§ 5.19 p.m.
§ Lord ELWYN-JONES
My Lords, I beg to move that this Bill be now read a second time. It concerns civil liability for wrongful interference with goods in the possession or ownership of another. It represents the first general venture by the Legislature into this ancient branch of the civil law, and I hope that the House will, accordingly, be kind to it. I should like to say at the outset that the Government are extremely grateful to the Law Reform Committee for their most helpful report which was published, I regret to say, as long ago as 1971. That report has guided the Government's footsteps in preparing this Bill through some pretty tangled thickets of law and of practice. I cannot claim that this is a Bill of the first importance, nor has it a great deal 1059 of what it is fashionable these days to call sex appeal; but I believe it to be a useful measure of law reform, for it will provide some real improvement, and some greatly needed simplification, in the general area of wrongful interference with another's goods, which is of course a part of the law in everyday use.
This law in practice has given little trouble over the years, and indeed the Committee found it to be built on the right foundations and to be generally secure. But the need for some limited reform has shown itself, and I think that this is in part due to the development in our own time of the law of hire-purchase. This involves, far more than ever before, the creation of separate partial interests in goods. As your Lordships know, in hire-purchase the rights in goods are divided as between the owner and the hirer, the one having the "reversionary" ownership and the other having possession, a limited title, and the right to purchase the reversion.
The Law Reform Committee found that the present law relating to wrongful interference with goods was unsatisfactory in a number of ways. First, it contained a number of unnecessarily overlapping and divergent remedies; in particular the awkward distinctions between conversion and detinue are very largely unnecessary and can be swept away safely in favour of a more rational approach. Secondly, the law, as it is now, can produce a measure of injustice because the procedural rules relating to such matters as proof of ownership are antiquated and unduly rigid. The Committee considered that these defects were of such a character that they could not be put right without legislation on the lines of the Bill now before the House. Lastly, the Committee thought that a number of minor amendments were required, in the interests of clarification and simplification.
First, as to the overlapping remedies. As the Committee themselves put it in their report:The extent to which the existing law perpetuates the old causes of action may be illustrated by the following examples, and it is arguable that in so doing it draws distinctions for which there is no sufficient warrant in modern law.Thus: —I am sure that the House will feel greatly enlightened by those interesting illustrations, the plague and agony of every law student.
- (a) if A takes B's bicycle for a joyride it is trespass, but if he takes it in circumstances amounting to a denial, express or implied, of B's title, it is also conversion;
- (b)if C causes the loss or destruction of D's car by pushing it into the sea it is both conversion and trespass, but only trespass if the car is merely damaged; and if the car runs into the sea because C, having lawful custody of it, has carelessly left the hand brake off, it is neither conversion nor trespass but negligence, whether the car is destroyed or only damaged;
- (c)if E, a bailee of F's goods, sells them it is conversion. If he damages them negligently, it is negligence. If they are stolen or lost by his negligence, he is liable in detinue. If he delivers them to the wrong person, it is conversion. If he delivers them to his bailor without title, it is no tort at all.
In order to reduce the number of remedies apparently available for very similar wrongs, the Committee suggested the creation of a new unified tort, to be described as interference with goods or by some similar collective name. This, they suggested, could be achieved by taking conversion as the main tort and abolishing detinue altogether. Then, as a second limb, they suggested that the other torts to which I have referred (except for the tort of negligence which was outside their terms of reference) should be restated as part of the new unified tort. The Bill fully implements the first limb of this recommendation, and the House will see the new name "wrongful interference" or "wrongful interference with goods" in Clause 1 and that the tort of detinue is abolished in Clause 2. It is not every day that the Lord Chancellor can have the pleasure of abolishing a tort, and it gives me a little satisfaction today to be in the process of doing so in the interests of simplification, although it is true that it is a tort which nearly perished until it was revived in the last century, and the United States has been able to enjoy a high standard of civilisation without it for a very long time.
The second limb involved the abolition of other separate torts, namely, trespass to goods, and the somewhat arcane civil wrongs which are still described as actions on the case, particularly that for grave injury to a reversionary interest in goods. This might occur, for instance, when a car is leased for a specified term and then stolen. The lessor of the car has a reversionary interest, and can sue "on the case" if that interest is destroyed.
1061 These relatively unimportant torts are not abolished as the Committee proposed, but the substance of the recommendation is largely met by the Bill. Clauses 3 to 10 provide for a substantial degree of common treatment for all the torts mentioned in Clause 2, including trespass and the actions on the case. In this isolated area, therefore, the Bill is less bold than the report. It prefers a "common treatment" approach to out and out unification.
