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Bairstow & Ors v RS Moat Houses Plc [1997] EWCA Civ 2290 (7th August, 1997)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/2290.html
Cite as:
[1997] EWCA Civ 2290,
[1998] 1 All ER 343
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JOHN BAIRSTOW and ORS v. QUEENS MOAT HOUSES PLC [1997] EWCA Civ 2290 (7th August, 1997)
IN
THE SUPREME COURT OF JUDICATURE
QBENI
97/0988/E
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE HIGH COURT OF JUSTICE
(MR
JUSTICE NELSON
)
Royal
Courts of Justice
Strand
London
WC2
Thursday,
7 August 1997
B
e f o r e:
LORD
JUSTICE BELDAM
LORD
JUSTICE PILL
LORD
JUSTICE PHILLIPS
-
- - - - -
JOHN
BAIRSTOW & ORS
PLAINTIFFS/APPELLANTS
-
v -
QUEENS
MOAT HOUSES PLC
DEFENDANT/RESPONDENT
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
C PURLE QC
(Instructed by Messrs Gouldens, London) appeared on behalf of the Appellant
MR
M BURTON QC with MR P DOWNES
(Instructed by Messrs Allen & Overy, London) appeared on behalf of the
Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
Thursday,
7th August 1997
J
U D G M E N T
LORD
JUSTICE PHILLIPS: On the 31st January 1997, the
Civil Evidence Act 1995 ("the
1995 Act") came into force. It abolished the restrictions on the admissibility
of hearsay evidence in English civil proceedings. To what extent, if at all,
does the 1995 Act apply to proceedings commenced before 31st January 1997?
That is the important question that is raised by this appeal.
The
appeal is brought by four Plaintiffs, each of whom began an action against the
Defendant in 1993 claiming wrongful dismissal. In each action, the Defendant
contends that the dismissal was justified by breach of duty on the part of the
Plaintiff. On 2nd May 1995, Master Eyre ordered, by consent, that the four
actions be tried concurrently and that the evidence in each action be
admissible and treated as evidence in each other action. On that day, the
Master gave directions in relation to evidence which gave leave to each side to
call up to four expert witnesses, which provided for meetings between experts
to narrow the issues, and which provided a timetable for discovery and for the
exchange of statements of witnesses of fact. Further directions, which included
variations of the Order of 2nd May 1995 were made by Master Eyre on 4th
January 1996, 25th January 1996 and 7th February 1996. These incorporated into
the timetable the times for service of notices under the Civil Evidence Act
1968. At this point the action was assigned to a judge of the High Court. On
23rd July 1996, and 16th September 1996, May J. gave further directions in
relation to the exchange of witness statements and expert reports. Subsequent
directions were given by Nelson J. on 6th and 11th December 1996. These
extended the timetable for exchange of witness statements and expert reports
and dealt with subpoenas.
On
20th February 1997, the Defendant's Solicitors wrote to the Plaintiffs'
Solicitors stating that they did not propose to serve 1968 Civil Evidence Act
notices in accordance with the timetable because they believed that the new
1995 Civil Evidence Act regime applied. The Plaintiffs' Solicitors challenged
that assertion and the issue was referred to Nelson J. who, on 27th June 1997,
after a short hearing, declared that "the Civil Evidence Act 1995 applies to
the trial of this action". It is against that declaration that the Plaintiffs
now appeal. It is necessary at this point to refer in a little detail to the
relevant statutory provisions.
The
1995 Act
The
following provisions of the 1995 Act are of particular relevance:
1(1)
"In civil proceedings evidence shall not be excluded on the ground that it is
hearsay."
2(1)
"A party proposing to adduce hearsay evidence in civil proceedings shall,
subject to the following provisions of this section, give to the other party or
parties to the proceedings:-
(a)
such notice (if any) of that fact, and
(b)
on request, such particulars of or relating to the evidence, as is reasonable
and practicable in the circumstances for the purpose of enabling him or them to
deal with any matters arising from its being hearsay.
(2)
Provision may be made by rules of court:-
(a)
specifying classes of proceedings or evidence in relation to which subsection
(1) does not apply, and
(b)
as to the manner in which (including the time within which) the duties imposed
by that subsection are to be complied with in the cases where it does not apply."
(4)
"A failure to comply with subsection (1), or with rules under subsection
(2)(b), does not affect the admissibility of the evidence but may be taken into
account by the court:-
(a)
in considering the exercise of its powers with respect to the course of
proceedings and costs, and
(b)
as a matter adversely affecting the weight to be given to the evidence in
accordance with section 4."
