HL Deb 06 May 1982 vol 429 cc1293-305

.—(1)Damages recoverable in actions for defamation shall be by way of compensation only.

(2) As from the commencement of this Act it shall not be competent for a court to make an award of punitive or exemplary damages in an action for libel or an action for slander or an action for defamation, whether any such action was brought before or after the commencement of this Act.

(3) Nothing in this section shall affect the award of aggravated compensatory damages.").

The noble Lord said: My Lords, Amendments Nos. 8, 9, 10 and 11 are for new clauses which deal with certain aspects of the law on defamation. I venture to think they are clearly germane to this Bill and its Long Title. They undoubtedly refer to the administration of justice and matters connected thereto, and actions for defamation are not entirely dissimilar to actions for damages for personal injuries, which are of course covered specifically by various clauses in the Bill.

These four new clauses are somewhat more felicitously drafted than my normal attempts, the reason being that they are in fact extracted verbatim from the draft Bill which was appended to the report of the Faulks Committee on defamation, a distinguished body which reported in 1975 after some three years' hard labour, in the course of which I do not think they were granted parole! Having reported in 1975, their report has been in fact consistently ignored by Governments of both parties ever since. What I have endeavoured to do with these four amendments has been to extract four clauses which are important and which are, I hope, the least likely to arouse opposition and which I believe to be of particular importance to the press, who are very susceptible if the law of defamation appears to be bearing somewhat oppressively upon defendants in such actions.

I entirely accept that, with this Bill in its present state in your Lordships' House at this time in the parliamentary Session, if these are matters of controversy I should be placing the Bill as a whole in a difficulty if I were to endeavour to press these matters. I have ventured to indicate to the noble and learned Lord on the Woolsack that I hope one or more of those proposed new clauses might be acceptable and will not be regarded as too controversial. But I have also ventured to indicate to him that, if he takes the view that they are controversial and might therefore imperil this Bill as a whole, I will appreciate that position. I would be very grateful, if that were so, if the Government could give some indicaton of their current thinking on the matters raised by the four new clauses so that they can go back on the agenda for active political discussion. If in due course the noble and learned Lord takes that line, then perhaps I might say now that I shall most certainly ask leave to withdraw the various amendments. As I have said, there are four amendments and I hope it will be convenient if I deal with Amendment No. 8 separately and then, with your Lordships' leave, take Amendments Nos. 9 and 10 together and finally deal with Amendment No. 11 separately.

Amendment No. 8 deals with the award of damages in actions for defamation. Your Lordships will know, of course, that at the present time damages may be by way of compensation, and also in addition may be punitive. Compensatory damages arise under two headings, I think. First, where there is an award made to the plaintiff for injury to his reputation and, secondly, where there are what I think are usually known as aggravated compensatory damages and an award is made to the plaintiff because of injury to his feelings which has been caused by the high-handed and oppressive conduct of the defendant.

This new clause safeguards the award both of compensatory damages and of aggravated compensatory damages, but what it also seems to do is to abolish the present situation in which punitive damages may be awarded. It is perhaps tautologous to say that punitive damages are awarded by way of a punishment. It is clear, I think—although not everything is clear from the decisions of noble and learned Lords—in the case of Cassell v. Broome that these punitive damages may be awarded either where Government servants have somehow behaved in some outrageous way or—which is perhaps rather more frequent—where it appears that the defendants might make a profit on their defamation if all the defendants had to do as a result of the action was to compensate the plaintiff for the loss which he himself had sustained. That means in effect that punitive damages are really a fine, a financial penalty, which does not arise out of the plaintiff's loss in any way but which is ordered, unlike other fines, to be paid not to the state but to the plaintiff.

