Latent Damage Bill [H.L.]

HL Deb 08 April 1986 vol 473 cc97-128

4.3 p.m.

House again in Committee on Clause 1.

The Chairman of Committees (Lord Aberdare)

In calling Amendment No. 4, I have to point out that if this amendment is agreed to I cannot call Amendment No. 5.

Lord Hacking moved Amendment No. 4: Page 2, line 14, leave out from ("knowledge") to end of line 41 and insert ("of such facts about the damage that was attributable in whole or in part to the act or omission in respect of which damages are claimed, as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings in which such damages are claimed.").

The noble Lord said: This is a friendly amendment. All the amendments that I have tabled are intended to be friendly, but I should like to give particular emphasis to the friendliness of the present amendment, friendly to the Bill and to the report of the noble and learned Lord, Lord Scarman. It is also intended to be loyal to the report of the noble and learned Lord. If he intervenes in Committee, which I anticipate he will on this amendment, and if he should say in his submission that this amendment in some way or another is neither friendly nor loyal to his report, then I would be particularly hurt.

When I spoke at Second Reading I went through in some detail the criticisms concerning subsections (5) to (9) of this clause. Before I spoke at Second Reading the noble and learned Lord himself, if my recollection is right, said that he recognised that some may think that these provisions are "too cumbersome". It is my submission to the Committee that they are indeed too cumbersome and that is the reason why I have tabled this amendment.

The provisions of subsections (5) to (9) seek to set out the "knowledge" that should be required of a plaintiff who seeks the extended three-year period of limitation from the date of his knowledge. It involves tests and sub-tests. If I may, I shall take the Committee through these tests and sub-tests again to illustrate why I believe they are too cumbersome and why I am inviting the Committee to remove them from the Bill. Having gone through the preamble with the words: any potential plaintiff first had knowledge", the test goes on, in paragraph (a) of subsection (5), with the following words of having "knowledge both": of the material facts about the damage in respect of which damages are claimed", and, on the next test: of the facts relevant to the current action mentioned in subsection (7) below". Having established those two tests, the Bill then proposes to go on to further definition and further sub-tests.

Thus for the test of material facts, the Bill goes to subsection (6) with these words: For the purposes of subsection (5)(a) above"— and that is the one to which I have referred— the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment". I suppose it could have gone a little bit further in relation to, say, a defendant who was not going to die or in the case of a limited company or corporation which was not going to go into liquidation—short of giving the personal characteristics of the defendant. I say to your Lordships that this is far too cumbersome a series of sub-tests and it is only going to provide lawyers—and here is one lawyer who does not wish to be provided with it—with a feast of argument and litigation and is going to go right against the whole purpose of the Bill which is to provide clarity and certainty.

Then let us go to the next sub-test which is following through from subsection (5)(b). These are the facts which are relevant as for that subsection. I am reading now from subsection (7): The other facts referred to in subsection (5)(b) above are—

1. (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and
2. (b) the identify of the defendant; and
3. (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant".

I suggest in my amendment that all of those subsections should be removed from the Bill and a much simpler and shorter phraseology should replace them. Doing my best—which may not be sufficient—I have attempted, in my amendment, to bring out the best of the actual text of those subsections which I have suggested, as a whole, should be deleted because of their length and unnecessary complexity.

The report of the committee of the noble and learned Lord, in approaching the question of knowledge, considered three possibilities. The first was to define knowledge fairly generally. I am referring to paragraph 4.5 of the report. The second possibility was whether to adopt a more complicated or "more precise formulation", which was the formulation used, and still used, in Section 14 of the 1980 Act relating to personal injuries and which is the section that these proposed provisions of the Bill attempt to follow.

The third possibility that the noble and learned Lord's committee considered was to disregard constructive knowledge altogether and to define knowledge solely in terms of what the plaintiff actually knows. That one went quickly out of the window. The noble and learned Lord's committee did not think that that was the right approach. They were left therefore with the two that I have brought to the Committee's attention.

The Law Reform Committee, having considered the three possible approaches to defining negligence for this extended period of limitation, went against the general knowledge test and went for the more defined test which is extracted from Section 14 of the main Act. However, as set out in paragraph 4.47 of the report, their main concern was that the plaintiff should have knowledge of sufficiently serious damage (I am quoting): to justify the institution of proceedings. Thus this proposed amendment brings into account this test of knowledge without going through all the other tests which, while enacted to a personal injuries case, are not, in my submission, suitable or necessary for latent damage cases and which provide benefits to plaintiffs—for example, the prerequisite of knowledge of identity of the defendant—not otherwise available to plaintiffs in any other situation where a limitation point arises.

As recognised by the Law Reform Committee, the complex test used in Section 14, to which I have referred the Committee, for personal injuries does have disadvantages. Indeed, I suggest that it runs in the end to the disadvantage of both plaintiffs and defendants if the law provides tests which are so complicated that they inevitably result in litigation.

Finally, I would suggest there is no particular logic in picking up—in the phraseology used by the noble and learned Lord on Second Reading—"textually" Section 14 for these new provisions. On the contrary, I suggest that a better approach would be for these proposed provisions relating to latent damage to be put into better form in the hope that the cumbersome provisions relating to personal injuries cases may later be reformed. It is on that basis that I beg to move.

Lord Scarman

I should like to reassure the noble Lord, Lord Hacking, that I certainly regard the intention behind this amendment as helpful and loyal to the Bill. As the committee made quite clear in the passage to which the noble Lord has referred, there is a balance of advantage and disadvantage to be considered here. The committee went into it very carefully and gave their conclusions in paragraph 4.7 that although the proposed amendment has the advantage of simplicity the more complicated formula for which the committee opted gives more guidance to a plaintiff uncertain as to his position than does this simple proposal. Again, clearly, this is a balance of advantages and the committee has come down in favour of more detailed guidelines than are possible in the simple formulation proposed by the noble Lord, Lord Hacking.

I would add only one further point. It is of course entirely a matter for the Committee to consider, and I am only here to indicate why the committee took the view that it did. Perhaps it would be helpful to look, not at the committee's report but at the Bill as it stands at the moment. Although the Bill is more detailed than the noble Lord, Lord Hacking, would have it, those details are not difficult and they are not legal jargon: they are indicating to a plaintiff and his adviser the sorts of matters which they have to consider in making up their minds as to whether the damage is sufficiently serious.

Subsection (6) is really neither here nor there. It says the same thing as this amendment, but in slightly more words, and I think those words are helpful. I will say no more about that. Subsection (7) is what really matters. In deciding whether damage is significant or serious, a number of facts have to be considered, including these: that the damage was attributable in whole or in part to the act or omission. That is not difficult; it is helpful. They have to make quite sure that the damage is attributable to the act or omission which constitutes the breach of duty.

4.15 p.m.

Another matter to which they have to pay attention, as has the court, is whether there was knowledge of the identity of the defendant. It is a very important matter, easily overlooked if all you have is "sufficiently serious" in the legislation. Finally, if it is alleged that the act or omission was that of a person other than the defendant, it is necessary to know the identity of that person and the additional facts supporting the bringing of an action against the defendant. Here is a great safeguard for a plaintiff. He is not to be fixed with knowledge unless he has a knowledge not only of the gravity of the damage but of its attributability to the breach of duty and as to the identity of the person who can be shown to have done the damage.

Those, I think, are useful guidelines, protecting a plaintiff uncertain as to his position. It is for those reasons, though I see the persuasive strength in the argument of the noble Lord, Lord Hacking, that for once I would prefer more words rather than fewer. In this case, brevity may be the soul of wit but it is not the soul of explanation.

Lord Elwyn-Jones

I respectfully agree that the inclusion of the words from line 14 down to line 41 will be helpful to a plaintiff and will produce certainty where otherwise the generality of the proposed amendment would not have the same result. I appreciate that this flies slightly in the face of the previous doctrine of the noble and learned Lord, Lord Scarman, who has rather favoured a generality of expression in some legislation. I say that without, I hope, teasing him; but on this occasion I certainly agree with what the noble and learned Lord has said.

The Lord Chancellor

I do not want to prolong matters, when what I wish to say has been said very largely by my noble and learned friend Lord Scarman and by the noble and learned Lord on the Opposition Front Bench. The matter, for those who are interested in argumentation, is set out in paragraphs 4.5 to 4.8 inclusive of the report of the Law Reform Committee. The draftsman has endeavoured to give effect to the rather careful argumentation in those paragraphs. I have never set myself up as a very grand draftsman but I personally prefer, for the reasons given by my noble and learned friend on the Cross-Benches, the effort of the draftsman rather than the well-intentioned amendment—and I do not in the least do other than applaud the intentions of the amendment—which desires to shorten it.

I am never particularly either frightened or allured by the phrase which sometimes occurs in our debates about "a field day for lawyers". We do our best to understand what Parliament intends. In this case, the draftsman has suggested that Parliament should spell it out; and spelling it out is what I recommend the Committee to do in this particular case. The reasons have been stated by my noble and learned friend and therefore I will not repeat them.

Lord Hacking

At this stage of the Committee, I am rather looking for a "friendly" voice in my favour. I thought I might get a friendly voice from the noble and learned Lord, Lord Scarman, for the brevity of my amendment, as opposed to the series of tests that are set out in the Bill. However, with great respect to the noble and learned Lords who have spoken—and I am taking a bold course now in disagreeing with them—the problem does not lie in the tests themselves. In my submissions I have not suggested that any of those particular tests are difficult to understand. I am looking at the matter from a practical point of view. I ask the Committee to look at the matter from a practical point of view. The practical problem is that if the matter gets to the court, the court must append each of these tests against the potential plaintiff. That is the complication.

