HL Deb 15 May 1972 vol 330 cc1205-30

2.43 p.m.


My Lords, I beg to move that this Bill be now read a second time. The Bill gives effect to the recommendations in the Report of the Law Reform Committee on Evidence of Opinion and Expert Evidence which was published in October, 1970, and constituted the fourth and final Report made by that Committee on the law of evidence in civil cases. It thus completed the task of the Committee which was assigned to it in September, 1964, by the then Lord Chancellor, my noble and learned friend Lord Dilhorne. The English law of evidence had grown up at a time when all civil cases were tried by juries who were seldom sophisticated and, quite often, illiterate. As a result, it had become highly technical and complicated and, in some of its aspects quite irrational.

In reviewing the law of evidence the Committee, of which I have throughout been a member, has been guided by three principles: first, that no material of probity value which would enable the court to get at the truth ought to be excluded; secondly, that the cost and length of litigation ought to be kept as low as possible; thirdly, and closely related to the first two principles, that litigation ought not to be a game of skill played with cards close to the chest, using bluff and counter-bluff to gain procedural advantages which do not reflect the merits of the parties' cases. The first three Reports of the Committee had been published by the end of 1967. I must mention briefly the first of them, because it is closely related to the present Bill.

It recommended the abolition of a technical rule, the rule against hearsay. This was the rule which excluded any statement of fact that was not made orally in the witness box, of which the most obvious instance was the statement about an accident made by a witness immediately after the accident had occurred and which was much more likely to be accurate than his reconstruction of it years afterwards in the witness box. To this rule there had accumulated between 20 and 30 exceptions. The First Report of the Law Reform Committee recommended that the rule should be abolished, but that procedural safeguards should be made to enable any party to require that if the maker of a statement was still living and available he should be called to give his oral testimony and to submit to the ordinary process of examination and cross-examination if his evidence was controversial. The Second and Third Reports I need not dwell on; they deal with other technicalities in the law of evidence in civil cases.

When these Reports had been completed the Committee embarked upon a review of the law relating to evidence of opinion and, in particular, to the most important branch of this—expert evidence. But in 1968 Parliamentary time became available for a Private Member's Bill to be introduced in another place to give statutory effect to the recommendations in the first three Reports. The opportunity was too good to be missed, and these recommendations, with some minor modifications, passed into law as the Civil Evidence Act 1968, without waiting for the further Report of the Law Reform Committee on Evidence of Opinion and Expert Evidence. The present Bill accordingly looks more complicated than it really is, because what it does is to extend to expert evidence, with proper modifications, what was done for evidence of fact by Part I of the Civil Evidence Act 1968, which deals with the abolition of the rule against hearsay.

Your Lordships will not, I am sure, wish me to deal with the actual mechanics of this matter before the Committee stage. At this stage. I think it is sufficient if I say that the Bill seeks to achieve four changes in the law of evidence. The first two of them are of general importance; the last two are concerned with relatively minor technicalities. First, Clause 1 of the Bill abolishes the rule against hearsay as respects statements of opinion as it has already been abolished as respects statements of fact. Its practical effect will be to make written reports by experts admissible in evidence without the need to call them to give oral evidence, unless, as in the case of hearsay statements of fact, the adverse party requires this to be done and the expert is available to be called.

This I believe to be quite uncontroversial. It reflects what is already the common practice in medical reports, which are far and away the commonest kind of expert reports to-day because the bulk of litigation arises out of personal injuries sustained either in industrial accidents or in traffic accidents. It will thus give formal sanction to what is already done in, I should think, nine out of ten actions for damages for personal injuries, and done at present by agreement between the parties' lawyers, sometimes—at any rate, when I was sitting to try them—under pressure from the judge. It will also enable use to be made of the report of an expert who has died before the date of the trial or who, for some other reason, is not available to give oral evidence in person in support of his report.

Secondly, the Bill provides for rules of court to be made enabling parties to be required to disclose to one another in advance of the hearing any expert report upon which they intend to rely at the hearing. I should emphasise that this is only an enabling power, and is to be exercised only in those cases where the exchange of reports before the hearing would accord with the three overriding principles I have already mentioned as having guided the Committee in all its recommendations for reforming the law of evidence. The proposal is not a new one. As long ago as 1953 it was recommended by the Evershed Committee. More recently, in July, 1968, it received the unanimous approval of the Winn Committee on Personal Injuries Litigation.

In the Law Reform Committee itself there was a difference of opinion between the majority of twelve, which included all six judges who were members of the Committee, and a minority of three. Even the minority, as I understand it, accepted that in personal injury cases, at any rate, compulsory disclosure of experts' reports was often appropriate. Where they differed from the majority was as to the detailed procedure for such exchange recommended by the majority; as to the extension of the principle to experts other than doctors; and as to the sanctions for disobedience of an order to exchange reports. These are not matters which it is necessary to go into, I venture to think, at the present stage of the Bill. The Bill does not commit this House to the detailed procedure recommended by the Majority Report, or to the criteria for determining which is an appropriate case in which the ends of justice will be best served by an order for compulsory exchange. All that it does is to empower the rules committee of the appropriate court to make provision for these matters in the cases in which it is thought fit to do so.

