I move the Second Reading of this Bill. The Public Authorities Protection Act first saw the light 50 years ago in the House of Lords on March 3rd, 1892. The purpose of the Bill now before Dáil Éireann is to repeal that Act in toto. On March 3rd, 1892, Lord Halsbury, who was the Lord Chancellor in Lord Salisbury's last administration, and probably one of the most incompetent Chancellors who ever sat upon the Woolsack, introduced a Bill the Long Title of which was as follows:—
"An Act to Generalise and Amend certain Statutory Provisions for the Protection of Persons acting in the execution of statutory and other public duties."
The story of that enactment in Parliament must be one of the strangest that has ever disgraced a Legislature, and the record of injustice wrought under the provisions of this statute exemplified the axiom that a tree can be judged by its fruits.
Lord Halsbury presented the original Bill to the House of Lords with a memorandum of great length which manifestly neither he nor anybody else had ever read because by the time the final version of the Bill which he had produced reached the Statute Book it actually enacted what it was designed to repeal—I refer to the clause relating to penal costs—and, though it was described as applying to the United Kingdom, it subsequently transpired that its application in Ireland was questionable and in Scotland impossible.
The story of its progress under the guidance of Lord Halsbury in the House of Lords and the Attorney-General, Sir Richard Webster, in the House of Commons briefly is as follows: Lord Halsbury certified to the House of Lords that the Bill was substantially a statute law revision Bill and that it did no more than substitute uniform procedure for irrationally varied procedure in approximately 100 British Acts of Parliament, and on this assurance the House of Lords gave the Bill a Second Reading and sent it to a Committee of the whole House, from which it was reported without amendment and recommitted to the Standing Committee. At this stage, Lord Halsbury had second thoughts and inserted the famous, or infamous, section entitling a public authority who was a successful defendant in proceedings governed by the Act to recover from the plaintiff solicitor and client costs.
Lord Dudley secured the adoption of an amendment in the Standing Committee, which on further reflection their lordships decided to delete on the Report Stage, on the understanding that Lord Halsbury would introduce words to effect the object which the Lord of Dudley had in view.
It is relevant to mention here that one of the original purposes of the Bill as introduced was to repeal all special provisions in Public General Acts as to costs. The consequence of Lord Halsbury's amendment was not only to re-enact a special provision in regard to costs, but to extend this provision to all public authorities, and the consequences of this omnibus procedure have drawn from the judiciary comments during the last 50 years which have to be read to be believed. Lord Salvesen, in the case of Eadie v. Glasgow Corporation, reported in 1916 in the Sessions Cases, which are Scottish Reports, Volume 163, said:—
"I agree with your lordships reluctantly, because as I have taken occasion to say whenever this Act has come under my notice, I think it creates a monstrous injustice that a wealthy corporation should be entitled to hold in terrorem over any person who litigates with them the risk that he may be subjected not merely to expenses as between party and party, but to whatever expenses the corporation may choose to incur as between agent and client.”
The Bill, as amended, was sent to the House of Commons on June 20th, 1892, and strange as it may seem, its text as submitted to the House of Commons was curiously different from the text which had left the House of Lords. Certain new words had been inserted and others had been left out. The number of English Acts repealed had grown from 101 to 103, and the Bill had the unique feature in Clause 1 of having two separate sub-clauses described as (d).
Mr. Morton M.P. queried the Bill on the ground that he suspected anything that originated in the House of Lords, though this was regarded by the Speaker as savouring of impropriety, and Sir Walter Webster, the Attorney-General, assured the House that "the Bill is simply a Consolidation Bill to simplify the law."
However, when the Committee Stage was reached on the 21st June, Mr. Fowler, M.P. expressed anxiety, and the Attorney-General reiterated his assurances but said that if the Rt. Hon. gentleman wished to have time to look into it he would not press the Bill that night. But before the matter could be brought to the attention of the House of Commons again, Lord Salisbury had resigned, a general election had taken place, and on August 18, 1892, Mr. Gladstone became Prime Minister and appointed Lord Hershell to the Woolsack.
Lord Hershell, it may be said in parenthesis, was a relatively competent Lord Chancellor, but he followed in the unfortunate footsteps of his grossly incompetent predecessor. On February 6th, 1893, Lord Hershell introduced a new Bill which is the Public Authorities Protection Act as we now know it. He determined to be as expeditious and as reassuring as his incompetent predecessor, Lord Halsbury, had been, and, in addition to assuring the House that it was substantially a consolidating measure, he added that it had passed both Houses, during the last Parliament. That statement was quite untrue, but, doubtless, it was due to an oversight on the part of Lord Hershell.