A further complication is that even if the matter does not go to a court, insurance companies, the plaintiff and the defendant have to decide upon their positions. They have to decide whether they are statute barred. That is a contentious issue. If we are therefore inviting the plaintiff and the defendant to go through the tests set out here, the result of that, in my submission, will be—contrary to the spirit and the intention of the Bill—more litigation, because there will be more room for argument. Hence matters will not become settled as quickly and easily as they could have been if the Committee were prepared to adopt the simpler—after all the words are taken from these lengthy proposals in the Bill—and the more general tests that I am seeking to persuade the Committee to adopt.

I am not a noble and learned Lord, and I am three down, anyway, in the arguments in this Committee. Therefore I shall not be so bold as to press the amendment at this stage, but I would ask the noble and learned Lord the Lord Chancellor to give some consideration to the arguments that I have presented; and I would, with the greatest respect, ask the other noble and learned Lords to think upon the arguments that I have attempted to present on this amendment. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hacking had given notice of his intention to move Amendment No. 5: Page 2, leave out lines 19 to 23.

The noble Lord said: It is not my intention to move this amendment because this amendment was discussed when I moved Amendment No. 3.

[Amendment No. 5 not moved.]

The Deputy Chairman of Committees (The Earl of Listowel)

I have to point out that if Amendment No. 6 is agreed to, I cannot call Amendment No. 7.

Lord Silkin of Dulwich moved Amendment No. 6: Page 3, line 14, after ("(1)") insert ("Subject to subsection (3) below").

The noble and learned Lord said: I hope that it will be for the convenience of the Committee if, with Amendment No. 6, I discuss Amendment No. 13, to which Amendment No. 6 is a paving amendment. The substance of the matter is in Amendment No. 13. May I also take the opportunity to mention to the Committee that in the printed copy of the Marshalled List Amendments Nos. 7 to 10 inclusive appear to be shown against my name and that of the noble and learned Lord, Lord Denning? In fact, the name of the noble Lord, Lord Hacking, should have been inserted above Amendment No. 7. I have no responsibility for anything below Amendment No. 6, other than Amendment No. 13, I hope that is clear.

In the Second Reading debate there was general agreement that the broad principle should be accepted that a person who, through someone else's wrong, suffers damage, should not be prevented from obtaining compensation merely as a result of the lapse of time, particularly in circumstances in which he may be quite unaware of his rights when the time might expire. It is to deal with the difficult problems that arise in practice from that principle that these amendments have been put down.

In paragraph 4.2 of the report, the Committee advanced three principles of great importance, from which I do not dissent. I would myself advance three other principles which I hope are at least equally acceptable. First, to summarise what I said a moment ago, the person who has suffered a loss through another person's wrong should have a remedy unless the public interest requires otherwise. The second is that the public interest requires that there should not be avoidable delay in pursuing a remedy as that may tilt the balance of fairness against the alleged wrongdoer. The third is that even unavoidable delay may so prejudice the alleged wrongdoer that it would be unfair to give any remedy against him.

The first of those principles probably needs no elaborate support. From what I read of what was said in the debate on Second Reading of this Bill and of the 1975 legislation which was introduced by my noble and learned friend Lord Elwyn-Jones, the principle commands general acceptance.

On the second principle, perhaps I may cite those provisions of the law, and Clause 2 of this Bill, which disregards the period of disability. That period is disregarded because the delay is not avoidable and, therefore, despite the potential prejudice of that delay to the alleged wrongdoer he is required to accept it. The arguments in relation to uncertainty and so on go by the board in that case.

The third principle involves the balancing of circumstance against circumstance in order to achieve equity. That cannot be done with justice by a fixed, immutable limitation period. Circumstances vary; cases differ; and prejudice on one side or the other will alter from one case to another. Therefore, the best way to give effect to the third principle is to provide the court of trial with a limited degree of discretion. That was recognised in 1975 in the case of personal injuries. It was recognised primarily because of the emergence of the latent personal injury of diseases such as pneumoconiosis which may take many years to become apparent. It was to meet such cases that the 1975 Act introduced what was then described as a novel concept of giving a discretion to the courts.

When introducing the Bill, my noble and learned friend, dealing with the particular clause which gave the discretion, said: New Section 2(D) provides that the court shall have a general discretion to override time limits if to do so would be fair as between the plaintiff and the defendant. The court must consider all the circumstances of the case; but guidelines are given in the Bill, specifying the matters to which the court should have particular regard. These include the length of the plaintiff's delay, and the reasons for it; the conduct of the defendant; disability suffered by the plaintiff after his injury; and the nature of any expert advice given to him, whether sound or whether misleading".

In parenthesis, I shall say that the arguments put forward by the noble and learned Lord, Lord Scarman, on the last amendment that we discussed, in relation to specifying the guidelines, apply just as much in relation to this matter as in relation to that, in my view. My noble and learned friend continued: it is only one of the factors the court will take into account in assessing whether it would be equitable, in the broadest sense of the meaning of that word, to override the limitation defence, having regard to the prejudice to the plaintiff if he is not allowed to proceed, and to the defendant if he is".—[Official Report, 1/5/75; col. 12.] That was the view taken on that issue by the then government, your Lordships' House and Parliament.

It was entirely clear to all that this then novel concept would create difficulties for the court and would also erode the certainty which is ideally desirable. In fact, the noble and learned Lord, Lord Edmund-Davies, in a notable maiden speech, quoted the then Law Reform Committee which pointed to the difficulties which a judge would face in weighing these matters on one side or the other. He said: There have been moments when I have wondered whether the resultant uncertainty is too big a price to pay, but reflection has, on balance, led me to the firm conclusion that the provision makes for justice, and I respectfully recommend its acceptance".—[Official Report, 1/5/75; col. 18.]

4.30 p.m.

The view of the House was very strongly expressed by the late Lord Morris of Borth-y-Gest. He also looked at the difficulties that discretion would necessarily provide for the court; and he said: I welcome giving discretion to the court to say that the case may proceed despite the fact the time has gone by. The Bill uses the word 'equitable'. In the context that simply means 'fair'. Is it fair in all the circumstances? I can see objections to this provision. It will be said that there is some uncertainty. It will be said that probably there would be no appeal because, if the judge had weighed all the considerations and did not express himself as having considered something that he ought not to have considered, it might well be that it would be difficult to appeal against any ruling of the judge. It might well be that the judges will not entirely welcome having this rather difficult duty imposed upon them. But, having said all that, I still think it a reasonable course to follow. I believe it is the fair way to deal with this difficult situation". He went on to say: For my part, I would trust the judges in matters of this kind. They are given the guidelines; they must assess all the difficulties on either side and then finally say, 'Is it fair or unfair?'".—[Official Report, 1/5/75; cols. 25, 26.]

That was certainly the view taken in relation to personal injuries and, as I said, very largely in relation to injuries which are likely to be of a latent character, such as pneumoconiosis, which lie buried for a long period of time, and therefore where this difficulty is most likely to arise. The principles which I have been reciting from the speeches on that occasion apply with equal force to the diseased building as to the diseased lung. It is for that reason that I have tabled my amendments to Clause 1.

Like the drafters of the late 1975 legislation in relation to personal injuries, I have sought faithfully to follow the principles which were so cogently advanced in that debate and the language in the legislation which ultimately gave effect to the principles of that debate. For that reason, I have sought to go into detail rather than take the course of laying down generalities in the way that we discussed on the previous amendment.

I regret that to this extent—and only to this extent—I differ from the very cogent and persuasive report of the committee chaired by the noble and learned Lord, Lord Scarman. That committee invoked what it rightly described as a relatively novel concept in English law—the long stop device. That is at paragraph 4.10. It considered the by now not quite so novel concept of a discretion to extend the period but concluded that the value of the long stop would be lost if there was a judicial discretion to postpone it. I would prefer myself to say that justice can, in the case of the diseased building as in that of the diseased body, be more clearly and certainly done if each case can be determined by the court which is seized of all the facts than if a fixed line is drawn which cannot be altered.

The committee considered three lines, at 12 years, 15 years and 20 years. It struck a balance with 15 years. I do not consider that it would be doing violence to that balance if it was struck at such point between 15 years and 20 years as a trial judge considers to be equitable in all the circumstances of the particular case, applying the guidelines that Parliament lays down as proper and which have in relation to personal injuries stood the test of time since the 1975 Act. It is for those reasons that, in my view, the amendment would be an improvement on the Bill.

Lord Denning

I support this amendment. We are dealing with latent damage to property: for instance, after bad foundations have been put in. The weakness and the cracks may not appear for years—15, 20 or 25 years—and the law until now has said that time does not run against a plaintiff if he did not know of the damage and could not have discovered it with reasonable diligence. That is quite intelligible and fair to the plaintiff. But now the committee says—and I can understand why it is said—that that will not protect the defendant sufficiently from stale claims, so it has introduced a long stop.

It is a new concept in our law. It is to run not from the date of knowledge but from the date of the original breach, when the foundations were put in wrongly, when the concrete was not thick enough. It runs from that very date. The committee has said, and the Bill says, that even though the plaintiff had no knowledge whatever and could not have discovered it for 20 years, nevertheless he is to be barred by the long stop. I can understand that reasoning. I can understand it applying, as the committee thought, to the 15 years, but what I suggest is that 15 years ought not to be absolute. It ought to be able to be extended in special cases, the same as with personal injuries, which my noble and learned friend Lord Silkin has pointed out already applies.

