Although the words are simple, when they are strung together (for example, in Clause 1(3) where we have 16 lines and more than 170 words without the intervention of a single period; but with one semicolon) you need to read them through two or three times before you begin to get the hang of the sentence. And when one does not have any legal knowledge to begin with, the task is made still more difficult.
However, my Lords, I must confess that I abandoned reading in detail when I got to Clause 1(4), to the second line, when I saw a word in line 27 of the Bill which is very often used in conversation in Scotland as a substitute for the word "blethers". I do not know how it is pronounced in a legal context but we read in line 27: … practice relating to the privilege of witnesses and havers … Only the Scots will appreciate that word. I have no doubt that it may not be pronounced in the same way in the context of this Bill, but I do not know how it is pronounced. When I reached that point I recognised that I was completely out of my depth.
223 I am, therefore, reassured by the statement of the noble Baroness that the Bill is widely welcomed by the legal profession in Scotland. I do not expect to be moving any Amendments at the next stage of the Bill; but I have one doubt about Clause 2 which extends the right of appeal to the House of Lords, in certain cases where it does not exist at the present time, and also the reference to the fact that the House of Lords may alter a decision in relation to the amount of damages. I should like to consider that aspect of the Bill. It may be perfectly sound from a legal point of view that everyone should have the same ultimate right of appeal in Scotland as they would have were they South of the Border. But one recognises the fact that a right of appeal to the House of Lords is a not inexpensive process, and one which has been held sometimes to favour those who are better able to take the risk of art unsuccessful action. I would, for instance, like to be certain that trade unions, who are frequent supporters of litigation in this section, are as happy as the legal profession that a successful case decided in Scotland might be the subject of an appeal to the House of Lords say, on the question of the reduction of damages.
With that slight note of query I am quite happy to be associated with the Second Reading of the Bill; and if I find that others than the legal profession in Scotland are quite happy about the Bill, I shall not regard it as part of my duty to prolong the proceedings on the Committee stage.

§ LORD STRATHCLYDE
My Lords, in spite of the mild criticism of the Bill from the noble Lord, Lord Hughes, I am sure that your Lordships' House will realise, after the explanation given by the noble Baroness, that the content of the Bill effects improvements in the law of Scotland, and as such should be welcomed. I hope the House will accept this and will give the Bill a Second Reading forthwith.

§ BARONESS TWEEDSMUIR OF BELHELVIE
My Lords, I feel that I should try to reassure the noble Lord, Lord Hughes. First, I should like to thank him and also my noble friend 224 Lord Strathclyde for supporting the measure. I agree with the noble Lord, Lord Hughes, that there are some very interesting words within this Bill, such as a "haver", which after all is one who has or has not and which I should have thought a very literal interpretation. The noble Lord was not quite happy, or perhaps he wondered a little, about Clause 2, regarding an appeal to the House of Lords; and in particular he wondered about it in connection with the question of damages.
My Lords, I understand that there has been considerable criticism in recent years of the absence of the right of appeal to the House of Lords against decisions of the Inner House of the Court of Session granting or refusing a new trial. It is for this reason that this provision is in the Bill. To give one example, in the case of McCallum v. Paterson in 1968–69 two successive jury trials were rendered abortive by successful motions for a new trial, on the ground that the damages awarded by the jury were excessive. I understand that there is recent evidence of a change of approach by Scottish judges towards the question of damages awards, and so it may be that much of the need for the proposed right of appeal to the House of Lords in such cases could he regarded as having been removed. However, it seems right, in view of the previous criticism, that jury trials should not be excluded from the general available right of appeal in civil actions; particularly since many such cases are based on United Kingdom legislation. With that assurance I hope that the House will give this Bill a Second Reading.
On Question, Bill read 2^a and committed to a Committee of the Whole House.