The general thought that inspired this part of the Bill is that wherever it is possible to meld the various torts together, this has been done, but it would be difficult, indeed largely self-defeating, to attempt to unify in the areas where the torts are, and must remain, distinct. So despite a valiant attempt on the part of Parliamentary Counsel, to whom I am greatly indebted, to follow the report more closely, it has proved impossible to put forward complete unification. This would have involved the conjuring tricks and contortions necessary to turn the tort of trespass to goods from a tort protecting a person's possession into a tort which protects his property, and the Committee themselves did foresee some of the difficulties which that would create.
There were also problems about nominal damages and the law of limitation, and I was forced to the conclusion that no useful purpose would be served by attempting a more ambitious approach to these difficult matters. Indeed, the Bill gains on the exchange in one way, because it is able to include the tort of negligence as it affects goods, which was outside the Committee's terms of reference, and in doing so it borrows the thought implicit in the example I have already cited of the car that runs, or is pushed, into the sea—happily, not a daily event. I am glad to be able to say that, except for a minor point on negligence, which I am considering, this approach was not challenged in the course of the consultation I was able to carry out on the Bill this summer, and I hope the House will agree with it.
As I have said, the Committee's other main aims—and I shall deal shortly with the detailed provisions of the Bill—were the elimination of injustice caused by the procedural ossification that has occurred in the tort of conversion, and the clarity 1062 and simplification that some relatively minor amendments can achieve. There really has been something unjust and, indeed, absurd about a system of law which refuses to listen to a defendant's incontrovertible proof that the plaintiff in a case has no title at all to the goods whose value he nevertheless claims from the defendant. This, however, is exactly what was meant by the old rule of law known as jus tertii, which the Bill will abolish in Clause 8. The old law has in effect sacrificed a litigant on the altar of the proposition that a person with possession has better title than a person without. That rule is perfectly sensible for the conduct of ordinary business and everyday life, but it does seem wrong that the defendant should not be allowed to invite —indeed, be prevented from inviting—the true owner to show in a court of law that the plaintiff has no title. The Bill will now enable the defendant to do so. The consequence will be that all the various interests in the goods will usually be before the court at once; and the Bill provides, at Clauses 7 and 8, the necessary machinery to enable the court to arrive at a result which is fair to all concerned.
For the rest, since the tort of conversion and other torts affecting goods are basically sound, the minor amendments do not touch the core of the torts but make changes at the fringe. In this category I would place Clause 6, for instance, which enables a subsequent purchaser to reduce the damages he must pay to the true owner by the amount of any improvement in the goods effected by an intermediate purchaser, and Clause 11, which clears up an isolated anomaly concerning a purported sale by a co-owner. The House will also wish to note Clause 12(1), which prevents the rules about contributory negligence operating in the strict or intentional torts of conversion or trespass to goods; and Clauses 13 and 14, which, with Schedule 1, provide a new scheme to enable persons left with goods on their hands to sell them in appropriate circumstances.
My Lords, there is little more that I think I need say at this stage by way of explanation. Your Lordships will note that the Explanatory and Financial Memorandum attached to the Bill provides a fairly full explanation of the various clauses, which is perhaps useful in this field of high technicality. In some places the draftsman has provided examples to 1063 illustrate the meaning of the text, and I hope that this will be found to be helpful. Indeed, the Law Society, who have been most helpful in providing detailed comment on the draft Bill, which I have recently received, have suggested, among other things, that there should be more examples so that greater clarity should appear. I have also received some welcome and useful comment from the Multiple Shops Federation. To all these suggestions I shall give very full consideration, and it may well be that it will be necessary to put some Amendments down at the Committee stage in order to meet the points that have been taken. In the meantime, I hope the House will be disposed to give this Bill a Second Reading. I beg to move.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 5.34 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I congratulate the noble and learned Lord on his fascinating summary of this jolly little piece of civil law reform; and, being full of the Christmas spirit, I think I can undertake neither to divide the House against it nor to indulge in prolonged criticism of it. Nor, in fact, since it is rather indigestible, do I wish to discuss its detail, at any rate on Second Reading. As far as I can remember, it landed on my desk somewhere in 1971, and at that stage, being a keen young Lord Chancellor, I immediately told my office to put it into law at once. I was told that they could not do that because they had not a Parliamentary draftsman, so I helpfully suggested that I should draft the necessary Bill myself, whereupon they blanched and took the thing away from me. Some years later, so far as I remember, I succeeded in getting the various powers-that-be to let the thing out on contract for some enterprising member of the Bar to draft, but the reference made by the noble and learned Lord to the Parliamentary Counsel leads me to suppose that what I had thought to be a triumph of persistence on my part somehow aborted. Perhaps he will tell me what actually has happened, and how the Bill has ultimately come to be drafted.