There are two minor matters dealt with in the Bill which I can mention much more briefly. Clause 3 abolishes a technical rule, already more honoured in the breach than the observance. that an expert witness may not tell the judge his opinion on a matter that is directly in issue in the case. For instance, if the question is whether a doctor has been negligent, an expert witness may not answer the direct question whether, on the facts before him, in his view his skill fails to come up to the normal skill of a doctor. I say it is a technical rule because the expert witness can make it quite plain to the judge what his opinion is so long as he does not say so in answer to that direct question; and it is, I venture to think, time to recognise that this is one of the bits of humbug in the law. The other matter which Clause 3 deals with is another technical rule. It is directed to this. An ordinary witness, giving evidence of what he saw, may often, in the natural way of describing it, express a view about the conduct of the party whose action he was watching. For instance, he may say, "There was nothing that the driver could do to avoid the child." Strictly speaking, he is not allowed to say that. In fact, if he is telling his story naturally, he does say that, and this reform in the law is merely to enable a witness to tell his story naturally, in the way people do when they are giving a vivid account of what they have observed.

The other minor technical matter is dealt with in Clause 4, which deals with proof of foreign law. There was an old case in 1854 which said that no one could give evidence of foreign law, which is regarded as a question of fact in our courts, unless he was qualified to practise in the courts of the country about whose law he was giving evidence. That rule has very frequently been departed from because quite often it has not been possible to find someone actually qualified to practise, although one could find a teacher of law, or indeed a judge or an ex-judge, of the country. Clause 4 abolishes that rule, leaving it to the judge, in the case of expert witnesses of law, to decide whether or not the person put forward as an expert has the qualifications to give valuable and useful evidence on that matter. The other technical matter Clause 4 deals with in proof of foreign law is that, as I have said, foreign law is regarded as a question of fact. The consequence is that even though the court had accepted on one day evidence of foreign law, if exactly the same point came up the day after the court would have to have it proved all over again. Clause 4 provides that where there has been a decision of a superior court as to what the foreign law is, that should be admissible of itself as prima facie evidence that the foreign law is what the court had previously held it to be.

My Lords, those are the four matters—two of general importance, two dealing with minor technicalities—which it is the purpose of this Bill to improve. Like the Civil Evidence Act 1968, the Bill applies only to England and Wales; Scotland and Northern Ireland have their own systems of law. It applies only to civil proceedings, but it applies to them in the ordinary courts of law; in tribunals in which strict rules of evidence are followed, and in arbitrations. I do not suggest that this Bill incorporates a major reform in our law but although it is minor and finishes up the general reform already started in the Civil Evidence Act 1968, it is not without importance. It will, I believe, bring about a significant improvement in reducing the expense, the delay and the hazards of litigation, and make the procedure of our courts more suitable to the needs to-day. I beg to move.

Moved, That the Bill be now read 2a.—(Lord Diplock.)

2.59 p.m.


My Lords, I am sure your Lordships would desire me to express on your behalf our gratitude to the noble and learned Lord for the clarity with which he has deployed to the House the purpose and scope of this Bill. It is what we should have expected from him, and he leaves me really little to add to what he has said. I should, however, like also to express—and I am sure your Lordships would wish me to do it—our gratitude to the members of the Law Reform Committee, including the noble and learned Lord, for the massive compendium of law reform which they have proposed in the four Reports which, in a sense, are before the House, although technically the House is concerned with only the Fourth Report.

I feel that I should be taking your Lordships' time without adequate justification if I were to follow the noble and learned Lord in his comments upon each of the four aspects of this Bill with which he has dealt, so I will limit myself to a short comment on one of them and perhaps a rather longer comment on a second of the four. I have always thought—and I am sure your Lordships will agree—that where the law is not administered in the letter of the law, the letter of the law should be altered. That applies particularly to that provision of the common law which was to the effect that a witness giving evidence in a civil action should speak to the facts only; he should say what he heard and saw and he should not give his opinion unless he possessed qualifications which, in the opinion of the learned judge who was trying the case, qualified him to be regarded as an expert witness having expertise in the particular matter on which his opinion was asked.

As the noble and learned Lord pointed out, that no doubt was a very salutary rule in bygone days when juries were almost always called upon to decide issues in civil cases. Perhaps he might have added, and would agree with me if I do so, that they were days in which the issues before the courts were much less complicated in the general aspect than they often are to-day. For example, we have the Restrictive Practices Court, a court which is called upon to decide broad matters of public interest; we have a variety of courts now in which juries are rarely empanelled but which are called upon to decide matters of the greatest difficulty involving a great deal of expert knowledge and deep thinking.

I go back, therefore, to the first aspect on which I should like to say a few words: the rule that witnesses should speak only to the facts and give their opinion only if they qualify as experts. The change made to this rule in Clause 3 of the Bill is, I think, a very important one. The change recognises what takes place. One can perhaps assess its importance if one asks oneself what ordinarily transpires when, for example, a court is called upon to try the question whether a driver in a motor accident case was negligent. In an assumed case, perhaps a witness who was watching what took place may say that the driver was driving at 30 miles an hour. How on earth he knows it was 30 miles an hour without forming and giving an opinion on that matter I do not know. He does not look at a speedometer; he has no means of measuring the speed; he is frankly not speaking to the facts but forming his opinion, as he watches the car proceed, as to the probable speed at which it is going. He may go on to say that on a pedestrian crossing not far away from him there was a pedestrian who obviously looked as if he were about to cross on that crossing. Is that an expression of opinion or a statement of fact? He is giving a view as to the conduct of the pedestrian and indicating that in his opinion the pedestrian looked as if he was about to cross. That is an expression of opinion and not a statement of fact.