I should like to refer to paragraph 4.13 of the report. It says: We have considered periods of twelve years, fifteen years and twenty years. We have come to the conclusion that a period of twelve years, although it would probably work satisfactorily in most cases, might bar some worthy claims. At the other extreme we think that a twenty year period might permit some very stale claims and expose many defendants to the risk of litigation for an unreasonable length of time. We have concluded that a fifteen year period strikes the right balance between justice for plaintiffs and certainty for defendants and we so recommend". There it is. I can understand that reasoning. That applies to the 15 years. But, equally, in the special circumstances which our amendment suggests, is it not right in justice to the plaintiff and all the provisions there to protect the defendant from unreasonably stale claims?

I suggest that the amendment for those additional live years, the long stop, should not be absolute; but in a special case where the plaintiff is suffering injustice and where the defendant had not been put in any difficulty, judicial discretion would be a very wise amendment. I should like to support the amendment.

Lord Howie of Troon

This is a highly legalistic Bill and most speakers so far have been lawyers. It is, however, a Bill which bears heavily on the construction industry, and as a civil engineer I should like to say a word or two about the effect of this amendment on that industry.

First, the noble and learned Lord, Lord Silkin of Dulwich, remarked that the amendment might result in some uncertainty, as he put it. I believe that he meant massive uncertainty. That is important. The problem that underlies this Bill and the debate we are having, although as yet unspoken, is the damages that may be paid to a, successful plaintiff and from where those damages will ultimately come. For the most part, they will come from insurance and from the capability of the construction industry, which will be the defendant as a rule, to insure itself.

In order to make sure that insurance is affordable and does not throw undue burdens upon the construction industry—and hence on the costs of building and in due course on the cost of living as a whole—there must be certainty so that the construction industry and the insurers can come to a reasonable arrangement about the cost of the necessary insurance. That will depend totally on there being as near to absolute or decently absolute certainty in the period of liability as can be attained.

The amendment would remove that, in so far as the insurer would look at the proposition and would not think of it as the period between 15 years and 20 years but always as a matter of 20 years. The effect of the amendment would be to add five years under the period of insurance liability to be carried by the construction industry. I believe that that would be a totally unreasonable addition to the burdens that the Bill already proposes to place upon the industry.

I shall say just a few words about defects that occur after 20 years or so. There has been a general assumption throughout the debate so far that such defects are, as a rule, the result of latent defects of some sort or of improper building at some stage in the construction. I recall that during the Second Reading debate a short time ago the noble and learned Lord, Lord Silkin, spoke of a house of his acquaintance that had shown damage some 25 years after it had been built or after he had become acquainted with it. In his remarks earlier today the noble and learned Lord spoke of such a building in a useful analogy as being a diseased building.

That is a useful enough analogy but it is not necessarily a correct one to make. The building might not necessarily have been diseased in the course of the 20- or 25-year period about which the noble and learned Lord was speaking. It might merely be that circumstances may have changed in the environment in which the building exists. I shall give the Committee an example.

Because of the decline in industrial activity in London and elsewhere in recent years, there has been a substantial reduction in the demand for water for industrial use. The effect of that has been to raise the level of the water table in London and elsewhere in the country, sometimes by several feet. That increase in the height of the water table has resulted in flooding in basements here and there, and such flooding is not necessarily because of the defect in the building itself but because of a change in the physical circumstances that existed when the building was originally constructed.

If a basement became flooded during the 20-year period to which the noble and learned Lord, Lord Silkin, has referred, no doubt people would immediately claim that that was due to some latent defect in the building. The case would go to court and be argued for a substantial length of time. A decision would then be made as to whether the building was originally diseased or whether circumstances had changed. In the example that I have cited such would be the case. All that would mean a lengthy and unreasonable court process to determine what was the cause of the defect and what should be the period from which the case should start.

I believe that the amendment is mistaken. It is well intentioned, as amendments always are in your Lordships' House. Nonetheless, it is wrong. I hope that the noble and learned Lord will quietly withdraw his amendment, or, if he does not do so, I sincerely hope that the noble and learned Lord the Lord Chancellor will do so for him.

The Lord Chancellor

I cannot do so.

4.45 p.m.

Lord Scarman

The noble Lord who has just sat down has emphasised the facts that the committee had very much in mind when it proposed a long stop without judicial discretion to extend it. I wish to say only a few words to the Committee about the views of the Law Reform Committee, which I believe are perfectly plain, on its report.

The Law Reform Committee was concerned with three principles. They appear in paragraph 4.2 at page 15 of the report. As soon as I read them to the Committee, your Lordships will appreciate that, as so often in the law, they are three principles that have to be adjusted from time to time so that they may all live together. The first principle is: That plaintiffs must have a fair and sufficient opportunity of pursuing their remedy". That of course is given by other provisions of the Bill to which your Lordships' attention has already been directed.

The second principle is that: Defendants are entitled to be protected against stale claims". The Committee has just heard an eloquent speech indicating the importance of protecting defendants against stale claims. The fact that defendants may belong to such prosperous and unpopular circles as the world of the construction and insurance industries does not disentitle them from that protection.

Thirdly, there is this principle: Uncertainty in the law is to be avoided wherever possible". The committee went on to state—I hope your Lordships will think wisely—that: We would not find any proposal for reform of the law acceptable"— and here come the important words; they are in a sense words of compromise, like the 39 articles in affairs ecclesiastical— which failed in any significant respect to satisfy these criteria". In the words of the market place, the proposals of the Law Reform Committee are a package, endeavouring to give the community as a whole the best of three principles, recognising, however, that no section of the community can have the whole of the principle that it likes if to let it have it means that some other section of the community loses the essential protection of another principle.

For those reasons, the Law Reform Committee stated in paragraph 4.19 on page 23 that: We have considered whether there should be a discretion to extend the new limitation periods that we are proposing. The value of the long stop would be lost if there was a judicial discretion to postpone it". That has nothing to do with trust or distrust of judges. Of course the judges would exercise the discretion perfectly well on the circumstances of the case. But how would a plaintiff or a defendant be able to tell which way the discretion would go? It is the essence of the discretion that it is the judge's discretion. That is long after the event and therefore to introduce that discretion, even in the worthy and trustful hands of a judge, would be to do two things: it would put a defendant at risk of a stale claim which he no longer has the evidence to meet and would introduce uncertainty into the law.

Of course there are formidable arguments to be adduced for giving a discretion on grounds of equity to extend the long stop. They have been well put by the noble and learned Lord, Lord Silkin, and by the noble and learned Lord, Lord Denning. But one should view this proposed amendment against the background of the three principles to which I have referred and bear in mind that we have to prepare a package which does not help everybody all the time but, à la Jeremy Bentham, helps most of the people most of the time. That is the rationale of the Bill and it is entirely a matter for the Committee as to whether it feels that is right or wrong. I do not think I ought to take it any further.

Lord Hacking

I rise to oppose this amendment, not because I seek on one amendment to this Bill to be on the winning side—clearly I am on the losing side on every other amendment—but for two specific reasons. The first is—and this argument has already been partially advanced by the noble Lord, Lord Howie—that the plaintiff himself is not served by pursuing a stale claim: a claim that is so stale that even if he can discover the identity of the defendant he cannot find him, or on tracing him finds that the defendant no longer exists. That is the first reason why I suggest that the Bill is right and that the noble and learned Lord's committee is right in insisting on the absoluteness of the 15-year long stop period, or whatever period of years is eventually decided upon.

The second reason is that the plaintiff—taking into account the position the insurance industry has intimated it is prepared to take—is also put to some advantage by the 15-year certainty of a long stop period. The insurance industry has clearly intimated that it is prepared to cover the defendant, at reasonable rates, up to the end of the long stop period and thereafter prepared to provide insurance cover for the plaintiff. Within that structure, I suggest that the prudent plaintiff is capable of looking for insurance cover and, if he is a prudent plaintiff and seeks to provide himself with insurance cover is also served by the long stop provision. For those two reasons, I oppose this amendment.

The Lord Chancellor

This has been a very interesting debate and has given rise to differences of opinion. In somewhat more controversial circumstances I have ventured to say that the two great things to be avoided in public life are the false analogy and the suppressed false premise. I propose to suggest that this amendment is based on a false analogy, both in its draftsmanship and in the speeches with which it was supported.

There is no kind of analogy at all between the discretion given in the case of damages for personal injury in 1975, or thereabouts—which is how this amendment has been drafted and the debate which gave rise to most of the more cogent arguments in the mouth of the noble and learned Lord, Lord Silkin, who supported it—and this proposal in the Bill based on the Law Reform Committee's proposals. The whole point about the personal injury limitation was that we were taking away from a plaintiff his almost indefinitely established limitation period of six years—dating from 1623—and substituting a period of three years: that we were taking something away from him because it was thought that six years was too long.

That was then mitigated. The wind was tempered to the shorn lamb by saying, "Ah, but based on discoverability, or whatever, you shall have a way out if, in fact, the court thinks it right on certain guidelines to give you the way out and you can go back to an extent greater than three years". In this case it is the opposite of what we are attempting to do if we adopt the report of my noble and learned friend, Lord Scarman. We are starting from the premise that we are giving to the plaintiff something which he has never had before. He already has his immemorial right to six years. In addition, we are giving him an indefinite period—apart from the long stop—based on an additional three years starting at discoverability; which may or may not take place within six years but which I am entitled to assume in a large number of cases will take place after the lapse of six years. Therefore, we are giving him something which he has never had before.

