HL Deb 01 May 1975 vol 360 cc7-34

3.19 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones)

My Lords, I beg to move that this Bill be now read a second time. In 1971 the Law Reform Committee were asked by my predecessor, the noble and learned Lord, Lord Hailsham of Saint Marylebone, to consider what changes in the law of limitation were in their opinion desirable, and in 1972 to give priority to limitation in personal injury claims. The Bill now before the House is the result of the interim report of the Committee in answer to that request. I should like to express my gratitude, which I know the House will share, to Lord Justice Orr and to other members of the Law Reform Committee for their carefully considered recommendations whose results are now embodied in this Bill. Before dealing with the Bill, it may be convenient for me to summarise briefly the law in this field.

The Limitation Act 1939 contained a period of limitation of six years for all actions in tort, including actions for personal injuries. After the war, the six-year period was criticised as too long for actions for personal injury, because the evidence of eye witnesses, given six years or more after the injury may have been caused, was thought to be of little probative value. In 1954, therefore, the limitation period was reduced in personal injury actions to three years.

Events were soon to show that both six years and three years could be too short in certain classes of personal injury action. Where a claim lies in tort—and this is usually the case where the claim is in respect of personal injury—the position is that the cause of action accrues at the time injury is first suffered. The ordinary rules work well enough when the victim of the accident suffers external injuries which are immediately apparent. But the cases over the last 25 years show that very serious injuries—sometimes even fatal injuries—may be sustained not as a result of an accident, but as a result of exposure to dangerous conditions or substances which cause an insidious disease. Words like pneumoconiosis are now, alas, well-known to us. For those of us who were brought up in industrial South Wales, its crippling and often deadly presence was a grim feature of every mining valley.

The cause of action in such a case accrues when the disease is first contracted, when there may be no symptoms by which its victim would have warning of its presence. I myself encountered many such cases, often of a most distressing character, when I was in practice at the Bar, and that, I know, is the experience of other noble Lords who are present today. Clearly, the law of limitation should provide for such cases, and the recent developments in the law in this field have been largely concerned with the search for an answer to this problem.

The problem of the plaintiff who could have had no knowledge of his injury was highlighted in the case of Cartledge and others v. Jopling in 1961. The plaintiffs in that case had contracted pneumoconiosis and could not reasonably have found this out within the fixed period. It was clearly wrong that these plaintiffs should have no remedy, but the courts—including your Lordships' House—could not do anything to help. They had to apply the law laid down by Parliament.

In 1961, a Committee was appointed under the chairmanship of the noble and learned Lord, Lord Edmund-Davies, to consider this problem. I am delighted to note that he is to make his maiden speech today. I am certain that the House will be looking forward to hearing his views, knowing the great expertise and experience which he brings to bear upon this as upon kindred subjects. That Committee recommended in 1962 that the plaintiff should not be debarred if he started proceedings in respect of his injury within 12 months of his "date of knowledge "; that is, within 12 months of the earliest date on which he could reasonably have been expected to discover the existence of his injury and its cause.

These recommendations were implemented in the Limitation Act 1963. Corresponding provisions were made for claims which were made after an injured person's death on behalf of his dependants. The 1963 Act has caused difficulty, and has been criticised in the courts, in part because of its drafting and its complexity, but also because of the substance of its provisions. The 12 months' period from discovery of the material facts was found to allow insufficient time to bring proceedings, and the provisions for fatal accident cases were found to cause injustice; for example, to the widow who could not have known of the cause of her husband's death for more than a year after it had occurred. To deal with these problems, Part I of the Law Reform (Miscellaneous Provisions) Act 1971 extended the period from an injured person's date of knowledge "to three years, and in fatal cases allowed three years from the death—or from the date of knowledge of the dependant concerned—for bringing proceedings.

One further problem remained; that is, what amount or sort of knowledge on the part of the injured person it is that starts time running against him. In the case off Central Asbestos Co. Ltd. v. Dodd, your Lordships' House considered this problem. Their analysis of this question suggests that the knowledge of the plaintiff can, under the existing law, be defined in three ways. First, it may be knowledge that his injury resulted from something which the defendant did, or did not do; this is a simple, factual issue of cause and effect. Secondly, the plaintiff may have that knowledge and also knowledge that the defendant was in some way at fault. Thirdly, the plaintiff may have knowledge of the act or omission and of "fault" and knowledge that the defendant is likely to be held liable in law to pay him damages. This last state of knowledge is usually referred to as knowledge by the plaintiff that he has "a worthwhile cause of action" against the defendant.

The courts have been much exercised in recent years by the question whether the present Statute Law enables them to apply the "worthwhile cause of action" test. There have been differing decisions on the point, and all I can say is that the interpretation of the 1963 Act is uncertain. But the House has now to consider this question not in its judicial but in its legislative capacity. I hope your Lordships will rejoice with me that this matter can now be considered as a question of principle, and that a new approach can be followed. This, indeed, is the essential function of Parliament in relation to the law when it becomes evident that the intervention of Parliament is needed.

The Bill now before the House tackles the problem of the hidden injury or disease in two ways. First, it defines the "date of knowledge" test afresh. Secondly, it confers a discretion on the court to extend time in proper cases. I should make it clear that I envisage no resulting change for cases of apparent and known accidental injury—which are the vast majority of personal injury cases. Where the plaintiff can show no reason for delay, but has merely been dilatory, the ordinary period of limitation of three years will, no doubt, apply. In this connection, I should observe that there are cogent arguments in favour of the proposition that in personal injury claims there should be no period of limitation. The Law Reform Committee gave very careful consideration to them and recommended against any such solution. They pointed out that stale actions involve weak evidence and make it harder to arrive at a just conclusion; that plaintiffs and their advisers should in general be given some impulse to get on with their proceedings; that to abandon limitation completely in personal injury cases would lead to difficulty with insurance; and that defendants should not be exposed to the nuisance value of stale claims. After careful thought, and taking into account the proposed discretion that the Bill will allow to extend time in proper cases (which is itself a major change), the Government have decided to adopt their recommendations.