I do not think I need argue the equity of that matter any further than simply by citing the words in the Cassell v. Broome case of the late noble and learned Lord, Lord Reid, with whose observations very few of your Lordships in this House would ever at any time have wished to disagree. In that case the noble and learned Lord said: I think that the objections to allowing juries to do beyond compensatory damage are overwhelming. To allow pure punishment in this way contravenes almost every principle which has been evolved for the protection of offenders". I should like, if I may, simply to extract one or two phrases from the rest of the judgment: there is no definition of the offence…there is no limit to the punishment … it is inflicted by jury without experience of law or punishment and there is no effective appeal against sentence". The reason for that, as the noble Lord said, is that the Court of Appeal cannot substitute its own award. I venture to think that the arguments in that passage from the noble and learned Lord are irresistible and I hope that the noble and learned Lord on the Woolsack may find it possible to say that this amendment, No. 8, is one which might be included in this Bill as not giving grounds for real controversy. I beg to move.

Lord Rawlinson of Ewell

My Lords, while, on a Bill such as this, some of the comments which the noble and learned Lord has already made—and which I think the noble Lord who moved this amendment anticipated—must be an answer, and while no one is keener than I to see the law of defamation enacted in a proper form, I fear, much as I appreciate the views expressed by the noble Lord, that to introduce just one clause into this Bill would not be wholly appropriate. There is an argument on the other side. The trouble, always, is that juries in libel actions will give these vast damages and even, oddly enough, when the party is not a newspaper. They seem to get into their minds the belief that damages should be greater for an attack upon a person's reputation, because, I suppose, they are offended by it, than almost anything else.

While the control of damages is one of the great problems in the law of defamation, one must also say that the damage which can be done to a human being by calumny is sometimes quite incredible. It is only those people who have experienced it who realise how deep and how grave can be the harm which calumny can do. If your Lordships remember, Beaumarchais said: Calumny, calumny, leave me calumny", and Marie Antoinette said, My enemies will destroy me, if I calumny". In a sense, it has a very grave and immensely damaging consequence.

On the other hand, as regards damages which are punitive or exemplary, which have been recommended against by the Faulks Committee, there have been occasions when there has been such conduct and such behaviour purely for the publisher's own profit. He has sought to tell lies, knowing that they are lies, about other people. There are occasions when, perhaps, it is very useful to have this protection. But it is a matter for grave debate and I would say that, interesting as the matter raised by the noble Lord is, I would prefer to see a proper debate about the law of defamation, rather than introduce it into this useful Bill, and perhaps jeopardise all the other useful things which we are trying to do in it.

Lord Campbell of Alloway

My Lords, if consideration is to be given to this amendment, then consideration might also be given to one aspect of damage, although, of course, I take aboard the observations which my noble and learned friend Lord Rawlinson has just made. But your Lordships may think that this aspect is rather special, rather odd and extremely unsatisfactory. It arises in the context of subsection (1) of the proposed new clause, which is Amendment No. 8.

I hope it is not out of older—if it is, I hope that I shall be so informed and I shall resume my seat at once—to suggest that in defamation cases, where the only issue on appeal is the quantum of damage, the Court of Appeal should be able to substitute its own assessment for that of the judge or the jury, instead of ordering a new trial with the attendant delay and the attendant expense which, in the case of some private litigants, can defeat justice. This power of substitution should be applicable in cases of misdirection, non-direction, wrongful admission of evidence, wrongful exclusion of evidence and, indeed, where the verdict is unreasonable; such power, of course, being always discretionary for the Court of Appeal and never mandatory. It is so unsatisfactory that I respectfully ask—I hope that it is not controversial; if it is, let it be discarded—that when consideration is given to this aspect, if it is felt that this raises a serious problem, it might nonetheless be right to seek to deal with it on its merits or, as I prefer to put it, on its want of merits.

The Lord Chancellor

My Lords, I should like to thank all three noble Lords who have played their part in this debate. I should also like to thank the noble Lord, Lord Wigoder, for the way in which he introduced the amendment, because I appreciate very much indeed consideration for the personal difficulties in which I stand in the conduct of this Bill.

