Compton Mackenzie
THERE exists a widely spread belief that the lawyers in Parliament never draw attention to any ambiguity in the drafting of a Bill so that when it becomes an Act the interpretation of it will be a source of profit to the legal profession. No doubt, this is the merest superstition, but from time to time cases are reported in the Press which the man in the street may be excused for quoting in support of his belief. Such a case was reported in The Times of December 2, when in the House of Lords three of the Law Lords dismissed an appeal, with two of their Lordships dissenting.
On July 28, 1949, a Mr. John Littlewood was injured, presumably on some aerodrome on which Messrs. George Wimpey and Co., Ltd., were doing a job for BOAC. Mr. Littlewood waited for two years before he began any action by sueing Wimpeys on April 26, 1951. Wimpeys, on July 6, 1951, served a third party notice on BOAC, claiming contribu- tion under section 6 (I) (c) of the Law Reform (Married Women and Tortfeasors) Act, 1935. Then on February 4, 1952, Mr.
Littlewood added BOAC as defendants, and when the case was heard on February 5, 1953, they pleaded section 21 of the Limitation Act, 1939 (since repealed) claiming they were a public authority which must be sued within a year. Mr.
Justice Parker awarded damages against Wimpeys, held that BOAC were entitled to rely on the Limitation Act against the plaintiff, and further held that, as BOAC had been successful against him, Wimpeys had no right under Section 6 of the Act of 1935 to claim contribution from them.
The Court of Appeal (Lord Justice Singleton and Lord Justice Morris, Lord Justice Denning dissenting) on July 27, 1953, affirmed Mr. Justice Parker's judgement, holding that Wimpeys were not entitled to recover contribution from BOAC to the damages (for which, mark well, the Judge found them one-third to blame) because Mr. Littlewood had also sued BOAC and lost on a technical point. Wimpeys decided to appeal to the House of Lords and obtain from the five supreme arbiters a decision about the meaning of Section 6 (I) (c) of the Act of 1935.
Here is the text :, ' When damage is suffered by any person as the result of a tort . . . (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage. . . '
Viscount Simonds in dismissing the appeal held that ' liable' meant liable in judgement on both occasions. How then could one tortfeasor recover a contribution from another tortfeasor who had been sued and held not' liable ? That BOAC had escaped on a technicality was irrelevant. If the intention of the paragraph had been to include a class of persons, who having been already sued and found not liable might yet, in hypothetical proceedings, be sued a second time and then found liable, his Lordship would have expected to find it expressed in clear and appropriate language. He was convinced that the words ' if sued would have been liable' did not include persons who, having been sued, had been held not liable.
Lord Porter, dissenting, said that paragraph (c) dealt with the rights of tortfeasors inter se. Before the passing of the Act Lord Reid, rallying to the support of Viscount Simonds, in spite of what a layman may be forgiven for thinking was the unanswerable logic of Lord Porter, blamed the draftsman of Section 6 for failing to make any provision for cases like these. This was therefore an example of the not uncommon situation where language not calculated to deal with an unforeseen case must nevertheless be so interpreted as to apply to it. Lord Tucker stood behind Viscount Simonds and Lord Reid, being of opinion that the words if sued' necessarily involved a contrast between those who had been sued and those who had not been sued.
May a layman suggest with the utmost respect that the words if sued' in parenthesis do not involve a contrast but are an amplification to meet a hypothetical case ? Lord Keith of Avonholm, dissenting, recognised this. He said that the true issue was to what point of time the words would if sued' referred. The hypothetical action envisaged by the statute was not tied to any point of time other than that when the .cause of action arose. On an examination of Section 6, it was clear that liable' did not mean the same thing wherever it occurred. Where used second in paragraph (c) it clearly meant found liable '; but where first found in that paragraph it did not mean found liable.' I invite readers' attention to the fact that the whole of this argument between their five Lordships was not a question of interpreting the Law but of interpreting the English language. That being so I may be allowed to join in and expresS an opinion that Lord Reid and Lord Keith of Avonholin completely outplayed the other three Law Lords in this verbal quintet. Viscount Simonds was reluctant to give ' liable' two meanings, but if the first liable means `liable' in judgement, are not the words or would if sued have been' redundant ?
Mr. Justice Parker found BOAC one-third to blame (liable) for the damages but could not order them to contribute that amount to Wimpeys because BOAC through a technicality had been found not liable in judgement. Surely most people, would consider that Lord Keith of Avonholm was logical when he said that the true issue was to what point of time the words would if sued' referred, and that any hypothetical action must be tied to the point of time when the cause of action arose.
The plaintiff sued Wimpeys on April 26, 1951; Wimpeys 00 July 6 served a third party notice on BOAC claiming contribu' tion; on February 4, 1952, before the action against WimpeYS was heard the plaintiff added BOAC as defendants. What would have been the result if BOAC had not been added as defendants ? Presumably Mr. Littlewood would have obtained his damages from Wimpeys and they would have been able W claim contribution from BOAC. Be it remembered that Mr. Justice Parker found BOAC one-third to blame and that theY dodged payment of damages by pleading the privilege of public authority allowed by an Act which has since beee wisely repealed.
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