In all the countless cases in which witnesses have given their evidence in that form, they have (and will continue to do so up to the passing of this Bill; and I hope that it is passed) transgressed the law. The learned judge who allows them to give evidence in that way will equally be failing to obey the letter of the law. If the witness says that a driver was going much too fast as he approached the pedestrian crossing, is that not expressing an opinion? Strictly, the learned judge should say, "You must not say that. That is an expression of opinion and is not admissible in this court unless you are an expert witness." The witness may say in reply that he had driven a car without accident for forty years. What the learned judge's reaction will be to that on the question of whether he is an expert qualified to give that evidence I am not sure. I think that I should say that he is probably qualified.

But that is the sort, of situation with which the courts, day in and day out, are confronted. That is the situation which is changed. I suppose that in almost everything we say we express an opinion. If I venture to make what seems to be the obvious statement of fact that night follows day, am I stating a fact or expressing an opinion? All that I am saying is that night has always followed day and I am presuming that it will do so at the end of this day as it has done for countless thousands of years. But if I say, "for countless thousands of years" am I not also expressing an opinion, since I have not lived for countless thousands of years? The situation is somewhat farcical. If we go back to the metaphysicians that we used to read in our university days, Descartes, Spinoza, Berkeley and Hume, they would tell us that we express an opinion whenever we open our mouths. If I say I am looking at noble Lords on the other side of the House, I am expressing an opinion; I may be mistaken.

But, my Lords, all that is gone, and I think it an important change although it would seem to be of a technical nature. It moves us along the road towards making law conform to reality. With regard to the rule about witnesses of foreign law having to be or have been qualified to practise in the courts of the country as to the law of which they depose, I would add no more; but I go to the second aspect to which I referred and which I regard as a matter of perhaps rather more importance than was attributed to it by the noble and learned Lord.

There has been a great deal of difference of view on the recommendations of the Fourth Report of the Law Reform Committee regarding a power to order the disclosure of expert reports. There is now, under the existing law, a power to order the disclosure of such reports in a limited category of cases; namely, motor engineers' reports about the condition in which a vehicle appeared after an accident, reports made in order to enable the court to draw inferences as to how the accident may have happened. That is a small and limited category over which we need not take time. As the noble and learned Lord pointed out, there is really not much controversy about the disclosure of medical reports by doctors who have examined persons who have been injured in accidents. I leave that on one side. But the acid contest that arises is with regard to reports other than those limited types to which I have referred. "Limited" in the case of doctors' reports, is perhaps an inappropriate term, inasmuch as the noble and learned Lord has reminded us that so much of the litigation in our courts has always been devoted to the question of ascertaining who was responsible for the inflicting of injuries in accidents on unfortunate plaintiffs. But reports other than those in type are the ones involved in the difference of views expressed. Should there be a power to order their disclosure before trial or should there not? I think I should be right in saying that the controversy in a sense can be described as a controversy between the Bench and practising lawyers belonging to both professions.

The Bar Council and the Law Society submitted an extremely valuable and interesting report raising objections to the proposal on the ground that it would involve expense and delay and a great deal of unnecessary labour without any real counter-balancing advantage. That is one view. That was the view put forward by the minority of three who were practising members of the professions and who spoke with great authority. It would obviously be presumptuous to suggest that the concerted view of the actual practising side of the two professions should not be entitled to the greatest consideration. That is a most important matter. Then Judges on the Bench who formed (as to the number of six, I think) the members of the Law Reform Committee took the opposite view, a view not directly opposite but the view which was expressed by the noble and learned Lord, Lord Diplock.

My Lords, their view was that there should be a power to order the disclosure of reports—and I emphasise what I am about to say—which were suitable for such disclosure. It was accepted by all the members of the Committee that there was not much point in ordering the disclosure of a report made by an expert based on facts which had not yet been really ascertained and which would be finally ascertained only when the evidence as to those facts had been given before the judge who was called on to try the case. Therefore, their proposal covered only certain types of report. Your Lordships may well wish to come back to this matter on Committee, and I apprehend that your Lordships will want to do so. Therefore I will not cite at length. But the proposal in the Majority Report was limited to cases in which it could be said of the expert's report that it would be based upon facts which were either agreed or could be ascertained with reasonable certainty by the expert himself by the exercise of his own powers of observation or that they were within his general professional knowledge or experience. They limited their proposal to reports of that sort.