But I am bound to start by saying this. In my experience—and I shall try to justify what I am about to say—everything to do with defamation is controversial and most things to do with damages are controversial. I can only illustrate that by telling the House what some Members of it present already know very well, which is the history of this issue of punitive damages during my lifetime.

When my father was first called to the Bar, almost every issue in civil cases in the King's Bench division, as it then was, was tried by a jury. The very wide range of cases was such that a judge, in directing the jury, would direct them that it was open to them to find punitive or exemplary damages, which meant just what the noble Lord, Lord Wigoder, said. There came a time, of course, when the civil jury was virtually abolished, in practice, except for a very narrow range of actions, of which libel and slander, the defamation cases, were one and of course fraud was another. The effect of that was very largely to exclude punitive damages in a very wide range of cases, although a judge alone sometimes awarded them on a fairly modest scale.

Then came the case of Rookes v. Barnard in 1963 or 1964—I cannot remember the exact date. Then a united House of Lords almost entirely restricted the application of punitive damages to two cases. That was not of course a defamation case but it applies equally to defamation in particular. The two cases come from the judgment of the noble and learned Lord, Lord Devlin, when he said: The first category is oppressive, arbitrary or unconstitutional action by the servants of the Government". I do not believe that to abolish that at this present stage would be uncontroversial. On the contrary, I think that oppression by persons in an official position under the Government is very much in the mind of the ordinary person on the Clapham omnibus, and I do not think that the straightaway abolition of that category would prove uncontroversial. I shall come back to libel in a moment, because I have a little to develop on this argument. The second category was cases where the defendant's conduct has been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff.

Of course, the first case does not affect the press at all; it affects servants of the Government. The second case can affect the press and, in particular, it did affect a publisher, though not the press, in the subsequent case of Broome v. Cassell, to which I shall come in a second. I think that juries believe—and they are, after all, supposed to be the man or woman on the Clapham omnibus—that there are cases when people will deliberately commit defamation, in order to make a profit for which mere compensation would not be a sufficient deterrent. Although I agree with much of what Lord Reid said—and I think he was backing up the decision of the noble and learned Lord, Lord Devlin, in that case, in spite of his devotion to his own discipline of Scottish law to which he was more accustomed by upbringing—I do not think that the man and woman who are concerned with oppression by publication of this kind (Broome v. Cassell was such a case) would treat the abolition of the second category as uncontroversial. I must say to the noble Lord, Lord Wigoder, that I very much doubt whether the issue of defamation is so different from the other rather narrow ranges of cases where punitive damages are still applicable that it deserves special treatment. I find that to be a very strong argument the other way.

I now come to Broome v. Cassell which I had the traumatic experience of presiding over in the House of Lords. To illustrate how everything to do with defamation or damages is controversial, I should like to recount the nature of the trauma to which I was then subjected. In Broome v. Cassell there was an action for defamation arising out of the operation of the PQ17 convoy in the Northern Waters. The publisher and the author had attacked the honour of a naval officer who was plaintiff in the action. At all events, the jury, pursuing their line under Rookes v. Barnard—that is the restricted line of cases—were directed by the judge that they could bring in punitive damages. In fact, they brought in £40,000, which may or may not have been a good thing. But that is what they did.

When the case reached the Court of Appeal, a united and enthusiastic Court of Appeal, led by the formidable figure of the noble and learned Lord the Master of the Rolls himself, decided not merely that the jury were entitled to bring in £40,000 on the restricted grounds given by Lord Devlin but that the House of Lords had been entirely wrong to restrict them in any way. So Lord Denning, with two members of the Court of Appeal, overruled the House of Lords on the ground—which obviously, if I may say so firmly, was wrong—that the House of Lords had done it by mistake, per incuriam. Lord Devlin then came to me privately and, as perhaps he would permit me to say, complained of his treatment by the Court of Appeal. He said that this would not do. So, greatly assuming —I was then a young and enthusiastic Lord Chancellor—I summoned a House of Lords, consisting of no fewer than seven Law Lords, over which I presided because I realised that matters of great constitutional importance arose. We divided on every issue in that case: 4 to 3 and 3 to 4. In every instance I was happily one of the majority. Otherwise they were quite differently constituted majorities. But whatever else was true, all of us said that Rookes v. Barnard was a valid authority, and so it has remained ever since.