We are giving him that with the addition of two indefinite additions. The first is that a defendant shall not derive any advantage from his own deliberate concealment or fraud, or whatever (and that is contained in a subsequent clause); and the second is that minority or incapacity from mental illness does not count against a plaintiff. So, he has the three years from discoverability, he has the disregard of incapacity and he has the disregard of deliberate concealment on the defendant's part. We are giving him something which he does not have.

If noble Lords go back to the debate on Second Reading, and earlier to the Unstarred Question raised by the noble Lord, Lord Hacking, a few weeks before, they will realise that the whole weight of criticism against the report of my noble and learned friend, Lord Scarman, was based on those who said it was unfair to potential defendants. We have heard that very clearly and persuasively argued on the facts in this debate by the noble Lord, Lord Howie of Troon. I am bound to say to the Committee that the object of the report is to hold the balance as far as possible evenly between the additional rights given to the plaintiff and the additional burden which is placed on potential defendants over and above the original six years—the immemorial six years. It was for that reason that my noble and learned friend Lord Scarman reminded the committee that in, I think, paragraph 4.2 the Law Reform Committee deliberately said that after giving the additional right to the plantiff they must protect defendants to some degree against stale claims and they must give a certain measure of certainty to the law.

5 p.m.

The committee went on to say, in the paragraph to which my noble and learned friend referred specifically in his speech, that a discretion had to be excluded if one were going to impose the long stop. If one is going down the route of the long stop and giving it no less than 15 years from the original breach of duty, discretion will destroy the degree of certainty required by the third of the three principles and deprive the defendant, as the noble Lord, Lord Howie of Troon, reminded us, of practically all the advantages of certainty with which the long stop provides him, leaving him at the mercy of the insurance market to protect himself as best he may by a premium against the consequences of something which may take place 15 years after he has done the work.

I should have thought that that is an injustice, but whether it is an injustice or not, it would certainly upset the balance of my noble and learned friend's report. When I am attempting to introduce a little piece of law reform—and this is a little piece of law reform—I always try to follow the reports as they are delivered. Of course, one departs from the report sometimes. Even my noble and learned friend does not speak from Sinai. However, on the whole this report has been carefully researched, it is carefully thought out and it has been widely consulted upon. I am sorry to tell the noble and learned Lord, Lord Silkin—whose personal and painful experience cannot have been far from his mind when he spoke today, as it was not when he spoke at Second Reading—that be would be driving the proverbial coach and horses through the balance of the report as it was presented by the Law Reform Committee.

Having said that, I am bound to say that I side with my noble and learned friend Lord Scarman in this respect, as I do with the noble Lords, Lord Howie of Troon and Lord Hacking. I stick to the report out of conviction and not simply because my noble and learned friend has said so. Therefore, I suggest that we, as a Committee, ought to stick to it.

Lord Silkin of Dulwich

Perhaps I may begin by assuring the noble and learned Lord the Lord Chancellor that I am not moving this amendment as a result of the circumstances that affected me personally, because, notwithstanding the lapse of 25 years since the construction of the building, I was in the fortunate position of being able to obtain recompense through my insurer. However, I could not help feeling when that mishap occurred that there would be other people who were not so fortunate. I had them in mind particularly if the circumstance were such—and I do not suggest that this was the case of my own house—that the serious defect which arose was the result of negligence, whether negligence of the original builder, the architect or somebody else associated with the development.

It was in the light of that circumstance that I proceeded from the position that one is assuming that there has been a wrongdoer—if there has not, the situation does not arise—and that is a question of fact which a court would have to decide for itself; and that as a result of the wrongdoing somebody else is made to suffer considerable loss, and again that is a question of fact which the courts would decide. It was in those limited circumstances that I looked at the provisions of the Bill and the basis of the report on which the Bill was put forward. I took the view that, without doing any real violence to the principles set out in the report itself, one could go a little further than the report or the Bill.

The noble and learned Lord the Lord Chancellor suggests that the analogy of personal injuries is a false analogy. It is perfectly true to say that every fact in relation to the two cases is not identical—I accept that entirely—but, in my view, and in my submission to the Committee, the basic principles are not such as to enable one to say that in one case it is right and in the other case it is wrong. In relation to the personal injuries claim, in the 1975 Act Parliament guarded the position extremely carefully so as to protect defendants by the language used and by the hoops, if one likes, through which the plaintiff was compelled to go before he could establish that he ought to have a period longer than that which was normally provided for. In the same way the analogy—which I suggest is a right and fair analogy—is that comparable hoops should exist in a case of this kind.

Many of the points that have been made in this debate were made on that occasion. The term "massive uncertainty" which was used by the noble Lord, Lord Howie of Troon, is not one that I would accept though I quite agree, of course, that there is some uncertainty. It is so in the case of the personal injuries remedy. Again, in that earlier debate the insurance difficulty was specifically referred to by my noble and learned friend the then Lord Chancellor, Lord Elwyn-Jones, and by others who said that there could be difficulties, but it was felt that on balance they ought to be accepted in order that fairness and equity could prevail.

I see no real difference between the two situations. One could make a distinction between them in the way that the noble and learned Lord the Lord Chancellor did but I can see no real difference, and I hope that there may be further consideration of whether there is any real difference. If we shut the door in this case, we may be saying that in the pneumoconiosis type of case, which I would regard as similar to the poor foundation type of case, it would not be right for the courts to exercise the very wide powers that they possess under the 1975 Act. Therefore by resisting my amendment Parliament would in fact be saying, "Well, we went too far in 1975 and the courts ought to look carefully at the way in which they interpret the discretion that was given to them in that case". I hope that point will be considered.

I appreciate that I shall not succeed, even if I wished to divide the Committee on a matter which has clearly created a good deal of difference of view. Even if I were likely to succeed in obtaining agreement to my amendment, I do not think that I wish to divide the Committee in those circumstances. I hope that what I have said will be sufficient to persuade the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Scarman, to look at the points which have been made.

I do not suggest for one moment that every recommendation of his committee is unblemished—the noble and learned Lord has not suggested that—and perhaps we can return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hacking moved Amendment No. 7: Page 3, line 14, leave out ("An") and insert ("Notwithstanding section 14A of this Act no").

The noble Lord said: This is indeed an amendment that I tabled. I am grateful to the noble Lord who chairs this Committee. I should perhaps say that Amendments Nos. 7, 8, 9 and 10 are all amendments that I have tabled. I am more than happy if the noble and learned Lord, Lord Silkin, or the noble and learned Lord, Lord Denning, wish to move these amendments, but they are in fact amendments that I have tabled. They are not tabled by the noble and learned Lords, Lord Silkin and Lord Denning.

With the leave of the Committee, I should like to address my remarks not only to Amendment No. 7 but also to Amendments Nos. 9 and 10. Those two amendments are linked with Amendment No. 7. The amendment seeks to produce an alternative starting point for the long stop period, a starting point based on the completion date. It does not seek to disturb the principle of the first starting point, which may not be the first in time but will be the first in consideration, that is based on breach of duty. That is my terminology rather than that of the Bill.

My amendment also seeks to cut down the lengthy—I will not use the word "cumbersome"—provisions of subsection (1)(a) and (b) and subsection (2)(a) and (b). In view of what the noble and learned Lord, Lord Scarman, said in regard to my earlier attempt to produce brevity out of length, I do not anticipate, if the noble and learned Lord is still of the same frame of mind, that I shall have his support in making the attempt again. However, I might gain a few marks from him for trying to reduce the provisions of the Bill to a shorter form. I shall not address the Committee on that aspect of my proposal. I hope, however, that the Committee will appreciate that I am endeavouring to reduce the length of these subsections.

The amendment should be considered as an alternative approach to the amendments of the noble Lord, Lord Howie of Troon—Amendments Nos. 11 and 12—that I anticipate he will be moving. The problem is that the noble and learned Lord the Lord Chancellor, in presenting the Bill to the Committee, seeks to deal with latent damage across all activity that it might concern, whether that activity relates to the building of houses, the making of products or the provision of services such as solicitors' services. In order to cover all activities where latent damage may arise, the noble and learned Lord has in fact gone for breach of duty. The difficulty is one of generality. For that reason, I have sought in my amendment to make a special case of the construction industry.

I have gone for a completion date for the construction industry. The noble Lord, Lord Howie, has kept his amendment, if I have understood it correctly, on a broader base, to cover that activity, when he also seeks to go for the completion concept. However, I have narrowed it down to the construction industry. I have no embarrassment in selecting a single industry. The noble and learned Lord and his colleagues on the Law Reform Committee recognised that the great majority of problems stemmed from buildings and other structures. The application of the Bill will be preeminently found, I venture to suggest, in matters concerning the building and construction industry. In my submission, it would be an advantage in terms of achieving a finer and clearer point than breach of duty to go—as an alternative—for a completion date for buildings and constructions. That is what I seek.

5.15 p.m.

As the noble and learned Lord the Lord Chancellor may know, there have been discussions between his officers and other Ministers of the Government with members of the construction industry and those representing them relating to their concern about how the long stop period should start. As, again, the noble and learned Lord may know, only recently was unanimity achieved among those in the construction and building industries. My amendment like, I believe, that of the noble Lord, Lord Howie, seeks to represent the consensus now found in the building and construction industry. I would emphasise, however, that the responsibility for the terms of the amendment rests with me. The amendment is the responsibility of no-one else, whether articulate or inarticulate—the Committee will recall this reference on Second Reading—connected with the construction and building industry.

