HL Deb 16 July 1979 vol 401 cc1144-78

3.26 p.m.

The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 agreed to.

Clause 2 [Limitation if case of theft]:

The LORD CHANCELLOR moved Amendment No. 1:

Page 2, leave out from beginning of line 21 to end of line 13 on page 3 and insert— (" 3A.—(1) Where a chattel is stolen from any person, sections 2 and 3 of this Act shall have effect in their application to his case subject to the following provisions of this section. (2) Nothing in section 2(1)(a) of this Act shall bar any right of action accruing to him in respect of the theft or any related conversion. (3) Section 3 of this Act shall apply to his case without modification where the original conversion is an innocent conversion preceding the theft. (4) In any case not within subsection (3) above, section 3(1) shall not bar his right to bring an action in respect of any conversion following the theft except as provided by subsection (5) below. (5) If any such conversion is an innocent conversion, section 3(1) shall have effect in relation to his right to bring an action in respect of any further conversions (innocent or otherwise) following that conversion as if that conversion were the original conversion. (6) In any case not within subsection (3) above, his title to the chattel may be extinguished under section 3(2) by reference to the expiry of the time within which he may bring an action in respect of the first innocent conversion (if any) following the theft. (7) Where the chattel is stolen a second or subsequent time from the person in question before he recovers possession of it, references to the theft in subsections (3) to (6) above shall be taken as references to the first theft".)

The noble and learned Lord said: This is a rather long Amendment and my brief contains this significant sentence: "There is no substantial change of policy and the amendments may fairly be described as drafting and indeed technical". The Committee may be slightly surprised at those words, having regard to the rather formidable length and complexity of this and other amendments, and perhaps I should therefore—I have satis- fled myself that those words represent the truth—say a word in support of them.

The clause as originally printed has thrown up two minor defects, both of which were spotted by a lawyer who serves in the Home Office. The first is that, in failing to gloss Section 3(2) of the Limitation Act 1939, the clause does not convey sufficiently clearly the policy that an owner should lose his proprietory rights in stolen property six years after the property had been bought by a bona fide purchaser but he should at the same time retain indefinitely his rights in respect of a theft or other conversions preceding the bona fide purchase. Section 3(2) provides for the extension of title when the limitation period has gone, and the present draft might allow an owner to say as against a bona fide purchaser that his, the owner's, title has never disappeared because the time of suing the thief had not expired.

Secondly, as printed the clause fails to deal with successive thefts; it is wonderful what things people can think of! In some circumstances a second thief in a chain of conversions would be able to set up the first theft as the point when time began to run in the second thief's favour as against the original owner. This is because subsection (3)(b) provides for Section 3(1) to have effect in relation to any innocent conversions following the theft as if the theft had not taken place, thus allowing a subsequent thief to claim the benefit of Section 3(1) without any amendment. In the course of eliminating these rather esoteric defects, the draftsman has taken the opportunity to recast the clause without any further changes of policy but perhaps in a rather simpler form. I beg to move.


I am inclined to agree with the noble and learned Lord the Lord Chancellor that the amendment is indeed drafting and technical. The degree of detail and elaboration involved in dealing with the, presumably, exceptional case of successive thefts not only of the same object, but from the same person, must be piling Pelion upon Ossa, or whatever the appropriate metaphor is. However, I agree with the noble and learned Lord.

On Question, amendment agreed to.

Clause 2, as amended, agreed to.

Clauses 3 to 5 agreed to.

3.32 p.m.

Viscount DILHORNE moved Amendment No. 2: After Clause 5, insert the following new clause:

Extension of time for disability not to apply if action previously brought

In section 22 of the principal Act (extension of limitation period in case of disability) the following new paragraph shall be inserted after paragraph (c) of the Proviso— (d) no action shall be brought by virtue of this section by any person who has previously brought any action (whether by virtue of this section or not) in reliance on the right of action in question".

The noble and learned Viscount said: On Second Reading I drew attention to a problem of some difficulty, and I invited the Lord Chancellor to find a solution to it and to propose an amendment to the Bill or a new clause giving effect to that solution. I may say straight away that that was rather a tease because I do not think there is any solution to the problem. So I was not disappointed to find no amendment or new clause tabled in the name of the noble and learned Lord, but I am most grateful to him for allowing parliamentary counsel to draft this new clause, with a request that I should put it down, which reached me at the same time as I wrote to the Lord Chancellor saying that I thought a clause on these lines should be tabled. The new clause, though not a solution, will I believe constitute an improvement on the present position.

I believe that everyone recognises the desirability that personal injury actions should be tried within a reasonable time. If there is a great deal of delay there may be great injustice, and indeed the administration of justice becomes very difficult. Of course, sometimes the injury or disease does not become apparent until many years after the cause of action has arisen. Our law makes provision for that, and my amendment does not alter it in any respect.

Between 1939 and 1954—quite a considerable period—an adult could start an action for tort at any time before the expiry of six years from the date of the cause of action arising. In 1954 Parliament thought that that period was too long and reduced it to three years generally in respect of an action for tort. But special provision before then, and since then, has always been made where the person claiming is under a disability, and from 1939 to 1954 such a person, as a general rule, might start his action at any time within six years after the ending of his disability. That meant that an infant who suffered an injury during that period could start his action at any time before he was 27. If injured when a child of two, he had consequently a quarter of a century in which to start his action, and after the lapse of anything like that time witnesses may well have forgotten entirely what happened at the time that the cause of action arose.

Parliament in 1954 must have thought that something should be done about that, for in that year the law was altered. An Act was passed in that year which provided that if at the time the infant suffered his injury he was in the custody of a parent, he should have no extended time within which to bring his action, it had to be brought within three years just as if he had been an adult. But if the infant was not in the custody of a parent, he could sue at any time before the expiry of three years of coming of age.

Parliament presumably thought that parents with an injured child in their custody could be relied upon to see that a claim for damages would be made speedily; but, for reasons that I need not go into, difficulties arose with regard to that. So in 1975 Parliament abolished the different treatment of children in the custody of a parent from that of those who were not, and Parliament then made it a general rule that actions for negligence, nuisance and breach of duty could be brought by infants at any time within three years of their attaining their majority; that is to say, now at any time before they reach the age of 21.

I reminded your Lordships on Second Reading of a case that we had recently heard in this House, and which shows I believe that the present position is not at all satisfactory. The facts of the case, shortly stated, were as follows. In 1964 an infant girl, 2½ years old, was walking along a pavement holding her mother's hand. She put a foot into the roadway, and she was struck by a car; and it was alleged that the driver of that car was guilty of negligence. Nearly three years later, just before the expiry of the time limit within which an action could have been brought if she had been an adult, a writ was issued against the motorist. That was in 1967, and then for the next 10 years nothing was done. Why that was I do not know. It may have been thought that the action had little chance of succeeding. It may have been—one does not know—that there was some neglect on the part of the solicitors then acting. Then, in 1977, there was a change of solicitors and notice was given of intention to proceed with the action and a statement of claim was delivered.