To show how differently people approach this problem—I am only illustrating the point because it is rather controversial—Lord Dilhorne agreed in effect with Lord Denning that we ought never to have gone down the restricted line in Rookes v. Barnard. Lord Reid, being brought up as a Scotsman where damages are called solatium, which is a word not known to English law, did not like punitive damages, although he was prepared to go along with his English colleagues, it being English law. Others took different views about different degrees of it. So the original award of the jury stood. Having described how seven Law Lords divided on about five questions, each with a differently composed majority except that in each case the majority included the Lord Chancellor, I can only say that I think I have established the point that anything to do with defamation partakes of controversy.

This brings me to the interesting suggestion which has been made by my noble friend Lord Campbell of Alloway about the powers of the Court of Appeal to substitute their own award of damages for that of a jury. This again will arouse the ire of Lord Devlin. I do not know whether it will be accepted or not, but he has written a book saying that in criminal cases, at any rate, juries should be respected and never interfered with by the Court of Appeal. I am not particularly in favour of jury trials for defamation. I will tell the House, frankly, that that is my private opinion. But to try to take away the right of trial by jury for defamation, which would be one of the most constructive things one could do with it, would create a parliamentary furore. So there we are. Everything is controversial in this field. That is why I must say to the noble Lord, Lord Wigoder, that I cannot accept this as a mild, uncontroversial amendment.

There is only one other point I ought to make. I am rather in dust and ashes. To the late Sir Neville Faulks, whom I appointed to the disagreeable task of reforming the law of defamation, I owe a public apology, despite his sad and premature demise. Not only did I appoint him to that task but when I was in Opposition I promised him that I would try to draft a Bill which gave effect to some of the provisions of his defamation report. This was a very difficult thing to do because there were five minority reports on different topics—again illustrating the difficulty of legislating on defamation without controversy. In the end I did not redeem my promise. I became Lord Chancellor again before I had had the opportunity to do so. When I sat down to try to draft (because there was no draft Bill attached to his report, so far as I remember) and put together a Bill which gave the meat of the law on defamation in its revised form, I found that it was beyond my powers to do it.

Having said this and having made my own apology in my own way, I agree that the law of defamation and the law of damages probably need to be reformed. However, I am quite sure that I cannot take it on board in this Bill. I welcome very much both the subsequent debates which will take place and the debate which has taken place because these are very important topics. I am very glad that your Lordships' House has had the opportunity to hear three such valuable speeches from noble and learned friends and from the noble Lord, Lord Wigoder, but I must ask the noble Lord not to press the matter at the present time. I am so sorry.

Lord Wigoder

My Lords, I am grateful for the observations which have been made on the amendment: the interesting suggestion of the noble Lord, Lord Campbell of Alloway, the very helpful observations of the noble and learned Lord, Lord Rawlinson, who has very wide professional experience of litigation of this nature, and of course the most interesting and helpful observations of the noble and learned Lord on the Woolsack. I think that a draft Bill was in fact appended to the Faulks Committee's report. If not, I am wondering where I got the four draft clauses from which are the subject of these various amendments. I am persuaded by the noble and learned Lord on the Woolsack that perhaps there is just the slightest element of controversy about this amendment and, in accordance with the indications I gave when I tabled it, I ask for your Lordships' leave to withdraw it.

Amendment, by leave, withdrawn.

6.9 p.m.

Lord Wigoder moved Amendment No. 9: After Clause 6, insert the following new clause:

("Limitations of actions. 1939 c. 21.

