Judgments - McDonnell (FC) (Appellant) v. Congregation of Christian Brothers Trustees (formerly Irish Christian Brothers) and another (Respondents)

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    20.  In her sustained argument on behalf of the appellant, Miss Gumbel QC advanced a series of arguments relating to the decision of the House in Arnold. First, she challenged the view expressed by Lord Bridge (p 271) that Parliament's intention when legislating in 1963 was not necessarily to be assumed to have been shaped by the particular facts of the Cartledge case [1963] AC 758 when considering how far the new statute should operate retrospectively. That conclusion, she argued, had been reached without reference to Hansard, and such reference showed that Parliament had intended to rectify the defect in the law exposed by Cartledge. I make two observations on this submission. First, I would need much persuasion that it would, save possibly in exceptional circumstances, be proper for the House to depart, in reliance on material derived from Hansard, from an authoritative ruling on a point of statutory construction reached at a time when such material was not regarded as a permissible aid to construction. Secondly, having somewhat reluctantly considered, de bene esse, the parliamentary material tendered by Miss Gumbel, I find it wholly inconclusive. It is, of course, clear beyond argument that the object of the 1963 Act was to remedy what the Cartledge case vividly exposed as a source of injustice. In that sense Miss Gumbel is certainly right. But that leaves open the question, to which none of the Hansard quotations was directed, whether the remedial legislation was intended to override an accrued statutory time bar to pre-1954 six-year claims or only to post-1954 three-year claims. That question was not addressed.

    21.  Miss Gumbel's second submission was that the appellant's case is distinguishable from Arnold. That (she said) was a narrow case turning on section 21 of the 1939 Act. The appellant's claim, unlike that in Arnold, was not statute-barred when the 1954 Act was passed. Arnold, it was argued, only applies to claims statute-barred when the 1954 Act came into effect. I have, again, two observations. First, although the House could in Arnold have confined its attention to section 21, it did not do so. For reasons given by Lord Bridge, the House thought it necessary to consider the retrospectivity issue in the context of pre-1954 six year claims as well as in the context of section 21, and it plainly intended its reasoning to be determinative. Secondly, while accepting the differences between Arnold and the present case on which Miss Gumbel relied, I find nothing in the reasoning of Lord Bridge to suggest that this should lead to a different outcome. It so happens that, because of disability, the appellant had under the 1939 Act a period of nearly 12 years after the end of the abuse in which to pursue a claim, and this period straddled the passing of the 1954 Act. But it was, although deferred, a six year claim, and the House held in Arnold that the 1963 and 1975 Acts did not operate to overcome an accrued limitation defence in such cases.

    22.  Miss Gumbel submitted, thirdly, that the words in section 7(2)(a) of the 1963 Act, "an action could have been brought after the end of the period of three years from that the date on which that cause of action accrued", could properly be understood as covering any period after the end of three years, including a period of six years. I agree: read in isolation, the words could be so understood. But the terms of reference of the Edmund Davies Committee made express reference to three years. In summarising the effect of section 2(1) of the 1939 Act, section 1(1) of the 1963 Act described it as imposing a time limit of three years for bringing an action. In defining the date of knowledge test, section 1(3) of the 1963 Act referred to facts of a decisive character outside the knowledge of the plaintiff until a date which "(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period". There is ground for concluding that Parliament was focusing on three-year and not six-year claims.

    23.  Fourthly, Miss Gumbel contended that, if Arnold was rightly decided in relation to the effect of the 1963 Act on six-year claims, the 1975 Act nonetheless had the effect of overriding the statutory bar on such claims. Miss Gumbel relied on the broad and unqualified language of the new section 2A inserted by section 1 of the 1975 Act ("any action for damage for negligence, nuisance or breach of duty"), on the absence of references (as in the 1963 Act) to the three-year period and to the construction which Lord Bridge would have given the 1975 Act had it been the next relevant statute immediately following the 1954 Act without the intervening 1963 Act (see p 274 of Arnold). The problem for the appellant is that the 1975 Act did in fact follow the 1963 Act, and that Act has been construed as not overriding an accrued statutory bar to six-year claims. There is moreover nothing in the Law Reform Committee's 1974 report, to which the 1975 Act gave effect, to suggest any intention to go further than the 1963 Act had done, by overriding accrued statutory bars to pre-1954 six-year claims. The committee's repeated reference to insurance considerations (see paragraphs 27(3), 31 and 57 of the report) makes such an intention a little unlikely.