As I have said, the "date of knowledge" test is now reformulated in subsection (6) in the middle of page 2 of the Bill. The "worthwhile cause of action" test will clearly not apply. In this respect, the Law Reform Committee and the Government have accepted the view of the majority of your Lordships' House in the case of Dodd. But, and this in a sense is the quid pro quo to meet the difficulty that an earlier date of knowledge could cause hardship in some cases, the Bill confers on the court power to extend time in appropriate cases. The general discretion thus to extend time is the greatest change in the law which is made by the present Bill. The result should be that there will no longer be any impulse to put a strained interpretation on the "date of knowlege" provisions, while at the same time it should be possible for the courts to develop a sensible and humane code for dealing with those cases in which a strict application of the rules would cause injustice. In short, no deserving plaintiff who can persuade the court that justice between the parties requires the claim to proceed will be turned away without a trial on the merits of the case.

I should mention briefly the form of the Bill. It inserts new sections into the Act of 1939. Provisions for fatal accident as well as personal injury actions are for the first time included in the 1939 Act. This is an economical method of achieving the desired result, and brings into one place the two limitation codes applying both to personal injury actions and to fatal accidents claims. I hope this may be found to be convenient in practice.

I turn now to the provisions of the Bill. The new Section 2A inserted into the 1939 Act by Clause 1 of the Bill, provides for the time limits in personal injury actions. The existing period of three years is preserved unchanged, as is the general rule that this period runs from the date on which the cause of action accrued, which in the case of an action in tort for personal injury is the date on which the injury is suffered. New Section 2A makes provision also for the less common case (but the case which causes, as I have indicated, the most difficulty) in which the plaintiff is ignorant of his injury or of its cause for some time after suffering it. Under the new "date of knowledge" test recommended by the Committee, time is to run from the date when the plaintiff first knew his injury was "significant" and was attributable to an act or omission on the part of the defendant; but knowledge whether or not he has a cause of action is irrelevant. The new Section 2B provides for limitation periods in actions under the Fatal Accidents Acts. Again, the existing law is largely preserved: proceedings under the Fatal Accidents Acts are barred if the deceased was himself out of time to brine proceedings for personal injury when he died, and the period of limitation remains at three years, which is to run either from the date of death or the "date of knowledge" of the dependant for whose benefit the action is brought, whichever is the later.

New Section 2D provides that the court shall have a general discretion to override time limits if to do so would be fair as between the plaintiff and the defendant. The court must consider all the circumstances of the case; but guidelines are given in the Bill, specifying the matters to which the court should have particular regard. These include the length of the plaintiff's delay, and the reasons for it; the conduct of the defendant; disability suffered by the plaintiff after his injury; and the nature of any expert advice given to him, whether sound or whether misleading. This might include advice about his prospects of success in proceedings, so there is some similarity between this consideration and the "worthwhile cause of action" test; but here it will not by itself determine the plaintiff's success or failure on the limitation issue; it is only one of the factors the court will take into account in assessing whether it would be equitable, in the broadest sense of the meaning of that word, to override the limitation defence, having regard to the prejudice to the plaintiff if he is not allowed to proceed, and to the defendant if he is.

The Bill makes two other important changes in the law. It abolishes both the preliminary application for leave to bring proceedings out of time and the rule under which time runs against a person under disability if he is in the custody of a parent. The application for leave was introduced in 1963 to act as a filter to stop hopeless cases at the very outset. But experience has shown that hopeless cases are in practice weeded out at the earlier stage of advice by the intended plaintiff's solicitor or counsel, and when an application is made it usually succeeds. The procedure is burdensome, expensive and largely unnecessary. Its abolition, as recommended by the Law Reform Committee, which will, I think, be welcome to trade unions and to solicitors representing prospective plaintiffs, is achieved by the repeal of Sections 1 to 3B of the Limitation Act 1963.

There is a rule—usually called the "custody of a parent "rule—which concerns the case in which a child or other person under disability suffers injury. In the ordinary way, time does not start to run against a child until he comes of age. But if at the time of his injury he is in the custody of a parent, time starts to run at once, as soon as the child is injured. This rule first appeared in the Limitation Act 1939 and applied only to proceedings against public authorities because of the vulnerability of local authorities then thought to exist to claims arising from accidents to schoolchildren, which under the usual rule might be made after the child had attained the age of 21, perhaps many years after the injury. In 1954, when Parliament abolished the special protection of public authorities, the "custody of a parent" rule was extended to all personal injury actions. The Law Reform Committee found this rule to be unsatisfactory in operation. Having weighed the choice between rationalisation and abolition, they recommended abolition. Clause 2 of the Bill gives effect to this by replacing Section 22(2) of the 1939 Act with a provision which does not contain the "custody of a parent" rule.

On one issue the Law Reform Committee were unable to reach a unanimous conclusion; this concerned the running of time in cases where knowledge of the cause of injury can be acquired only with expert advice. They offered alternative solutions to this question, which they styled the strict" and the "liberal" approaches. On 28th of June last year when I announced that the Government accepted the recommendations of the Law Reform Committee, I stated our view that, on the question which divided the Committee, the law should provide that a plaintiff should not lose his right to an extension of time if he had taken reasonable steps to obtain and act on expert advice, but had, nevertheless, not acquired the necessary knowledge.