What, then, was the position of the defendant to that action, and of his insurers? All police records of the accident had been destroyed. All the statements of witnesses had disappeard. There can be no doubt that if this action now comes on for trial, the defendant will be gravely prejudiced by the delay; and whatever conclusion is reached—whether that the motorist was guilty of negligence, or was not—there is bound to be doubt as to whether the conclusion is the correct one. That there was gross and inexcusable delay in the prosecution of this action is beyond doubt, and the defendant tried without success to get it dismissed for want of prosecution. He failed because there was no point in dismissing that action when a fresh writ could immediately have been issued.

The amendment does not seek to alter the position where no writ has been issued claiming damages for an infant. If the amendment is carried, he will still have until he is 21 to issue a writ for damages for personal injuries for negligence, nuisance, or breach of statutory duty. But should an infant be allowed more than one bite at the cherry? If he has issued one writ, the action should be proceeded with; and if that had been done in this case, the interests of justice would have been achieved. If a writ has been issued, what further protection, as my noble and learned friend Lord Wilberforce said, do the interests of the infant require? Why", he said, when proper steps have been taken in accordance with the law to enforce her rights, should she have the opportunity to start another action 15 years after the event and 12 years after the action had been started? It is to deprive such a plaintiff of that opportunity that this amendment is de- signed, for I do not see why, when one writ has been issued claiming damages for the injury, it should, after great delay, be possible to issue yet another one. It really is not fair to a defendant, and must make the administraion of justice very difficult, if not impossible.

This is a technical and difficult subject, but not without importance; and I commend this amendment to the Committee in the belief that, if accepted, it will make an improvement to the present situation. I beg to move.

3.41 p.m.


First of all, I should like to thank my noble and learned friend on the Cross-Benches for the trouble he has taken over this matter, for bringing it to the attention of the Committee and for putting down an amendment. I hope I have played absolutely fair about this business. I do not find it at all as easy as perhaps one often does in the case of highly technical matters. As I said on Second Reading, my judgment was rather against an amendment of this kind, and I think it probably still is, for reasons which I shall elaborate. But the weighty authority of my noble and learned friend on the Cross-Benches—and I think he was supported by the noble and learned Lord, Lord Diplock; I think he said that on Second Reading—obviously deserved a airing of this matter in one way or another so I lent him the full resources of my Office and, so far as I was able, the parliamentary draftsman. This amendment is therefore what has emerged, and I hope the Committee will think that in that respect I have acted fairly.


If I may interrupt the noble and learned Lord, I do not think anyone would suggest the contrary. I implied, if I did not say it expressly, that I am most grateful indeed for the help that the noble and learned Lord has given.


I am indeed grateful to my noble and learned friend. I do not want to appear either unfair or ungracious in this matter, but I do want to explain to the Committee what has caused me to have my doubts about this. I am only too conscious that I may be wrong; and, if I am wrong, the Committee will say so, and I shall not take the smallest umbrage about it. In the first place, I steered clear of the rather boggy ground of personal injuries altogether in this Limitation Amendment Bill. It has a habit of turning out to be controversial, and if it is controversial one is apt to lose one's rather humble little effort at law reform altogether, because it bogs down in a Committee somewhere at the other end of the corridor.

I do not think this would have been quite so important to me as one or two questions of principle which I should like to put before the Committee. If the Committee likes this amendment, I do not want to stand in its way at all, but I should like the Committee to know exactly what it is doing. This amendment is, of course, cutting down the rights of a child: do not make any mistake about it. It cuts down a child's rights to compensation for personal injuries—I do not think this applies only in personal injuries cases, but in practice that is what we are talking about—and I do not think the Committee should cut down the rights of a child to compensation for personal injuries unless somebody, at any rate (and it ought to be the Lord Chancellor), explains to it exactly what is being asked of it. As my noble and learned friend has lucidly and quite correctly explained, if a personal injuries claim is not prosecuted diligently, it may be dismissed. I am not now talking solely about children or minors. Incidentally, may I correct a slip of the tongue which my noble and learned friend made? The age is 18 now, not 21.


Eighteen plus three I made 21.


Then I apologise for any error I may have made, but as I caught it I thought it was incorrect. At any rate, if an action for personal injuries is not diligently prosecuted, it may in certain fairly extreme circumstances be cut out and dismissed for want of prosecution, and the plaintiff then loses his rights—unless, of course, he can get them by a side wind, by bringing an action for negligence against his solicitor or somebody else. That is fair enough, or may be fair enough, in the case of an adult; but what the Committee is being asked to do is to say that it should be so in the case of a child. In other words, the child is being deprived of his rights to damages for personal injuries if his father or mother, his next friend or what-have-you has had his action dismissed for want of prosecution, or is liable to have his action dismissed for want of prosecution.

What the House of Lords, in its judicial capacity, decided in Tolley v. Morris, which is the case my noble and learned friend was deciding upon, was that you could not do that because the child could of course have a new writ issued the next day, and therefore could not be deprived of his rights. We are now being asked to deprive the child of that right which, in Tolley v. Morris, the House of Lords, by a majority—and the fact that it was decided by a majority shows that this is a very difficult subject, about which one may well be wrong—decided it should have. There cannot be any doubt, I think, about the fact that if this amendment is carried then, of course, if Tolley v. Morris represents a wrong—and my noble and learned friend clearly thinks it did, and put very powerful reasons in support of it—it will correct that wrong.

But there is a new anomaly now created. Suppose a child is injured in the road and an action is duly brought by the next friend (say the father) and is not diligently prosecuted. If that action is dismissed for want of prosecution, the child's rights are extinguished, if my noble and learned friend's amendment is carried. On the other hand, if he has a still more negligent father who does not bring an action at all, and nobody brings an action on the child's behalf, there is therefore no question of the child's action being dismissed for want of prosecution and the child is still able to bring an action within three years of his attaining majority. So you may get the situation of two children, both injured in a road accident at, say, the age of two. In the case of one, the action is brought, is negligently prosecuted and is dismissed, and therefore that child gets no damages. In the other case, no action is brought owing to the extreme negligence of the father or mother, and the result is that there is nothing to dismiss and the child can pursue his remedy after majority. Does that make sense?

The answer, of course, as my noble and learned friend candidly admitted at the beginning of his speech, is that there is no solution to these problems. One has frankly to admit that there is no solution. The fact is that this is a highly technical matter. I do not want to stand against two very eminent members of the Appellate Committee of your Lordships' House, but I should rather like to know what the Committee thinks about it; and I hope I have explained it fairly.


I am sorry the noble and learned Lord the Lord Chancellor is having difficulty. We have sympathy with him, and he must not worry about the fact that he is not quite as consistently articulate as we normally have the pleasure of enjoying him.