3.
"Rules of court may provide that where a party to civil proceedings adduces
hearsay evidence of a statement made by a person and does not call that person
as a witness, any other party to the proceedings may, with the leave of the
court, call that person as a witness and cross-examine him on the statement as
if he had been called by the first-mentioned party and as if the hearsay
statement were his evidence in chief."
11.
"In this Act 'civil proceedings' means civil proceedings, before any tribunal,
in relation to which the strict rules of evidence apply, whether as a matter of
law or by agreement of the parties."
12(1)
"Any power to make rules of court regulating the practice or procedure of the
court in relation to civil proceedings includes power to make such provision as
may be necessary or expedient for carrying into effect the provisions of this
Act."
16(1)
"This Act may be cited as the Civil Evidence Act 1995.
(2)
The provisions of this Act come into force on such day as the Lord Chancellor
may appoint by order made by statutory instrument, and different days may be
appointed for different provisions and for different purposes.
(3)
An order under subsection (2) may contain such transitional provisions as
appear to the Lord Chancellor to be appropriate; and subject to any such
provision, the provisions of this Act shall not apply in relation to
proceedings begun before commencement."
S.I.
1996 No. 3217
entitled "The Civil Evidence Act 1995 (Commencement No. 1) Order 1996" was made
on 19th December 1996 and came into force on 31st January 1997, and provided as
follows:
S.I.
1996 No. 3219
entitled "The Rules of the Supreme Court (Amendment) 1996" was made on 19th
December 1996, laid before Parliament on the following day, and came into force
on 31st January 1997. The preamble stated:
"We,
the Supreme Court Rule Committee, having power under section 85 of the Supreme
Court Act 1981 to make rules of court under section 60 of that Act and under
section 84 of that Act for the purpose of regulating and prescribing the
practice and procedure to be followed in the High Court and the civil division
of the Court of Appeal, hereby exercise those powers as follows..."
Rule
8 sets out a number of rules to be substituted for Order 38 rules 20 to 34 in
the RSC. Those latter rules form part III of Order 38, headed "Hearsay
Evidence", and are procedural rules giving effect to the Civil Evidence Act
1968. I can summarise the effect of the material replacement rules as follows:
Rule
21
provides for the service of a "hearsay notice", that is notice of the intention
to adduce hearsay evidence together with particulars of that evidence.
Rule
22
provides that where a party puts in a statement by way of hearsay evidence, the
Court can permit another party to call and cross-examine the maker of the
statement.
Rule
23
requires a party who intends to attack the credibility of the maker of a
hearsay statement to give notice of that intention.
Rule
9 of the statutory instrument provides:
"Nothing
in rule 8 shall apply to proceedings
(a)
in which direction have been given, or orders have been made, as to the
evidence to be given at the trial or hearing, or
(b)
where the trial or hearing has begun before 31st January 1997."
Identical
replacements are made to the equivalent provisions of the County Court Rules by
the County Court (Amendment No. 3) Rules 1996, which is S.I. 1996 No. 3218.
The
Judgment of Nelson J.
Before
Nelson J. it appears to have been common ground that Rule 9 had the effect of
making the 1995 Act applicable to proceedings other than those expressly
excluded from the applicability of Rule 8. The only issue was whether, on the
facts of the present case, "directions have been given, or orders have been
made, as to the evidence to be given at the trial or hearing."
The
Judge accepted the argument of Mr. Downes, for the Defendant, which he
summarised as follows:
"...the
1995 Act is an Act which is wholly beneficial in its regime, the court should
err on the side of applying that new regime, and the saving definition as to
directions and orders as to evidence to be given at the trial should be
narrowly construed so that it applies only to cases where a party has an
accrued right, so that there will be a loss to that party should the 1995 Act
apply as opposed to the 1968 Act."
Having
summarised the orders in relation to evidence that have been made in this case,
the judge went on to hold, at page 3 on the transcript of his judgment:
"...I
am satisfied that these orders relate in essence to timetabling. They do not
change anything relating to the nature of the evidence, or the evidence
actually to be given at the trial and no right has accrued to either party. I
am, therefore, satisfied that on the proper construction of 9(a) (and I prefer
that put forward by Mr. Downes) no direction or order as to the evidence to be
given at the trial or hearing has been given by Master Eyre and, therefore,
that the 1995 Act provisions apply to this particular case."