The point arises where the injured person cannot be expected to discover the cause of his disease without advice, whether medical or legal or of any other kind. The Government accept the view that a man should not be fixed with knowledge of a fact if he has taken every reasonable step, by way of taking expert advice or otherwise, to ascertain it but has failed to do so, and that time should not run against a man who has been given wrong advice, albeit by a doctor, or even by a lawyer—it is sometimes known that they do occasionally, but rarely, give wrong advice—as a result of which he fails to ascertain facts by which he would know that his disease was caused by an act or omission of the defendant. This view is reflected in subsection (8) on pages 2 and 3 of the Bill. I hope that this account—I fear it has taken a long time—explains the more important provisions of this Bill. I believe that it both clarifies and improves the law of limitation in this difficult area. It will give the courts the means to deal fairly with hard cases and will greatly reduce the risk of those involved in those cases being unable to obtain redress. It is accordingly a useful means of law reform. I commend it to the House, and beg to move.

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

3.42 p.m.

The Earl of MANSFIELD

My Lords, this is a Bill which will be generally welcomed in all parts of your Lordships' House. I feel that it will also command general support, representing as it does a measure of law reform which some might say was well overdue. It is also perhaps in order to offer the Government a measure of congratulation for having found time to present this Bill during what is already turning out to be an overcrowded Session. Certainly we are grateful to the noble and learned Lord the Lord Chancellor for the attractive and understandable way in which he outlined the terms of the Bill this afternoon.

My Lords, this is not a sphere which attracts controversy of a Party political nature, although certainly a note of controversy, or at least dissension, was detectable among some of the speeches of the noble and learned Lords on the Cross-Benches when the cases discussed in the Twentieth Report came before your Lordships' House on various occasions. Speaking personally for a moment, I first came upon some of the difficulties and injustices with regard to limitations of action when I was a pupil in what were then the chambers of the noble and learned Lord, Lord Stow-Hill. Thereafter I devilled in those chambers for a junior who had an enormous practice in personal injury cases, mostly of what I may describe as the running-down or Factory Act variety. Out of the hundreds of pleadings and opinions which I drafted for him, I do not suppose there were more than a handful—certainly a tiny proportion—of cases where the question of limitation came into the matter at all. Nevertheless, when the question did arise, it seemed to cause a great sense of unfairness and, indeed, resentment on the part of the lay client, the would-be plaintiff.

Not least was this caused by the arbitrary nature of the law as it then stood, and the fact that the plaintiff, as it were, could be shut out in circumstances in which he was not in any degree at fault himself. I say this because, as a humble, erstwhile practitioner, I welcome the approach of the Committee, and the course they have steered between what I might call the extreme view, on the one hand, that there should be no limitation period in personal injury claims, and the over-rigid view, at the other end of the spectrum in this sphere. It seems an eminently sensible recommendation of the Committee in effect to retain the limitation period in normal cases of three years, but to extend the period if the plaintiff in certain circumstances is ignorant of his rights, or of his condition, or is under a disability. Above all, the Court now has a discretion to override the defence of limitation in circumstances when it would be just to do so. It is by way of summary right, in effect, for a plaintiff to have a right of action irrespective of the time element, unless he has caused, or perhaps contributed to, the delay, or unless it would be unjust in certain circumstances to a defendant.

My Lords, I do not think I need further detain your Lordships' House. I am sure that I am speaking for all when I say we are looking forward with keen anticipation to the speech of the noble and learned Lord, Lord Edmund-Davies, and the feast of expertise which will fall from his lips. It is sufficient for me to give this Bill a warm welcome.

3.46 p.m.

Lord EDMUND-DAVIES

My Lords, I count myself doubly fortunate this afternoon, first in being privileged to address this distinguished assembly for the first time and, secondly, because this debate relates to a matter which has absorbed a substantial part of my long life in the law. Fortunately for this House, convention rightly dictates that though I would willingly range widely, I may properly range for a period barely sufficient to enable a lawyer to emerge with composure even from a parenthesis. I shall do my best. As my comments on this Bill are commendatory and only in one respect slightly cautionary, I hope to avoid overtaxing the established generosity of this House towards a new Member.

My Lords, a man is injured by the act or omission of another. If his injury is significant and the wrongful nature of the other's conduct is clear, he must sue the wrongdoer within three years of sustaining his injury. So if a pedestrian is knocked down by his neighbour's car, he must sue him within three years if he is to avoid becoming Statute barred. But what of the man who lacks knowledge that he has been injured? What, for example, of the workman who knows only too well when he has chronic chest trouble, but 10 years go by before he realises it was caused by bad working conditions, which his employers could and should have put right? Should the gates of justice be slammed in his face because he was seven years too late in seeking to pass through its portals?

Some noble Lords may think that I have begun on a regrettably emotive note. If so, it is well to recall that such was the quite clear question considered by the Judicial Committee of this House 12 years ago. The law was then such that this House was obliged to hold that the door must, indeed, be slammed in the face of the suppliant. Small wonder that the noble and learned and recently lamented Lord Reid said that, … some amendment of the law is urgently necessary". In the light of severe strictures made earlier by the Court of Appeal, the Committee of the noble and learned Lord the Lord Chancellor had already been set up to examine the law. Purely by way of establishing my credentials, I mention in passing that I had the honour to be its Chairman.

My distinguished colleagues and I had to make a leap into the unknown. We had to conduct a delicate balancing operation. Of course, if you postulate a villainous employer ruthlessly regardless of the welfare of his employees, you may well ask, "Why should he ever be protected by the passing of time?". But what of the decent employer who has done his best to safeguard his employees, and yet is suddenly confronted by a stale and suspect claim, a claim which he has difficulty in meeting because essential witnesses have died or disappeared, and relevant records have been destroyed? In other words, my Lords, what if the suppliants for justice are to be found on both sides of the portals? Confronted by that acute dilemma, my 1962 Committee—and I use the possessive with pride—adopted what I am led to believe is a politically familiar formula; in other words, we compromised. We and the 1963 Act said that the three years should not begin to run until the injured party learned, or ought reasonably to have learned, what were called "material facts of a decisive character" in relation to his claim.

