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Lord Williams of Mostyn: My Lords, I am most obliged for that summary and elaboration. I regret to say that I remain unconvinced. I do not think that the discretion allowed for in Clause 5 is a completely open judicial discretion since it is circumscribed to an extent by the terms of new Section 32A.

The noble and learned Lord confessed a difficulty with the metaphysical principles of limitation. I do not seek to swim in those waters. However, on limitation one is dealing with balancing the plaintiff's right with the defendant's certainty. Of course it is in the plaintiff's own interest to get on with his claim as soon as possible, but that is true of almost every claim in almost every circumstance in tort. However, if lack of money or the other extraneous circumstances which I indicated tell against that interest being immediately asserted, then it does not seem unreasonable to have the full three-year period.

Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Simon of Glaisdale moved Amendment No. 5:

After Clause 6, insert the following new clause--

Unjustified proceedings for, or actions in relation to, alleged defamation

(" .--(1) If a person (whether or not the person allegedly defamed) without reasonable cause issues a writ for defamation or by letter, advertisement or otherwise without reasonable cause threatens to issue such a writ, or otherwise without reasonable cause attempts to hinder the publication or further publication of allegedly defamatory material, the person aggrieved (whether or not the person to whom or against whom the threats or attempts were made) may bring proceedings against the person issuing the writ or making the threat or attempt, claiming any relief mentioned in subsection (4) below.
(2) In any such proceedings the onus of proving reasonable cause shall be on the defendant or defender but he may discharge it as follows--

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(a) if he has issued a relevant writ, by undertaking to the court to pursue the consequent proceedings with due expedition,
(b) if a relevant writ has not been issued, by undertaking to the court that such a writ will be issued forthwith and that consequent proceedings will be pursued with due expedition.
(3) Breach of any such undertaking mentioned in subsection (2) above shall, in addition to being a contempt of court, revive the plaintiff's or pursuer's right to claim the reliefs in subsection (4) below.
(4) The reliefs are as follows--
(a) dismissal of the writ,
(b) a declaration that the threats are unjustifiable,
(c) an injunction or interdict against the renewal of the writ or the continuance or resumption of the threats or attempts,
(d) damages, including (where appropriate) aggravated or exemplary damages.
(5) The provisions of this section apply mutatis mutandis to the law of criminal libel.").

The noble and learned Lord said: In moving Amendment No. 5, I speak also to Amendment No. 12, which is intimately linked with subsection (5) of Amendment No. 5.

The amendments originate in the speech of the noble Lord, Lord Lester of Herne Hill, at Second Reading. He referred to the notorious mischief of gagging writs. I intervened in the gap to suggest that there might be a model in the patent code whereby what is in effect a gagging writ for infringement of patent may be actionable unless it can be justified.

The noble Lord, Lord Inglewood, who was standing in for my noble and learned friend in replying and who was obviously hotly in pursuit of an honorary silk gown, promised that the matter would be considered in Committee. I accordingly drafted an amendment based on a Patent Act. I could not move it; I had already left London. But it was admirably moved, if I may say so, by the noble Lord, Lord Lester of Herne Hill. There was, too, a helpful speech from the noble Lord, Lord Williams of Mostyn, and my noble and learned friend the Lord Chancellor. All were agreed that there is a problem here: the problem of the gagging writ. The only question is how it should be dealt with. I accordingly put down the amendment again for the Report stage. I wrote to my noble and learned friend during the Recess telling him why I had done so; in other words, asking for his views as to the procedure for dealing with the mischief. He ensured that his answer was in my hands this morning and I am most grateful for it. I know what he has in mind and naturally I shall leave it to him to explain it. I am well content with what he told me.

There is one difference in the amendment which I have put down on Report from the one tabled at Committee stage. The amendment today is in the form that I originally submitted to the Public Bill Office which took the view that subsection (5) and the attendant Amendment No. 12 went beyond the scope of the Bill as they invoked the law of criminal libel. The Public Bill Office kindly pointed out by letter, which I received while I was away during the Recess, that in Clause 20(2) expressly criminal libel is declared to be no part of the Bill.

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I took the view that it was important that the two provisions should come before your Lordships for this reason. If, for example, a Mr. Maxwell were precluded from showering gagging writs, he would merely shower gagging summonses for criminal libel. I ventured to disagree with the Public Bill Office as to the scope of the amendment and its propriety. I accordingly insisted that it should go on the Marshalled List so that as a House your Lordships would be able, as you are entitled, to take a collective view as to an amendment's propriety. I do not intend to press the matter to a Division, but I start from the point that all speakers on the previous occasion agreed that there was a problem which required solution.