The proceedings then seem to have grown even more confused, because the Journal of the House of Lords records the insertion of certain amendments by Lord Ashbourne and by the Lord Chancellor himself, but goes on to say that further amendments were made— and to this day no one seems to know what they were or who made them. That is the interesting part of it. There is no record of what these amendments were and there is no record of who moved them or how they were made, beyond the insertion of the note that other amendments were made.
However, when the Bill turned up at the House of Commons on March 21st, someone had discovered that the new Bill had inherited from its predecessor the strange characteristic of having its two sub-clauses lettered (d) and this blemish had been removed by their lordships.
Surprisingly, the number of statutes had increased, no one knows how, from 103 to 108. It was thought that Lord Ashbourne had a hand in it, but apparently the Scottish peers were on holiday, for no trace of their hand could be discerned upon the Bill.
On September 11th, Mr. Marjoribanks, Parliamentary Secretary to the Treasury, presented the Bill to the House of Commons, and "hoped there would be no objection to it, as it was a useful and necessary codification of laws existing".
Mr. T.W. Russell, M.P., who afterwards presided over the Department of Agriculture in Ireland, asked if this were not a new law. Mr. Marjoribanks said "No". Mr. T.H. Bolton, M.P., asked if it was entirely codification. Mr. Marjoribanks replied "Yes". Mr. Bolton was not so easily to be put down and is on record as saying "Entirely?" in an interrogative fashion, to which Mr. Marjoribanks cheerfully replied "Entirely" in an affirmative tone. Whereupon the Bill was read a Second Time.
When the Bill came up in Committee, it had a sponsor of no less a person than Sir William Harcourt, and he said that he understood it was—but Hansard recalls that nobody seemed to know quite what he said, but it was thought he said—it was a Bill to consolidate certain Acts and secure uniformity. Two amendments were inserted, one exempting any proceedings by any Department of the Government against any local authority or officer of local authority, the other declaring that the Act would not apply to Scotland—the Scottish members of Parliament having apparently been more diligent than the Scottish peers had been. This latter amendment declaring that it would not apply to Scotland was so hastily drafted that its results have been unforeseen and unforeseeable, and until the Act was later amended in Great Britain it continued to cause confusion and even, perhaps, miscarriage of justice in the Scottish courts.
The present position is that if any citizen brings an action against a public authority for damages, his or her action fails unless it has been started within six months of the act which caused the damage; and if the action fails, the unsuccessful plaintiff has to pay solicitor and client instead of party and party costs.
"A public authority" may mean a great many things. It may mean a county council, it may mean a dispensary doctor, it may mean a sheriff's bailiff, a Government Department or a host of other parties. A danger grows in our time, with the development of a number of quasi-Government companies, that judicial decision may hereafter add to the category of "persons" who may properly be described as public authorities a wholly unforeseen regimet of "persons" who would enjoy the benefit of this preposterous Act of Parliament.
Remember that any public body, so called, that enjoys the benefit of this Act enjoys the privileged position of a public authority against every private citizen. What is the nature of that privilege enjoyed by the public authority? If the public authority is acting in the discharge of a public duty, that public duty is owed to the plaintiff in common with the rest of the public, but the Public Authorities Protection Act applies and the public authority enjoys its protection as against the private citizen. So that, not only is the public authority immune from proceedings unless they have been started within six months of the act complained of, but also, if for any reason it appears that the plaintiff cannot succeed in his action, he may be required to pay the successful defendant public authority exceptionally heavy costs.
Over the years a great many judicial decisions have been given in cases where the Public Authorities Protection Act was pleaded by the defendant, and it would appear from the cumulative effect of these decisions that it is not by any means impossible now that a citizen might lose his right to take action for damages done to him by the act of a public authority before the citizen himself knew that a right of action existed, and this possibility was dwelt upon by Lord Justice Atkin in the case of Huyton Gas Company v. Liverpool Corporation in 1926. when he said:—
"If an act is done which subsequently causes damage, it appears to me that ‘the act complained of' in an action is the act, not the damage; and that the damage is the legal justification for complaining of the act. This form of words leads to the possibility that a person may lose his right of action before ever he has acquired it, as where damage is the gist of the action and only occurs more than six months from the date of the act complained of."
Cases have been known where aggrieved citizens have negotiated with a public authority and the negotiations continued for more than six months and then broke down, whereupon the aggrieved citizen discovered that he was debarred from suing the local authority under the provisions of the Public Authorities Protection Act, although negotiations had been begun well within the six months referred to in the Act.
This conclusion was established in Carey's case, where Lord Halsbury delivered the judgment, and appears to be the only judge who ever expressed the opinion from the Bench that "the language of section 1 of the Public Authorities Protection Act is reasonably plain and it is manifest that ‘continuance of injury or damage' means the continuance of the act which caused the damage".
This is not surprising, as Lord Halsbury was himself the original author of the Act, the ambiguity and unsatisfactory character of which has been the subject of comment ever since it was first introduced in the House of Lords 50 years ago.