The reason that I invite the Committee to go for a completion date is that the concept of breach of duty produces problems in ascertaining a clear starting date in matters concerning the building and construction industry. A breach of duty can occur, relating to the same defect, on a number of different occasions: when the building was incorrectly designed; when the building, although correctly designed, was incorrectly drawn on the relevant plans; when plans, either incorrectly designed or drawn, are submitted for the contractors' tender; when the defect is constructed or assembled; when the premises, or part of the premises, containing the defect are improperly inspected; or when the building is handed over for completion, and so forth.

I have drawn to the Committee's attention no less than six different occasions when breach of duty could occur relating to the same defect at different points in time. If the principle of my amendment was adopted, the Committee would go for a completion date based, where possible, on a certificate of completion. The Committee will have seen the reference contained in subsection (3) of my proposed amendment. By going for the concept of completion date with, if possible, a certificate of completion, there is a certain date for the starting of the long stop period.

The period I have chosen in tabling the amendment is a period of 12 years as against 15 years from breach of duty. I am not entering into a debate over whether there should be a period of 10, 15 or 20 years. My proposal is merely intended to provide a parallel period of time to the breach of duty period of 15 years. Another difference, as the Committee may have noted, between my amendment and that of the noble Lord, Lord Howie, is that the noble Lord invites the Committee to consider different periods relating to both the breach of duty and the completion date. I am not doing so, for the purposes of the amendment. That is perhaps a debate that can take place when the noble Lord, Lord Howie, moves his amendment. I am adhering to the principles of the Bill and merely suggesting a completion date period that relates to the 15 year breach of duty period. For those reasons, I ask the Committee's support for the amendment.

Lord Howie of Troon

As the noble Lord, Lord Hacking, has said, the amendment that we are now discussing is in a sense an alternative to my amendments, Amendments Nos. 11 and 12. It may be convenient if we discuss them together. I can then come to move my amendments later. Otherwise, we shall be holding two debates that are virtually identical. The important matter of insurance has already been mentioned. We have to distinguish between a factor that was prominent in our earlier debates and what is the reality of the problem facing the construction industry.

We have tended to speak of defects appearing in the foundations of a bungalow, or somebody's home, or some equally homely artifact of that nature. Naturally in these circumstances the sympathies are with the plaintiff. We have also spoken of the inarticulate plaintiffs faced by the massively articulate and highly organised building industry which seems at long last, after weeks of striving, to have reached some kind of consensus—implicit at least, if not totally explicit.

It is not quite like that. We should be thinking of latent defects arising in big structures where the inarticulate plaintiff might be a body such as the Central Electricity Generating Board, which could hardly be described as inarticulate—not in the person of the noble Lord, Lord Marshall, who recently joined us here. That is where the big problem arises because of the vast cost of insuring against a lengthy period covering latent defects, say, in the foundation of a power station, a foundation which has taken several years to design and construct, and which might show a defect some while later on. The noble Lord, Lord Hacking, indicated a number of occasions on which the breach of duty might occur in a building construction. It may be worth going over these again to underline them and to indicate the length of time over which these possible breaches of duty might be spread.

If we take the foundation of a power station, which fails for some reason eventually within the period about which we are talking, the breach of duty might be on the part of the contractor building the foundation. It might have been on the part of the supplier of the materials—the reinforcement, the cement, the sand and the gravel, even the water or any other additives to the concrete. That is an earlier period. It might have been in the detailing, the drafting of the drawings, for the foundation at an earlier period again. The breach of duty might have been in the design upon which these drawings were based. That is an earlier period yet again. But the breach might go further back in time even than that. It might be shown eventually through a lengthy court process that the defect did not lie in the foundation at all although the foundation failed. The defect could be in the soil mechanics investigations and information which were provided to the designers of the foundation at yet another earlier period. The period over which the breach of duty might occur therefore could be several years.

When we talk of certainty we are talking of a beginning date which is totally uncertain. That is why both the noble Lord, Lord Hacking, and I have introduced the concept of the date of completion as the best possible, most sure, secure, and certain date from which to start the long stop period. However, in looking at this matter, both the noble Lord and I have tried to reach some kind of compromise with the Bill itself. We are suggesting that the date should be from the breach of duty or from the date of completion.

There are two differences between us. The noble Lord has limited his amendment to the construction industry. I have great sympathy with him in that respect and support the general nature of his amendment—which will surprise nobody, I imagine. The advice which I was given was to draft amendments which were in harmony with the Bill and which covered a much wider range than the construction industry only. Whether I was right or wrong, that is what I have done. My amendments therefore go rather wider than the construction industry. However, the construction industry is the major area in which I am interested.

I differ from the noble Lord, Lord Hacking, again concerning the length of time which is involved here. I was moved to a very great extent by the notion that it might be as well to keep the long stop period in accord with what I understand to be Continental practice. That is the basis for my 10 years from the date of completion.

I notice that the Explanatory Memorandum to the Bill says that there are no EC implications in the Bill. In general terms that may be so. However in a few years from now somebody will be building the Channel Tunnel. It is conceivable—if the hybrid Bill to enable the Channel Tunnel to be built goes through—that our end of the tunnel would be under a liability for 15 years and the French end of the tunnel would be under a liability of only 10 years. I hardly think that that is likely to lead to Anglo-French amity. It may be that there are implications which have been overlooked here.

I hope that the Committee and the noble and learned Lord the Lord Chancellor will consider the nature of these two sets of amendments, will recognise the compromise which both of us in our separate ways have sought to achieve, will consider them carefully, and I hope accept them.

Lord Campbell of Alloway

Perhaps I may leave aside, very briefly, the difference in period between these two sets of amendments; and also with the Committee's permission leave aside the limitation to the construction industry which arises on one set of amendments but not on the other. I should like to go straight to the point of principle common to both: the completion date as the starting-off period.

That was considered, as I understand it, by Lord Scarman's committee who sat for some four years' consideration. That was rejected by them. Then, as I understand from my noble and learned friend the Lord Chancellor, it was considered by the official referees and rejected out of hand by them although I am not quite certain on what ground. Perhaps the ground does not matter for the moment because there is a natural reluctance, the Committee may feel, to go against the view of a committee which considered the point over a period of four years and the view of the official referees, whatever reasons they may have had.

Lord Elwyn-Jones

Perhaps I may briefly intervene in this matter, first, to reassert the principle which was stated by the noble and learned Lord. A high-powered committee with eminent membership—the Law Reform Committee—has considered the matter over the course of four years. When one looks at all the pages in the appendix—and it may even amount to five pages—showing the bodies that have been consulted, which is relevant to the consideration of this matter, one would be rather reluctant, putting it at its lowest, to depart from the recommendations. Although, obviously, no recommendation of a committee is sancrosanct, I would require very considerable reasons indeed to depart from the conclusions. The committee considered the approach of the completion date, and for reasons which they have indicated—which I find convincing—rejected it.

When it comes to the balance between 12, 15 and 20 years, they sought to achieve the balance by the recommended 15 years, which incidentally I think was also the view of the Law Society. I say this without prejudice to the admirable argument of my noble and learned friend Lord Silkin, which he will canvas later, but in my view of this matter the conclusions of the committee and the compromise figure of 15 which is suggested seems to me to be reasonable and acceptable and achieves a fair balance between the interests of the plaintiffs and the need for certainty and for the protection of the defendants against stale claims.

5.30 p.m.

The Lord Chancellor

All this is interesting, but again I come down on the side of the committee's report as it is translated into draftsmanship by the Bill. I am talking only of the amendments in the name of the noble Lord, Lord Hacking, because I do not think that the rather different amendments of the noble Lord, Lord Howie of Troon, could be moved if these were agreed; they are inconsistent with them; they are sometimes based on the same arguments and sometimes based on different arguments.

However, the principal effect of these amendments would be to provide two alternative long stops: in one case 15 years from the breach of duty, and in the case of defects to premises 12 years from completion of the work. It is rather on the same basis as Animal Farm—all animals are equal but some are more equal than others. I am bound to say therefore that I start from want of attraction to this additional complication to the Bill.

I also find it odd that, in the case of defects to premises, when they have been given a good 15 years from the breach of duty, there should be members of the construction industry who stab themselves in the belly by asking for 12 years from the date of completion as the basis for the long stop. They might find that they were committing hari-kari in that particular set of circumstances, because the latter could be less beneficial to them than the former.

As has been pointed out by my noble friend Lord Campbell of Alloway and by the noble and learned Lord, Lord Elwyn-Jones, this very suggestion of the date of completion as the terminus a quo for the long stop, was very carefully considered indeed by the Law Reform Committee. They said: We are doubtful though whether this is really a satisfactory alternative and in particular we can see formidable difficulties in adapting the concept of completion to all the types of circumstances (other than personal injury) where latent damage might arise. There is also the possibility of injustice to defendants where "completion", on a very large project for instance, takes place many years after the relevant breach of duty. Accordingly we recommend that the long stop should start to run at the date of the defendant's breach of duty. My noble friend Lord Campbell of Alloway pointed out that the official referees had seen no advantage in the completion date as the date from which to start, and I would agree with that. They thought that, apart from the absence of any advantage, it would lead to a great deal of expensive and unnecessary argument in court.

