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Lord Hailsham of Saint Marylebone: My Lords, I congratulate my noble and learned friend on his introduction of the Bill. It underlines once more the valuable contribution which the Law Commission makes to the progress of law reform. It is a standing memorial to the memory of the Lord Chancellorship of the late Lord Gardiner, who immediately preceded me. We are in arrears with some of the reports and I am glad that my noble and learned friend persuaded his colleagues of the importance of finding room for those that appear in our legislative programme.

The history of our law of evidence is slightly ridiculous. We were so obsessed with the dangers of perjury in the presentation of a case that we chose to connect the law with the competence of witnesses and the types of evidence presented instead of giving consideration to their relative weight. In the modern system of justice that which is logically probative should be evaluated by the tribunal of fact and admitted, and only that which is not logically probative should be dismissed as irrelevant.

I have only one slight criticism of what my noble and learned friend said. I am sorry that the respect that we have for the rule against retrospection led us to say that the new law will only apply to proceedings begun after its enactment. Purely procedural and evidential changes in the law should apply as from the moment when the law is enacted to proceedings which are currently before the courts. Having said that, I have said everything I want to say and I hope the House will forgive me for taking up its time.

11.53 a.m.

Lord Mishcon: My Lords, we have just heard a delightful contribution by way of—according to the

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traditions of this House—hearsay evidence from the noble and learned Lord whose name did not appear on the speakers' list.

Lord Hailsham of Saint Marylebone: Sorry!

Lord Mishcon: I have no doubt that it is an invitation to this House to alter its rules. As I said, it is always a great pleasure to hear the noble and learned Lord express himself, especially when it is unexpected.

Baroness Trumpington: My Lords, if I may interrupt the noble Lord, Lord Mishcon, I should say that I did ask my noble and learned friend whether he realised that he had been a naughty boy, and he said yes.

Lord Mishcon: My Lords, I entered my name on the speakers' list because it appeared to me that the voice of a solicitor as well as that of the cuckoo should be heard in the land. I did it for several reasons. The first was to follow the thoughtful words of the noble and learned Lord the Lord Chancellor in paying a tribute to one of his great predecessors, the late Lord Gardiner. He conceived the idea of the Law Commission. It has been left to his successors to see that its recommendations receive the greatest consideration and find their way, if they merit it, on to our statute book. No one has done more than the present noble and learned Lord the Lord Chancellor to see that those wishes are carried out. Not only have the recommendations given new life to our law; they have also given encouragement to the Law Commission which was somewhat disconsolate in years gone by to find that its hard work seemed to end up in a pigeon-hole in a department. The procedure that now exists in this House for speeding these Bills through is a great help. I know that the House appreciates the efforts of the noble and learned Lord in achieving a good record in regard to law reform.

The second reason I added my name to the speakers' list was to express the Law Society's gratitude for the degree of consultation that has taken place between it and the Lord Chancellor's Department. Those consultations have been of great use, not least in bringing to the fore the need for seeing that the timing of the notices which would have to be served under the Act, receives recognition in the rules that will subsequently appear. It is vital in the preparation of a case that there should be proper timing of the notice that hearsay evidence will be adduced. There must also be proper timing in regard to any notice to say that that intention is being abandoned. Otherwise we shall find a great deal of time taken up unnecessarily with confusion at the eventual trial.

I ask the noble and learned Lord to consider carefully the suggestion by the Law Society that another recommendation of the Law Commission should be implemented in the Bill. In September 1994 the Law Commission published its final report on structured settlements and interim and provisional damages (Command 2646, Law Commission Paper 224). The Lord Chancellor was good enough to indicate in a recent press notice that he approves of those recommendations. One hoped that a Bill would be introduced in the present Session of Parliament to implement them. Apparently that has not proved possible, though one of the recommendations found its way into the Finance Act.

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This is an important recommendation which comes within the question of evidence in civil proceedings. It relates to the fixing of damages in personal injury cases, which noble and learned Lords who have sat as judges of first instance in time far gone by, will remember as being a difficult matter in the trial of injury cases. Consideration of forecasts of the future finances of this country and the question of the future chances of employment in this country have to be worked out, which involves difficulty and guesstimates. In that context one has found that multipliers used by some judges are different from those used by other judges on more or less the same facts.