    24.  I would accept that a different conclusion might have been reached by the House in Arnold. The provision in section 1(1) of the 1963 Act that section 2(1) of the 1939 Act "shall not afford any defence" could, as Miss Gumbel argued, have been interpreted more expansively. The decision has been the subject of measured but penetrating criticism by McGee in the Statute Law Review 1988, pp 130-134 and Limitation Periods, 3rd ed (1998), pp 8-13. It is arguably anomalous to treat six-year and three-year claims differently, since if a cause of action expires before a plaintiff can reasonably be aware of it the potential injustice is as great in the one case as in the other. But Arnold was a unanimous decision of the House which has now stood for 16 years. It may doubtless have been relied on and applied to defeat other claims. Parliament could, if it wished, have reversed the decision, but has not done so. The decision is not plainly wrong, even if one were inclined to disagree with it, and the House has made plain that "It requires much more than doubts as to the correctness of [a considered majority opinion of the ultimate tribunal] to justify departing from it" (Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349). Sympathy for the possible injustice suffered by the appellant must be tempered by recognition of the almost impossible task the respondents would face in seeking to resist a claim of this kind after the lapse of half a century.

    25.  Had she succeeded in her main arguments summarised above, Miss Gumbel would have wished to contend that the decision of the House in Stubbings v Webb [1993] AC 498 presented no insuperable obstacle to the appellant's claim as it is or could be formulated. In the event, the House did not find it necessary to invite argument on this point. It would seem to me that the point is arguable, but I think it undesirable to express any opinion on it, one way or the other, in a case where a decision is not called for.

    26.  In my opinion the judge and the Court of Appeal reached the right conclusion, for very much the reasons I have given. I would therefore dismiss the appeal.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

    27.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I agree, I too would dismiss this appeal.

LORD STEYN

My Lords,

    28.  I have read the opinion of my noble and learned friend Lord Bingham of Cornhill. For the reasons he has given I would also dismiss the appeal.

    29.  I would, however, add a comment on the attempt in this case to rely on statements made in Parliament. It is permissible to use Hansard to identify the mischief at which a statute is aimed. It is, therefore, unobjectionable to use ministerial and other promoters' statements to identify the objective background to the legislation to the extent that Pepper v Hart [1993] AC 593 permits such use of Hansard the point is uncontroversial. A difficulty has, however, arisen about the true ratio of Pepper v Hart. It is certainly at least authority for the proposition that a categorical assurance given by the government in debates as to the meaning of the legislation may preclude the government vis-à-vis an individual from contending to the contrary. This may be seen as an estoppel or simply a principle of fairness. This view of Pepper v Hart restricts its ratio to the material facts of that case. There is, however, a possible broader interpretation of Pepper v Hart, viz that it may be permissible to treat the intentions of the government revealed in debates as reflecting the will of Parliament. This interpretation gives rise to serious conceptual and constitutional difficulties which I summarised elsewhere: "Pepper v Hart: A Re-examination" (2001) 21 OJLS 59. In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2003] 3 WLR 568, 586, para 59, Lord Nicholls of Birkenhead discussed this distinction. In my view the narrower interpretation of Pepper v Hart ought to be preferred.

    30.  In my view counsel for the appellant sought to use material from Hansard for an illegitimate purpose in the present case.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    31.  I agree with the Opinion of Lord Bingham of Cornhill. Accordingly I would dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    

 
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