.—(1) At the end of the proviso to subsection (1) of section 2 of the Limitation Act 1939 (which subsection provides, among other things, that there shall be a limitation period of six years for actions founded on simple contract or on tort) the following proviso shall be inserted:— Provided further that in the case of actions for defamation, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years".

(2) In the case of actions for defamation, section 22(1) of the said Act of 1939 (which extends the period of limitation in certain cases of disability) shall—

  1. (a) have effect as if for the words "six years" there were substituted the words "three years"; and
  2. (b) not apply unless the plaintiff proves that the person under the disability was not, at the time when the right of action accrued to him, in the custody of a parent.

(3) Where, because the plaintiff did not know the relevant facts, an action for defamation has not been brought within the period of three years mentioned in subsection (1) or (2) of this section, such an action may with the leave of the court and on notice to the proposed defendant be brought within the period of 12 months from the date on which the plaintiff acquired knowledge of such facts; and the court shall have absolute discretion in deciding whether or not to grant leave under this subsection.

(4) Nothing in this section shall affect any cause or right of action which accrued before the commencement of this Act.").

The noble Lord said: My Lords, may I try again, in the hope that this is even less controversial than the previous amendment, and ask for your Lordships' leave to move Amendment No. 9 and with it to speak to Amendment No. 10. I hope very much that that leave will be granted, because if I am compelled to speak to Amendment No. 10 separately I shall find myself having to talk about various terms of art in Scottish law which are wholly unintelligible to me personally.

The position is that the two clauses—Amendment No. 9 relating to the situation outside Scotland and Amendment No. 10 relating to the situation in Scotland —are an attempt to reduce the limitation period which at present exists for defamation actions of six years to a period of three years. The position is that the six-year period within which actions must be commenced was imposed by the Limitation Act 1939. In 1975 that period was reduced to three years for actions for personal injury but, perhaps for some rather strange reason, was still left at six years for actions for defamation. I leave aside the slightly technical matters which do not concern the principle with which I am involved.

There is dealt with in subsection (2) of the first new clause a situation where the plaintiff may be under a disability at the relevant time. There is dealt with in subsection (3) a situation where relevant facts may come to the notice of the plaintiff only after the relevant period has expired. The real issue is whether the limitation period ought not to be reduced from six years to three years to bring it into line with actions for personal injury.

This again was the proposal of the Faulks Committee and indeed it might perhaps be arguable that three years, if anything, is still on the long side. The arguments in favour of halving the present period from six years to three years in line with personal injury actions are, I would have thought, self-evident to your Lordships. There is the first proposition that if a plaintiff is concerned about the damage done to his reputation, he should seek to vindicate it as quickly as possible, or at any rate within a reasonable period of time, and not wait until almost six years have elapsed before beginning proceedings affirming that his reputation has been seriously damaged.

Secondly, justice may perhaps require that the defendants should not be prejudiced, as they are at the moment, by what is an excessively long period. I accept that the situation was at one time somewhat worse, when any writ for defamation was regarded as having a "gagging" effect and prevented all comment by the press for the full period during which the writ was in existence. The situation is still that where a writ has been issued, the press in particular have to be extremely careful about such comments as they may make on matters which are subject to the writ.

The real problem, which not only the press but all defendants face where the period is as long as six years, is that in that time witnesses and journalists may move away, or may change from one newspaper to another; records may not be kept for the whole of that time; copy might be destroyed; notes might be lost and memories might fade. It becomes extremely difficult for the defence to conduct a case properly, fairly and competently if the events which are complained of are not in fact complaned of for a period of almost six years from the date of the particular incident. I hope that in those circumstances the noble and learned Lord might find this amendment a shade more acceptable than the previous one. I beg to move.

6.13 p.m.