As late as 1926, Lord Justice Scrutton commented in Huyton & Robey Gas Company v. Liverpool Corporation (1926): "If time runs from the act this leads to the startling result that you may lose a cause of action before you have got it."
The provision as to punitive costs has been commented upon eloquently by Lord Salvesen in Eadie v. Glasgow Corporation (1916), when he said:—
"I have taken occasion to say whenever this Act has come under my notice, I think it creates a monstrous injustice—that a wealthy corporation should be entitled to hold in terrorem over any person who litigates with them the risk that he may be subjected not merely to expenses as between party and party, but to whatever expenses the corporation may choose to incur as between agent and client, and that, I suppose, irrespective of the fact that the corporation has the services of the town clerk, who undertakes this work for a salary, with the result that the award of expenses goes, not to pay for the litigation, but to reduce the other expenses of the corporation by being credited to the general fee fund. I have never been able to understand the policy of the statute. The ordinary expenses of litigation are quite sufficient to deter responsible people from engaging in reckless litigation against a wealthy corporation, and actions by persons who are of no substance will not be diminished in number by the risk of the litigants being subjected to expenses between agent and client, because they litigate with an absolute sense of freedom from responsibility.”
In these circumstances, I am submitting to Oireachtas Éireann that this Act should be repealed, and that a new situation should be created in which all public authorities will stand in respect of their torts vis-a-vis the rest of the community in exactly the same position as an ordinary citizen, enjoying no greater nor lesser privilege than anybody else. It will be for public authorities themselves to make the case hereafter on the merits, if they wish the Legislature to confer upon them a privileged position before the law which nobody else enjoys.
It is a good thing in any free community that there should be an independent judiciary, at whose bar of justice, all persons, great and small. may meet on a basis of equality to have their just claim enforced and their rights protected. It is the purpose of the Bill which I now submit to Oireachtas Éireann to establish this principle in Ireland.
I want to warn the House against a particular danger. I trust the Minister will not think me guilty of any discourtesy because I inquired of the Chief Government Whip what the Government's attitude would be. The Minister was good enough to let me know in broad outline what his view of the situation was. It did not entirely deviate from my point of view nor did it entirely coincide with the proposals that I was submitting to the House, but I do want to suggest to the Minister and to the House that we would be quite mistaken if we allowed our judgment to be unduly influenced by the measures adopted in the British House of Commons to remedy the situation created by the Public Authorities Protection Act 50 years ago.
About 12 years ago or more legislation was introduced into the British House of Commons to amend the original Act. Under the amendment I think the public authority in England now has either a year or two years in which its liability continues, but I am going to submit to the House that that amendment by the British Legislature was the fruit of an uneasy compromise devised to placate a very powerful vested interest in Great Britain which was acrimoniously represented on the floor of the House of Commons, which is the Municipal Bodies' Protection Association representative of all corporations and town councils and similar bodies in England, Scotland and Wales who were, not unnaturally, most anxious to preserve this unreasonable privileged position vis-a-vis the ordinary citizen.
A long and acrimonious debate took place and members of Parliament on every side of the House pressed on the Attorney-General that he should accept amendments designed to repeal the Public Authorities Protection Act altogether. Under pressure from the municipal authorities in England he found himself unable to go that far, although, from close perusal of the debate, I could find no point of principle taken by the Government of the day in defence of the old Public Authorities Act of 1892.
The House may be interested to know that the original Act of 1892 or 1893, having been passed on the representations that it was a mere codifying Act, nobody appeared for the first three or four years, to be aware of the extraordinary privilege that it conferred on corporations and local authorities until a malignant town clerk in Dundee suddenly adverted to the persecution that he could operate on his neighbours by the use of this piece of legislation.
There are those who suggest that he got at Lord Halsbury through Lord Dunedin, who was a "butty" of his, and that he fooled Lord Halsbury and the rest and, having lain "doggo" for two or three years after the Act of Parliament was passed, he proceeded to use it and it was only then that municipalities in Great Britain and in Ireland woke up to the fact that they had had conferred upon them by this statute a privilege which they had never heretofore enjoyed and the nature of which Parliament never understood. Since then it has been invoked more and more and I think there is a Scotch case now in existence where an obiter dictum from the Bench suggests that, even where the officers of the local authority feel that equity demands that this defence should not be raised, they have a duty to raise it and that they must plead it whether they think it is equitable to do so or not.