The minority took the view which they expressed in paragraph 18 of their Minority Report, that to expect a Master of the Supreme Court who would have to make a decision ordinarily whether such a report was based on fact in that category was, to quote their language, "merely uninformed crystal gazing". There, my Lords, is the point of controversy. My noble and learned friend Lord Gardiner has intimated to me that he rather takes the view that the Joint Report of the two branches of the profession and the Minority Report really carry greater conviction to him. He has, of course, very great experience, as indeed have the other members of the Law Reform Committee. If I may venture to intimate my own view about it, I am very impressed with the three categories of principle outlined by the noble and learned Lord, Lord Diplock, as having guided the Committee. I think it of the utmost importance that in this day and age, in so far as it can be prevented and consistently with the robust presentation of cases before the courts by the counsel on both sides, we should not let litigation become too much of a contest. The perhaps slightly quicker apprehension of the advocate on the one side when measured against the perhaps slightly slower apprehension of the advocate on the other side ought not to be allowed unduly to tilt the scales of justice.

My Lords, I know that in a great human institution it is quite impossible to achieve perfection. But my own reaction to this problem (I put it forward with the greatest hesitation) is that, so far as it can be done without, as I say, impeding the completely free fight for his client by the advocate on each side one should try to lessen the element of surprise. It seems to me that in the case of a number of reports there would be an element of surprise if they were not disclosed beforehand, and that would not conduce to the administration of justice. After all, the report itself, and cross-examination upon it, is designed to assist the learned judge to come to the right conclusion; and it seems to me that counsel are much better qualified to cross-examine on some difficult, complicated reports if they have had notice of the contents some time before. I do not believe that that would in any way militate against the free and uninhibited doing of justice and arguing of cases.

My Lords, I take, for example, the kind of reports by economists which are not infrequently placed before the Restrictive Practices Court. We in this House have among our Members—and we are fortunate in being able to congratulate ourselves upon it—a number of distinguished economists. When we debate economic matters they generally make contributions to the debate which are of extreme value to us and help us greatly in forming our views. But would any Member of your Lordships' House who is not an economist like to undertake the task of cross-examining those distinguished economists on what they have said immediately they have sat down, without having had time to consider their speeches and read them, and perhaps to receive advice on possible weaknesses in the arguments they have propounded? I should not like to undertake the task. But, my Lords, I greatly enjoy listening to the speeches; and really, the object of compulsory' disclosure of an expert's report of the kind that qualifies in the sense I have sought to describe seems to me to conduce to the end of putting counsel in a better position to give the real assistance to the judge which the judge requires to determine the merits of the case.

I cannot help noticing—I hope I do so without the least show of impertinence—along what lines the division of opinion arose. The learned judges in the Committee are in favour of disclosure; the practitioners are against. While I believe that the view of the practitioners is extremely important, particularly on the matter of expense, I cannot help thinking that it would be a great mistake if we underestimated the very great significance of the fact that so many distinguished judges who sat as members of the Committee were in favour of disclosure. As I have said, I am sure that your Lordships will wish to come back to this point in Committee as there is real difference of opinion about it.

It is a question of avoiding the element of surprise, on the one side, and of lessening expense and unnecessary labour in the preparation of cases, on the other. I have indicated, very tentatively, what is my view. After all, the proposal is only that the Master should be entitled to order the disclosure of reports, the onus being on that party which asked for the disclosure. If he is in doubt they are not disclosed. That would be achieved by rules, made by the Rules Committee, which are themselves subject to the Negative Resolution procedure and would, as rules, be subjected to the further consideration of Parliament. My Lords, I greatly welcome this Bill, and once again I should like to express my gratitude, which I feel that your Lordships will share generally, to those whose labour has contributed to the bringing of this Bill before the House.

3.18 p.m.


My Lords, I rise only to say a word or two on behalf of the Law Reform Committee. I wish to inform the House of what perhaps the House will have taken for granted; that is, that these matters were very carefully considered by the Law Reform Committee and in particular that interesting and indeed controversial question to which the noble and learned Lord, Lord Stow Hill, has referred. I can only say that we very carefully considered the excellent arguments that were presented to us on behalf of the Minority Group who write finally the Note of Dissent. Their points will be found very clearly set out there and they are valid points so far as they go. But we who formed the majority were in the end, I think, quite firmly of opinion that although there would be some possible disadvantages in the reform proposed, by enabling a Master to order compulsory disclosure of the expert's report, there were, so far as we could see, much greater advantages on the other side. These advantages would, in all probability, save a great deal of time and expense, and would probably enable both learned counsel to develop their arguments better and to present arguments better directed to the points in issue, the points that were really important. In the end, they would also enable the court to do better justice in the case than would otherwise be possible if there were the large element of surprise which has been so eloquently explained by the noble Lord, Lord Stow Hill. For those reasons, and in the anticipation that this interesting controsersial question will be fully explored at a later stage when the House goes into Committee, all I ask to-day is that the House should give a favourable verdict to this Bill on Second Reading.

3.20 p.m.


My Lords, I regret to have to introduce a discordant note into what so far has been a very happy discussion. I shall not be saying anything new if I suggest that, although our Wednesday debates perform a great public service, our primary function is to give sufficient attention to the legislation which comes before us, and that this is particularly the case with a Bill which, it may be said, whether anybody was at fault or not, has not perhaps received sufficient attention in another place. This Bill, as your Lordships know, comes from the Law Reform Committee. I should like to join those who have already expressed their thanks for the valuable work which that Committee has done and the attention which it has paid to that particular subject.