The construction industry was not by any means united in favour of the completion date, and if I looked up my papers sufficiently I think I could give examples of those bodies within the construction industry which did not agree with the completion date as the terminus a quo. The overwhelming balance of those concerned—I think 19 of those bodies concerned—stuck to 15 years rather than 12 years as the length of the long stop. In particular I must point out that the Consumers' Association, which has backed this Bill throughout, would be bitterly opposed to the reduction of the period for any particular class of potential defendant. Although, like everybody else, it is far from being infallible, I would be very reluctant to fly in its face after the report in its favour for the very reason which I gave on Second Reading; namely, that the potential plaintiff who is being given an additional advantage by the earlier provisions of the Bill is an unidentifiable group of persons (because no one thinks of himself in this connection as a potential plaintiff), whereas the potential defendants are very well organised, very articulate and very powerful.

Therefore, I come down once more on the side of the Scarman Report, and that is the advice which I give to the Committee.

Lord Hacking

It is my intention to withdraw this amendment; but before doing so, I should like to make two comments. The noble and learned Lord suggested that I was seeking to cut down the period proposed in the Bill from 15 to 12 years. That was not my intention, and indeed I hope that it is not the effect of my proposed amendments. I have left the period of 15 years as the concept in the Bill for the breach of duty period. I have suggested a 12-year period from completion date for the solid and good reason, which runs wholly in the interests of plaintiffs, that the completion date must take place after the breach of duty and invariably takes place some time after the breach of duty. Therefore, the Consumers' Association need not tremble—in any event because I shall not press this amendment to a Division—that I seek to reduce this 15 year period.

Secondly, although it is quite true that I am seeking to take a different course from that contained in the noble and learned Lord's report—I cannot claim loyalty to his report in this respect because I am urging on noble Lords a course which runs against the recommendation of his report—it is, as is recognised, always a matter of balance; and in a very balanced and fair report the noble and learned Lord, Lord Scarman, and his colleagues considered the argument. This is what they said: We have given this suggestion"— that is, the suggestion that the construction industry should be treated separately— particularly careful consideration and we can see its attractions. It is probably true to say that the majority of claims for latent damage arise out of building and construction work and consequently a solution limited to these areas of activity would resolve much of the present difficulty in the law and"— I hope my amendment here succeeds— could be tailored precisely to meet the needs of that industry. It would also avoid imposing upon professional advisers outside the construction industry any more lengthy liability than they already bear. However, we do not find these arguments convincing". And then the noble and learned Lord represented the arguments, in a fair balance, on the other side.

All I am suggesting in tabling this amendment is that there is a balance on the other side. I am merely suggesting—and this is where I differ from the noble and learned Lord—that the balance should come the other way from the balance found by the noble and learned Lord in his report. That is why I move this amendment. I clearly do not have the support of this Committee, and anyhow it is not my intention concerning any of my amendments to divide the Committee, and therefore I beg to withdraw this amendment.

Amendment, by leave, withdrawn.

Lord Hacking moved Amendment No. 8: Page 3, line 15, at end insert ("and claims for contribution to which section 10 of this Act applies,").

The noble Lord said: This amendment concerns Section 10 of the Limitation Act 1980, and seeks to include in the provisions of the long stop period contribution claims. Section 10 of the main Act gives the right within two years from the relevant date for contribution claims to be made. The relevant date is either fixed upon a judgment in civil proceedings or an award in arbitration, or it is based on the date upon which one of the parties agrees to make compensation to the other, and when that liability occurs the two-year period begins to run.

The effect under Section 10 therefore is that defendants can bring third party or fourth party proceedings at any time up to two years from the date of the judgment. But the effect of that is considerably to increase the long stop period, because it is quite identifiable that contribution claims can be brought well after the 15-year period. Let us take, for example, a case in which a plaintiff brought his action because there was latent damage at the tail end of the 15-year period. Let us put that at 14 years for the date of the issue of the writ. Then, although lawyers work swiftly and industriously, it takes five years for the claim to reach the point at which judgment is given. Therefore, we have 19 years, and then another two years under Section 10.

I say that that goes against the principal in the Bill of the long stop period. For that reason my amendment seeks to bring into the proposed long stop period not only claims for damages for negligence but also contribution claims. I beg to move.

The Lord Chancellor

I understand from what the noble Lord has said that the purpose of the amendment is to extend the long stop provision in new Section 14B of the consolidation Act to actions to recover a contribution under the Civil Liabiliity (Contribution) Act 1978. The intended effect is that a defendant should be prevented from claiming a contribution from another person after 15 years from the original breach of duty of care owed by the defendant to the plaintiff.

But the effect would be in some cases to bar proceedings to recover contribution before the right to recover a contribution had arisen. This would not be an attractive proposition. Incidentally, the amendment is technically defective because an action to recover a contribution is not an action for damages for negligence, and as drafted therefore the amendment would not achieve the result apparently desired.

5.45 p.m.

The fact is that the purpose of the amendment is not really desirable. In some cases a defendant against whom judgment has been awarded would be prevented from bringing his own proceedings against a joint tortfeasor, for example, to recover a contribution in respect of the joint tortfeasor's share of responsibility for the negligently caused damage which the plaintiff had suffered, merely on the ground that the 15-year long stop period between the plaintiff and the defendant had expired.

I do not think that the removal of an opportuniity to apportion damages for losses contributed to by others would be regarded with much favour by the original defendant or by his insurers. They would end up by collecting the whole bill for the damage for which others were partly to blame.

If negligence proceedings against the defendant are instituted before the 15-year period and judgment is awarded against a defendant after 15 years, contribution proceedings may, of course, take place and the Bill does not change that, or wish to. But these further proceedings will not be as stale as might be suggested. For one thing, most issues of contribution are dealt with at the conclusion of the original proceedings because most, if not all, of the parties against whom there may be a claim will have been joined in the original action. Secondly, Section 10 of the Limitation Act 1980 applies a short, but only two-year, period of limitation within which to start contribution proceedings before they become time-barred. This is plainly to encourage parties to institute proceedings with due dispatch. I would therefore submit to the Committee that the Bill as drafted presents a juster solution than that proposed in the amendment.

Lord Hacking

As with my other amendments it is my intention to withdraw this amendment, but I make two points to the Committee. The noble and learned Lord takes a drafting point against me. I have no special skills in the drafting of statutes. Indeed, in my experience when I have moved any amendment in Committee, in one way or another my amendment has had some lack in drafting texture.

Having made that point, I seek to draw to the Committee's attention the terms of my amendment. I am not seeking to bring claims for contribution under the umbrella of actions "for damages for negligence". Indeed, reading both the Bill and my amendment together it reads as follows: An action for damages for negligence other than one to which section 11 of this Act applies, and claims for contribution to which section 10 of this Act applies, shall not be brought after the expiration of 15 years". I think that is plain. If my drafting is defective, I do not think that the meaning of my amendment is defective.

The noble and learned Lord makes another point—that it is unfair that parties should be deprived of bringing their contribution claims before they themselves were liable. While it is not on all fours with the proposition that I am about to make, it is right to draw the Committee's attention to the terms of the long stop provision. These terms are set out—albeit in the section I sought at an earlier stage to have removed from the Bill but it is still there in solid form—in Section 14B(2)(a). Now that section bars the right of action in a case in which Section 14B applies, notwithstanding that the cause of action has not yet accrued.

Therefore, it has to be faced as a fact, if this Bill becomes law and the long stop provision is part of it, that there will be plaintiffs who will be statute barred before their cause of action accrues. It is for that reason that I suggest that the point that the noble and learned Lord makes has less force. Indeed, my amendment is in line with the nature of this provision which is, as a procedural ground of English law, to prevent plaintiffs bringing actions after 15 years. That is on the basis that the noble and learned Lord, Lord Silkin, does not successfully press his amendment to the Bill at a later stage.

Those are all the observations I seek to make, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hacking had given notice of his intention to move Amendment No. 9: Page 3, line 16, leave out ("not").

The noble Lord said: I shall not formally move this amendment. It is attached to the arguments I presented under Amendment No. 7, and in view of what I said on that amendment and in view of the fact that I have withdrawn Amendment No. 7, I do not propose to move Amendment No. 9.

[Amendment No. 9 not moved.]

Lord Hacking had given notice of his intention to move Amendment No. 10:

Page 3, line 16, leave out from ("of') to end of line 34 and insert— ("(a) fifteen years from the date (or, if more than one, from the last of the dates) on which the breach of duty, either by act or omission, occurred and upon which such action for damages (but for this section) would, in whole or in part, be founded; or (b) in the case of alleged defects relating to any premises, or any separate part thereof, 12 years from the date on which such premises, or any separate part thereof, was completed or from such later date when further work to such premises, or such separate part of such premises, to rectify work already done, was completed; whichever period of limitation prescribed by this section first expires.

(2) "Premises", to which subsection 1(b) above applies, shall be any dwelling, building or structure which (at the relevant date for the commencement of the period of limitation prescribed by this section) is affixed, as the case may be, to land, or river bed, or sea-bed.

(3) The date of the issue of a Certificate of Completion relating to the premises, or as the case may be, to a separate part of the premises, shall be conclusive evidence of the date when the premises, or the separate part of the premises, was completed." ").

The noble Lord said: I should like to do exactly the same so far as Amendment No. 10 is concerned. I shall not formally move it because it is attached to the earlier amendment which I have already withdrawn.

[Amendment No. 10 not moved.]