My Lords, I welcome any form of simplification of the law because our law 1064 is rapidly becoming a shambles. In spite of the efforts of the noble and learned Lord, Lord Gardiner, and subsequently myself and the present Lord Chancellor, in causing the repeal of spent and obsolete Statutes, the pages of the Statute Book continue to multiply, to the point at which even a specialist lawyer cannot in the least keep abreast of even his own speciality far less the general law. So this modest step towards simplification can be greeted only with loud, if somewhat otherwise muted, enthusiasm. It is a good thing to have done, and I congratulate the Lord Chancellor on having found the Parliamentary time to do it and the Parliamentary draftsmen to put it into shape. I noticed from one of the briefs about it that I read, that apparently the Bill was ready at the beginning of last Session but the noble and learned Lord failed to get a place in the programme, and he spent the last Session consulting various interested bodies. Perhaps he would tell us very shortly, when he comes to reply, what changes were made as a result of that consultation.
I should like to say, seeing to my pleasure the noble and learned Lord, Lord Gardiner, that I think he has always been a little unfair to the Law Reform Committee, whose modest child this Bill is. The view I always took was that the Law Commission, of which the noble and learned Lord always took legitimate pride of parentage, and the Law Reform Committee, and indeed the Criminal Law Reform Committee, which is another separate body, have complementary functions to perform. Obviously, the labouring oar in law reform will continue to be taken by the Law Commission, which has facilities at its disposal which are not available to the more modest bodies; but I think this is an example of the way in which they can work together to the general advantage. Speaking for myself, I am glad the Lord Chancellor has managed to get this little ship launched, and without any technicalities I give it my general benediction, if I am allowed to do so, with due humility. I also congratulate him on having succeeded in getting it drafted, where I apparently failed.
§ 5.39 p.m.
§ Lord GARDINER
My Lords, I, too, would welcome the Second Reading of this 1065 Bill. I should like to join in the thanks which have already been expressed to the Law Reform Committee, and respectfully to congratulate my noble and learned friend on the Woolsack on having, in a Session in which Parliamentary time is obviously at a premium, succeeded in obtaining a place for this Bill, no doubt partly helped by the magic last 16 words in the Explanatory MernoratLanz:The Bill is not expected to have any effect on public expenditure or public service manpower".My Lords, I know we have a private function at a later stage in this building which we are all anxious should be attended, and it is not my purpose to take up your Lordships' time by discussing this rather esoteric blanch of the law. I have had rather longer experience of it perhaps than either of my two noble and learned predecessors present because it was just on ten years ago that I asked the Law Reform Committee to consider this branch of the law. I knew that the law of detinue and conversion was badly in need of reform. They spent four years on it and their report was published five and a half years ago; so that it has taken just on ten years, bar a few months, to arrive at the point that we have arrived at tonight.
There are two matters which I should like to raise. The first is that of Parliamentary draftsmen. It is, I think, a great advantage for the Law Commission that, after tribulations the nature of which I will not now disclose, I managed to obtain for my colleagues three or four Parliamentary draftsmen to work whole-time with the Law Commission. The advantages are, first, that when the draftsman comes to draft the Bill resulting from the report, he knows what the Committee are thinking; he knows not only the words in their report but the thinking behind it; he knows the discussions which have gone on. The second advantage is that, of course, he, himself, taking part in the discussion from the start, can say, "If you are going to put it in that way, it is going to be difficult to turn it into legislative language. If only you put it this way, it will make it simpler." Thirdly, the draftsman is trained to say, "That is all very well, but what is to happen if …" and he then produces a possible state of affairs which has never occurred to any member of the Committee 1066 at all. If he does not arrive until after the report has been published, there is no one to ask what the Committee intended in those circumstances.
I believe that I am right in saying that it has always been the hope of successive Lord Chancellors that the Law Reform Committee might have a draftsman sitting in with them. If that is so, I would venture to express the hope that my noble and learned friend on the Woolsack will pursue this matter. If, as I think, the Law Reform Committee operate as they did in my day—and successive Lord Chancellors appointed me a member of the Law Reform Committee for about 12 years—we met about one day a month after court for two or three hours. If that is so, may not two things be represented to the powers that be? First, the difficulties which arise if there is no draftsman sitting with them; because—I believe that I am right but I shall be corrected if I am wrong—one of the reasons why it has taken five and a half years is that when a draftsman did apply his mind to it he had to make a number of changes because the precise nature of the reforms recommended were not suitable for converting into legislative language. May it not be pointed out to the powers-that-be, and may it not be stressed, that this means the services of a Parliamentary draftsman for only two hours a month? If this did make a big difference, as I think it would, I would hope that the powers-that-be would realise that this is a very small price to pay for it.
