§ References are to [Bill 161] as first printed for the Commons]
§ 1 Clause 1, page 2, line 14, leave out "any potential plaintiff first had" and insert the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.
(5A) In subsection (5) above "the knowledge required for bringing an action for damages in respect of the relevant damage" means".
§ 2 Page 2, leave out lines 19 to 23.
§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2, which are drafting amendments. In this House the noble Lord, Lord Hacking, on the Cross-Benches and in another place Mr. Alex Carlile expressed doubts about the meaning of the words "potential plaintiff" in the clause to which the amendments relate. I promised to consult the draftsman. I did consult the draftsman and the Law Society, and the amendments are the result.
The amendments make no change to the intention, which is to make clear that only the knowledge of the person who had the same cause of action as the plaintiff will count against the plaintiff for the purposes of the limitation period, and that the damage in queston must be the plaintiffs damage. I beg to move.
§ Moved, That the House do agree with the Commons in the said amendments. (The Lord Chancellor.)
§ Lord Denning
My Lords, my trouble is that I cannot fit the amendments as printed into the Bill. That may be my mistake. I have written the amendments in my own hand, and with Amendment No. 1, I cannot make sense of the whole clause as it then reads. There must be some mistake in the printing but I find it impossible to read the amendment into the clause. Perhaps there is some printing error, but I cannot make sense of it.
§ Lord Scarman
My Lords, unlike my noble and learned friend, I find the amendment a great improvement and a great clarification of the meaning of the clause. I rise only to draw attention to the valuable contribution towards that clarification made by the Law Society and by the noble Lord, Lord Hacking.
§ Lord Hacking
My Lords, for those of your Lordships who did not hear the earlier performances from Chapter 27 of the Book of Genesis, I should explain that the noble and learned Lord cast himself in the role of Isaac and cast me variously in the roles of Esau and Jacob. Without knowing whether I have been cast today in the role of Esau or of Jacob, and without making any indelicate references to the gross infirmities of the aged Isaac, when he was taken in by the ruse played upon him by Rebecca and Jacob, I 908 express gratitude that the voice of the Law Society has now been heard through the amendment that I moved both in Committee and on Report.
I am sorry that the amendment was not accepted in the simplicity that I moved it in Committee and on Report, which was merely to take out the words "any potential" before the word "plaintiff" and to replace it by the word "the". However, I understand why a slightly wider amendment has now been moved by the noble and learned Lord the Lord Chancellor.
This is the final stage of the Bill, the Commons having now sent their amendments to your Lordships' House. I will just say, as the Bill finally passes through your Lordships' House to Royal Assent, that I am sorry that the other amendments which I moved in Committee and on Report, that sought to make the Bill more precise, more clear and more usable were not accepted by the Government. I am concerned also that the matter raised by the noble and learned Lord, Lord Wilberforce, concerning "deliberate concealment," was also not taken up by the Government. I fear that this may present problems for the future.
I shall mention one other matter to your Lordships. There remains concern among the construction industries that the submissions that they made through myself and through other noble Lords have also not been heard during the passage of the Bill. However, all those matters can go to another day. Certainly the construction industries intend that the matters which worry them shall be clearly heard. They are organised now and they have developed their articulateness. With that, I shall leave those matters to be dealt with on another day.
§ 3.15 p.m.
§ Lord Broxbourne
My Lords, I rise briefly to associate myself with the remarks of the noble Lord, Lord Hacking, as to his disappointment at the failure to incorporate in the Bill some of the amendments that he moved. I agree with him that problems lie ahead in that context. I do not know that I should not regard that with some degree of philosophy, as the author of Walker-Smith on the Standard Forms of Building Contract, whose study and sales will no doubt be promoted by those problems. However, as a legislator, I would rather it was otherwise.
§ Lord Wilberforce
My Lords, I may be very stupid, or I may have the wrong printed version, or both those matters may be true, but can the noble and learned Lord confirm that in the third line of the first amendment the word "him" is correct? I find it very puzzling, if that is so.
§ Lord Silkin of Dulwich
My Lords, if one is permitted to define what is the intention of the amendment even though the printed word does not seem to follow that intention precisely, then certainly the Opposition supports it. It is in our view a valuable clarifying amendment. However, before it becomes clarifying it seems plain from the remarks of the noble and learned Lords, Lord Denning and Lord Wilber-force, that some adjustment will have to be made to the printed word.
§ The Lord Chancellor
My Lords, unfortunately I have only a typescript of the amendments. The amendment as it appears in the typescript reads:Page 2, line 14, leave out 'any potential plaintiff first had' and insert 'the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action'.".That seems to me to make sense. I shall examine the printed version later.
§ Lord Denning
My Lords, I want to know whether lines 14 to 18 are still included in the Bill. There is nothing in the amendment to say that they are. It appears as though they remain. Apparently, lines 14 to 18 will remain in the Bill. I cannot fit in those lines with the words that are now being inserted. I suppose that I am wrong, but I could not make head nor tail of it.
§ The Lord Chancellor
My Lords, the noble and learned Lord is wrong for once, but he can get wisdom from the noble Lord immediately behind him. I have read out what the amendment is intended to be and I think that it corresponds with the printed words. So far as concerns the other matters, they hardly arise on the amendments and so I cannot say anything more about them. The Opposition supported the amendments in the Commons, and in this House through the noble and learned Lord, Lord Silkin. The Law Society and the noble and learned Lord, Lord Scarman, also had the benefit of consulting the draftsman. I am very much in the hands of the draftsman in the case of technical matters, and I have no reason to believe that she has made a mistake.
§ On Question, Motion agreed to.