I do not find this an easy matter, but I am bound to say that the kind of anomalous situation which would result in the state of the law if this amendment were approved would render the law a little ridiculous. The noble and learned Viscount, Lord Dilhorne, does not like the idea of the infant we are concerned with in the amendment having two bites of the cherry. But he does not really get a single bite of the cherry because of the negligence, either of parent or solicitor or whoever may have purported to act for him in initiating the action with the issuance of a writ in the first place, in simply failing in his duty to carry it through. Therefore, we should be penalising the infant who would have to prove the sufference of disability. Yet if there was a situation where a disabled infant did nothing at all during the period of minority, the prejudice to the defendant—and one fully sympathises with that—would be all the greater than in the particular case that the noble and learned Viscount, Lord Dilhorne, has brought before us. We are always grateful to him for his persistence and energy in bringing forward these difficult legal issues. I am bound to say that, although what will emerge by leaving the law as it is will produce difficulties and grievances for insurers and defendants, my inclination is to prefer that they should suffer rather than the injured infant.


May I follow my noble and learned friend with one short observation? If I say immediately that I happen to agree, most respectfully, with what the noble and learned Lord the Lord Chancellor has said, I hope that he will take it as an inducement to be equally gracious to me when I rise later to move three amendments. I want to offer this short point. The noble and learned Viscount, Lord Dilhorne, remarked that it was a great injustice to a defendant if, after many years, he suddenly finds that an action which had once been brought against him is brought again; because in that event he may find himself in great difficulty in respect of the evidence that he requires in order to refute the allegations of negligence that may be made against him.

I did not quite follow that point, because the fact is that, from a practical point of view, when you are acting for a defendant, once the writ has been issued, you are certainly not looking after him with that degree of care which you should as a lawyer if you do not immediately try to get such evidence as is available at that time. If you are taking statements from witnesses, you obviously endeavour to get the signatures of the witnesses to the statements. In certain eventualities, if, say, after the passage of time a witness has passed to a better world or for some other reason is not procurable, it may be possible to get in that evidence under the Civil Evidence Act and the defendant does not suffer that handicap.

If, on the other hand, without any action being brought at all, all of a sudden after many years the defendant finds himself faced with a writ and then comes to his advisers, he is in a far greater difficulty because indeed he has had no warning of the proceedings which has enabled his advisers to procure the evidence which may be furnished in a defence to his case. I add that short point, in support of what the noble and learned Lord the Lord Chancellor has said and of what my noble and learned friend Lord Elwyn-Jones has said, in saying that this amendment is, I feel, not one that should be supported.


The noble Lord, Lord Mishcon, certainly has made a short point but I cannot agree with him that it is a very good one; and for this reason. Although it is true that in a perfect world the solicitor would keep everything, including all statements of witnesses, duly signed by them, the fact is that this particular case is an indication of what can happen. The insurers who, no doubt, had a very eminent firm of solicitors acting for them had not got—after 10 years when nothing had been happening—the statements of witnesses; the police had no records at all—and I need not elaborate on that. Of course, it may be that if an action is started by an infant only when the infant is 20 years old, and without any previous notice, the defendant will be in very great difficulty. That is recognised.

The noble and learned Lord the Lord Chancellor has said that this would be cutting down children's rights. I would ask the Committee to bear in mind that there have over a considerable period been differences between children's rights. In 1954, if a child was in the custody of a parent, the time within which an action could be brought in respect of injuries to that child was three years. Until 1975, that was the position in relation to a child in custody of the parents. If the child was not in custody of a parent, it still had a period of years after attaining its majority within which to bring an action.

I myself think that it is unlikely, if an infant has suffered injuries, that there will be a wait of 18 to 20 years before an action is brought. I do not believe that there can be many cases of that kind. What I am concerned with are the cases of which one has had illustration, where a writ has been issued, perhaps without undue delay, and then everything has been allowed to go to sleep. I think that when the noble and learned Lord the Lord Chancellor made some comments about the case of Tolley v. Morris, he was, perhaps, thinking of another case which came before your Lordships' House, the case of Birkett v. James. In Tolley v. Morris, it was the case that a majority decided that the action should not be dismissed; and they did so because, as I said, they felt that there was no point in dismissing it. On the other hand, a minority in the House—my noble and learned friend Lord Wilberforce and I—thought that the present law was that if a writ was issued on behalf of an infant during the extended period, that was that and another writ could not be issued. It was Birkett v. James in which it was held that you could issue as many writs as you liked before the period of limitation had expired. But there was that difference of view in the case of Tolley v. Morris as to what the law, in fact, was.

This amendment would, I have to admit, bring the law in this narrow field back to what my noble and learned friend Lord Wilberforce and I thought it was by Act of Parliament. It is cutting down, it is true, in respect of some infants, rights that they have had since 1975; but from 1954 to 1975 there was different treatment of children depending on whether or not they were in the custody of their parents. The change made in 1953 was, I am sure, made after consideration by one of the committees which considered this subject in view of the need for justice to be done that the actions should be tried soon after the personal injuries were suffered. It is a case of striking the balance. I think that the balance would be wrong if the law were left as it is at the present time. But, in view of the opinions expressed by two noble and learned Lords who followed me upon the Woolsack, I will not press this amendment.

Amendment, by leave, withdrawn.

Clause 6 [Effect of acknowledgement or part payment]:

On Question, Whether Clause 6 shall stand part of the Bill?

4 p.m.


A moment ago the Committee heard falling from the lips of the noble and learned Viscount the statement that he was talking about a very human problem. If I may say so to the Committee, in moving this amendment which seeks to leave out Clause 6, I too am dealing with a very human problem; and it is somewhat easy to solve if the Committee will agree to the omission of Clause 6. Indeed, it would leave the law exactly where it stands at the moment.

Before I embark on an explanation of why I think that the Committee should agree to leave out Clause 6, may I make it quite clear that my amendment, and indeed the following amendments, would not have the respect which I would hope for if they merely came from me. They do in fact come at the instance of the Law Society, who I know have communicated, as they always do, with the noble and learned Lord the Lord Chancellor in order to give him a clear intimation of the views they hold.

The problem is not a difficult one. It is this. When one is dealing with the matter of the statutes of limitation—the old phrase that lawyers and many laymen alike know well—one is dealing with the balance of justice between a claimant and a person against whom a claim is being made. What one is trying to do is to say: "I will not deprive somebody of a remedy unless it is just to do so; on the other hand, I will not allow a defendant to go for year after year almost into eternity wondering whether a remedy by way of an action is going to be instigated against him"—if one can instigate a remedy; I am not sure whether that is right, but let us take it that one can—because a plaintiff suddenly decides to issue a writ so many years after the cause of action arose.

There is no difficulty about the situation, once one has fixed the number of years whether it be, as in the instance that the Committee were discussing a moment ago, the question of a personal injury case where by and large the period is three years, or whether, as in the ordinary case, one is dealing with a debt and is considering a period of six years. If during that period of six years a debtor acknowledges in writing that the debt is due to his creditor then the period—the six years—commences to run again from the moment of that acknowledgment. Furthermore, if the debtor makes a part payment of his debt, and that happens in the course of the six years, again the period of six years starts to run from that moment. Indeed, that is the position if either the acknowledgment in writing or the part payment takes place only one day before the expiration of the six years.