It
has now been appreciated that there are some fundamental problems of general
significance that need to be resolved before turning to the facts of this case.
Section
16 of the 1995 Act makes express provision as to the retroactive effect of the
Act. Under that Section, unless the Lord Chancellor makes transitional
provisions in the order made by statutory instrument bringing the Act into
effect, the Act is not to apply in relation to proceedings begun before
commencement. The Lord Chancellor made no transitional provisions in the order
bringing the Act into effect. The question then arises whether the Rule
Committee of the High Court, or the Rule Committee of the County Court had any
jurisdiction to confer upon the Act retroactive effect. That question interacts
with the further question of whether the alterations to the Supreme Court and
County Court Rules made by Statutory Instruments Nos. 3218 and 3219 of 1996
purported to make the 1995 Act retroactive.
As
to the first question, Mr. Michael Burton Q.C. on, behalf of the defendant, has
made three independent submissions, which I shall consider in turn.
Construction
of the three Statutory Instruments made on 19th December 1996.
Mr.
Burton's submissions are as follows:
"Section
16 provides for the bringing into force of the 1995 Act. In the event the 1995
Act is effectively brought into force by the Lord Chancellor by way of three
statutory instruments all made on the same day. The first formally brings the
Act into force and the other two change the rules so that the Act may be
operative. It is therefore submitted that the Act was brought into force by
all three statutory instruments. The fact that they are in three Orders is
incidental.
It
is submitted to make no difference that section 16 envisages a single Order
since the Interpretation Act 1978 section 6(c) states that "words in the
singular include the plural and words in the plural include the singular".
Therefore section 16 may be read as follows:
'(2)
The provisions of this Act come into force on such day as the Lord Chancellor
may appoint by order(
s)
made by statutory instrument(
s),
and difference days may be appointed for different provisions and for different
purposes.
(3)
An order
or
orders
under subsection (2) may contain such transitional provisions as appear to the
Lord Chancellor to be appropriate; and subject to any provision(
s).
The provisions of this Act shall not apply in relation to proceedings begun
before commencement.'"
These
submissions involve treating S.I. 3218 and 3219 as being orders of the Lord
Chancellor made under the power conferred upon him by the 1995 Act. While I
recognise the attraction of this solution, I cannot accept its validity. In
the first place, I do not consider that it is legitimate to equate the acts of
the Lord Chancellor with the acts of the Rule Committees in which he
participates. So far as the Supreme Court Rule Committee is concerned,
section 85 of the Supreme Court Act 1981 provides:
"The
power to make rules of court under section 84 in relation to the High Court and
the civil division of the Court of Appeal shall be exercisable by the Lord
Chancellor together with any four or more of the following persons..."
There
is then set out a list of members of the Rule Committee.
This
wording lends some support to the argument that the power conferred by section
84 of the Act is exercisable by "the Lord Chancellor", albeit in company with
four other members of the committee. Nonetheless I do not consider it accurate
to equate the Lord Chancellor with the Supreme Court Rule Committee, of which
he is a member.
So
far as the County Court Rule Committee is concerned, Mr. Burton's argument is
even less tenable. The County Court Rule Committee is appointed by the Lord
Chancellor, but he is not a member of it. Rules made by that Committee fall to
be allowed, disallowed or altered by the Lord Chancellor. Thereafter they come
into operation on such day as the Lord Chancellor may direct and are embodied
in a statutory instrument "to which the Statutory Instruments Act 1946 shall
apply as if it embodied rules made by a Minister of the Crown"; see section 75
of the County Courts Act 1984. Thus, while draft Crown Court rules must be
approved and may be altered by the Lord Chancellor, he does not make them, nor
is he a member of the committee which makes them. It is not possible to treat a
statutory instrument that sets out rules made by the County Court Rule
Committee as an act of the Lord Chancellor.
The
second objection to Mr. Burton's argument is that neither S.I. 3218 nor S.I.
3219 purports to be made pursuant to the power conferred by section 16(2) of
the 1995 Act. Those instruments are made pursuant to the rule-making powers
conferred by the 1984 Act and the 1981 Act.
Mr.
Burton has submitted that these objections go to form rather than substance,
that it was the intention of Parliament to leave it to the Lord Chancellor to
decide the extent to which the 1995 Act should apply retrospectively and that
we should not be concerned if the formalities that he has adopted differ from
those provided for by section 16(2) and (3). While I favour a purposive
approach to statutory interpretation, I do not consider that this entitles the
Court to disregard the clear requirement of a statute as to the manner in which
powers are to be exercised by delegated legislation.