My Lords, with that I turn to the first of the three topics upon which, with your leave, I want to make brief comments. It is also the most difficult of the problems dealt with by this Bill. It can be expressed in the single question: when should the three years begin? Should it be with the workman's knowledge of his increasingly bad chest? Well, for years he has had good reason to know all about that. With knowledge of his working conditions? Well, he probably has known all about them also for a long time. But what he might well not know is that his bad chest was caused by his had working conditions. Nevertheless, ought he reasonably to have known this and so sued his employers within time? In seeking a just answer to that question, the 1963 Act imposed what practice has proved to be an excessively elaborate test. My Lords, if this Bill does no more, it will have done a great deal if it removes that particular ambiguity.

On the other hand, in favour of the potential defendant, the Bill rejects the view that time does not run against the plaintiff until he knows or ought to know that he has a worthwhile cause of action. Instead, it provides that the time begins to run when the injured party first knows (a) that he has sustained a significant injury, and (b) that it was attributable in some measure to the act or omission of the defendant. But—and here I turn to my second topic—what about the odd case? For example, what about the injured party who, bewildered by his sudden affliction, wisely seeks advice, but is unwisely and inaccurately told that he has no remedy, even though the three-year period has not yet expired, so he lets the years go by until better advice informs him that he has indeed a good cause of action? In 1962 my Committee regretfully concluded that such a man could not be helped, and in the light of the information then available, I think, with modesty, that we were right.

But this Bill provides a compromise. It enacts that if the court considers it equitable to both parties, the action may proceed, even though the three-year period has expired. It would be foolish to lose sight of the great delicacy of the task entrusted to the court by that novel provision. Indeed, in their valuable Report the Law Reform Committee, headed by Lord Justice Orr, said this: In suggesting this solution, we have not overlooked the difficulties which would face a judge in weighing the hardships on one side or the other, or the fact that even a measure of discretion erodes certainty in this field. That the Committee has done its best to solve this virtually intractable problem is beyond doubt. Whether it has succeeded is a question that remains to be tested. There have been moments when I have wondered whether the resultant uncertainty is too big a price to pay, but reflection has, on balance, led me to the firm conclusion that the provision makes for justice, and I respectfully recommend its acceptance.

A brief comment, if I may, about the third and final matter. My Committee thought it desirable to prevent cases which seemed unmeritorious as well as stale from going to trial and then failing because the plaintiff could not bring himself within any of the escape clauses. We therefore recommended that out-of-time plaintiffs must first obtain the leave of a judge before pursuing an action for damages, and the 1963 Act embodied that recommendation. I see no reason to think that either we or the Legislature were then mistaken, for, as I have already said, we were exploring unknown territory. But we learn from experience. The Welsh no less than the Romans have a proverb which says so, and you could want no better proof than that. The lesson taught by experience in this particular field is clearly summarised in this last Report. It has convinced me, at least, that the precautionary procedure of securing leave may now properly be abandoned, and the Bill so provides. My Lords, I respectfully recommend acceptance of the Bill by this House, to which I am greatly indebted for its indulgence in hearing me out so patiently.

3.57 p.m.

Lord WIGODER

My Lords, there is no maiden speech to which I would sooner have the privilege of paying tribute than the maiden speech of the noble and learned Lord, Lord Edmund-Davies. He is, if he will permit me to say so, a tried and trusted mentor. His appointment as a Lord of Appeal was greeted with universal acclamation by the whole of the legal profession. He speaks, as your Lordships now know, as a great authority on this particular branch of the law. I know that your Lordships will accept it from me that he is of equal authority on a large number of other aspects of the law, and your Lordships, therefore, will look forward with the greatest pleasure and anticipation to hearing him on many future occasions.

My Lords, any slight value that might have been attached to any observations that I will make has been substantially diminished by the fact that the noble and learned Lord has already spoken, and may indeed be removed altogether by the fact that I am about to be followed by two other noble and learned Lords. In extending a welcome to this Bill, I only wish to say that I am pleased that it has been seen fit to follow the detailed proposals of the Law Reform Committee, and in particular that the Bill ends the difficult doctrine of worthwhile cause of action and replaces it by the provisions as to date of knowledge which are set out in the new Section 2A(6). I welcome also the fact that on the one issue upon which fact that on the one issue upon which the Law Reform Committee found itself in some difficulty the Government have seen fit to adopt what the Law Reform Committee referred to—without any political connotation—as the liberal approach", rather than the strict approach.

The only doubts that I have to express are three in number, and they are perhaps minor ones. First, the proposals in Clause 1 of the Bill are intended to give effect to the recommendations in paragraph 69 of the Law Reform Committee's Report. I cannot help thinking, on re-reading those recommendations, that they are expressed in simpler and more felicitous language than the equivalent provisions in this Bill. I say that aware, as I am, of the necessary constraints under which Parliamentary draftsmen toil, which of course do not operate upon members of a Committee. It may be that the noble and learned Lord on the Woolsack will consider it desirable to take one final glance at the recommendations as they are expressed in the Law Reform Committee's proposals, to see whether the structure of the Bill might by that means be made a little more clear.

Secondly, I welcome the proposal that will rid us of the necessity for making applications for leave, but I share, if I may respectfully say so, the doubts expressed by the noble and learned Lord, Lord Edmund-Davies, as to the difficulties that will face courts in future in interpreting in Section 2D, the words … that it would be equitable to allow an action to proceed in certain circumstances. The difficulty arises where companies or firms may be sued, perhaps 10, 20 or even more years after some event, with the result that there are no witnesses available and there may be no documents available. To assess in these circumstances the equity of allowing proceedings to be taken against such a firm or company will clearly pose substantial difficulties to the courts.