What is the position, however, under the present law if the six years has already expired? It is this. Again, because the law says that it is not the rights that the creditor has lost, but only the remedy of action—and, incidentally, he does not lose his other rights of recovery; if indeed he happens to have a lien or a set-off he can exercise it even after six years—and no writ has been issued, be it because the creditor could not find the debtor, or be it because the creditor is one of those rather more merciful people who do not decide to issue writs as long as they feel that they are dealing with somebody honourable who one day will pay them, if the six years has expired and after that the creditor receives from the debtor an acknowledgment that the debt is still due, or a part payment, the law says, one might think very justly: "Now the period starts to run again". There is no injustice in that, obviously, to the debtor. The Committee may feel that there would be an injustice if there was a disputed claim—an obviously disputed claim—where all of a sudden it is for some reason resurrected. But here there is a debtor who has to acknowledge in writing his indebtedness or who has to make a part payment. It would be the odd situation indeed if this were a matter of dispute thereafter. It could happen but it would be the exception to the rule.

The Law Reform Commission sat upon this matter and others, and I must at once tell the Committee that they did not (if I may use the phrase) get very hot and bothered about it. What they said—if your Lordships will allow me to read it out—at paragraphs 270 and 271 of their 21st Report, on page 24, is this: In our consultative document we sought views on the desirability of changing that rule. There was general support for the principle that once lapse of time had extinguished a title no subsequent acknowledgment should be capable of reviving it. But there was a marked difference of opinion on the question"— and this is the question we are considering— whether a similar principle should apply to the barring of a remedy where the right still persisted. It was argued in favour of making the change that the contrary rule gives rise to such uncertainty and is also something of a trap in that for example a company's accounts required by law to be published may have to include a balance sheet showing statute-barred debts and these may then be revived having been 'acknowledged', although no such revival was intended to be the result of the publication of the accounts. On the other hand, we recognise that the current rule that is, if I may say this in parenthesis, the law as it is at this moment— by which legal effect is given to an out of time acknowledgment is logically consistent with the principle that limitation only bars the remedy and leaves the right unaffected. Nevertheless, we think the rule is somewhat unreal and serves no very useful purpose". Then I miss out the next sentence. The report continues: Therefore although the issue is not one of prime importance, we think the law should be changed". I am leaving out the rest of that sentence.

We have the position therefore that not even the committee whose recommendations in the main have been followed in this Bill thought this a matter of prime importance. The Committee may there fore feel that, if they are not dealing with a matter of prime importance, why alter the law as it stands, if the position seems to be just and if it seems to follow the situation which I have tried to explain to your Lordships, where no great hardship would seem to occur to the debtor? The noble and learned Lord the Lord Chancellor was good enough to listen to the point on Second Reading and to give what I hope was a provisional reply. He then said that he thought the change that was recommended in Clause 6, which would no longer give the creditor any right at all to pursue his remedy by issuing a writ after the termination of the limitation period, made for more certainty. I am afraid I do not follow that because, as I explained to the Committee, if anything like this happens—the acknowledgment in writing or the part payment—in the course of the six years, then the whole of the period commences to run again, and once more in those circumstances there is a period of uncertainty.

In the example given of a company's accounts, there again the question of certainty is by no means answered if you admit that rather odd example. I describe it as an odd example, because in fairness I must say it was a matter dealt with in a case only a few months ago. In that case it was held, as I understand it, that although a company has to put in its balance sheet an account of statute-barred debts, which may be a document which in law is directed to the creditor, the creditor has to receive it before it can be deemed to be an acknowledgment. The Company Law Committee of the Law Society, consisting of very experienced company practitioners in the law, have decided that, in their view, this is unlikely to create any difficulty at all and certainly no substantial difficulty. Indeed, your Lordships may wonder whether it is just that a company in these circumstances should be exempted from paying what they have freely admitted to be a statute-barred debt.

In any event, how does it help on the certainty point?—because if this is law it would mean that a company's balance sheet issued six months before the expiration of the period, although the creditor may not know about it, would start the period running all over again; so, again, there is no certainty in regard to this. I think that is all I can usefully say to the Committee in support of a plea that the law should remain as it is.

I should like to add only one observation and, with respect, I would ask that the noble and learned Lord the Lord Chancellor should deal with it. There occur now in this Bill, even if Clause 6 is accepted, not only the words "written acknowledgement" and "part payment", but the additional word "promise"; in other words, not even a promise after the termination of this period would allow the time to be revived. The word "promise", in addition to a written acknowledgment and the question of part payment, does possibly pose questions for the future in regard to interpretation. Of course, it does not say a promise with or without consideration, and it may very well be that a promise with consideration would amount to a new contract.

To give a quick example, if the creditor happens to have a right of set-off or a lien upon certain documents and is induced by a promise not to exercise his right of set-off or his lien upon the documents, it may be said that a new contract has arisen and that the time may run again, if he is not paid, and therefore he may again be able to institute proceedings. That may be the answer, but it is not quite clear, especially when the loose word "promise", if I may say this with deference, is used and there is clear indication that the promise does not amount to an enforceable contract.


I should like to presume to support the noble Lord, Lord Mishcon, over this amendment, which he has so ably presented. I hesitate to intervene in any argument which involves so many noble and learned Lords, but when I examined the previous consideration given by your Lordships to this matter I did not, with great respect, follow the arguments of the noble and learned Lord who sits on the Woolsack on the question of certainty.

I agree that certainty is to some extent essential in this kind of company law matter, subject to the fact that the principle of certainty does not conflict with natural justice. The Company Law Committee of the Law Society has adopted a very realistic view of this. Examples are given by the Law Reform Committee in paragraph 270 on page 24 of their report, dealing with the traps which arise in this matter in relation to so-called admissions made in relation to balance sheets. Therefore, may I simply support the arguments put forward on this matter by the noble Lord, Lord Mishcon.

4.17 p.m.


Nothing ever amazes me so much as the conservatism (with a small c) of my profession and of the solicitors' profession. Perhaps that is a good thing—and who am I to say that it is not ? Indeed, the noble Lord, Lord Mishcon, whom I should like to thank for his lucid and courteous approach to this question, made what I think is almost the classical argument for Conservatism (with a big C) when he said: "If not of prime importance, why alter the law as it stands?" That seems to me to be one of the foundations upon which the party of which I am a member would wish to rely, and base its case against its enemies on all the opposite sides of the Committee.

All the same, I am not altogether happy about it in this instance. As the noble Lord, Lord Mishcon, candidly admitted, we are in the face of a unanimous recommendation—and I apologise in parenthesis for having inadvertently let your Lordships believe on Second Reading that the recommendation was not unanimous—of the Law Reform Committee, after taking evidence from every kind of body. The evidence, of course, was not unanimous but moved in different directions.