The recommendation of the Law Commission is that we introduce actuarial tables, which are available from government departments, in a way which will stop the use of guesstimates to a large extent and produce more consistency in the adjudication of damages. The Law Commission took the trouble to prepare a clause—clause 6 of its report—which would meet that case. Because of the need for such a provision in personal injury cases, one hoped that this Bill, dealing as it does with evidence in civil cases, would be able to incorporate that clause. I hope that the noble and learned Lord will be good enough to give the matter his consideration.

11.59 a.m.

Lord Meston: My Lords, I thank the noble and learned Lord for his introduction of the Bill and for the particularly helpful Notes on Clauses in which we find the object of the Bill succinctly summarised. The object of the Bill is to move away from a situation in which the admissibility of evidence is of importance to one in which what matters is the reliability and weight of the evidence.

It was 30 years ago, in the case of Myers v. DPP, that Lord Reid recommended reform of the hearsay rule by legislation following a wide survey of the whole field. This Bill follows such a survey by the Law Commission. It marks a further stage in the removal of what Sir Rupert Cross called "the superstitious awe about having any truck with evidence which involves A telling the court about what B said to him". Clients and witnesses in court are often quite bemused by the efforts of the judge and the lawyers to stop them uttering what they believe to be perfectly relevant and credible evidence. There remains much force in Henry Cecil's remark that,


    "the laws of evidence often prevent a witness telling the whole truth".

The elaborate and confusing rules about hearsay evolved when juries tried many more cases and many more types of cases than they do today. That does not necessarily mean that now that only a very small proportion of civil cases are heard by juries a total abolition of the rule against hearsay is the only, or the obvious, reform. However, it seems to me that the experience which we now have of the working of the 1968 Act, of the orders made for the admissibility of hearsay under the Children Act and of the more relaxed rules of evidence in industrial tribunals all point the way to the reforms proposed in the Bill. Indeed, the other day I read a case report in which an industrial tribunal had actually been held to be wrong in excluding hearsay evidence, which is perhaps an indication of how far things have moved.

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It is also correct that it has long been possible to include first-hand hearsay in affidavits in interlocutory proceedings provided that the source of information is stated. I hope that that proviso will continue under the workings of the Bill. Indeed, one of the problems of the technicalities of the existing law is illustrated in medical negligence cases where there has to be an omnibus direction that doctors' notes and hospital notes should stand as evidence without further proof. The one thing the court and, I am afraid, legislation cannot do is to make a doctor's notes legible.

The emphasis in modern litigation on advance disclosure of witness statements means that the parties should not be disadvantaged by being confronted with hearsay evidence which cannot be tested by cross-examination and which may have been deliberately or innocently distorted by the witness relaying that hearsay. The reforms to be brought about by the Bill will not succeed in making hearsay evidence wholly respectable. All-important are the safeguards contained in Clauses 2, 3 and 4. Judicial discretion, assisted by the useful statutory guidelines as to the weight to be given to hearsay evidence, should ensure that a consistency of approach will quickly emerge. The rules of court will be of vital importance in ensuring that practical fairness is part of the legislation and the subordinate legislation which follows. I hope that the rules will be the product of wide consultation.

It is not clear from the Bill what classes of proceedings or evidence are to be exempt from the notice procedures. The requirement to give notice is already in place in the 1968 Act under rather more limited circumstances—that is now well understood—which should make the transition to the proposed new procedures fairly painless for practitioners. The Law Commission's criticism of the rule in the 1968 Act governing the admissibility of evidence from "beyond the seas" struck a chord with me at least. I once dismally failed to persuade a judge on the Isle of Wight that I could use it to put in a statement of a witness who had failed to turn up having missed the train in Liverpool. However, the provisions of the Bill will put yet a further emphasis on pre-trial preparation and on case management. An important part of the advice on evidence will be the decision whether to require leave under Clause 4 to bring a witness to court to be cross-examined.