For
these reasons, I do not find it possible to treat S.I. 3218 and S.I. 3219 as
orders made by the Lord Chancellor pursuant to section 16(2) and (3) of the
1995 Act.
I
turn to Mr. Burton's second argument.
Jurisdiction
under the Supreme Court Act 1981 and the County Courts Act 1984
Section
84 of the 1981 Act gives the Supreme Court Rule Committee the power to make
rules "for the purpose of regulating and prescribing the practice and procedure
to be followed in the Supreme Court". Section 87(1) provides that:
"Rules
of court may make provision for regulating the means by which particular facts
may be proved, and the mode in which evidence thereof may be given in any
proceedings in the High Court or in the civil division of the Court of Appeal
or on any application in connection with or at any stage of any such
proceedings."
Section
87(3) provides:
"Rules
of court may amend or repeal any statutory provision relating to the practice
and procedure of the Supreme Court so far as may be necessary in consequence of
provision made by the rules."
Section
75 of the 1984 Act makes similar provision in relation to practice and
procedure in the County Court.
Mr.
Burton argued that section 87(3) gave the Supreme Court Rule Committee
jurisdiction to amend the provision in section 16(3) of the 1995 Act whereby
"the Act shall not apply in relation to proceedings begun before commencement".
His argument, as I understood it, went as follows:
"Rules
8 and 9 of S.I. No. 3219 assume that the 1995 Act applies to proceedings begun
before commencement of that Act, other than those in which directions have been
given or orders have been made as to the evidence to be given at the trial or
hearing. It follows that it is necessary to amend section 16(3) of the 1995
Act in order to make it accord with the assumption upon which S.I. No. 3219 has
been based, and S.I. No. 3219 accordingly effects that amendment by implication."
I
cannot accept this argument as to the power of the Rule Committee. In the
first place I question whether, on established principles of statutory
interpretation, the general provisions of section 87(3) of the 1981 Act would
permit the Rule Committee to reverse the explicit provision of section 16(3) of
the 1995 Act as to retroactivity. In the second place, while the provisions of
Rule 8 of S.I. No. 3129 are plainly intended to give effect to the new regime
under the 1995 Act, it is absurd to suggest that Rule 9, at one and the same
time, makes it necessary to amend section 16(3) so as to give that Act
retroactive effect and implicitly effects that amendment. For this reason, I
reject Mr. Burton's argument that the Supreme Court Rule Committee enjoyed a
parallel jurisdiction with that expressly conferred on the Lord Chancellor by
section 16(3) to make the 1995 Act apply to proceedings begun before the
commencement of that Act. I shall deal later with the question of whether Rule
9, on its true interpretation, carries the implication that Mr. Burton
suggests. For the same reason, I reject the identical submission made by Mr.
Burton in relation to S.I. No. 3128.
Section
1 of the Civil Evidence Act 1968
Mr.
Burton's third argument is based upon the above section, which provides:
"(1)
In any civil proceedings a statement, other than one made by a person while
giving oral evidence in those proceedings, shall be admissible as evidence of
any fact stated therein to the extent that it is so admissible by virtue of any
provision of this part of this Act or by virtue of any other statutory
provision or by agreement of the parties, but not otherwise.
(2)
In this section 'statutory provision' means any provision contained in or in an
instrument made under this or any other Act, including any Act passed after
this Act."
Mr.
Burton submitted that the provisions of Rules 8 and 9 of S.I. No. 3129, when
coupled with those of section 1 of the 1968 Act, render admissible the hearsay
to which Rules 8 and 9 refer. I did not find it easy to follow this argument.
Rules 8 and 9 say nothing expressly about admissibility. If Mr. Burton is
correct, they implicitly purport to make the 1995 Act apply retroactively. If
they do so, but are ultra vires, I do not see how section 1 of the 1968 Act can
make them effective. In any event, for reasons that I shall now shortly
develop, I do not consider that they carry the implication for which Mr. Burton
contends.
Do
Rules 8 and 9 of S.I. 3129 purport to amend the 1995 Act to give it retroactive
effect?
