§ 28 After Clause 29, insert the following new clause:
§ ("Civil remedies for breach of section29.
§ . Any legal proceedings brought by any person to whom section 28 of this Act applies to enforce any right arising out of a contract made in the course of a business in respect of which he was at the time the contract was made in breach of subsection (1) or (2) of section 29 of this Act shall be dismissed if the defendant to the proceedings shows—
- (a) that he has a claim against the plaintiff arising out of that contract which he has been unable to pursue by reason of the plaintiff's breach of section 29(1) or (2); or
- (b) that he has suffered some financial loss in connection with the contract by reason of the plaintiff's breach of section 29(1) or (2);
§ This section is without prejudice to the right of any person to enforce such rights as he may have against another person in any proceedings brought by that person.").
§ Lord Mackay of Clashfern
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 28. This amendment reflects the Government's acceptance of representations made in another place that the introduction of a civil sanction for breach of the provisions relating to the disclosure of information regarding the ownership of businesses carried on under business names would provide a desirable reinforcement of the criminal sanction for breach of those provisions. We had originally consulted on the case for including a provision on the lines of Section 8 of the 1916 Act, but the consultations suggested that such a sweeping power would not be appropriate.
On further consideration the Government have 944 accepted that there was a need for a narrower power, as set out in this clause, to prevent the possibility that the owners of a business who had failed to comply with their disclosure obligations under Part II of the Bill should be able to enforce a contract against a person who had been unable to pursue a remedy or had suffered some financial loss in connection with the contract because of the failure to comply. The clause enables the court to grant relief only if it thinks it just and equitable to do so. I beg to move.
§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Mackay of Clashfern.)
§ Lord Ponsonby of Shulbrede
My Lords, the enforcement of the control of the use of business names is the subject of this amendment, and in a sense it is self-evident that there needed to be an enforcement procedure. However, following the doing away with the Registry of Business Names, and the consequential saving of 65 staff, in the light of the introduction of this new clause, involving the necessary enforcement of the two previous clauses, one must ask how many people will be involved in the enforcement procedure? It could well be that the enforcement procedure will reflect on the strength not of the Civil Service but perhaps the local authorities. I wonder whether the noble and learned Lord can give your Lordships any idea of the number of additional staff which the enforcement procedure will involve and say whether there is any net saving at all in staff.
§ Lord Mackay of Clashfern
My Lords, the enforcement procedure which is incorporated in this amendment is by way of preventing a person who is in breach of his obligations from enforcing his contract in the defined circumstances, and therefore I cannot see that any kind of manpower requirement is at all involved here. It is between the parties to the contract that this point would arise, as an incident of litigation between them, if it came to that.
§ On Question, Motion agreed to.