I do not think that in these days a Report from the Law Reform Committee carries as much weight as a Report from the Law Commission. This is in no way the fault of the members of the Law Reform Committee. Successive Lord Chancellors appointed me a member of the Law Reform Committee for about fifteen years, so I know something of the work. But unlike the Law Commission, which is a statutory body, a whole-time body of Commissioners with a whole-time legal staff and research workers, the Law Reform Committee are busy judges, barristers, solicitors and academic lawyers, meeting usually about once a month, after a day in court, at half-past four, and by six o'clock somebody says: "I am afraid that I have to go now." The Committee has no whole-time staff; it has a member of the Lord Chancellor's Office as secretary, to do that work in addition to all the other things that he has to do.

To-day of course the same applies to the Criminal Law Revision Committee, which may consider alterations in our criminal procedure of the greatest importance to every citizen from the civil liberties point of view. But unlike the Law Commission, they do not usually consult anybody or lay opinion, whereas, as your Lordships know, the Law Commission first always get out a Working Paper, saying: "This is the law in this field. These are the criticisms which have been made. These are the alternative proposals for altering it. This is why our provisional proposals are" such-and-such. This document is then circulated not only to judges, barristers, solicitors and law schools and universities, but to our national newspapers; the whole Working Paper is usually published in legal papers, too, and they normally consult all the connected interests. This has never been the function of the Law Reform Committee or the Criminal Law Revision Committee: and no one blames them for that.

Therefore, when one gets a Report from the Law Reform Committee in which there is a serious difference of opinion, obviously this is a matter which requires careful consideration. Here we have a divided Report. The majority consisted almost entirely of judges and academic lawyers. The minority consisted entirely of barristers and solicitors, who, after all, are the people who prepare the cases for trial. The question is: what is the best way of preparing for trial cases in which there are expert witnesses? Nobody has a higher regard than I have for Her Majesty's Judges, particularly when they are Lords of Appeal in Ordinary. But it is some time since they were junior counsel at the Bar, actually doing the work of preparing cases.

The Bar Council and the Law Society I understand submitted some memoranda to the Committee. I do not recollect any previous occasion on which, having, so to say, lost the day so far as the majority of the Law Reform Committee was concerned, those two bodies, who do not always agree, returned to the attack. But they did. They sent to the Lord Chancellor a joint Memorandum, which starts like this: Both the Bar Council and the Council of the Law Society submitted Memoranda to the Law Reform Committee opposing the suggestion that the Court should have power to require a party to disclose in advance of the trial the substance of any expert evidence he intended to adduce at the hearing. This view was not accepted by the majority of the Committee, but was nevertheless the subject of the Note of Dissent appearing at Annexe 3 to the Report. Both the Bar Council and the Law Society remain fundamentally opposed to the majority view of the law Reform Committee for the reasons set out in the Note of Dissent and hereunder. In their Minority Report the Committee described these proposals as "impracticable and unworkable". When your Lordships consider that barristers and solicitors are the only people who prepare cases for trial, and they say that these proposals simply will not work, but will increase the cost of litigation and will make longer the preparation of cases for trial, I suggest that this observation has to be taken rather seriously.

Why do I say that the matter was not perhaps given sufficient attention in the other place? The reason is that the Memorandum of the Bar Council and the Law Society never arrived there. We are all very familiar in this House, as they are in the other place, with being sent—sometimes to all Members, sometimes to Members of a particular Party, sometimes to Members with particular professional interests—statements by those familiar with the subject of the proposed legislation; and their views, sometimes with beautiful booklets, with photographs and so on and so forth. The Law Society, in particular, have on many occasions in the past sent their views to all Members of both Houses. I have inquired from the Bar Council, and I understand from their answer—and I have been chairman of the Bar Council—that they always have very much in mind Parkinson's Law. Nearly all the work of the Bar Council is done by the barristers themselves. They have a very small clerical staff. They are not really in a position to churn out mounds of papers, or to have somebody reading Hansard of both Houses every day so as to know what is happening there.

As a matter of fact, had they tried to do that, it is doubtful what would have happened, for this reason. In the other place this Bill was given a Second Reading "on the nod" and was sent to a Standing Committee. I gather that the Standing Committees dealing with Private Members' Bills are exceptionally busy this Session. I must not say that I think my noble friend Lady Lee of Asheridge invented what I understand is rather a new practice, but I think it would be right to say that when she arranged for her Sunday Theatres Bill to be brought back to the Floor of the other place that really took the Lord's Day Observance Society by surprise. On this occasion, on April 14, sandwiched in between a Private Member's Company Bill and an adjournment debate on Goods (Double Pricing), I find this: Civil Evidence Bill. Ordered, That Standing Committee C be discharged from considering the Civil Evidence Bill and that the Bill be committed to a Committee of the whole House. On the front of Hansard there of course appears the "Contents", but the Civil Evidence Bill does not appear there at all. I am not suggesting that that was a mistake. I am not criticising the other House for their procedure; that is a matter for them. All I point out is that if the Law Society—and I do not know whether they did—had somebody to look at Hansard every day and looked under the "Contents" to see whether anything had been done which might be of interest to the Law Society, no-one would have known that on this day an important step had been taken in the procedure of the Civil Evidence Bill. So when a fortnight later the Bill again appeared on the Order Paper—and in two hours the Committee stage, the Report stage and the Third Reading all took place, starting at 1.15, a time which is not guaranteed to attract the greatest numbers—nobody put down any Amendment, and nobody in the other place got a copy of this Memorandum. As I understand it, there was a short discussion on the Question, "That the clause stand part" in relation to each clause. Apart from Mr. McLaren, the honourable Member for Bristol, North-West, who introduced the Bill, the Solicitor General and Mr. Samuel Silkin from the Opposition Front Bench, only four Members of the House spoke at all. They were two Queen's Counsel and two junior counsel: I rather think they were all from the Government side. One of them objected very strongly to the Majority Report, but no Division took place and the whole matter was disposed of—