The
important provision of the 1995 Act is section 1(1) - "in civil proceedings
evidence shall not be excluded on the ground that it is hearsay". Mr. Burton
submitted that this merely makes procedural changes to the introduction of
hearsay permitted under the 1968 Act. I do not agree. Section 1(1) of the
1995 Act effects a fundamental change to the English law of evidence.
Sections 2 and 3 are ancillary to section 1 and of much less significance.
Hearsay will be admissible, whether or not the procedures for which those
sections make provision are complied with. Rule 8 of S.I. 3129 gives effect to
the ancillary provisions of the 1995 Act. Rule 9 restricts the ambit of
application of Rule 8. Plainly, Rule 9 makes no sense unless its object is to
confine the procedural changes made by Rule 8 to those actions to which the
1995 Act applies. If the 1995 Act does not apply to actions begun before its
commencement, then Rule 9 is based upon a false premise. I cannot accept,
however, that this fact means that one should properly construe Rule 9 as, by
implication, purporting to amend the 1995 Act so as to give it retroactive
effect. To achieve that result, even if the Rule Committee had power to do so,
would have required much clearer language. This conclusion on construction is
reinforced, and strongly reinforced, by the limited role of the Rule Committee
and by the fact that the 1995 Act expressly provided that it was for the Lord
Chancellor, if he saw fit, to make transitional provisions in order to give the
Act retroactive effect. My conclusions apply, a fortiori, to the changes made
to the County Court Rules by the County Court Rule Committee.
For
all of these reasons, I conclude that the judge was in error to declare that
the 1995 Act applies to these actions.
In
the course of debating the bill which became the 1995 Act, Lord Hailsham 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 court."
This
case demonstrates that these were wise words. The prospect of two different
rules as to the admissibility of hearsay applying simultaneously in English
law, dependent upon the date of commencement of proceedings, is not attractive.
No more attractive is the prospect of the simultaneous applicability of
alternative codes of procedure. If the draftsmen responsible for the three
statutory instruments which we have had to consider intended to make the choice
of the rule of admissibility and the attendant procedural code dependent not
upon the date of commencement of proceedings, which is at least certain, but
upon whether or not "directions have been given or orders have been made as to
the evidence to be given at the trial or hearing", they were setting out to
make confusion worse confounded. As it is, they appear to have introduced new
rules of court in circumstances where they have no sensible application.
The
question remains of which rules apply to these proceedings. This is a question
which will have to be answered in respect of any proceedings begun before 31st
January 1997, unless and until the Rule Committee makes appropriate amendments
to clarify the position. Here I do feel able to accept Mr. Burton's invitation
to adopt a purposive approach to construction. Rule 8 of S.I. 3219 is plainly
intended to apply in circumstances where the 1995 Act applies. Rule 9 implies
that Rule 8 will apply to proceedings begun before 31st January 1997 other than
those in which orders or directions as to evidence have been given before that
date. But the 1995 Act does not apply to any proceedings begun before its
commencement date. If Rule 8 is applied in circumstances where the 1968 Civil
Evidence Act -- rather than the 1995 Civil Evidence Act -- applies, the result
will be unhappy. It may even be to render inadmissible hearsay evidence which
would otherwise have been admissible under the earlier Act. In these
circumstances, I would hold that, despite the apparent implication of Rule 9,
Rule 8 can have no application to any proceedings begun before 31st January
1997. It follows that, in the present case, the unamended Order 38 rules 20 to
34 apply. I should add that I would have reached the same conclusion had the
answer depended upon the true construction of Rule 9. It seems to me that the
present case is plainly one where "directions have been given and orders have
been made as to the evidence to be given at the trial."
For
these reasons, I would allow this appeal.
LORD
JUSTICE PILL: I agree, and express my views upon section 87(3) of the Supreme
Court Act 1981 ("the 1981 Act") in deference to Mr. Burton's submissions. The
point was one not taken against him before Nelson J.
The
Rules of the Supreme Court Amendment 1996, (1996 SI 3219) ("the 1996 Rules")
were made by the Supreme Court Rule Committee, exercising powers under sections
60, 84 and 85 of the 1981 Act.
Section
87 deals with "particular matters for which rules of court may provide", and I
read it as dealing with particular matters which may be considered in the
exercise of the section 84 powers.
Section
87(1) reads:
"Rules
of court may make provision for regulating the means by which particular facts
may be proved, and the mode in which evidence thereof may be given in any
proceedings in the High Court or in the civil division of the Court of Appeal
or on any application in connection with or at any stage of any such
proceedings."