Lord Howie of Troon had given notice of his intention to move Amendments Nos. 11 and 12:

Page 3, line 16, leave out ("fifteen") and insert ("twelve").

Page 3, line 23, at end insert— ("Provided that where the act or omission which is alleged to constitute negligence occurred—

1. (i) during the performance of a contract, whether between the plaintiff and the defendant or otherwise; or
2. (ii) during the discharge of any statutory duty,

an action for damages for negligence thereon shall not be brought after the expiration of ten years from the date on which the beneficiary under such contract first acquired title to or an immediate right to the possession or use of the subject matter thereunder or the discharge of such statutory duty was completed, as the case may be.").

The noble Lord said: I said all I need to say on Amendment No. 11 at an earlier stage. The response by the noble and learned Lord the Lord Chancellor was scarcely encouraging and, by the look of it, it does not seem as if he will be more encouraging now.

I think I shall consider what I said at an earlier stage and reserve my position, perhaps coming back at Report stage. In the meantime, I shall not move Amendments Nos. 11 or 12.

[Amendments Nos. 11 and 12 not moved.]

[Amendment No. 13 not moved.]

Lord Howie of Troon moved Amendment No. 14:

Page 3, line 34, at end insert— ("14C. Where any action for breach of contract or for breach of statutory duty is based on an act or omission which could also constitute negligence (whether so pleaded by the plaintiff or not), sections 14A and 14B of this act shall apply to such action.".")

The noble Lord said: This is a largely legal amendment in so far as I understand it, and perhaps I am not the man to be moving it today. However, as the Law Reform Committee noted in its report, a breach of duty may give rise to a liability in both contract and tort, to which may also be added liability for breach of a statutory duty, I believe. Yet the provisions of the Bill, both in relation to the discoverability of a latent defect and as far as the long stop period is concerned are confined to actions in negligence only. It follows that in many cases the benefits which the Bill seeks to introduce in respect of latent damage arising from negligence could be lost, I believe, by way of clever pleading.

The amendment would do much to ensure uniform treatment of all actions for latent damage, whether in contract, in negligence or in statutory duty. However, torts other than negligence are not covered and this is unlikely, I am told, to lead to difficulty. The proposed Section 14C will bite on cases only where the acts or omissions complained of are negligent, whether or not negligence is pleaded. I think the amendment is demonstrably within the scope of the Long Title of the Bill. I beg to move.

Lord Denning

I support this amendment very firmly. It goes back to what I said at the beginning on my first amendment: when you have an action for negligence, it is a duty of care. It can be put as common law, it can be put as a breach of a statutory duty and, if you please, it can be put in any other way which is available.

It is a principle of law that the ordinary rules of limitation ought not to be able to be avoided by pleading in one form or another. The technicalities of pleading ought not to affect the period of limitation. Whether the action is put in negligence, simpliciter, whether it is put in breach of contract like a solicitor's breach of contract to use care, or whether it is in breach of building regulations under a statutory duty, whichever it is, the position is just the same. It is merely formulated differently in law.

I would wholeheartedly support the view in this amendment that: Where any action for breach of contract or for breach of statutory duty is based on an act or omission which could also constitute negligence (whether so pleaded by the plaintiff or not) … this Act shall apply to such action". To me that is sensible, getting rid of any technicalities in this limitation point, and I would support the amendment altogether.

The Lord Chancellor

Despite the intervention of my noble and learned friend, I have been a little disconcerted by the fact that I had assumed that Amendments Nos. 12 and 14 might be spoken to together. In the event this has not proved to be the case, but I can only repeat what I thought I said in reply to an earlier amendment this afternoon. There is a basic fallacy in what has just been said. In the law of negligence in tort the cause of action arises at the moment when damage is suffered. This is true of a whole class of torts. In some the cause of action arises when the wrong is done, trespass being the obvious example, and in others where the damage is suffered.

In the case of negligence the cause of action runs from the moment at which the damage is suffered. This is otherwise in the case of the cause of action in contract. The cause of action in contract arises out of a breach of a promise and derives from the protection which the promise gives and at the moment when the promise is broken. It gives rise to a much wider range of remedies than an action for damages for negligence or an action for damages at all. There may in contract be the equitable remedies of specific performance, rescission or rectification. In addition to that, there are different rules in relation to contract and tort and in relation to contribution and remoteness of damage. There are procedural differences, including matters of limitation. The period of limitation for actions which are based on contract will run from the act or omission constituting the breach of contract. In tort, the period of limitation begins to run from the date when damage occurs.

These and the other differences that I have mentioned reflect the distinctions between tort and contract. In tort, the duties are primarily fixed by the law; in contract they are fixed by the parties themselves and depend upon the terms of the contract, subject, of course, to the Act which was passed by the noble and learned Lord when he was Lord Chancellor about the unfair clauses which is now part of our law.

This illustrates a point which was dealt with quite firmly by the committee when it came to consider this rather limited piece of law reform. Quite apart from its terms of reference, it came down firmly against introducing into the law which it proposed in its report and which is now embodied in the Bill either changes in the law of contract or changes in the date at which the right of action begins.

It would be a fundamental error that would lead to endless confusion to use this Bill, which is related solely to cases of latent damage in cases of negligence. as a vehicle for widespread changes in the law of contract and in the law of statutory duty. It would complicate the law of limitation. It would create confusion, and the negligence complained of can arise out of the performance of contract. It may be not merely a contract between the plaintiff and the defendant but a contract between any other party or where it arises out of the performance of the statutory duty. This has been dealt with by implication in our earlier discussions and the amendment is an unfortunate confusion of what is otherwise an absolutely simple piece of legislation.

6 p.m.

Lord Howie of Troon

I should hate to fall into a basic fallacy. But if I have done so, I take some comfort in that I am joined there by the noble and learned Lord, Lord Denning. I was greatly impressed by the reply of the noble and learned Lord the Lord Chancellor. I feel that once I have studied his remarks in Hansard, I shall know a great deal more about this matter than I did a few moments ago when I moved the amendment. I shall study his reply carefully. I shall take what advice I can and consider whether it is worth bringing this matter forward in a modified form at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Provisions consequential on section 1]:

Lord Hacking moved Amendment No. 15:

Page 4, leave out lines 20 to 25 and insert— (" "(5) Subsections (1) and (2) above shall not apply to the periods of limitation prescribed in sections 14A and 14B of this Act." ").

The noble Lord said: We now turn to Clause 2, but more significantly we are on to my last amendment and the last amendment to be considered on this Bill as currently tabled. This amendment concerns Section 32 of the Limitation Act 1980 and seeks to take up a point made by the noble and learned Lord, Lord Wilberforce, at Second Reading. Section 32 creates the provision that extends the period of limitation in circumstances where there has been fraud, concealment or mistake and it extends the period of limitation, until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it".

In the first place I attempt to relate Section 32 of the Act, with the new proposed Sections 14A and 14B, with greater clarity than the proposed terms of the new subsection (5) appears to do on page 4 of the current draft of the Bill. As pointed out by the noble and learned Lord, Lord Wilberforce, this proposed new clause is so difficult to understand that reference has to be made to the report of the Law Reform Committee before comprehension can be reached. Indeed, it could be said that in concealing its own meaning it is concealing its own "concealment".

In the second place, I have attempted to deal with the substantive point raised in this regard by Lord Wilberforce on Second Reading. Contrary to the recommendation of the Law Reform Committee and the proposal in the Bill to bring into effect this recommendation, it seems to me that the operation of Section 32(1)(b)—that is the relevant subsection in Section 32—should be excluded from the operation of the new proposed periods of limitation set out in the proposed Sections 14A and 14B. By their very nature latent defects are concealed from a plaintiff and may also be "deliberately concealed", which is quoting from the terminology of Section 32.

In my proposed amendment I have also sought to exclude the fraud and mistake provisions of Section 32(1), to which I have just referred, from the operation of the proposed Sections 14A and 14B. Technically since the proposed Sections 14A and 14B relate only to actions for damages for negligence they do not cover actions based on "fraud" or actions for relief from the consequences of a "mistake" because fraud constitutes a separate and distinct cause of action as do causes of action in contract which are grounded upon mistake. It may not be easier for parties and in some cases for the courts to grasp these legal concepts and since therefore there is worry relating to the concept of mistake, as it could relate to the provisions contained in Sections 14A and 14B, I thought it better to attempt—I shall be unsuccessful in this attempt—to sweep the whole of Section 32 out of the operation of the new provisions of Sections 14A and 14B. Those are my reasons for moving this amendment. I beg to move.

Lord Denning

I should like to oppose this amendment. The committee was quite clear in paragraph 4.13 that the provisions under Section 32 of the 1980 Act, fraud, concealment and mistake, should still apply. In other words the period of limitation should not bar an individual in circumstances where it is due to fraud, deliberate concealment or mistake by the defendant. It has occurred in many cases. It is a valuable provision, and as the committee said: We believe that it would be no less repugnant to most people's sense of justice to allow such defendants to take advantage of a long stop provision, and we therefore make no recommendation in this area. Accordingly, the long stop will come into play in those latent damage cases where there has been negligence by inadvertent or careless acts or omissions but not where there has been, in the words of section 32(2) a 'deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time'.". I oppose the amendment.