My Lords, the noble and learned Lord is slightly wrong about that last point. The honourable Member objected to a quite different point. He objected to the unanimous report on Clause 1. I do not think it is relevant to the point which the noble and learned Lord is now developing.


My Lords, I think that Mr. Stanbrook, who is a junior counsel, took the minority view rather than the majority view, but at all events honourable Members did not have the benefit of knowing that there was a recent Memorandum from a united profession in favour of the minority view. I am not proposing to go into the merits of the discussion as to the minority and majority viewpoints, because that is a matter for the Committee stage of this Bill. All I would respectfully submit is that where a question of practice arises and you find barristers and solicitors all saying of a proposal, "This is impracticable and will not work; it was tried in the Restrictive Practices Court and had to be given up; it was tried by a rule made with reference to a patent action and because it failed the rule had to he altered", then I suggest that these are considerations which I suggest ought to receive attention at the Committee stage of the Bill.

I should like, if I may, to make two concluding observations. On a number of occasions since I have been a Member of your Lordships' House I have heard it said—and I am not at all sure that on advice I have not said it myself—if at this stage of the Session you make some concession to a Private Member's Bill the state of things will be such that the whole Bill is likely to be lost. The second observation I should like to make is that I have never known that observation turn out to be true.

3.33 p.m.


My Lords, I knew of course that when this Bill was put down for Second Reading, there would be such a wealth of expert talent at the disposal of the House that it would not be necessary for me to prepare a speech upon all the technical aspects of this matter. I therefore want first to make one or two general observations and then to deal with the one point which has excited any controversy at all about this Bill. But I should first like to join with other noble Lords who have spoken hitherto in thanking the Law Reform Committee, and my noble and learned friend Lord Diplock in particular, for bringing first the Report and then this Bill before your Lordships' House.

Since I have been Lord Chancellor I have tried to further the cause of law reform and law rationalisation, so far as I could in the light of the fact that we have had two of the busiest Sessions I can recollect in 35 years of Parliamentary life. On the whole, I think I have been almost surprisingly successful. But if I have been successful it is very largely due to the fact that I have found in both Houses private Members willing to undertake the sponsorship, under the Private Members' Bill procedure, of small measures of law reform which are within the compass of a private Member. In this case I should like to express particular gratitude both to Mr. Martin McLaren, in the other place, and my noble and learned friend Lord Diplock, in this House, for having undertaken what I believe to be a very great public service. Indeed, if this had not been done we should not have been nearly as up to date with our law reform programme as we are now.

May I also say, in passing, speaking in general terms for the moment, that this House is every bit as suitable for the introduction of Private Members' Bills of a law reform character as the other place. I do not think it would create controversy if Back-Benchers here were willing to undertake this duty. Indeed, there is one Bill, the Domicile Bill, which is now being blocked in another place for some reason which absolutely escapes me; and I cannot help thinking that if a Member of your Lordships' House had brought it forward as a Private Member's Bill here, whatever objection might have been in the minds of those blocking it would probably have disappeared by the time they came to debate it. So, with this in mind, I hope that by the next Session somebody may give me a hand with one or two Bills in this House.

I was reading the other day of the life of Lord Campbell, my predecessor, in The Lives of Victorian Chancellors by Atlay. Speaking of Bills that formed part of Lord Campbell's efforts in law reform, he quotes from Lord Campbell's not uneulogistic autobiography in these terms: They passed through both Houses of Parliament without one single syllable being altered in any of them. This is the only way of legislating on such a subject."— the subject being law reform— They had been drawn by the Real Property Commissioners, printed and extensively circulated, and repeatedly revised with the advantages of the observations of skilful men studying them in the closet. A mixed and numerous deliberative assembly is wholly unfit for such work. My Lords, without going to the extreme length of Lord Campbell in his appreciation of the methods of getting law reform through Parliament, I think there is some truth in what he says. This is a very well-thought-out little Bill which I hope will find its way on to the Statute Book. Incidentally, I think the noble and learned Lord, Lord Gardiner, was in error in thinking that Members of the other place were not aware of both sides of the disputed question. Certainly Members of the Government were, and I think it would be right to assume that Members of the Opposition Front Bench also were.


