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Lord Irvine of Lairg: My Lords, of course I am not opposed to rule changes which have been discussed in meetings but perhaps not finalised being subsequently agreed and resolved by post. That is only sensible. However, the need to recognise that does not lead to the elimination of the need for any meetings at all. The primary means of the committee proceeding, if it is to operate as a meaningful committee, is by actual meeting. I am not satisfied that an obligation on persons to attend a minimum number of meetings as part of their terms of appointment greatly helps if no meetings are being held. I should have thought that the terms of their appointment must yield to the fact that there are no meetings for them to attend. I should prefer the noble and learned Lord to undertake to consider Amendment No. 12, if he can say that he supports it in principle, with a view to seeing whether it can be approved. It could, for example, be drafted to read:
- "The Civil Procedure Rule Committee must, when making civil procedure rules, meet to discuss these rules with a view to agreeing them".
The Lord Chancellor: My Lords, there is no difference between us on this issue. Certainly it is not
the kind of issue that I should wish to have a great problem about. I anticipate the difficulty mentioned by the noble Lord, Lord Irvine of Lairg, about the terms of appointment by requiring the chairman to deal with the matter. However, if that is not thought to be satisfactory I am perfectly content to see whether we can produce a workable amendment which carries the sense that the committee will be a meeting committee and not one which discharges its business entirely by post. Perhaps with that undertaking the noble Lord will feel able to proceed.
Lord Irvine of Lairg: My Lords, on the basis that the noble and learned Lord will give thought to the matter between now and Third Reading and will bring forward an amendment which in his judgment meets the sense of what has been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Power to make consequential amendments]:
The Lord Chancellor moved Amendment No. 14:
The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 31. Amendment No. 14 is designed to give effect to what I said in relation to the Government's response to the recommendations made by the Delegated Powers Scrutiny Committee. The amendment addresses the point as follows. If the rule committee is minded to make a rule which would override an enactment, the enactments would have to be identified and the necessary amendments made to those enactments. I would lay a draft order containing those amendments before the rules were made and that order would then be subject to the affirmative procedure. Once the order is approved, the rule committee would make the relevant rules.
The amendment builds on the order-making power already contained in Clause 4(1) which provides for consequential amendments to be made via the negative resolution procedure. The new subsection (2) then makes provision for an affirmative procedure to apply to amendments which are other than consequential. It will have the effect of ensuring, as I have said, that Parliament's approval is obtained before the committee makes the rule which overrides a statutory provision. The matters which would go into an affirmative order would include any rules flowing from paragraphs 2 to 4 of the schedule which overrides an enactment.
The amendment to Clause 4 renders paragraph 8 of the schedule unnecessary as I also agree that paragraph 8 ought not to be interpreted as applying to future enactments. I beg to move.
Lord Ackner: My Lords, does the amendment have any impact on Amendment No. 33, which is the last amendment on the Marshalled List? That amendment is designed to deal with the allocation of business between the High Court and the county court and seeks to preserve the present position which requires the affirmative resolution before such orders are made. If it does affect it perhaps I ought to deal with the merits of my amendment.
The Lord Chancellor: My Lords, my understanding is that the provisions are quite independent. Amendment No. 14 deals with the activities of the Civil Procedure Rule Committee. Amendment No. 33 in the name of my noble and learned friend deals with the allocation of jurisdiction as between the county court and the High Court, which is not a matter subject to the civil procedure rules.
Lord Ackner: My Lords, I am grateful.
On Question, amendment agreed to.
Clause 6 [Power of courts to make orders for preserving evidence, etc.]:
Lord Irvine of Lairg moved Amendment No. 15:
The noble Lord said: My Lords, I moved this amendment in Committee as Amendment No. 21. The noble and learned Lord on the Woolsack and I have been in helpful correspondence between Committee stage and today on the subject of these amendments which I moved in Committee concerning the Anton Piller jurisdiction. I desire to mention now that the noble and learned Lord has taken a favourable view of Amendments Nos. 24, 28 and 29 which I moved in Committee and has responded to them with his own amendments.