Lord Wilberforce

I spoke on this subject at Second Reading. I re-read recently what I then said and rather to my surprise I found that I still agreed with it. It is necessary to be precise about this amendment and about subsection (5) which is in the Bill in page 4 at line 20. One is liable to be misled if one is not careful by the reference at line 17 to: (postponement of limitation period in case of fraud, concealment or mistake)". I have a suspicion that my noble and learned friend Lord Denning was possibly misled by that reference. That is simply taken from the side note to Section 32 of the 1980 Act. It has nothing to do with the matter which we are now considering or discussing. What we are now discussing is a limited point which is brought out at line 21 on page 4 which refers to: >"any action to which subsection (1)(b) applies". That is all we are concerned with. All that subsection says is: any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant". We are not concerned with fraud or mistake but we are concerned with deliberate concealment.

The innocent man might think that deliberate concealment is just as bad as fraud, that someone is a dishonest man and should not be given the benefit of the long stop. What all this does at the end of the day when one has worked out all the references is to say that whoever this applies to is not to have the benefit of the long stop of 15 years which is in Section 14B. That is what is being done. One has to go on to look at Section 32 (2) which is absolutely vital. That says: For the purposes of subsection (1)"— which we have just been considering— deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty". We have a special concept there of concealment which provides what one might call an objective test: it has to be unlikely to be discovered for some time. Anybody who is familiar with these building cases knows that those words typify the cases in which actions are brought after some time. Something is covered up in circumstances in which there is unlikely to be discovery for some time. It is not a question of dishonesty, it is not a question of defrauding anybody; it is just a case that an inspector may decide to cover up and he is guilty of negligence in doing so. He is not trying to defraud anybody or deliberately to conceal but the fact is that the defect is unlikely to be discovered for some time.

One has to ask oneself as a matter of policy whether it is right that that case, which is typical of many, is one in which the defendant should be deprived of the long stop provision in new Section 14B in this Bill. It is a matter of policy to be considered. I know that it was considered by the committee of the noble and learned Lord, Lord Scarman, and that it is debated fairly in the paragraph which deals with it. The committee thinks, using words which also cover fraud, that, such a person should not have the benefit of the long stop". It is for your Lordships' Committee to decide. What impressed me at Second Reading, and about which I still feel considerable doubt, is whether it is right in these cases which will occur very frequently. There is the case of Anns, the case of Dutton and the case of Pirelli. Almost all these cases are cases in which something was concealed in circumstances in which it was unlikely for the defect to be discovered for some time. That is an exact description of what happens, and that is what I thought we were legislating about. The Committee may say that there is something wrong there and such a person ought not to get the benefit of the long stop. The view which commended itself to me was that that is just what this legislation is supposed to be doing, to give a final period of 15 years to deal with these cases.

I would suggest to the Committee that there is considerable merit in the amendment. It may be that the amendment proposed by the noble Lord, Lord Hacking, goes further than is necessary. I am not committing myself entirely. I am not going with him necessarily as far as that; but I venture to suggest that this provision in the Bill deserves reconsideration, in spite of the decision, taken after internal debate no doubt, by the Scarman Committee. If the Committee were to pass this clause as it is at the present time, it would be depriving the Bill of a good deal of its utility as regards cases which the courts have had to deal with and which the courts have thought probably demanded adjustments to the limitation period. I support in principle the amendment of the noble Lord without necessarily agreeing with the detail.

The Lord Chancellor

I always take extremely seriously what my noble and learned friend Lord Wilberforce says. This alone would cause me to say that I shall read again what he says and take advice upon it. But I must say to the Committee that I am advised that the effect of this amendment in practice—and the only effect of it—is to make the long stop provision absolute even in cases where the defendant has deliberately concealed damage from the plaintiff to enable him to raise the defence of limitation. The defendant would thus benefit from his own wrong doing by escaping liability to proceedings in negligence.

To my mind, and subject to what I have said about taking further advice, that offends against my moral judgment. Take, for instance, a case—and I think this may have been a case which actually has happened—where a defendant deliberately commits a breach of duty which is unlikely to be discovered for some time. For example, supposing in a local authority case a building inspector deliberately allows defectively laid foundations to be covered up by the contractor in order to conceal the defect which he has seen. The amendment before the Committee would allow the inspector, and possibly also the contractor, to escape liability to proceedings in negligence after 15 years from his breach of duty to the victim of the negligence.

My present judgment is that it cannot be right in circumstances of this kind to allow a wrongdoer to take advantage of his wrongdoing by the lapse of time. It is against my moral feelings in the case and it is also against Section 32 of the Act of 1980. Incidentally, it is contrary to the judgment which has been referred to of the Scarman Committee. I cannot accept this amendment this afternoon. I shall reflect on what my noble and learned friend said, but as of now I am not attracted by the proposition.

Lord Hacking

As with my other amendments, I am not going to press this one and in a moment I shall withdraw it. It is, however, a rather special moment for me in this Committee which has been progressing now for over three hours because I have had a voice of support from the noble and learned Lord, Lord Wilberforce. He could not come the whole way to support the terms of my amendment—that would be asking too much—but he was prepared to accept the principle of it in so far as subsection (1)(b) of Clause 32 is concerned. The noble and learned Lord the Lord Chancellor has kindly said that he is prepared to give this matter a little further consideration. On that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord Hacking

Unless anybody else has anything to say, perhaps I may make two comments concerning Clause 2. My comments will also refer to Clause 1 if I have the Committee's leave also to refer to it. I have been something of a lone voice throughout this Committee. I have had little support. The noble and learned Lord, Lord Wilberforce, has just supported me, as also has the noble Lord, Lord Howie. He has been kind enough to support me in this amendment, as I would have supported him in his amendments if he had moved them separately from mine. The views that I have tried to express to the Committee—and it may be that I have not done it with sufficient eloquence or accuracy—are views that are being expressed outside the House and views that relate to genuine concerns by a number of persons outside the House who will be directly affected by these provisions.

For that reason, I ask the noble and learned Lord whether he can take an oversee view of all the points that I have sought to make—and other points that other noble Lords have made during the Committee—before we come to the Report stage of the Bill. As I have said to the Committee, I do not hold a special mantle for perfection in the presentation of the views but I have tried to present views that are seriously held outside this House.

There is another small point—an elementary point rather than a small point—that I would make. It is that time moves on. Before the 24th report, the Law Reform Committee sat for its 21st report, which was the final report—and I would stress those words—on the limitation of action; and that report was presented to Parliament by the "Lord High Chancellor by command of Her Majesty" in September 1977. This was a most detailed and careful report and in so far as the 21st report considered latent damage—and it considered latent damage only in a peripheral manner—it considered it not to be a problem.

Only in a short time, such was now the problem, the noble and learned Lord the Lord Chancellor requested the Law Reform Committee in its 24th report to consider latent damage. It is now considered a serious matter, so serious a matter, indeed, that the noble and learned Lord has moved this Bill. Time moves on! For that reason, too, I would ask the noble and learned Lord (because there is this concern outside your Lordships' House) to consider, if he would be so kind, not my remarks as such but the remarks that have been made throughout this Committee and the comments and criticisms that have been made of the Bill, not in any way to wreck the Bill but to assist its passage, assist its clarity and make it a much better Bill.

The Lord Chancellor

I do not think that I can respond in very great length to what the noble Lord, Lord Hacking, has said. Of course, we are all deeply indebted to him for putting forward a view in various forms which members of the constructions industry in particular wish to say in criticism of this Bill. But the genesis of this Bill, as he rightly surmises, was the reference by myself to the Law Reform Committee of a matter which had become, to my mind, extremely urgent and which resulted in the Law Reform Committee, in its 24th report, producing the policy upon which this Bill was based. It was a policy which I think gave a measure of justice to potential plaintiffs and a measure of protection to potential defendants—a measure of protection they certainly would not have had but for this Bill.

The policy of the 15-year period, which is by some criticised as too short and by others as too long, was supported by a really formidable number of consultees, including the Law Society, the Institute of Chartered Accountants, the Institute of Building Control Officers, the Building Employers' Confederation, the Official Referees, the Queen's Bench Masters, the Country Landowners' Association, the London Chamber of Commerce and Industry, the Holborn Law Society, the Consumers' Association, the Society of Parliamentary Agents, the Incorporated Society of Valuers and Auctioneers, the Bar Association for Commerce, Finance and Industry, the Society of Investment Analysts, the British Property Federation, the Landed Property Consultative Council and, last but not least, the Chancery Bar Association. With that formidable body of support and the noble and learned Lord, Lord Scarman, in addition, I am bound to say that of course I will reflect on what the noble Lord, Lord Hacking, has said, but I do not want to offend any of those bodies either.

Lord Howie of Troon

Before the noble and learned Lord sits down, will he take note that in the formidable list he has read out there was only one construction industry organisation noted and we must assume that the rest were opposed?

The Lord Chancellor

No; I do not think that is quite right. The list I read out were those which backed the 15-year period. The noble Lord represented one branch of the construction industry, but it was in fact divided on the matters which he raised.

Lord Hacking

Before the noble and learned Lord sits down, I wonder whether he has also got a formidable list of the opposers.

The Lord Chancellor

I do not think it is so formidable. They are all published in some sort of document and so I do not think we need swap names. But there is a formidable list of people in support of this Bill, and what is much more important is that it is really a case, I think, of this Bill or nothing else. The law can be left in its present unsatisfactory state: otherwise you have to make some sort of balance between potential plaintiffs and potential defendants when the Law Reform Committee has said that the present law does justice to neither.

Lord Elwyn-Jones

May I respectfully draw the attention of the Committee to the fact that we are not on the Third Reading of this Bill?

Clause 2 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported without amendment.