The removal of undue technicalities relating to documentary evidence is another welcome improvement. I have recently been in a case in which there were substantial bundles of Civil Evidence Act notices to prove computer print-outs from a mortgage lender and other such uncontroversial material. I would only question whether the phrase in Clause 8(1),


    "authenticated in such manner as the court may approve",

is rather too vague and may allow for rather too much variation between different courts and different judges. In Scotland, the legislation is more precise, and I wonder whether perhaps more thought should be given to that aspect of the Bill. With that very limited proviso, I am sure that the Bill will have the general support of the House.

12.8 p.m.

Lord Wilberforce: My Lords, I venture to interpose a

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few words in, I hope, a regular manner in the gap, apologising, of course, for not having entered my name in the list of speakers.

First, I give a very hearty welcome to the Bill. It is a case in which very substantial research and consultation has been carried out by the Law Commission. It is very gratifying that in this case the result of such intensive research and consultation coincides completely with what one considers to be one's instinct in these matters, and has been so for a long time; namely, that the hearsay rule ought in substance to be done away with.

Having said that, I want to make one comment on the Bill as drafted. It is enormously elaborate. It runs to 14 pages and goes into a great number of details. I wish to comment particularly on the schedules which trawl through a great number of Acts of Parliament—the forces Acts, criminal Acts, the International Carriage of Perishable Foodstuffs Act 1976 and finance Acts—and which seem to have very little to do with the object of the Bill. I want to make two comments on that. First, the schedule introduces some changes in the criminal law of not insubstantial extent. If one looks at the Army Act, the Air Force Act and the Naval Discipline Act one finds that it introduces what I think is a new offence of a slightly wide and alarming character. Paragraph (d) of the proposed new Section 62 states:


    "with intent to deceive, fails to make an entry in an official document",

In addition, the new section introduces a new definition of "document" in subsection (3):


    "'document' means anything in which information of any description is recorded".

That seems to have the effect that, although what the soldier says is henceforth going to be evidence, it is going to be a crime if the soldier interferes in any way with a silicon chip. That may be a necessary step. I just wonder whether it is an appropriate subject for legislation in this Civil Evidence Bill, which, as the noble and learned Lord said, is concerned only with civil proceedings, to introduce these new or extended offences. It may be said that this is technically incorrect but it is convenient. If that is the answer, I am probably satisfied with it. But perhaps the noble and learned Lord would like to deal just with that aspect of the matter.

The other point I want to make is one of simplification. The general effect of the schedule is to extend the meaning of the word "document" to something in which information of any description is recorded. That is done in Clause 12 of the Bill, to which the noble and learned Lord referred:


    "'document' means anything in which information of any description is recorded".

That is to give effect to technological developments such as computers, silicone chips, and so on. In effect, the schedule goes through all these Acts which have been trawled through and makes similar amendments to the word "document" as used in those Acts.

I wonder whether that might not have been achieved in a more simple manner. Perhaps the noble and learned Lord might care to consider with his draftsmen whether one should be able to have a simple clause, perhaps in the Interpretation Act or in this Bill, saying that a document means something in which any information is to be recorded; and consider whether it is necessary to go

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through all these Acts, one after another, instead of doing it through a general phrase which would have the advantage of picking up something which the draftsmen may have failed to notice. I do not expect the noble and learned Lord to deal with that point now. Perhaps he will consider some simpler referential clause which deals much more easily with this point. It is of importance and needs to be dealt with in this legislation. Subject to those two points I have great pleasure in commending the Bill to the House.

12.11 p.m.

Lord Irvine of Lairg: My Lords, we support this Bill, as we have supported the three other Bills introduced this Session by the noble and learned Lord on the Woolsack to give effect to some of the superb work of the Law Commission. It is refreshing that it has proved possible to identify a number of quite complex Bills which could be agreed not to be controversial in any party political sense so that they could attract an accelerated passage onto the statute book.

I join the noble and learned Lord, Lord Hailsham, and my noble friend Lord Mishcon in acknowledging the energy of the noble and learned Lord on the Woolsack in promoting these achievements. The standing of Parliament as a legislative machine is enhanced when much needed law reform can be implemented by lean and speedy procedures.