Subsection
(3) provides:
"Rules
of court may amend or repeal any statutory provision relating to the practice
and procedure of the Supreme Court so far as may be necessary in consequence of
provision made by the rules."
It
may be noted that
section 12(1) of the
Civil Evidence Act 1995 ("the 1995 Act")
also confers a power to make such provision as may be necessary or expedient
for carrying into effect the provisions of
the Act.
Mr.
Burton submits that the effect of the exercise of the power in section 87 of
the 1981 Act is to limit the effect of
section 16(3) of the 1995 Act to the
extent necessary to allow Rule 8 of the 1996 Rules to operate in the manner
contemplated by Rule 9.
Section 16(3) is inconsistent with Rule 9 insofar as
it purports to exclude the application of the provisions of the 1995 Act to
proceedings begun before the commencement of
the Act.
That
being so, Mr. Burton submits, and by virtue of section 87(3), the rules
prevail to defeat that part of
section 16(3). When the rules came into force,
on 31st January 1997, they repealed
section 16(3), which came into force on the
same day, so far as was necessary in consequence of provision made by the 1996
Rules, that is, so far as was necessary, to permit Rule 9 to operate.
The
research of counsel has not revealed any authority upon the construction and
application of section 87(3). It has its origin in section 99(1)(a) of the
Supreme Court of Judicature (Consolidation) Act 1925, which provided, insofar
as is material:
"Rules
of court may be made under this Act
(a)
for regulating and prescribing the procedure (including the method of pleading)
and the practice to be followed in the Court of Appeal and the High Court,
respectively, in all causes and matters whatsoever in or with respect to which
those courts respectively have, for the time being, jurisdiction...and any
matters incidental to or relating to any such procedure or practice..."
Under
the powers in that section, what became Order 20, rule 5 of the Rules of the
Supreme Court was introduced. That provided, insofar as is material:
"Subject
to ... the following provisions of this rule, the Court may at any stage of
the proceedings allow the plaintiff to amend his writ, or any party to amend
his pleading, on such terms as to costs or otherwise as may be just and in such
manner (if any) as it may direct.
(2)
Where an application to the Court for leave to make the amendment mentioned in
paragraph (3), (4) or (5) is made after any relevant period of limitation
current at the date of issue of the writ has expired, the Court may
nevertheless grant such leave in the circumstances mentioned in that paragraph
if it thinks it just to do so."
Paragraphs
(3) and (4) deal with amendments to correct the name of a party and the
capacity in which a party sues.
In
Rogriguez
v Parker
[1967] 1 QB 116 it was argued that the rule was ultra vires the statute, in
that it purported to defeat a statutory defence of limitation. Nield J. held,
first, that the Limitation Acts were procedural; and, second, at page 137D:
"...I
would add that in my judgment Order 20, rule 5, falls within section 99(1)(a)
of the Supreme Court of Judicature (Consolidation) Act, 1925, as being a rule
for regulating and prescribing the procedure and practice to be followed in the
High Court in a matter in which the High Court has jurisdiction. Thus, upon
the fundamental plea I find that RSC Order 20, rule 5, is intra vires."
It
was intra vires notwithstanding that it had the effect of defeating the statute
of limitations. Section 87(3) contemplates that rules may, in some
circumstances, have the effect of amending or repealing a statute.
However,
the rule in this case does not, in my judgment, operate to defeat section 16(3)
of the 1995 Act. Section 16(3) is both explicit and clear: "the provisions of
the Act shall not apply". It is not readily to be inferred that a rule made by
the Supreme Court Rule Committee, and coming into force on the same day,
defeats the express words of the statute. On its face, the rule does not
purport to do so.
No
transitional provisions were made, as might have been expected, in the manner
contemplated by section 16 of the 1995 Act. It should not, in my view, be
inferred from the fact that the Committee has chosen to act under section 84
and 87 of the 1981 Act, rather than under section 12 of the 1995 Act, that the
rule does, or was intended, to defeat the statute or that it has that effect.
The Committee may have intended Rule 9 to apply, and almost certainly did, in
the manner submitted by Mr. Burton. That was under a misapprehension as to
the plain words and effect of section 16(2) and 16(3), as explained by Phillips
LJ. Section 116 must, in my judgment, prevail. Exercise of the general power
in section 87(3) does not defeat the express provision of the contemporaneous
statute.