The third observation that I would make arises directly out of the probable operation of this Bill, and it concerns the difficult problem of the assessment of damages in fatal accident cases in a period of substantial inflation. Your Lordships will know that the present position is that the dependency of the widow is assessed as from the date of the death. That figure is multiplied by the appropriate number of years, various allowances are then made and a global figure is reached. No allowance is made for the possibility that a widow might remarry, and no allowance is made for the possible effects of inflation, because they are no doubt regarded as being too uncertain to enable any precise answer to be reached.

The effect of this Bill, even though it is perhaps somewhat limited by Section 2B(3)(b), which limits an action under the Fatal Accidents Act to a period of three years from the date of knowledge of the person for whose benefit the action is brought ', is that it will make it easier for Fatal Accidents Act cases to be brought again, it may be 10 to 15 years after the date of the accident. As I understand it, a court that is in such a case assessing damages will not be acting upon hypotheses. It will know the figures, it will know the precise dependency, the precise loss sustained after 10 or 15 years of, it may be, very considerable inflation. The result may well be that in those circumstances damages will be awarded of an extremely substantial nature, which will be far greater than the damages that would have been awarded had the plaintiff been able to bring his, or her, action more promptly.

This is a difficulty which seems to me to arise inevitably out of the operation of a Bill of this nature. I do not regard that as an objection to this Bill nor, so far as I can see, is it a matter that could in any way be dealt with by amendment to this Bill. But I venture to suggest that it is an urgent matter to which the noble and learned Lord on the Woolsack, if he ever has an idle moment, might seek properly to pay attention in the near future. With those observations I also venture to support this Bill.

4.6 p.m.

Lord MORRIS of BORTH-Y-GEST

My Lords, I should like to join with other noble Lords in expressing a warm welcome to this Bill. In doing so, may I be allowed to add my felicitations to the noble and learned Lord, Lord Edmund-Davies, on his notable maiden speech. I add my congratulations with the utmost pleasure, not only because of a valued personal friendship extending over many years, but because of my knowledge of the distinction with which, before he came to your Lordships' House, he discharged his duties both as a judge and as a Lord Justice. I am sure that your Lordships would feel that it was fitting and happy that he should have addressed your Lordships for the first time on a subject in regard to which he has made a considerable contribution, as one of the many ways in which he has rendered public service on committees of great importance.

I should like to thank the noble and learned Lord the Lord Chancellor for his exposition of this Bill and for his explanation of the background which makes it, as I think, necessary that this Bill should be introduced. I should also like to join in appreciation of the Report of the Committee under Lord Justice Orr. I read that Report with great interest. I thought that it marshalled all the considerations in a balanced way and in the result, as I think, arrived at very wise and satisfactory solutions. I am sure that it is necessary to have this Bill, and I say that as one among many who has had to grapple in the past with considering the provisions of Section 7(3) of the 1963 Act.

I do not wish to say a word in criticism of the drafting, because I have sufficient experience to know that drafting, particularly in regard to a subject of this nature, is extremely difficult. That having been said, it is to be remembered that every judge who had to apply his mind to the meaning of Section 7(3) found great difficulty. The noble and learned Lord the Lord Chancellor referred to Central Asbestos v. Dodd, which came to this House, and I sat on that case with the late Lord Reid, and the noble and learned Lords, Lord Pearson, Lord Simon of Glaisdale, and Lord Salmon. Try as we best could, we were not able to arrive at any unanimity which would give clear and helpful guidance to the courts as to what exactly that section had laid down. The Court of Appeal at various times shared the difficulty which we then experienced. I am therefore quite sure that it was very desirable to have the investigation of the Committee under Lord Justice Orr and, in the result, to have this Bill.

Today in your Lordships' House we are differently placed from those of us who sat judicially to interpret Section 7(3); w can today be concerned with policy. The whole subject of limitation of actions is beset with difficulties. Should we have any period at all? If a plaintiff is in a position to prove his case and if he does prove his case—for it is really only if he is in a position to prove his case that the defence of Statute of Limitation is needed by a defendant and only in that situation does a defendant put it forward—is it, it may be asked, fair to have any period at all? I have no doubt that the conclusion reached by the Committee under Lord Justice Orr was the correct answer to that question. It must be unfair in many cases to a defendant who, owing to the lapse of time, is either not able to command the presence of witnesses or, if witnesses arrive, they have but faded and jaded memories. Thus I am sure that it is necessary to have some periods of limitation.