I am bound to say that my general policy on law reform is to make it as uncontroversial as possible and also to accept, where I can, the recommendations of a committee of this kind or of the Law Commission, as the case may be. I applied my mind to this, both before introducing this Bill and after having heard the speech of the noble Lord, Lord Mishcon, on Second Reading. I am afraid that my own inclination remains exactly where it was; namely, that the Law Reform Committee was right and that the Law Society, for whom I entertain the very greatest possible friendliness and respect, have possibly allowed their learning to run away with them on this occasion.

I was mildly encouraged in my radical approach to this matter by what I understood the noble and learned Lord, Lord Elwyn-Jones, to say on really the same sort of material. He, without feeling that it would be the end of the world if somebody took a different view—and I cannot pretend that I do either—had rather come down on the same side as me. I do in fact come down in the end on the same side as I did before. This is really the old argument about the Pharisees and the Sadducees. The view of the Pharisees is that there is, or ought to be, resurrection after the cause of action has died. On this occasion, heretical as it may sound, I am with the Sadducees, that after death—of the remedy, to be pedantic and correct—there should be no resurrection.

The case to which the noble Lord referred, which I understand is called in re Campania de Electricidad and which, if my Spanish is correct, means the Company of Electricity, rather indicates the pitfalls which might beset an accountant who published a statute-barred debt in his company accounts, only to find the cause of action revived as a result of his doing so. I think that that is a pity. I do not myself find any difficulty in the conundrum which the noble Lord, Lord Mishcon, put to me at the end of his speech. I do not think there is any doubt that if, for consideration, or in some other way carrying out a legal obligation, parties to a contract decided to revive their obligation, the old obligation would revive. All we have said in the Bill is that after death part payment and acknowledgment or the other acts in the subsection will not suffice to revive the cause of action.

It is true that we were taught in the law schools that what died was not the right, but the remedy. But I am bound to say that I agree with the committee in their report, when they say that in this kind of action logic is rather unreal, and that the rule is rather unreal and serves no very useful purpose. They went on to say—and I think these are the words which were omitted by the noble Lord, Lord Mishcon, but they are relevant to my own argument: If the debtor and the creditor both wish to preserve the former's liability, they can do so easily in some other manner, and it seems to us to be better and make for a greater measure of certainty, once a debt has become statute-barred, that it should remain irrecoverable by action". Another argument, although it is not a conclusive one, in favour of the clause as it stands is that the history of limitation since 1939 shows that the fact that our law extinguishes the remedy and not the right has never been allowed to stand in the way of changes that are regarded as justified on other grounds, particularly on grounds of principle. For instance, Section 3 which deals with chattels, or Section 16 which deals with land, are in fact extinctive, and if there is to be a change of classification that could be dealt with separately from the question whether the right or the remedy is extinguished.

I also ought to point out to the Committee that the decision of the Law Reform Committee, which is at page 29 of their report, about the whole question of time running might have been different had they not come to this conclusion in paragraph 271, which has now been referred to by both the noble Lord, Lord Mishcon, and myself. I am not going to pretend that there is the smallest question of confidence or amour-propre about this, but I still remain of the same opinion. I do not know what the noble and learned Lord on the other Front Bench thinks, but I should be very glad to hear it if he has anything to say.


I cannot resist that invitation. I do not find this easy, but I am bound to say that while Parliament is under no kind of obligation to accept recommendations of law reform committees, however eminent, my inclination is to consider very carefully indeed their conclusions and, unless there seems to be some good reason to the contrary, on the whole to accept them. There is, after all, as the noble and learned Lord the Lord Chancellor has said, a fairly elaborate process of consultation and discussion with interested parties. When one looks at one of the annexes to this report, there is an impressive list of those who were consulted, those with interests which might be affected, and I am inclined to the view—although I would not go the stake for it—that probably the Bill is right as it stands.

I shall not enter into the theology of resurrection. I thought that the noble and learned Lord was extending his range of theology rather dangerously wide at one point. The happy event of the arrival of the right reverend Prelate occurred, alas! too late. Otherwise, we might have had the benefit of his views on the merits of resurrection, which were adumbrated by the noble and learned Lord. But, broadly speaking, in the sphere of the law of limitation, once the cause of action is dead, then dead it should remain. I am afraid that I still hold the same view.

4.26 p.m.


I am sorry for disagreeing with the Lord Chancellor and with an ex-Lord Chancellor, for both of whom I have the greatest regard and respect, but this problem is a little different from the ordinary problems with regard to limitation of actions. It is nothing like, for example, the one that we discussed a few minutes ago, where indeed people may be put to severe disadvantage by actions being brought many years after the cause arose. Here we have a simple case in which the debtor does not deny the debt; in which, on the contrary, he acknowledges it. He writes a letter to say, or presumably indicates, that he intends to pay up or else he makes a payment on account. He is at no disadvantage. The Statute of Limitations is not injuring him in any way. He is willing to pay his debt.


Will my noble friend allow me to intervene? Why does he not pay up, if he feels so virtuously about it? There is nothing to stop him.


There may be the simple reason that he does not have enough money. That is one of the most common reasons why people do not pay their debts. Anyway, if he acknowledges that there is a debt and indicates that he is willing to pay it, I do not see why he should be prevented from doing so, and that is the object of my noble friend's amendment which I think ought to be carried.


I have indeed a formidable opposition. I was endeavouring to use all my powers of hypnotism from this Back Bench on to my own Front Bench, but those powers have obviously failed. For the purpose of the record, and in the hope that something may intervene between the Committee stage and the Report stage, I should like very briefly, I promise, to deal with a couple of the points that have been made. I, too, will not follow the noble and learned Lord the Lord Chancellor into the division into which my noble race was once divided; namely, those of the Pharisees and the Sadducees. I shall only, for a moment, tell him that, as a rule, sitting on these Benches, there is no difficulty in deciding what we want to alter, and what we regard as of prime importance to alter. If the noble and learned Lord the Lord Chancellor finds difficulty over altering anything, because he cannot decide what is or is not of prime importance, that is a matter of difficulty for those who sit on his Benches, not for us.

To be serious for one moment, the noble and learned Lord the Lord Chancellor very fairly read out a sentence from the Law Reform Committee's report which said that the two parties, if they wanted to, could very easily come to some sort of agreement. I ought to be the last person in the world to force people away from lawyers' offices, but the fact remains that in order to obtain a document of that kind, legal advice would be necessary both for the creditor and the debtor, although in normal human affairs that is not so. I can only say, to follow the noble and learned Lord the Lord Chancellor into the New Testament for a moment, that if the creditor happens to be a Good Samartian and does not rush into the issue of a writ and if the debtor is honest enough afterwards not only to acknowledge the debt but even, in the language of this clause, promises to pay in writing, surely the creditor should not in those circumstances be robbed of his rights.