Lord Rawlinson of Ewell

My Lords, I react to this amendment in a very similar way as to the last amendment, attractively as the noble Lord, Lord Wigoder, presents it. I think that there is a very strong case for the substance of what he said and the substance of this particular amendment. But again, would it not look a little strange to make this alteration in the law of defamation in the middle of this Administration of Justice Bill? The noble Lord may say that this Bill deals with damages for personal injuries and so we can include too a little bit about defamation. However, I believe it would look odd and strange, and I think it merits much fuller consideration.

May I also say to the noble Lord that he always uses journalists in his illustrations, whereas a great deal of defamation has nothing to do with newspapers. It often concerns individuals, neighbours and other people who are not journalists. Therefore, one has to look at the subject of defamation not only from the point of view of the press—either as a defendant or plaintiff—but also from the point of two individuals where an alleged tort has been committed by one of them. I personally would like to see in a defamation Bill the period of three years substituted for the period of six years, but I do not feel that this is the right time and the right Bill.

Lord Elwyn-Jones

My Lords, I feel that I should join with the noble and learned Lord in what he said, while remembering fondly the memory of the noble and learned Lord, Lord Justice Faulks. The sense of wearing sackcloth and ashes that I have arises because during my years on the Woolsack, owing to various reasons which it would not be appropriate for me to go into now but mainly a failure to reach an agreed position, we did very little about this. I believe it is right that this whole problem of the law on defamation and all its complications should be reconsidered legislatively, and the noble Lord, Lord Wigoder, has rendered a service in opening the matter again in this clause—subject, however, to my view that perhaps this is not the appropriate vehicle. Whether he thinks that the matter would be furthered by putting down a Motion to draw attention to the Faulks Report is a matter for him to consider, but it ill becomes me to make any suggestions in view of my own inaction. I am very sorry.

The Lord Chancellor

My Lords, again I think that the noble Lord, Lord Wigoder, has performed a public service by ventilating this particular recommendation. I am grateful to him, although I tend to take the view of the two noble and learned Lords who have contributed to the debate on this amendment. The noble Lord, Lord Wigoder, could have said that not only did the Faulks Committee decide in favour of a three-year period of limitation but so did the Law Reform Committee in effect, because although it made no precise recommendation, it did point out the analogy which the noble Lord, Lord Wigoder, himself used, between personal injury cases and defamation cases.

I believe there is a case for this change, although I also believe that we would be making a mistake by inserting it into this Bill. Incidentally, if the noble Lord, Lord Wigoder, wanted to put down a Private Member's Bill to test opinion, I will just point out that he will have to substitute references to the Limitation Act 1980 to the Limitation Act 1939 contained in his draft clause, because that is in fact the correct vehicle for amendments at the present time.

In addition, I should like to apologise to the noble Lord, Lord Wigoder, for my stupid mistake in saying that there was no draft Bill attached to the Faulks Report; It was a stupid mistake and there was really no justification for my lapse. Since the noble Lord has reproduced parts of that draft Bill in his three draft clauses, I can only thank him for treating me so tenderly.

Oh the whole, I am not at all sure whether this amendment would make the Limitation Act 1980 even more complicated than it is at the moment. But, at any rate, I cannot say that I have any strong objections at some stage to a reform of limitations law, although I think this is unlikely as the Act was passed so recently as 1980. I cannot say that I have any violent objections to such a change in the law, but I would rather the noble Lord did not try to insert such a change in the present Bill, for reasons I have given already. Almost anything connected with defamation, and a good many things connected with the law of limitations, tend to be controversial. It may very well be that if this thing was launched, either by the noble Lord or by someone else, as a Private Member's Bill one could see whether one could give it a fairer wind than one has been able to give this particular amendment. That really is my answer to the noble Lord.