It might be thought a strange feature of our limitation law that an Act should say that an action shall not be brought "after the expiration of such-and-such a period yet the court need have regard to that provision only if the defendant relies upon it. But that again I think works fairly and reasonable. It is, under our system, not necessary for the court to take action, even though there are those rather formidable words action shall not be brought." But from the point of view of a plaintiff who can prove his case, who can prove that in law the defendant should pay him, there can surely be no more agonising words than the words "too late". So in this field it is essential that there must be some balancing process, and I thought the Committee expressed themselves very well when in paragraph 38 of the Report they said: … it is apparent that we have not been able to find any solution to our problem which is entirely satisfactory. This is not surprising; limitation inevitably involves a compromise between conflicting interests and no such compromise can do complete justice to both plaintiff and defendant in every case. I agree with other noble Lords in thinking Sat the Committee arrived at a very sensible result in saying that the three-year period should run from the date the cause of action accrued or a date, if later, of the plaintiff's knowledge. A plaintiff might be asked the question: "Why did you not bring your action sooner?" Supposing he says, "I did not know within the time that I had suffered injury." I think we should all agree that in those circumstances a plaintiff ought to be allowed to proceed. Similarly, if he says, "I did not know within the time that the injury, although I knew I had some injury, was significant." Again, I should have thought it eminently reasonable that he should be allowed to proceed. The third answer he might give is, "I did not know that my injury was attributable, in whole or in part, to any act or omission of the defendant." That is the difficult case. The Committee under Lord Justice Orr thought that there would be little difficulty in coming to conclusions in regard to those matters, and they said in paragraph 55: We turn, therefore, to the third possible date of knowledge, namely the date when the plaintiff has knowledge, actual or constructive, both of his injured condition and of its having been caused by acts or omissions of the defendant. We are satisfied that this is a date capable of precise definition and not presenting any particular difficulties of proof … I think they are a little optimistic there. I think the word "attributable" is not an easy word and that the word "omission" is not easy, either. Does "omission" merely mean that something was not done, or does it mean, or might it mean, that something was not done that ought to have been done? In studying the words of the Bill I do not think these difficulties will arise, and I think provision is made to assist a plaintiff if he, so to speak, cannot be criticised for not having brought his action earlier.

I take this sort of case: somebody in a factory suffers either some injury or illness. He is conscious of it but he just does not know why it has happened. Supposing he consults an expert and tells the expert to go to the factory to see whether there was something wrong there—were the employers doing something wrong or failing to provide some equipment. Supposing the expert comes back and says, "I have examined the factory but I can find nothing wrong at all", and the man takes no action. Supposing some years later he goes to another expert and that expert looks at the factory, the conditions being the same, and says, "I think there was something wrong. There was something positively wrong, and there was an omission to provide something that ought to have been provided." Much time may have gone by, but as I read the Bill the plaintiff will not in those circumstances be prejudiced because he has taken all reasonable steps to employ an expert and to consult him.

A similar result under the Bill I think follows if the man whom I have postulated went to his doctor and said, "I have this condition, these complaints, and I think there was something wrong in the factory". Supposing the doctor says to him, "Those injuries from which you are suffering, that complaint of yours, cannot be attributable to what you tell me". On that the man takes no action. Supposing some years later he goes to another doctor who says, "I think what you are suffering from can be attributed to the conditions of which you tell me". Time may have passed, but as I read the Bill again such a man will not be debarred from bringing his action.

Whether it is different in the case of the lawyer will depend upon a consideration of Section 2A(6) of the Bill: … knowledge that any acts or omissions did or did not, as a matter of law, involve nuisance, negligence or breach of duty is irrelevant. That may mean this, that one goes to one's lawyer who says, "Though there was an act or omission, it was not a negligent act or negligent omission ", and one may go to a lawyer some time later on who gives different advice. It may be that the time will run from the date when one went to the first lawyer. This problem may arise. Even if that were the situation, as I read the Bill, that situation could still be covered by the application to the court for the discretion of the court to proceed, despite the fact that the time limit has gone by. I welcome this provision in Section 2D. I welcome giving discretion to the court to say that the case may proceed despite the fact that the time has gone by. The Bill uses the word "equitable". In the context that simply means "fair". Is it fair in all the circumstances?

I can see objections to this provision. It will be said that there is some uncer- tainty. It will be said that probably there would be no appeal because, if the judge had weighed all the considerations and did not express himself as having considered something that he ought not to have considered, it might well be that it would be difficult to appeal against any ruling of the judge. It might well be that the judges will not entirely welcome having this rather difficult duty imposed upon them. But, having said all that, I still think it a reasonable course to follow. I believe it is the fair way to deal with this difficult situation.

For my part, I would trust the judges in matters of this kind. They are given the guidelines; they must assess all the difficulties on either side and then finally say, "Is it fair or unfair for the plaintiff not to be bound in this case by the time limit? "I would trust the judges. Their whole training and experience is, first, training to ascertain the facts and, having ascertained them, to assess them. Having learned, weighed and assessed the facts, then, in the light of everything, it is their duty to decide what is fair both to plaintiff and to defendant. I think that that is the reasonable way out. I would have confidence that Her Majesty's judges, being presented with this somewhat difficult decision, which they might not welcome having to discharge, nevertheless will discharge it faithfully and well, and, in a difficult situation, this was about the best result that could have been achieved.

4.24 p.m.

Lord JANNER

My Lords, I feel some temerity in entering this debate after so many eminent, learned and highly interesting personalities have taken part. I should like to offer, as a member of the more humble solicitors' profession, my congratulations to the noble and learned Lord the Lord Chancellor for the manner in which he introduced the Bill, and also to the other noble Lords who have spoken. In particular, may I say how impressed I was by the speech of my noble and learned friend Lord Edmund-Davies whom I have had the honour and privilege of knowing for many years and whom I have always regarded with the greatest respect and admiration. That respect and admiration has been even more increased this afternoon. Having heard his speech, I am sure that we shall all look forward with considerable pleasure to hearing him on many future ocassions. We are grateful to him for having addressed us today.

I do not propose to take much time. We have had an explanation of the Bill. We have heard those who have been engaged in making decisions on many of the points which have been raised today. I think your Lordships will understand that when, in the first instance, a person inquires as to what are his chances of success, he comes to those in the solicitors' profession, and often we find considerable difficulty in weighing up what is likely to be the result, particularly when expert medical opinion, and sometimes even expert legal opinion, is involved. There would be no cases at all if everyone thought that the medical and legal evidence was absolutely undeniable on one side or the other. Yet cases go through courts, higher courts and right up to the highest law courts to the learned judges themselves, these eminent persons. Indeed, as was shown in the deliberations which have taken place and which eventually produced this Bill, there are differences and, ultimately, it is left to a court to decide which was right and which was wrong.

