Bairstow & Ors v RS 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
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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:
“The Lord Chancellor, in exercise of the powers conferred on him by section 16(2) of the Civil Evidence Act 1995, hereby makes the following Order:-
1. This Order may be cited as the Civil Evidence Act 1995 (Commencement No. 1) Order 1996.
2. Except for section 10 and 16(5), the Civil Evidence Act 1995 shall come into force on 31st January 1997.”
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.”
By the Civil Evidence Act 1995, (Commencement No. 1) Order 1996, SI 1996 No. 3217 the Lord Chancellor, in the exercise of the powers conferred on him by section 16(2) of the Act, made an order bringing the provisions of the Civil Evidence Act 1995 into force on 31st January 1997 except for sections 10 and 16(5), which are immaterial for the purposes of this case.
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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