My Lords, will the noble and learned Lord forgive me for intervening? They knew of course of the difference of opinion on the Committee. What certainly the Opposition Front Bench did not know—and what I think is clear from the speeches that were made no one knew—was that since the Report of the Committee the Bar Council and the Law Society had produced this joint memorandum.


My Lords, I was going to make the same point. The rival viewpoints were very fully canvassed in the Report of the Committee and were certainly well known to Members in the other place. I think it really must be assumed that when they did not put down any Amendments in a Committee of the Whole House, the numerous members of the legal profession in another place were fully apprised of the range of difference between the Parties and of their ability to put down Amendments. I do not think it would be a fair assumption to make any other case. I will come in a moment to the merits of the arguments between the two viewpoints, but I think we must remember that the majority view had met with the approval of Lord Evershed's Committee some years previously, in 1953, and with the approval of Lord Justice Winn's Committee some years afterwards. And, finally, they had been fully explored before this very important committee of the Law Reform Committee in the Report which has given rise to this Bill.

In passing, I would say just one other word of dissent to the noble and learned Lord, Lord Gardiner. I do not myself think that you should treat the Law Reform Committee or the Criminal Law Revision Committee and the Law Commission as rivals in any way. The Criminal Law Revision Committee is not my departmental responsibility; it is the departmental responsibility of the Home Office. With regard to the Law Reform Committee, when I became Lord Chancellor I made careful inquiries, both of my office and the profession, as to whether it might, in the light of the Law Commission and of its important work, be treated as a fifth wheel to a coach and amalgamated with it. They came to the conclusion quite without doubt that the Law Reform Committee had separate and important work to do. The mere fact that the two practising bodies of the profession, the Law Society and Bar Council, have found it possible to put in a memorandum on almost the only disputed point in this matter indicates that for the limited range of subjects which are appropriate to the Law Reform Committee the method of consultation by means of a working paper is not absolutely necessary in a case of this kind where technical and practical considerations are paramount, because the working bodies of the profession are fully aware of what is going on. I differ from what the noble and learned Lord said about the Criminal Law Revision Committee, whose views are being thoroughly canvassed in public and in the public Press at the same time, but that would take me too far from my present intentions.

That leads me to the Bill which has been so thoroughly explained by noble and learned Lords from the Cross-Benches and the Opposition Benches. I do not want to do more than say a word or two of general comment. I revert to the opening sentences of my noble and learned friend Lord Diplock when he introduced this Bill. One has to remember two broad facts about the law of evidence as it has developed in this country. The first is, as my noble and learned friend Lord Diplock pointed out, that until at any rate my father was a middle-aged man almost every issue of fact in this country was tried by a jury. That is to say, there were juries to decide compensation for compulsory acquisition of land; there were juries to decide whether Mr. Jorrocks was capable of managing his own affairs; there were special juries, common juries, juries in the county courts and juries in the sheriffs' court in Red Lion Square. There were juries to try almost every kind of case.

One must remember that whatever one may think of the contemporary jury scene (and perhaps we shall be discussing that a little later) as my noble and learned friend I pointed out, most juries contained a certain proportion of illiterate people and were much lass highly sophisticated than the juries who would ordinarily be stunt toned to-day because then the general level of education in the country was much lower. The result was that lawyers were extremely cautious about putting before the jury facts which might have a probative value or weight rather less than that which the jury would be inclined to put upon them. Hearsay was one of them. There are other kinds of fact which were equally closely hedged about by artificial rules. It is worth while saying, as my noble and learned friend said, that when the great mass of questions of fact, from arbitrations to every kind of litigation (other than fraud and libel) are dealt with by judges alone or other tribunals which do not include juries, we ought to free ourselves from the artificiality of the rules which grew up in a time when we had a totally different method of trial.

Secondly, the English law of evidence began by putting admissibility first. The question which was first asked in the old textbooks about witnesses was not whether they were telling the truth but whether they were competent—whether they could give evidence at all. That was because for a very long time the danger of perjury to their immortal souls was considered a matter of paramount importance in this world and the next. It was rightly apprehended that if many witnesses were allowed to give evidence at all they would commit perjury, which in fact they do. The result was that the persons accused of crimes were not allowed to give evidence in their own support, nor were their near relatives or friends. Your Lordships will remember that Mr. Pickwick was not allowed to give evidence in Bardell v. Pickwick because he was interested in the result of the action, and the result was an absurd miscarriage of justice before Mr. Justice Stareleigh, the consequences of which we all remember.

The question of competence was considered of paramount importance. This was true in relation to the kind of evidence of a written character which was put before the jury; the whole picture was different. I think that, certainly as regards civil litigation and to a much greater extent than some people do in relation to criminal litigation (which we are not discussing to-day), one should approach evidence from the rather flatfooted common-sense point of view that my noble and learned friend put forward in his opening remarks. When one is dealing with a tribunal which is intelligent enough to try the case at all, one should ask oneself whether the evidence is logically probative or not. If it is logically probative, one must trust the tribunal to give it the weight to which it is entitled. If it is not logically probative, it ought to be excluded as irrelevant and not because it is too exciting to be heard.