Amendments Nos. 21 and 26 which I moved in Committee correspond to today's Amendments Nos. 15 and 19. What I sought to achieve in tabling those two amendments in Committee, and what I seek today, is to address a particular problem which practitioners have drawn to my attention and which, in Committee, the noble Lord, Lord Meston, was able to confirm from his own experience in practice.
Under the existing Anton Piller jurisdiction, any property recovered from a respondent--and I emphasise these words,
I emphasise "interim delivery up of property" because it is quite clear that Section 4 of the 1977 Act and the relevant rules of court contemplate that the delivery up of property can and should be as much an interim as a final measure.
In the correspondence to which I have referred, the noble and learned Lord on the Woolsack assured me that Clause 6 is not intended to limit in any way the existing jurisdiction of the court under Section 4 of the Torts (Interference with Goods) Act 1977 and Order 29, Rule 2A RSC to make interim orders for the delivery up of property as distinct from the mere preservation of property.
I shall press these amendments but if the noble and learned Lord confirms that it is his understanding that a party seeking Anton Piller relief is entitled also at the same time to move the court for other relief such as the interim delivery up of property under Section 4 of the 1977 Act, then I shall beg leave to withdraw them. I beg to move.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Irvine of Lairg, for engaging in correspondence with me, which I believe was copied to other noble Lords who took part in our discussions about Anton Piller orders on which I have also had the great benefit of the very rapid and thorough advice of the Vice-Chancellor in whose division most of the orders are granted. By that, I do not mean that all applications are granted but that when orders are granted they are often granted in his division.
The situation is that Clause 6 is intended to confer a new jurisdiction on the court in relation to the statutory position in order to confirm what the court has done in exercise of its inherent powers in the past in relation to the entry of property and obtaining possession of the property.
My understanding is clear. The power to make an interim delivery order exists separately under the Torts (Interference with Goods) Act 1977 and is unaffected by this clause. There is no question of the court not being able to make an interim order under that Act as well as under this clause. Of course, the precise terms in which the Section 6 jurisdiction is exercised might well be affected by the application for the other order; for example, if the order were made in the terms indicated by the noble Lord, Lord Irvine of Lairg, in respect of the Anton Piller order, that would not fit very well with the sort of situation he mentioned. But I have no doubt that the court has the power to make the appropriate order using, as appropriate, the different jurisdictions which it has. I want to make it clear that
As the noble Lord said, the ordinary rule is that when property comes forward, or is taken possession of under an Anton Piller order, an independent person is usually authorised to hold it. That is the normal situation that would need to be varied in the particular situation to which the noble Lord referred. I believe that that does happen in practice. Therefore, I hope that I am able to give in clear terms the assurance for which the noble Lord asked; namely, that the Anton Piller jurisdiction conferred by Clause 6 will be in addition to, and exercisable at the same time as, the other jurisdictions which the court presently has; subject, of course, to the court considering the appropriateness of that exercise and the terms in which it should occur.
Page 2, line 32, leave out subsection (2) and insert--
("(2) The Lord Chancellor may by order amend, repeal or revoke any enactment passed or made before the commencement of this section to the extent he considers necessary or desirable in order to facilitate the making of Civil Procedure Rules.
(3) Any power to make an order under this section is exercisable by statutory instrument.
(4) A statutory instrument containing an order under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(5) No order may be made under subsection (2) unless a draft of it has been laid before and approved by resolution of each House of Parliament.").
5 p.m.
Page 3, line 18, at end insert ("or
(c) the delivery up of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").
"must be held for safekeeping by the applicant's solicitors".
9 Dec 1996 : Column 898
That is what the order says. There are an increasing number of cases where the property recovered is needed immediately by the applicant for the purposes of his business. My concern was that, as the law presently stands, an applicant might find that the Anton Piller jurisdiction operates to interfere and obstruct his recovery of urgently needed property and to that extent would operate to defeat the objective of Parliament in its provision of the right to require an interim delivery up of property.
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