In
McKiernon
v The Secretary of State for Social Security
Unreported Transcript, 29th October 1989, this court had to consider whether
regulations made under the Social Security Act 1975 modified section 165A of
that Act. Section 77(2) of the Act provided, insofar as is material:
"In
relation to prescribed diseases...regulations may provide:-
(a)
for modifying provisions of this Act relating to disablement benefit and the
administration of such benefit."
Provisions
of the Act provided a scheme and the issue was whether subsequent regulations,
including regulation 25, purported to be made under section 77(2) had the
effect of defeating section 165A.
Russell
LJ. accepted the submission that section 165A could not be overridden by any
statutory instrument unless the instrument, itself, and, in specific terms,
modified subsection (2). He stated:
"Parliament
does not lightly delegate to the Executive the power to amend primary
legislation and, when it does, the provision enabling such 'modification', as
it is referred to in the 1975 Act, should be scrutinised and should not receive
anything other than a narrow and strict construction. Regulation 25 does not
contain any words modifying 165A(2). It does not say, for example,
'notwithstanding any provision contained in section 165A(2)' nor any words to
the like effect. The regulation is silent as to the very provision in the
primary legislation which the Secretary of State submits is overridden by
Regulation 25.
In
my judgment, the reality of the situation is that Regulation 25, far from
modifying 165A(2), ignores it and, accordingly, I take the view that section
165A(2) prevails..."
Sir
John Donaldson MR. stated:
"Although
primary and subordinate legislation can be equally effective in determining the
rights, duties and liabilities of all those who fall within their scope, the
character of each is fundamentally different. Primary legislation represents
the expression of the will of Parliament after full debate with considerable
opportunities for amendment. Subordinate legislation, at any rate when subject
to the negative resolution procedure, represents the will of the Executive
exercised within limits fixed by primary legislation. Whether subject to the
negative or affirmative resolution procedure, it is subject to much briefer, if
any, examination by Parliament and cannot be amended.
The
duty of the courts being to give effect to the will of Parliament, it is, in my
judgment, legitimate to take account of the fact that a delegation to the
Executive of power to modify primary legislation must be an exceptional course
and that, if there is any doubt about the scope of the power conferred upon the
Executive or upon whether it has been exercised, it should be resolved by a
restrictive approach."
Later
in his judgment, Sir John Donaldson stated:
"Whatever
the merits or demerits of this argument of the Secretary of State, it does
depend upon his being able to show an exercise by him of his powers under
section 77(2). For this purpose it is not sufficient merely to recite as a
preamble to the statutory instrument that it is made in the exercise of powers
'conferred by sections 76, 77, 78, 113 and 155 of and Schedule 20 to the Social
Security Act 1975 and of all other powers enabling him in that behalf'. That
only establishes the limits of his powers. It does not tell anyone whether he
has in fact modified the provisions of the Act and, if so, in precisely what
respects."
I
respectfully adopt that reasoning and apply it to the present situation albeit
that the delegation is to the Rules Committee and not to the Executive. Indeed,
it applies more strongly for two reasons. First, the exercise of the power
claimed to defeat the 1995 statute is removed from the statute. It is in the
1981 Act rather than as it was in
McKiernon
in the statute under consideration. Second, the enactments were
contemporaneous in this case and an implication that the secondary legislation
was intended to defeat the primary legislation should less readily be drawn.
In
this case, to borrow the word used by Russell LJ., the secondary legislation
"ignored" the primary legislation. I agree with the conclusions of Phillips
LJ. and agree that the appeal should be allowed. This conclusion does, at
least, have the merit that the applicable procedural code does not depend upon
the vagaries of the precise extent of interlocutory orders made.
LORD
JUSTICE BELDAM: I, too, agree that this appeal should be allowed.
The
matter came before Nelson J. in chambers. The Respondents sought a declaration
that the
Civil Evidence Act 1995 applied to the trial of the action.
Alternatively, an order was sought that pursuant to Order 38, rule 3, the facts
and matters set out in the schedule of documents to be relied upon as hearsay
evidence and annexed to the Documents under the column "Matters Proved", be
proved by reference to respective documents described under the column
"Document" and referred to by the respective discovery reference set out.
No-one
could observe the schedule of documents, the columns, the references and the
matters to be proved in the ensuing schedule, which runs into 40 pages, without
echoing the views which were expressed by the Law Commission, in its report on
the Hearsay Rule in Civil Proceedings (Law Com. 216), when it said that the
regime then currently in force was too elaborate and placed unrealistic burdens
on the parties.