Having said that as my general approach, your Lordships will see that I am in broad agreement with the purposes of the Bill. I hope that it will go through in some form. I hope that we will not stand upon perfection and allow it to become the enemy of the good. I had to face this issue when I had to sanction, on behalf of the Government, the introduction of a Private Member's Bill of this kind. I said clearly to my colleagues then, and I now say publicly to the House, that I would rather have the Bill with the Minority Report than no Bill at all. Having said that, I must come down quite heavily on the side of the Majority Report and against the noble and learned Lord, Lord Gardiner, who favoured the Minority Report. In the form in which the Bill is drafted, this is to some extent a compromise. It is not an imposition of the Majority Report on the minority at all; it enables the statutory body known as the Rule Committee to introduce rules if it thinks fit. Since I have been Lord Chancellor I have been Chairman of the Rule Committee and I can tell your Lordships quite definitely that it is not by any means a mere rubber stamp. Both the Bar Council and the Law Society are heavily represented on it, as are other types of lawyer; and if the Rule Committee is enabled to do that which it could not otherwise do by this Bill the Law Society and the Bar Council will be able to argue, through their representatives or through the individuals who are members of the Committee, every point they have put in their memorandum. I would respectfully suggest to the House that the common sense way of approaching this highly technical matter is to allow that to happen.

If the House voted at a later stage in Committee for the view which has been put forward by the noble and learned Lord. Lord Gardiner, it would mean that the Rules Committee could not act at all. If the House votes for the Bill in its present form it will mean that the Rules Committee can consider the matter, which it could not otherwise do. It gives me great pleasure to find myself on the less conservative side of the noble and learned Lord, Lord Gardiner. This is not an attitude in which I normally find myself, but it is one I greatly relish adopting this afternoon. It is perfectly true, as the noble and learned Lord said, that the Bar Council and the Law Society consist of practitioners and represent practitioners and they have to prepare cases for trial and fight them. There is no greater fun for an advocate than having an ace up your sleeve and playing it with devastating effect at the critical moment. This is tremendous fun and the skill in playing it at the right moment is quite considerable. And if you regard litigation as a kind of fox hunt or game, I should be all in favour of retaining the present ace-up-your-sleeve attitude to your expert evidence.

It so happens that all the members of the Bench have been practitioners in their time too. They may have turned gamekeeper now, but they are all old poachers to a man. I can see them from the Cross Benches looking at me with a basilisk stare as I utter these words. The fact is that they know at least as much about preparing cases as do the eminent members of the Bar Council and the Law Society. What they have that the Bar Council and the Law Society have not is some experience of trying them, and they are interested in trying them according to the real merits of the case. They find, I think by an enormous weight of opinion, that if you allow the ace up their sleeve to be played at the critical moment, as the noble and learned Lord, Lord Stow Hill, pointed out in his very illuminating and well-thought-out speech, it means that the best advocate is more likely to win, but it does not necessarily mean that the best case is likely to win. I range myself with the noble and learned Lord, Lord Stow Hill, in this matter and with the Bench, and with the previous Committees, and with the majority of the existing Law Reform Committee, and I come down heavily in favour of not keeping these expert opinions up your sleeve until the last moment.

Of course it is true that in a limited number of cases it may put up the cost of litigation in the short run, because if you see the other expert's report you may want to hold a conference as to whether it is right or wrong. But if your experts are sound experts, and your lawyer is a sound lawyer, and he sees that the report is right, it may cause the case to be settled altogether, or at least not fought. So whether it really will put up the cost of litigation or reduce it is a matter that may be open to discuss on. What I feel no doubt about is that it will help the decision to be a more just one in the end. There are people who think that the right result in litigation is at least as important as a cheap result, and I hope that they are still in the majority. My Lords, having said that, I have disclosed my own view of the case, and I think the House may be row in a position to give the Bill a Second Reading.

3.52 p.m.


My Lords, your Lordships will not wish me to detain you for any length of time. I should, however. like to express to those noble and learned Lords who have spoken on this subject my gratitude for their welcome to this Bill, though it was perhaps a somewhat qualified welcome in the case of my noble and learned friend Lord Gardiner. I should perhaps point out that this is not a matter on which the practising profession is unanimous. Two out of the five members of the practising profession on the Law Reform Committee constituted part of the majority together with the six Judges. All the members of the Committee were in favour of some procedure for disclosure of medical reports. One wonders why it is limited to medical reports, when, after all, surveyors' reports and other reports of that kind are in very much the same character. I have a suspicion that practising lawyers, of whatever political persuasion they may be, are timid creatures and nervous of any change. The only real difference between medical reports and other reports which satisfy the criteria is that lawyers are used to exchanging medical reports and are not yet used to exchanging other reports.

The matter was debated in another place. Fortunately my noble and learned friend Lord Gardiner and I have exchanged experts' reports. He has seen my notes on clauses and I have seen his memorandum from the Bar Council and thy Law Society, and I am in a position to say that the memorandum does no more than to reassert what was already in the Minority Report. So when this matter was debated in another place both members of the Government and members of the Opposition were fully apprised of the arguments on either side. My Lords, this House will have an opportunity of considering the arguments on either side when we reach the Committee stage, and I hope your Lordships will agree at this stage that the Second Reading can go through promptly.

On Question, Bill read 2a, and committed to a Committee of the Whole House.