I have had experience myself of different medical opinions being given on a number of occasions to persons who have applied for damages. Sometimes it has been considerably difficult to give a real opinion. You have to weigh up what the court will decide when it hears the evidence on both sides of the case. I say this because it shows that there is a great element of chance in many cases which are brought before the courts. Consequently, it is perfectly clear that a person might have been advised quite wrongly—nevertheless in good faith—by the medical person whom he has consulted, and, possibly, by the lawyers to whom he has gone, who decided that, on that evidence, he ought not to proceed. But, later, there may be cases in which what he was advised as being right or wrong is contradicted by the decisions given in similar circumstances by a court.

For that reason my own profession welcomes this Bill, because it realises that it is essential for justice to be done to a person who has been placed in a position, the severity of which he ascertains only after a certain period. I do not say that the profession accepts the Bill in its entirety. Probably at Committee stage some suggestions will be made and we hope, possibly, that the noble and learned Lord the Lord Chancellor will accept them; but, in principle, I think it is extremely important that we should accept the Bill, because it is clearing up what has been an injustice for a considerable time in a fair number of cases. I do not imply many cases. Therefore, I should like to add my personal commendation for the acceptance of the Second Reading.

4.30 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, before the noble Lord the Lord Chancellor replies, I should like to say a couple of words. I do not want to detain the House, but I should like to thank the noble and learned Lord for his reference to myself at the outset. I was not in the Chamber at the time, but it has been reported to me and I am grateful for it. My real purpose in rising is to do two or three things which can be done in as many brief sentences. In the first place, I should like to add to the welcome especially from these Benches to the noble and learned Lord, Lord Edmund-Davies, who made his maiden speech. Like other noble Lords who have spoken, I have known him for very many years. I remember being against him at the Bar and, in the first of the cases which I remember most vividly, he won. He was then the energetic and strenuous Leader of the Welsh Circuit. I have appeared before him as counsel in the Court of Appeal and once, indeed, I was hauled up before him as a malefactor when some ass wanted to send me to prison. Mercifully, he released me without, I hope, a stain upon my character. Since the noble and learned Lord has been appointed, I had the great pleasure of sitting beside him in the Appellate Committee and all these experiences, from first to last, have been of the most enjoyable character. To listen to the noble Lord's maiden speech this afternoon has been as enjoyable as any of them.

My Lords, I should like to say a word or two about some of the mechanics of the Bill. One of the predecessors of the noble and learned Lord and myself as Lord Chancellor was the famous Lord Campbell, who wrote the lives of the other Lord Chancellors in a most readable but highly malicious frame of mind. He said that law reform is either by consent or not at all. I believe that that is the first thing to know about it. The strains on Parliamentary time being what they are, one must acquire a measure of consensus before one starts. Naturally, that takes time. That leads me to an observation by another among our predecessors, Lord Haldane, who said that important law reforms take three successive Lord Chancellors to carry through. That, too, is very largely true. Lord Haldane claimed—I think with reason—to be the progenitor of the law of property legislation, which was first initiated in Parliament by the Earl of Birkenhead and finally carried into law by Lord Cave. That again is due to the fact that law reform is difficult to initiate under the British Parliamentary and legislative system. The present reform has taken only two Lord Chancellors from the time when I set up the Committee to the time when the noble and learned Lord introduced the Bill this afternoon. I hope that he may be spared—unless, happily, this Government disappears—to see the Bill pass into law at a later stage.

It is an odd thing that, from 1623 to the time when I went to the Bar and up to 1939, we got on very well with a six-year period of limitation, but since then we have been doing nothing but tinker with the law. I believe that that is due to the great problem of personal injuries and fatal accidents—problems upon which the discussions this afternoon have largely centred. However, the problem basically arose—from the first for technical reasons and, at the last, for practical reasons—from the difficulty of obtaining testimony about an incident which has taken place some time before it comes to be tried in court. When, under James I, the first of the Limitation Acts was passed, it was the law, strangely enough, that nobody who was in the least interested in the case was allowed to give evidence at all. This was because it was thought terrible to imperil the immortal soul of a witness by a temptation to commit perjury. Of course the result was that perjured witnesses abounded. Thus we had the Limitation Act of 1623 and also the Statute of Frauds in 1677 in order to protect unfortunate defendants from plaintiffs who produced these hired and perjured witnesses. A great deal of the law of evidence as it now exists revovles around this rather absurd rule which our ancestors observed.

However, by the time we reached 1939, the difficulty was of a practical kind. It was found that in a great number of accident cases six years was too long a period for a defendant to be able either to recollect or to acquire evidence about incidents taking place so long before. I believe that that was touched on by the noble Lord, Lord Wigoder. So we introduced the three year period after the War and we thought that we had really solved the problem. But then it was discovered that particularly miners and certain other workers suffered from complaints of which neither would the symptoms appear within the three year period nor was the cause known, sometimes until many years after the injury or illness had occurred. This was because medical science was advancing fast and discovered that many diseases, which in the past had been thought to be nobody's fault, were due to various types of poisonous dust in either factories or mines. So again we had to introduce the amendment to the three-year period to which reference has been made.

My Lords, this leads up to a point which I think it is important to make. It is not just an historical discursion. Valuable as law reform is, it is important that the law should have a certain durability. Our ancestors thought it permanent and believed that it should never be changed or should be changed very seldom. We know that to be false but, if law is to be respected, it is right that it should not constantly be tinkered with. I believe that we have tinkered a little too much with this subject lately. I hope that when the Bill becomes law—as I trust it will—it will put a quietus on tinkering with the law of limitation for quite a long time. I am not saying that the Bill is perfect. It is an improvement on what has gone before and, for that, thanks are due to the Committee and to the earlier Committee presided over by the noble and learned Lord, Lord Edmund-Davies. I hope that we shall turn to other subjects of law reform and that limitation will for a time be given the "go-by" after the Royal Assent has been obtained.