Whether
the regime envisaged under the 1995 Act will, in fact, simplify and relieve the
burden placed on the parties is, I think, debatable.
The
provisions of the
Civil Evidence Act 1995 were not to come into force until a
day appointed by the Lord Chancellor, by order made by statutory instrument in
accordance with
section 16(2). Parliament also provided, by
section 16(3) that:
"...an
order made under subsection (2) may contain such transitional provisions as
appear to the Lord Chancellor to be appropriate and subject to any such
provision, the provisions of
this Act shall not apply in relation to
proceedings begun before commencement."
He
did not make or include in the order any transitional provisions. Thus, the
provisions of
the Act did not apply in relation to proceedings begun before
commencement.
Section
12 of
the Act conferred powers to make rules of court regulating the practice
and procedure of the court in relation to civil proceedings and included a
power to make such provision as may be necessary or expedient for carrying into
effect the provisions of
the Act.
On
19th December 1996, the Supreme Court Rule Committee, of which the Lord
Chancellor is a member, made The Rules of the Supreme Court (Amendment) Order
1996,
SI
1996 No. 3219
which came into force on 31st January 1997. By Rule 8 of that order, the Rule
Committee substituted the rules set out for rules 20 to 34 of Order 38 of the
Rules of the Supreme Court.
The
present action was begun by writ prior to November 1993. It is expected to be
heard early in the New Year. Several orders relating to evidence have already
been made. Rule 9 of the Rules of the Supreme Court (Amendment) Order 1996
provided that:
"Nothing
in Rule 8 shall apply to proceedings:-
(a)
in which directions have been given or orders have been made as to the evidence
to be given at the trial or hearing; or
(b)
where the trial or hearing has begun before 31st January 1997."
Thus,
on the face of it, it appeared that Rule 8 might apply, in some circumstances,
to proceedings which had been begun before the commencement of
the Act.
Mr.
Burton sought to rely upon section 87 of the Supreme Court Act 1981 and, in
particular, section 87(3), arguing that Rules 8 and 9 have the effect of
amending or repealing the provisions of section 16(3) of the 1995 Act.
Phillips LJ. has cited the provisions of section 87(3). In my view, those
provisions do not have the effect for which Mr. Burton argues.
The
question is: whether, by making rules of court for which the 1995 Act made
provision in section 12, the Supreme Court Rule Committee could make provisions
applying to proceedings begun before the commencement of the Act which would
have the effect of amending or repealing section 16(3) of the Act when
Parliament had expressly stated that the Act was not to apply to such
proceedings unless specific provision was made by an order under section 16(2)
of the Act, and it appeared to the Lord Chancellor to be expedient to do so.
In
my view, it was for the Lord Chancellor to make an order under section 16(2)
when bringing the Act into force, if the provisions of the Act were to apply at
all to existing proceedings.
The
effect of rules made by the Supreme Court Rule Committee to amend or repeal a
statutory provision relating to practice or procedure applies only so far as
necessary in consequence of provisions made by the rules. In my view, the
Committee cannot, by making rules, supersede the clear requirements of the Act,
so that the provisions of the Act and rules made under sec. 12 do, contrary to
the clear provisions in sec. 16(3) of the Act, apply to existing proceedings.
I
would finally make one comment on Mr. Burton's argument that, based on Lord
Denning's dictum in
Blyth
v Blyth
[1966] AC 643 at page 666 that a procedural or evidential provision in an Act
of Parliament does not attract the well-known presumption that an act is not to
be construed to have retrospective effect. In my view, in this Act, clear
provision is made that the Act is not to apply to actions which have started
before the Act comes into force. There is no scope for presumptions when
construing an Act in which Parliament has made express provision.
Accordingly,
I agree that Rule 8 can have no affect on proceedings which have been begun
before the commencement of the Act. Even if this were not correct, I consider
that the proceedings in this case were, unarguably, proceedings in which
directions had been given or orders had been made relating to the evidence to
be given at the trial. Accordingly, by Rule 9 the provisions of Rule 8 did not
apply to them. Thus, I agree that this appeal should be allowed.
ORDER: Appeal
allowed; there will be a declaration that the
Civil Evidence Act does not
apply; cost on argument on paragraph 1 of the summons to be the appellants;
certificate for two counsel for the appellants in the Court below; paragraphs 2
and 3 of the summons to be restored to the trial judge, with related costs
reserved to the trial judge; leave to appeal to the House of Lords refused.
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