Lord Wigoder

My Lords, I am much encouraged by the consensus of opinion expressed by three very distinguished lawyers who have spoken on the subject of this amendment. I would like, if I may, to express my particular gratitude to the noble and learned Lord on the Woolsack for his helpful suggestion that it might be possible to proceed in another way in order to secure an amendment which is clearly regarded in all parts of the House as desirable. I would like to reflect on that, and in the meantime I ask your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Lord Wigoder moved Amendment No. 11: After Clause 6, insert the following new clause:

("Striking out and dismissal of actions

.—(1) If an action for defamation has been struck out or dismissed, no further writ in respect of the same cause of action shall he issued without the leave of the court.

(2) Where at any time the plaintiff in an action for defamation has not taken any step in the action for a period of 12 months, the action shall, on the application of the defendant, be dismissed for want of prosecution, unless the court on cause shown otherwise orders.").

The noble Lord said: My Lords, this is a matter I can take, if I may, with even more brevity. The present position, as I understand it, is that if a writ is issued in an action for defamation the decision in Birkett and James leads to the conclusion that whatever delay then follows the issue of the writ it is not possible for the defendant to move to strike the action out until the limitation period has expired, whether it be three years as I was proposing in a previous amendment or six years as it is now. This would appear to be a quite intolerable situation so far as defendants are concerned. Therefore, all this proposed new clause provides is, first, if the plaintiff goes to sleep, as it were, for a period of at least 12 months between any of the stages of an action, then the defendant shall have the right to have the action struck out, unless there are special circumstances in which the court may decide to the contrary. Secondly, because it must be complementary to that right, if an action is thus struck out it cannot simply be set down again the next day, as I believe it can at the moment, unless leave of the court is given that a writ should be issued for the same cause of action. I hope that the proposals in Amendment No. 11 are self-explanatory. I beg to move.

The Lord Chancellor

My Lords, there being no great enthusiasm to speak on either side, may I say to the noble Lord, Lord Wigoder, again thanking him for what he has done in raising this subject, that here I am a little less favourable to what he has said, on its merits. I do not see that, as regards striking out or dismissal for want of prosecution, a defamation case is entitled to any preferential treatment over any other kind of proceeding. That tends to be my opinion. There was a time, certainly when my father was practising at the Bar, when the practice at the Bar was practically never to apply to strike out or to dismiss for want of prosecution. I think that has had a salutary effect on gave me when I went to the bar; he said, "You will only succeed in resurrecting the action".

Since then the Court of Appeal has taken a rather more robust view and has said in effect that where there has been an inordinate and inexcusable delay the action shall be struck out or dismissed for want of prosecution. I think that has had a salutory effect on dilatory plaintiffs. I suspect that that is the right line, to leave it not on a statutory basis but subject to the discipline imposed by the court, which takes into account the interests of the defendant and the interests of justice on behalf of the plaintiff before it exercises the rule. I do not see what the case is for taking the law of defamation out of the general principles relating to striking out or dismissal for want of prosecution and giving it preferential treatment. So I am rather less favourable to this amendment on its merits than I have been to the other two amendments.

Lord Wigoder

My Lords, I am grateful for those observations. I think, if I may say so, the problem largely with defamation writs which does not arise with writs in other causes of action is the, now rather more limited, gagging effect, but nevertheless the gagging effect which the issue of the writ may in certain circumstances have. However, I would like to reflect on what the noble and learned Lord has said. Clearly this is again not a matter which it is the feeling of the House would be appropriate to proceed to include in this Bill. I ask your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Award of provisional damages for personal injuries: Scotland]:

The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 12: Leave out Clause 12 and insert the following new clause:

("Award of provisional damages for personal injuries: Scotland.

12.—(1) This section applies to an action for damages for personal injuries in which—

  1. (a) there is proved or admitted to be a risk that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of the action, develop some serious disease or suffer some serious deterioration in his physical or mental condition; and
  2. (b) the responsible person was, at the time of the act or omission giving rise to the cause of the action,
    1. (i) a public authority or public corporation; or
    2. (ii) insured or otherwise indemnified in respect of the claim.