As I have said, it would not be a very practical exercise for me to try to divide the Committee, in view of the opposition, couched in the most courteous and gentle language, of the noble and learned Lord the Lord Chancellor and my noble and learned friend Lord Elwyn-Jones. Therefore—


I wonder whether the noble Lord would be good enough to give way to me. One phrase was used by the noble and learned Lord the Lord Chancellor which I could not understand. He referred to the Company Law Committee of the Law Society as, "having allowed their learning to run away with themselves". I understand that the noble Lord, Lord Mischon, comes here with the support of the Company Law Committee. If ever there was a committee—and I appreciate its membership—which adopts a realistic approach to the practical matters with which companies are concerned, that is it. I wonder, therefore, whether the noble Lord, Lord Mishcon, would care to deal with this expression which was used in passing by the noble and learned Lord the Lord Chancellor when he suggested that perhaps the Company Law Committee have "allowed their learning to run away with themselves", whereas it is their realistic approach to the matter which is clearly to be seen—and whether or not this is an amendment which the noble and learned Lord might care to take away and reconsider


I do not know whether that question is addressed to me or to the noble Lord, Lord Mishcon.


I was addressing both noble Lords.


I do not intend to follow up this question, although it was a most helpful intervention, because I do not think it will help my amendment. I am trying hard to persuade the noble and learned Lord the Lord Chancellor, with such powers as I have, to agree with me, and to quarrel over the composition of the Company Law Committee of the Law Society is hardly likely to accelerate that end.

There is one point which I forgot to mention, of which I have been reminded by the intervention of the noble Lord. Therefore I am grateful to him. The noble and learned Lord the Lord Chancellor did not deal in any way with my question with regard to the word "promise". Obviously he would have dealt with the question in the event of a new contract. I am not quite sure what "promise" means in this context and why it has to be added to the usual words "acknowledgment of indebtedness". It seems to me to be an example of tautology which may very well lead to misunderstanding in future cases, if this clause becomes a section of the Act. Nevertheless, in view of the opposition which has been expressed but still in the lively hope

of second or third thoughts being applied to it, I shall not press the matter any further.

Clause 6 agreed to.

Clause 7 [Postponement of limitation period in case of fraud or mistake]:

4.36 p.m.

Lord MISHCON moved Amendment No. 3: Page 6, line 5, leave out from ("defendant") to end of line 10.

The noble Lord said: As I have already said, this amendment has been inspired by the Law Society, and I have the privilege of moving it. It is one which can be described as a probing amendment, because I should very much like to have, as would others, some elucidation of its subsections. I promise again not to be legal and to try to speak in what I believe is described as "layman's language".

This clause deals, very understandably, with the fact that no relief should be given to anybody in regard to the limitation period if that person has been guilty of fraud, or if that person has, with another person, made a mutual mistake. It deals with a third matter: cases where there has been a deliberate concealment. I believe that it would be far better if the rubric referred to concealment. In fact, it does not. It refers only to fraud and mistake, but it is very important that the clause should deal with concealment.

If noble Lords will look at Section 26(2) they will find that it deals with concealment. It says that: …the period of limitation shall not begin to run until the plaintiff has discovered the defendant's concealment of the fact in question or could with reasonable diligence have discovered it The whole clause, however, depends upon two paragraphs with regard to the concealment. They are paragraphs (a) and (b) at the top of page 6 of the Bill. Paragraph (a) states that the period of limitation shall not begin to run until the plaintiff has discovered the defendant's concealment of: any fact relevant to the plaintiff's right of action [which] has been deliberately concealed from him by the defendant". That would obviously seem to be a correct way to deal with the matter. Indeed, the committee, which cannot always be relied upon to be omniscient and all-wise, suggested that the word "dishonestly" should occur. It was suggested by the Law Society that it was not necessary, surely, to go so far as to have to prove dishonesty and that to know that there had been a deliberate concealment was surely enough. I am glad, as I believe the committee will be, that that point has obviously been taken up in the drafting of this Bill.

To turn to the subject matter of my amendment, my suggestion to the Committee is that the next paragraph should be deleted. Your Lordships will find that the word "or" does not occur at the end of paragraph (a); the word "and" occurs there. Therefore, quite apart from a deliberate concealment, it is necessary to prove that it would be unjust, in view of the defendant's conduct in that or any other relevant respect, to allow him to rely for his defence on the expiry of the period of limitation otherwise prescribed by this Act. It may be difficult enough to show that there has been a deliberate concealment. However, the committee may well feel that once having shown there is a deliberate concealment, it would be quite wrong for the person who had deliberately concealed to be able to take avantage of the termination of the period of limitation.

This Bill seeks to go further and says, in effect, not only that the onus is upon the person concerned to show that the defendant deliberately concealed something from him; he also has to go on to show to the court that it would be unjust, in view of the defendant's conduct, to allow him to rely for his defence on the expiry of the period of limitation otherwise prescribed by the Act. The Committee may well feel that this is a completely unnecessary onus. I ought to say that both paragraphs are new and that therefore they ought to be looked at by the Committee with the greatest of care. So far as I know, they have not occurred in any previous Act. As I have said, this is more or less a probing amendment. I feel that unless the noble and learned Lord the Lord Chancellor can give a justification which satisfies the Committee for the additional onus of proving sub-paragraph (b)—namely, that it would be unjust to allow the defendant to rely for his defence on the expiry—I hope that what the noble and learned Lord the Lord Chancellor will do in addition will be to explain to the Committee the reason for these clauses (I am of course speaking only in regard to Clause 2) because I believe that, as they are new clauses, it will be most valuable to have at the Committee stage his explanation, which is always a lucid one, upon the record of the Official Report. But in particular by this amendment I am endeavouring to exclude this additional onus put upon a plaintiff by subsection (2)(b) at the top of page 6. I beg to move.


The noble Lord, Lord Mishcon, said that he would try to explain his amendment in layman's language. I am not absolutely sure, either that he has succeeded in that ambition or that in my reply I shall be able to use only layman's language in order to explain what the clause is about. The background, at any rate, is a perfectly simple one: it is that, if somebody has deliberately hidden his own wrongdoing or in certain other cases where his action has been such that it would be unconscionable for him to rely on the limitation period to save him from the consequences of his wrongdoing, he should not be able to take advantage of the limitation period. The noble Lord quite rightly says that it is a new clause but the purpose of the clause is to restate the law more or less as it is, in language which is more or less contemporary, because the old law has come to be interpreted by the courts in such a way that the old language is no longer contemporary and this is thought to be an easier way of putting it.