I tried to draft an amendment modelled on Section 70 of the Patents Act 1977. Obviously, it required considerable modification in the translation from patent to defamation. I concede that the drafting can be criticised in a number of respects, but the amendment is down so that it may be considered.

Only one real objection was raised by my noble and learned friend, who picked up an observation of the noble Lord, Lord Williams. The noble Lord drew attention to a number of respects in which defendants had defied the gagging writs issued by Mr. Maxwell. That is true, but it is not an answer. That some stout-hearted people stand up to that kind of threat is no reason why those who succumb to fainter hearts should not be protected. After all, there are plenty of stout-hearted people who stand up to threats of blackmail. "Publish and be damned", said the Duke of Wellington to Harriet Wilson. But that does not prevent us from having a law of blackmail reiterated in code after code.

In my respectful submission, something needs to be dealt with here. When I wrote to my noble and learned friend I suggested that either the Law Commission should examine it or a reconvened Neill Commission. My noble and learned friend has given me reasons which he will no doubt develop as to why there should be an alternative method of dealing with it and I accept that.

As I do not intend to press the amendment to a Division, I only need to deal briefly with my new subsection (5) and its attendant Amendment No. 12. The reason I took the view that I did, notwithstanding the advice of the extremely able officers of the Public Bill Office, in the end comes down to this. The draftsman thought it desirable to provide expressly for the exclusion of criminal libel. That is not quite conclusive because the draftsman quite often puts in such a provision from an abundance of caution. But it is not in the form of being for the obviation of doubt, "It is hereby declared", etc. It is set down as an enacting provision as though there were something there for it to bite on. In other words, it is at least arguable that some provisions of the Bill would extend to criminal libel but for that provision. That is why I presumed to insist on the matter being in black and white before your Lordships. I beg to move.

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8.15 p.m.

The Lord Chancellor: My Lords, I believe that it is the appropriate procedure for me, on behalf of the Leader of the House, to draw attention to the advice, to which my noble and learned friend clearly referred in his speech, which was given by the Clerk of the Parliaments to the Leader of the House. It was to the effect that subsection (5) of Amendment No. 5 and the later Amendment No. 12 are beyond the scope of the Bill for the reasons given. The principal reason is that the Public Bill Office takes the view, as it would in all other Bills dealing only with the civil law, that any amendment which deals with the criminal law is irrelevant; that is, beyond the scope of the Bill.

In view of what my noble and learned friend said about what he wished to do, in a sense it is academic, but it is right for me to draw the matter to the attention of the House as being the advice which the House has received from the Public Bill Office.

Lord Lester of Herne Hill: My Lords, I am delighted that the noble and learned Lord, Lord Simon, is present this evening to move what always was his own amendment. With his great authority, experience and eloquence, he moved it far more effectively than I attempted to do on the previous occasion when he could not be present. The point of procedure raised is one that I perfectly understand and am alive to.

The reason why in debate it is important to examine the criminal implications of a civil Bill of this kind is that there is something extremely special about the civil law of defamation; namely, it springs entirely out of the criminal law. As I said on the last occasion, this is a creature of the jurisprudence of the Court of Star Chamber. The entire civil law of libel comes from it. Therefore, quite apart from the point raised by the noble and learned Lord, Lord Simon of Glaisdale, when trying to understand why we are where we are in relation to civil law, one needs to look over one's shoulder to see the nature of the criminal law.

I think everyone in the House who spoke last time, as the noble and learned Lord said, agreed that there is a problem in relation to the misuse of the civil law of libel. The problem is there because, unlike any other tort, the tort of libel places the burden of proof on the defendant to prove the truth of the publication. I sought to deal with that on the last occasion. I am told that the Australian Law Commission--perhaps it is the Law Commission for New South Wales--recommended, as did the Irish Law Reform Commission, that the burden should be shifted. Given that that is not likely to happen in this House in our lifetime, one of the consequences of the reverse burden of proof is that it enables the Robert Maxwells of this world to issue gagging writs. Unless the defendant is able to swear on oath that he intends to justify, which may be extremely difficult at the interlocutory stage, there is then the danger of an interlocutory injunction being granted.

Everyone is aware of the problem. The solution put forward by the noble and learned Lord, Lord Simon of Glaisdale, is an ingenious one from another field, another kind of intellectual property, namely, patent law. I am encouraged to look forward to any remarks

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by the noble and learned Lord the Lord Chancellor as to an appropriate way of dealing with the problem. In principle, I very much support the intention behind the amendment.

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