Secondly, may I ask my noble and learned friend what is to be the future of the Law Reform Committee? It is the fact that I considered, when we had the Law Commission Bill, whether perhaps we ought not to wind up the Law Reform Committee and the Criminal Law Revision Committee; but I thought that until we had seen the operation of the Law Commission we had better keep them. They have rendered a useful service. I do not know what their future is. I think that the noble and learned Lord, Lord Hailsham of Saint Marylebone, asked them to consider the law of limitation. They did so to good effect so far as personal injury cases were concerned, but I think that they are still engaged in considering the rest of this field. May I ask whether that is so? If so, when may we expect a report on that subject?
1067 Lastly, my Lords, has the noble and learned Lord any thoughts in mind for the future work of the Committee? Are they engaged in any other work; or has he it in mind to ask them to consider any, and if so what, specific subject? With those short observations, I warmly commend the Second Reading of this Bill.
§ 5.45 p.m.
§ The LORD CHANCELLOR
My Lords, I am most grateful to both noble and learned Lords for the welcome they have given this Bill. I am also grateful to them for having resisted the temptation of entering into the arcane technicalities and putting to me what would undoubtedly have been unanswerable questions. They have entered into the spirit of the time, bearing in mind the season of the year, and I am grateful for their forbearance.
The noble and learned Lord, Lord Hailsham, described the problems of finding a draftsman; and my information is that he has, as I would expect, accurately recollected what in fact occurred: that he sought outside assistance on a contractual basis for the drafting of this highly technical Bill, but that it was found that no one would undertake it on a contractual basis. My understanding of the matter is that at the end of the day it came to that excellent body of men, the Parliamentary draftsmen, to deal with the task which, I venture to think, has been done admirably. But so tangled were the thickets and so deep the marshes lying around it, that it fell to a senior Parliamentary Counsel to complete the task. That is the end of the saga of the draftsmen.
The problem of draftsmen is, of course, a difficult one bearing in mind the amount of legislation that they are required to deal with. We have kept up pretty well with numbers of late, and I take the point mentioned by my noble and learned friend Lord Gardiner of the extent to which the Law Reform Committee suffered from the non-availability of Parliamentary draftsmen. The position, of course, in the whole field of law reform has been transformed by the initiative of my noble and learned friend Lord Gardiner in setting up, as he did, the Law Commission and by the subsequent enthusiastic support 1068 it received from my immediate predecessor, the noble and learned Lord, Lord Hailsham; and it has fallen to the Law Commission to take the major responsibility in preparing law reforms for Parliament. I agree with the views that I think both noble and learned Lords expressed: that the Law Reform Committee itself, first of all, has been of great value in the past and has produced reports of outstanding quality. I personally think that there is still room for it to continue to help us in this field.
On the specific question that my noble and learned friend Lord Gardiner asked me, I may say that the Committee is at present engaged on the task referred to it by the noble and learned Lord, Lord Hailsham; namely, a general review of the law of limitation of actions. They would have completed that study some time ago, as I understand it, were it not for the desirability of awaiting the outcome of an appeal to your Lordships' House which raises certain crucial issues on the law of limitation. It is thought that it would be wise to await the outcome of that appeal before that work is completed.
As to the future, I have no further subjects at present in mind for reference to the Committee but, as I have said, my present view is that it does continue to serve a useful purpose notwithstanding the existence of the Law Commission. I have little doubt that at some appropriate time some suitable subject will come up for consideration and will benefit from the expertise of the Committee. It is very valuable for the judges as well as the practitioners from both branches of the legal profession to be directly associated with the work of law reform, and there are a number of problems raising highly technical issues, particularly in the field of practice, on which it is very helpful for any Lord Chancellor to be able to rely on the advice of a widely representative body like the Law Reform Committee.
I was asked about the outcome of the consultations which have taken place. The best results came in very recently. The Law Society wrote on 25th November and the Multiple Shops Federation on 7th December. As I said in opening the debate, their suggestions are being considered. The Bar Council was also consulted. I am most grateful for the reception that this Bill has had. I do not 1069 want in any way to incur the wrath of those who are shortly, I understand, hoping to enjoy hospitality among themselves. I am grateful to the House for its support of the Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.