Basically speaking, I understood that the noble Lord was really probing when he proposed his amendment. The amendment would omit subsection (2)(b) in cases where a plaintiff seeks an extension of the limitation period on the grounds that a fact relevant to his right of action has been deliberately concealed. This imposes an additional requirement, namely that the court should be satisfied that the defendant's conduct was such that it would be unjust to allow him to set up a defence of limitation. The reason for this requirement, in one word, is "un-conscionability". It reflects paragraph 2.22 of the Law Reform Committee's report. They emphasise there that the essential feature of the concealed fraud approach is reformulated in subsections (2) and (3) of the new clause and is that it operates on some degree of blameworthiness on the part of the defendant over and above his failure to comply with his strict legal obligations. The traditional expression used is "unconscionable conduct". Subsection (2)(b), as to the meaning of which I am now being asked, will be useful to the courts because it will leave them with as much flexibility as they had before in interpreting fraud in the old Section 26 which is being replaced, in order to determinine when a defendant has behaved so badly that he should not he allowed to rely on the expiry of the relevant limitation period.

As I understand the Law Society's problem, they would like to know, first, why in subsection (2)(a) it is not the right of action which must be concealed but any fact relevant to the plaintiff's right of action which should be concealed. The present Section 26 operates on the date of the discovery of the fraud but this phrase cannot be reproduced in the new clause because the purpose of the clause is to get rid of the term "concealed fraud" as a concept, as a term of art. So one needs some new expression for the event which is to trigger off the limitation period.

The Law Reform Committee in their draft clause—and that is found in paragraph 2.24 of their report for those who desire the reference—suggested the phrase, "the discovery of the right of action", but we think it would be safer to use the expression which we have used—"fact relevant to the right of action". That is closer in concept to the discovery of fraud and it is only on his discovery that the defendant has concealed a relevant fact from him that the plaintiff will realise that he has any surviving right of action, so as to bring the section into operation. What will amount to a relevant fact will of course be a question for the court to decide.

There is a further point which I understand to be raised on behalf of, and indeed in correspondence by, the Law Society. That arises on Clause 3(3), where the definition of a "deliberate concealment" is extended to include the deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time. That is required since it is not intended that the new section should be in any way more restrictive than the present law. There was a case of the Court of Appeal—and again for the sake of those who like references and may want to refer to it again it is Beaman v. A.R.T.S. Ltd. and was reported in 1949 King's Bench, 550.

The Court of Appeal held that the plaintiff's right of action was concealed by fraud simply because of the surreptitious way in which the defendants had committed their breach of duty. On such facts, subsection (3) as at present drafted could make a difference. So, for example, a builder might take no steps deliberately to conceal his breach of duty but he might know perfectly well that it would not be discovered for some time. Then subsection (3) would bring his conduct within the ambit of the clause and the plaintiff would be entitled to the extension of time that it confers.

It could be argued against this part of the clause that the Law Reform Committee stated their considered preference not to include any reference to the likelihood of a defendant's wrongful act remaining undiscoverable for a substantial period or at all. Again the reference is paragraph 2.25 of the report. But against that I think it should be explained that the committee took the view that it would be wrong for the operation of the provision to depend solely on the probable undiscoverability of the defendant's breach of duty. The clause follows this view, in that undiscoverability is not such a prerequisite to the operation of the clause but comes in as a rider in certain cases only.

I realise that I have not succeeded entirely in using layman's language in that explanation. Probably those who are interested in it would like to read it rather than make up their minds about it in the course of what is necessarily an oral exposition. I hope that that will, at any rate, help the noble Lord, Lord Mishcon, either now, having heard it, or later, having read it, to feel more certain about the purpose and meaning of the rather technical matter which we are discussing.

4.50 p.m.


I am bound to say I have a degree of sympathy with the approach of my noble friend Lord Mishcon about this matter. It seems to me that where a defendant has by his conduct deliberately concealed from the plaintiff some circumstance which would establish the plaintiff's right of action, that course of conduct is not only blameworthy but, I should have thought, unconscionable. I am not at the moment fully satisfied with the need of a double proof of that blameworthy conduct required by the plaintiff, to establish not only deliberate concealment but also what is presumably intended as a further element in the burden of proof upon him, namely, to prove that it would be unjust in view of the defendant's conduct (in that or in any other relevant respect) to allow him to rely for his defence on the expiry of the period of limitation…". All I would say at this moment is that perhaps the noble and learned Lord would be willing to look at this again, as we who have listened to his explanation will, of course, be ready to review the matter ourselves in the light of reading that which, however clearly expressed orally, may nevertheless need a little time for full consumption and understanding.


If I may say so, the noble and learned Lord has made a very reasonable request. These are very recondite matters and the last thing I want to do is stand on my dignity, if I have any. At any rate, I make the promise which the noble and learned Lord has asked me to make. I hope everybody will meditate upon these words. I shall certainly not only do so myself but will ask my advisers to help me in the course of my lucubrations.


In view of the assurance the noble and learned Lord the Lord Chancellor has been good enough to give in response to the gracious words, that I could not have uttered but would love to have done, which were uttered by my noble and learned friend Lord Elwyn-Jones, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

4.52 p.m.

Lord MISHCON moved Amendment No. 4: After Clause 7, insert the following new clause:

Suspension of limitation periods during emergency period

The following section shall be added after Section 26 of the principal Act—

30A.—(1) The Lord Chancellor may by order made by statutory instrument perscribe the dates for the commencement and the termination of an emergency period.

(2) Where under any provision of this Act a period of limitation would otherwise expire during an emergency period that period of limitation shall expire one month after the termination of the emergency period".

The noble Lord said: I rise, hopefully, your Lordships may think, for the last time in order to move an amendment by way of an additional clause. If ever there was a clause which could be understood by lawyer and layman alike it is certainly this one. I have to add the word "unfortunately", because the clause endeavours to deal with the situation, which has becomes a little too common, that arises as a result of industrial action. Recently, of course, we suffered in the metropolis—and it was suffered elsewhere—in that the work of the courts was interfered with.

This clause asks, and it provides, that in these circumstances the limitation period may be extended by order. This, unfortunately, has already been done in Scotland; I say "unfortunately" only because of the necessity that arose there for it to be done. I have endeavoured, with the help of the Law Society obviously, whose wording this is, to forward this amendment in roughly the same form as occurs in the Scottish Bill. I feel that I need only add these couple of sentences. Your Lordships may feel that this really comes outside the scope of this Bill, in that we are dealing with a general situation and not one limited to the situation created if this Bill becomes law or indeed created by the whole question of the Statute of Limitations and limitation periods.

As we have heard time and again in the discussions that have taken place in the Committee, the fact is that no court has the power except in very limited circumstances, which have been defined in the course of the discussions here this afternoon, to extend the period of limitation. Therefore, the situation is that if—and it could be for a very good reason—a creditor, relying, if you like, until the very last moment upon the goodwill and good sense and decency of a debtor to pay his debt or satisfy his claim, whatever it may be, may suddenly find himself beaten by a situation completely outside his control, namely, that the courts are not open to receive a request for the issue of a writ on the very last day or last day but one before the period expires. As we are dealing with a situation where the time limit is a fixed one, and in the sort of case I am talking about there is no discretion for an extension, your Lordships may think it convenient to put this clause in the Bill and to see that proper machinery is available for the state of emergency to be covered by an extension.