(2) In any case to which this section applies, the court may, on the application of the injured person, order—

  1. (a) that the damages referred to in subsection (4)(a) below be awarded to the injured person; and
  2. (b) that the injured person may apply for the further award of damages referred to in subsection (4)(b) below,
and the court may, if it considers it appropriate, order that an application under paragraph (b) above may be made only within a specified period.

(3) Where an injured person in respect of whom an award has been made under subsection (2)(a) above applies to the court for an award under subsection (2)(b) above, the court may award to the injured person the further damages referred to in subsection (4)(b) below.

(4) The damages referred to in subsections (2) and (3) above are—

  1. (a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
  2. (b) further damages if he develops the disease or suffers the deterioration.

(5) Nothing in this section shall be construed—

  1. (a) as affecting the exercise of any power relating to expenses including a power to make rules of court relating to expenses; or
  2. (b) as prejudicing any duty of the court under any enactment or rule of law to reduce or limit the total damages which would have been recoverable apart from any such duty.

(6) The Secretary of State may, by order, provide that categories of defenders shall, for the purposes of paragraph (b) of subsection (1) above, become or cease to be responsible persons, and may make such modifications of that paragraph as appear to him to be necessary for the purpose.

And an order under this subsection shall be made by statutory instrument subject to annulment in pursuant of a resolution of either House of Parliament.").

The noble and learned Lord said: My Lords, this amendment seeks to leave out the existing Clause 12 and substitute a new clause for it. The actual effect of the amendment is not perhaps as drastic as might appear at first sight. We sought the view of the Lord President of the Court of Session on the form of this provision, and this amendment is proposed in the light of the views which he very kindly supplied to us, and we have also taken the opportunity to make some drafting improvements.

Perhaps the principal change that has been made can be characterised as putting on the face of the primary legislation what had been intended to be left for rules of court. The amendment substitutes the word, "risk", for the word, "chance", in the first line of subsection (1)(a); the categories of responsible person to which Clause 12 applies are specified; "on the application of the injured person" is inserted, so that it is entirely up to the pursuer whether he goes for a final settlement of his claim or chooses to apply for provisional damages in the first instance with the possibility of a second instalment later. There is also provision for the court to stipulate a time limit. Redrafting of subsections (2) and (3) has been made in order to bring out the sequence of events and to make it clear that the two amounts of damages are not to be determined at the time of the original inquiry, but that at the original inquiry it is only the first award which is quantified and an application made to postpone the balance, the balance to be assessed when that application is made. There is also provision for the list of categories of responsible persons to be changed by the Secretary of State. These thoughts, as I said, were intended to be given effect to in any event, but it was thought by the Lord President advisable that they should be made on the face of the legislation. I beg to move.

On Question, amendment agreed to.

Clause 14 [Amendment and repeal of enactments]:

Lord Mackay of Clashfern moved Amendment No. 13: Page 11, line 1, leave out ("the Damages (Scotland) Act 1976") and insert ("that Act").

The noble and learned Lord said: My Lords, Amendment No. 13 is a purely drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Clashfern moved Amendment No. 14:

Page 11, line 18, at end insert—

("(3) Notwithstanding section 66(5) of this Act, where an action to which section 5 of that Act applies has been raised and has not, prior to the commencement of subsection (2) above been disposed of, the court shall not dismiss the action on the ground only that the pursuer has failed to serve notice of the action as required by subsection (6) of the said section 5.").

The noble and learned Lord said: My Lords, this is a technical amendment to ensure that actions which have been raised can benefit from the repeal of Section 5 of the Damages (Scotland) Act 1976 immediately this Bill comes into force. It means that the burden of notifying all the relatives imposed by Section 5 need not be pursued to the bitter end in such a case in view of the change in the law. I beg to move.

On Question, amendment agreed to.

6.29 p.m.

Lord Stanley of Alderley moved Amendment No. 15: After Clause 16, insert the following new clause:

("Certain contract debts to carry interest.