It is alleged that a resourceful town clerk of Dundee used to engage litigants in benevolent negotiations and keep them negotiating for six months, and then laugh heartily at them when the proceedings were instituted. If Deputies are interested in the details of that story, I must refer them to the speech of Mr. McQuisten, M.P., in the British House of Commons in 1938, when the amending legislation was being enacted. It is a pretty story. He says he knew the town clerk of Dundee when he was a very small boy, and that he was even an office boy to the town clerk. "You pays your money and you takes your choice." If Mr. McQuisten's story be true, we will not be surprised at the nature of the enactment. Certainly a study of the procedure by which the Bill was railroaded through the British House of Commons will, I think, make it manifest to everybody that nobody in the House of Lords or the House of Commons knew what the Bill was about. I think it was passed on false pretences, and that it was brought in originally to abolish the whole system of punitive costs, and wound up by making what had never been law before, the system of punitive costs applicable to all actions of tort.
I can see that it will be difficult for Deputies to believe that the story of this enactment is as I described it. I think there is available to anyone who wishes to check it abundant evidence to prove that the story I have recited is true. The Act is disreputable in its history. Its enactment was clearly an error of judgment and its effects were never intended by the Legislature which enacted it. It has created a vested interest that should never have been created. All I am asking Oireachtas Éireann to do is to put our local authorities and public bodies in exactly the same position as any individual citizen or any limited liability company or any other persons known to the law; to leave local authorities subject to the same Statutes of Limitation as apply to the rest, and from that point of departure that all will be equal before the law
If public authorities have a case to make—and I do not think they have— for a special Statute of Limitation restricting citizens' right of action against them, let them make it. Oireachtas Éireann can consider the case they make on its merits. But, until public authorities successfully do that, I suggest to the House that Oireachtas Éireann should do no more than this: put public authorities in the same position before the law as any other person in Ireland, put no penalty on them, but do not confirm any improper privilege which they at present enjoy.
I ask the House to bear in mind that the principal sufferers under the existing statute are people who have been in the employment of public authorities and have suffered an injury, the full consequences of which do not manifest themselves for some months after the injury has been done, or somebody whose property has been injured and the consequences of the Act which did the injury have not manifested themselves for eight or nine months after the act causing the injury was done when such persons have no right of action against the public authority at all.
That this may be made abundantly clear, let me conclude with two types of cases which constitute a very grave injustice and which this Bill is designed to put an end to. A man works for a public authority and sustains an injury. Perhaps he hits his knee or strikes his elbow. No immediate evil consequences emerge, but nine or ten months later arthritis develops which good medical opinion attributes to the injury he has received. He sues the authority, and even if it transpires that the damage from which he is then suffering, the cripplement which he is then suffering, is attributable to a blow received from a vehicle managed by the local authority seven or eight or nine months before, he finds that he has no right of action against anybody and that he is obliged to suffer.
The other type of case is the case of a person whose property, say, adjoins a public road and as the result of some carelessness on the part of a local authority damage is done to the foundations of his house on the 1st March. The damage done to the foundations of his house does not extend to the fabric of the house, say, until September or October following. When it manifests itself in the fabric of the house, a contractor is called in and tells the householder that his house is in a more serious condition than was thought at first. He traces the crack in the wall or whatever it may be to its source and discovers it to be in the foundations and says, "This has been done as a result of a very heavy vehicle which was too heavy for the roads passing or re-passing unduly frequently adjoining your premises." Then it transpires that the local authority had heavy vehicles in that area and used the road in the vicinity of the house to excess or in some circumstances so used the adjoining road as to shake the foundations of the house. Although that man's house falls down, even though it is admittedly due to the injury done to the foundations of the house nine months before by the local authority, the local authority is obliged to plead the Public Authorities Protection Act. The fact that the man brought the action the moment he perceived the damage is irrelevant. What is relevant is that the action was instituted more than six months after the act of the local authority which ultimately resulted in the damage complained of, and that non-suits him. He has no remedy against anybody.
I exhort Oireachtas Éireann to set an example to legislatures everywhere and, where it is possible to undo injustice to the humblest of its citizens, expeditiously and effectively, we should not be restrained by red tape or bureaucracy, or undue caution from remedying injustice no matter how humble its victim may be. To a labouring man or to the tenant of the humblest cottage in this country the loss of his health to one or of his home to another is as great a tragedy as the collapse of a palace or the decline of the strongest and healthiest amongst us. We ought not to stand by paralysed by the venerable character of a fraudulent statute under which that situation has been created which debars us from action. We have the power and I am suggesting to this House we have the duty to put right what is now wrong, and in doing that we do not in the least diminish our ability to add to our Statute Book any statute that it appears to us proper to put down, giving to local authorities any special position we think is equitable and just to give them if and when they make the case that the public weal demands that they should be so privileged. All I am asking is that public authorities be put in the same position as every other citizen under the law and that nobody, public or private, shall be accorded a position of privilege unless and until he has made a case before this Oireachtas that it is in the interest of public weal that he should have privileges that his neighbours do not enjoy.