I entirely realise, as does the Law Society, that this may be thought to be only a draft which ought to be considered between now and Report stage. As I have said, the copy is from a Scottish Bill and it may very well be that our circumstances may need different wording. I am really trying to get the principle accepted this afternoon, and would of course look with great respect upon any alteration in the wording that might turn up by the Report stage.


Again I am delighted in one sense, but surprised in another, that this suggestion should come from the Benches opposite and not from behind me. What the noble Lord, with all the authority of the Law Society behind him, is saying is that I should use a non-contentious law reform Bill as a vehicle for making contingency provision against the possibility of future strikes in the public service. I am advised that this might make the Bill contentious in another place, and unless the amendment is absolutely essential it ought not for that reason to be agreed to, law reform being by consent or not at all. I think this is really the stage at which the politician takes the place in my heart in preference to the lawyer. Of course, if the noble and learned Lord, Lord Elwyn-Jones, were to assure me that his party were solidly behind the Law Society and the noble Lord, Lord Mishcon, then it is conceivable that my heart might soften towards Lord Mishcon. But unless I get such an assurance I am bound to advise the Committee that this is not really a good thing to do in the way suggested.

I am a little less sympathetic to it than I would otherwise be because I always have an element of want of sympathy to people who leave things to the last possible moment. But I am now about to embark upon a very highly technical argument, in which I have some confidence because I have confidence in my advisers, that really this is not necessary. Therefore, on the ground that unless the amendment is essential it ought not to be agreed to because it might be contentious in another place and so prevent our little Bill from getting through, I must remind the House of the case—why litigants always have such funny names I never know—of Pritam Kaur v. S. Russell reported in 1973 Queen's Bench at page 336. It was there decided that an extra day for the issue of a writ could be allowed in any case where a limitation period expires on a day when the court office is not open. They never said, because it was not relevant to that case, that the reason it might not be open was a strike. However, I do not think that it is limited to cases where it happens to fall on a Bank Holiday, a Sunday, or whenever it may be.

Therefore, I am told that there is no reason why, in principle, the authority in Pritam Kaur ought not to be applied in cases where the office of the court is closed through industrial action instead of merely at the weekend or on a holiday. Of course, if the industrial action were so serious that it was physically impossible for litigants to approach the court for a period, I imagine that Parliament would have to legislate ad hoc. But my advice at present to the Committee, to the noble Lord, Lord Mishcon, and to the Law Society is that—although, quite obviously, a Conservative Government do not view this with any hostility—we must try to keep our proceedings as amiable as possible both here and elsewhere; and unless the noble and learned Lord who represents his party in this House has really got them all in control down the corridor and can tell me so, I think that I must turn a blind eye, or rather a deaf ear, to the eloquence of the noble Lord, Lord Mishcon.


The questions that the noble and learned Lord has addressed to me namely, whether the Labour Party is fully in support of the amendment of my noble friend Lord Mishcon, rather reminds me of Serjeant Sullivan's famous answer when there was a great argument in the court about the application of the principle of volenti non fit injuria He said,: "Yes in Ballymena"—or wherever it was—"they talk of nothing else, my Lord" or whatever the phrase may be.

I do not think that I can give either my noble friend or the noble and learned Lord the assurance which they seek. If it be that the case of Pritam Kaur—whatever his circumstances may have been and whom God no doubt will preserve—has clearly established that to achieve the purpose of my noble friend's amendment the proposal in the new clause is not necessary we are certainy treading on, to call it delicate ground would be an underestimate of the situation. It would really mean as I understand it that the Lord Chancellor of the day before a proclamation of a state of emergency had been determined by the Cabinet would with his undoubtedly great and abundant authority, plunge himself in the middle of the industrial dispute. And, in order to protect the sanctity of his courts—no doubt a worthy consideration—and what is more important their daily working efficiency, he would declare his own little state of emergency. All would then he resolved, because all so impressed by the majesty of that intervention would quickly come to heel. It is a little unreal. It is dangerous ground and I hope that my noble friend will not push us into it.


The last thing in the world that I would ever do is to push in any direction which my noble and learned friend Lord Elwyn-Jones advised me not to push. However I should like to make a few observations. First, if I had ever raised a discussion about the causes of an industrial dispute I could well understand that there could be political differences. I was endeavouring to deal in a very limited way with the results of an industrial dispute when the law courts were not available. I frankly thought—and obviously I am disappointed about what I had hoped for—that I was not embarking on any opportunity for the noble and learned Lord the Lord Chancellor to make a political point. He always finds it so tempting that I cannot blame him if he has taken advantage of the opportunity and has endeavoured to make one.

However, what I do want to say is that I am very glad that at least the point has been ventilated so that it can be considered. If indeed it is covered by the existing case then, of course, I am absolutely content. However, the noble and learned Lord the Lord Chancellor realised I was not speaking in any way for my party; I was not even speaking on behalf of these Benches. It so happens that my location—and I am proud that it is my location—is in these Benches; but I was speaking, as I said, on behalf of the Law Society. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Remaining clauses agreed to.

Schedule 1 [Amendments]:

5.05 p.m.

The LORD CHANCELLOR moved Amendment No. 5:

Page 11, line 20, leave out paragraph 5 and insert— (" 5. In section 3—

  1. (a) the words "or wrongful detention" and the words "or detention" shall be omitted wherever they occur in subsection (1); and
  2. (b) in subsection (2), the words from 'and for' to 'aforesaid' shall be omitted").

The noble and learned Lord said: I beg to move Amendment No. 5, and, with your Lordships' permission, I shall speak to Amendment No. 6. These two amendments appear to be related to the same subject. Again, it is wonderful what people think of. These are rather technical amendments and they remove an obscure anomaly in Section 3(2) of the Limitation Act 1939. The present law appears to be that if there is a conversion from a sane owner who goes mad before a second conversion from the first converter, the owner's title against both converters will not be extinguished until six years after the owner recovers his sanity. That ought not to be the law since the subsequent disability should not deny the first converter his rights under Section 3 declaring that the owner's title is extinguished. I beg to move.


May I ask whether that brilliant piece of intervention is the product of the Home Office mind or what the Lord Chancellor's Department is pleased to call its mind?


These matters are wrapped like others in impenetrable mystery and I can only remind the noble and learned Lord of the words of the White Knight in Alice Through the Looking-Glass, when he said, "It is all my own invention".

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Enactments Repealed]

The LORD CHANCELLOR moved Amendment No. 6:

Page 12, line 25, column 3, at end insert— ("in sub-section (1), and in subsection (2) the words from 'and for' to 'aforesaid'.").

On Question, amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 7:

Page 12, line 30, column 3, at end insert— (" In section 22, paragraph (e) of the proviso.")

The noble and learned Lord said: I beg to move Amendment No. 7. This is a drafting amendment which repeals paragraph (e) of the proviso to Section 22 of the 1939 Act and is consequential on the repeal of Section 2(5) in Schedule 1, paragraph 2.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with the amendments.