I shall not take up your Lordships' time by rehearsing the noble and learned Lord's explanation of the Bill. I agree with him that the central point is that all relevant evidence should be admissible; that the court must decide what weight to give each piece of evidence; and that it may well be appropriate to give less weight to hearsay evidence.

I particularly welcome Clause 3. It enables rules of court to be made to enable a party to call for cross-examination a person whose statement has been tendered as hearsay evidence by another party but who has not been called by that other party to give oral evidence in court where he can be tested on his evidence by cross-examination. In all our efforts to simplify and reduce the cost of court proceedings, we must never lose sight of the sad fact that parties and witnesses in contested litigation often have an interest to be untruthful or economical with the truth. The function of cross examination is to expose untruths.

A practice direction of 24th January of this year in the name of the noble and learned Lord the Lord Chief Justice and the Vice-Chancellor, Sir Richard Scott, encourages judges in civil litigation to impose time limits on cross-examination. Unnecessarily lengthy or irrelevant cross-examination must always be prevented, but relevant and concise cross-examination, never—even if of unavoidable length—in order to get at the truth. There should be no arbitrary time limits on relevant and concise cross-examination for such limits can only operate in favour of the untruthful.

The modern practice of giving evidence-in-chief by way of a written witness statement—in practice drafted at great length by lawyers in a form in which it is

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inconceivable that it could conform to any oral evidence-in-chief that the witness would himself give in the traditional way from the witness box—increases rather than diminishes the need for thorough and relevant cross-examination. It is therefore welcome to see Clause 3 underlining the importance of cross-examination in our justice system.

In our search for simplified and economic procedures we must never overlook that a primary function of the justice system is to get at the truth. No doubt these are considerations which the noble and learned Lord, Lord Woolf, will address in his report which we eagerly await. I join the noble and learned Lord in commending the Bill to the House.

12.15 p.m.

The Lord Chancellor: My Lords, of course one of the provisions of this Bill is that notice requires to be given of the intention to use hearsay evidence, but that the ordinary rules of notice may, in some circumstances and if the situation requires it, be overlooked. I am sure that your Lordships welcome the intervention of my noble and learned friend Lord Hailsham even though it came perhaps at an unexpected part of our proceedings.

So far as commencement is concerned, that is a matter I wish to consider further. My recollection is that the Law Commission report was silent on that point. There is some need to be clear about precisely how that should operate in relation to cases which are presently in court and may be substantially prepared. One would need to be careful. It is on that basis that the present Bill has been framed.

I am grateful to all noble Lords who have spoken about the progress that has been made this Session with these Bills. It is quite important to remember that although Law Commission Bills may not be party politically contentious—that is the case with all the Bills which I have introduced this Session—nevertheless they may be very highly contentious on a technical level. All the Bills I have introduced have at least had some element of questions of that kind related to them. The degree has been less in some than others; for example, in the Law Reform (Succession) Bill there was very little of it and we were able to take it through in the ordinary way with very little time used on the Floor of your Lordships' House. On the other hand, the private international law Bill was the subject of a good deal of technical discussion. Not everyone was absolutely agreed even at the very end of that discussion, as your Lordships were reminded at the end of our proceedings here.

I believe that the proposals of my noble friend Lord Jellicoe, and accepted by the House, have enabled us to have a very suitable procedure for these matters to be thoroughly examined. Nobody wants Parliament to be a rubber stamp to the Law Commission when there are questions of a technical character that may require to be debated. The difficulty has been to get that kind of thing into the ordinary parliamentary programme when there is such competition for what I might very generally refer to as Bills involving political policy of a high order. Generally, these Bills do not have that except the political policy which is a consensus policy, of trying to simplify and improve our law generally. I believe that we now have

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very good machinery for examining these technical matters fully and enabling a view to be reached on them, as a result of the institution of the Jellicoe procedure.