4.39 p.m.

Lord DOUGLAS of BARLOCH

My Lords, I do not want to say anything about the merits of the Bill. They have been very adequately explained by my noble and learned friend on the Woolsack, by the noble and learned Lord, Lord Edmund-Davies, whom I congratulate on his maiden speech, and by others. I merely want to raise one point. The Bill, as drafted, is amending the Act of 1939 by substituting or adding to it various provisions. The object of that, no doubt, is that one Statute will contain the whole of the law on this subject. What I should like to know is whether any provision will be made for Her Majesty's Stationery Office to produce altered copies of the Act after the Bill has become law, so that one can purchase a single document instead of having to buy two or three in order to find out what is the law.

4.40 p.m.

The LORD CHANCELLOR

My Lords, may I first express my gratitude for the fact that the Bill has received the commendation of no fewer than seven noble Lords, all of authority and many of great distinction in the field of the law. May I also join in the congratulations that have been extended to the noble and learned Lord, Lord Edmund-Davies. We have been friends over the years. I appeared with him many times and then we always won. I appeared against him many times and then I always lost. That apparently was also the experience of the noble and learned Lord, Lord Hailsham of Saint Marylebone. I am not at all surprised that the noble and learned Lord, Lord Edmund-Davis, has again shown that authority, clarity and intellectual vigour which I have always known to radiate from him. The House is a stronger and a wiser place for his presence, and I hope that we shall hear him frequently.

The noble Lord, Lord Wigoder, raised some questions, more perhaps by way of seeking elucidation than by way of criticism, in relation to one or two aspects of the Bill. He invited me to look again in particular at the structure of Clause 1 and he wondered whether the language of the draftsman was perhaps more obscure than the language of the Report. In fact the Bill follows the recommendations of the Report very closely indeed and in many places word for word. Where it differs from the recommendations it does so, I think, in general, either because of the need to make provision for fatal accidents or because of a need to insert the provisions into the existing framework of the 1939 Limitation Act. I will certainly look at the point raised by the noble Lord, Lord Douglas of Barloch, about subsequent republication.

He also raised a question—and this is fundamental in considering the value of the discretionary provision in the Bill to which a number of noble Lords have referred. I was greatly comforted by the conclusion of the noble and learned Lord, Lord Morris of Borth-y-Gest—applying his vast authority and experience to this problem—that he found the language of the Bill satisfactory. In considering the test that the court will apply—whether to allow the case to continue would be equitable or not—I apprehend that the court will give the widest meaning, as is intended, to the word "equitable ", and give it the same construction that Lord Goddard gave to it in the case of the Queen v. the Minister of Housing and Local Government, ex parte Finchley, when he said that he thought that "equitable" meant "fair and reasonable ". I notice that the noble and learned Lord, Lord Morris, used the word fair ". Perhaps it is right to add the word reasonable "—not that one would expect any of our judges to be unreasonable in the application of the principle of fairness. But what I have pointed out is certainly what is intended.

The noble and learned Lord, Lord Morris of Borth-y-Gest, said: "Trust the judges ". It is a doctrine and trumpet call in which I am very willing to join myself, even though it does not always receive the universal echo that perhaps it should receive. But it may be in relation to the somewhat tormented history of this matter, to which the noble and learned Lord, Lord Hailsham, referred, that the trouble has been this: if it had been left to the Common Law to sort it out I expect that long before now the judges would have sorted it out. But the difficulty was that the imposition of Statute Law upon the scene complicated the position. I have greater authority than my own in saying that, when Lord Reid—whose passing we mourn—said in Cartledge v. Joplin; what I have just intimated; that but for Statute, the Common Law would have reached a solution to this problem a long time ago. That was not allowed to come to pass, and this Bill today is a measure to put the position right.

The noble Lord, Lord Wigoder, in respect of the damages aspect that arises in this field of litigation, referred to the difficulty of quantifying damages in a period of limitation—I should say "inflation "; I seem to have got "limitation" on my mind. I think that all of us who are connected with litigation are very conscious of this serious problem. It is not within the scope of the Bill, but it is clearly a problem of difficulty: for instance, in respect of assessment by a court of loss of future earnings, which is very important—indeed, it is absolutely crucial as an element in the assessment of damages—the award will be based on the level of present earnings. This is clearly a matter to which Parliament will have to apply its mind.

Other matters were raised in some detail in the close examination which the noble and learned Lord, Lord Morris of Borth-y-Gest, gave the Bill. He posed the questions and it was a great relief to me to hear him answering them himself, and answering them in a direction which gave him reasonable confidence in the provisions of the Bill. He raised the question whether there would be a possibility of appeal under the provisions of Section 2D in relation to possible appeals against a ruling of the court that it would be equitable to allow a case to proceed. I should think that an appeal on that ruling would be difficult, but I apprehend not impossible. Any substantial departure from the intention and spirit of what he rightly described as the guidelines would presumably call for correction by a higher court.

The noble and learned Lord, Lord Edmund-Davies, rightly said that the effectiveness of this general provision of the discretion will have to be judged by experience of the cases as they proceed, but I venture to hope that the guidelines which are contained in the Bill will enable the court to establish a consistent and humane code of decision which will be of guidance in all coming proceedings.

My Lords, I conclude by once again thanking the House for giving a fair wind to this Bill. As the noble and learned Lord has said, it is a matter of some gratification that in the so far short term that he and I have been on the Woolsack we have been able to proceed not only with this but with other measures, some of which were anticipated by other Lord Chancellors before us. The momentum of law reform will be maintained—that assurance I can give to the House. I am glad that this is a valuable step on that progress.

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