I take this opportunity to say how grateful I am to so many Members of your Lordships' House who have participated in these committees, which tend to be somewhat time consuming and tend to involve a great deal of preparation, particularly by those who are not familiar with the field, in order to follow what is going on. In the nature of the matters they are technical. I am very grateful to all those from all sides of the House who have been willing to participate.

The noble Lord, Lord Mishcon, mentioned consultation with the Law Society. Obviously, I find such consultation extremely valuable and it is important to continue that in relation to the rules of court which have to be formulated to deal with such matters, including with the question of the extent to which exceptions from the notice required should be provided.

Like the noble Lord, Lord Mishcon, I am very much in favour of seeking to incorporate in our statute law the Law Commission's proposals on structured settlements. As the noble Lord mentioned, they have already been recognised for tax purposes in the Finance Act as a result of agreement between parties across the political divide on the Bill which preceded the Finance Act. I am keen to do that. Indeed, I have been making preparations with a view to doing that at as early a date as I can achieve. If it were possible to do that in this Bill by consent, that date might be even earlier than I had anticipated. Perhaps we can look into that to see whether it is possible. My impression was that these are not "together" as subject matters; but perhaps we can devise some way of putting them together. I should not like to lose any opportunity to bring structured settlements into the law because I believe that they represent a considerable advance on the present situation.

The noble Lord, Lord Meston, referred to a matter which has caused much unnecessary writing in the past. I refer to medical records and their being accepted as evidence. It is now standard procedure to agree that they can be used, but it always takes a little time and effort to meet the technical requirements involved.

We shall want to consider in Committee the point that has been made about Clause 8(1). The intention was to leave the provisions open. They state:


    "authenticated in such manner as the court may approve".

Perhaps we should consider making that a little tighter, as the noble Lord suggested. My impression was that the intent of the provisions was sufficiently clear as to make it a good practical proposition.

My noble and learned friend Lord Wilberforce asked two main questions. I turn first to the structure of Schedule 1. I have tried to limit the extent to which the user of a statute has to refer to another statute. That is why we have sought, where necessary, to include definitions which will not require the person using that legislation to have to read this Act. It may be that other considerations suggest another way of looking at that.

I turn now to the criminal law provisions. Given my noble and learned friend's observations, I shall want to look into this a little more fully, but my understanding is

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that they are simply consequential amendments to the existing provisions. Where the language used was that of the Civil Evidence Act 1968, we have substituted the language of this Bill. In a sense, that may alter the precise scope of the offence, but it does so in relation to the matter that is now in question, a record in relation to evidential matters.

The Bill is as simple as we have been able to devise. One way of looking at it is to recognise that it is about half the length of the 1968 Act. If we proceed at that rate of shortening, the statute book will soon be of agreeable proportions.

I am grateful to the noble Lord, Lord Irvine of Lairg, not only for his full support for the Bill, but for the help which he and his colleagues, along with the noble Lord, Lord Meston, and his colleagues, have given to the procedural aspects of getting such Bills into Parliament without undue delay.

I agree with the noble Lord that cross-examination is an important part of oral advocacy. The practice directions, handed down by my noble and learned friend the Lord Chief Justice and the Vice-Chancellor, and followed in somewhat similar terms by the President of the Family Division after a few days, are intended to give the court a clear indication that it has the power to control the time for which evidence is given. I am sure that I can speak for the President and for the Vice-Chancellor in saying that there is no intention of in any way limiting proper cross-examination. However, it is sometimes found that if the time is limited in order to ensure succinctness, that does not in any way detract from the effectiveness of the cross-examination. A short, well thought-out cross-examination is likely to be at least as effective in nailing lies as one which goes on, apparently relentlessly, for a time which appears to the judge and possibly to all those others who are independent observers, except the person conducting the cross-examination, to be unnecessarily long. That is the purpose of those powers. I am sure that they will be well and wisely used. They are intended to be brought to the attention of the judiciary; and I am sure that your Lordships will feel that in those hands they will indeed be wisely used.

I am grateful for the warm support which the Bill has received and it is therefore with confidence that I renew my Motion.

On Question, Bill read a second time and committed to a Committee of the Whole House.


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