Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A.G.

JurisdictionUK Non-devolved
JudgeLord Reid,Viscount Dilhorne,Lord Wilberforce,Lord Diplock,Lord Simon of Glaisdale
Judgment Date05 March 1975
Judgment citation (vLex)[1975] UKHL J0305-1
CourtHouse of Lords
Date05 March 1975
Black-Clawson International Limited
and
Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft

Lord Reid

Viscount Dilhorne

Lord Wilberforce

Lord Diplock

Lord Simon of Glaisdale

House of Lords

After hearing Counsel for the Appellants, as well on Monday the 14th, as on Tuesday the 15th, Wednesday the 16th, Thursday the 17th, Monday the 21st and Tuesday the 22d, days of October last, upon the Petition and Appeal of Black-Clawson International Limited of 20/26 Wellesley Road, Croydon, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 19th of March 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and whereas, by an Order of this House of the 29th day of October last, it was Ordered that the Cause Black-Clawson International Limited against Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft be re-committed to an Appellate Committee; and whereas the Committee had heard Counsel, as well on Wednesday the 30th, as on Thursday the 31st, days of October last; as also upon the case of Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 19th day of March 1974, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction that further proceedings in the Cause be stayed pending the decision of the West German Federal Supreme Court, with liberty to apply: And it is also further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Lord Reid

My Lords,

The main question at issue in this case is the proper interpretation of section 8 of the Foreign Judgments (Reciprocal Enforcement) Act, 1933. The facts are not in dispute: they have been set out by my noble and learned friends and I shall not repeat them. It is sufficient to say at this point that the Respondents, a German company, were sued by the Appellants in Germany in respect of dishonoured bills of exchange. The action was dismissed as being time barred without any enquiry into the merits. The German period of limitation is shorter than in England and the Appellants now seek to raise the same question here. The main issue in this case is whether section 8 entitles the Respondents to rely on the German judgment as conclusive on the merits.

In this case it appears to me to be unusually important to consider as aids to construction all other material which the law allows us to look at, and I shall first state my view on that matter. We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further enquiry is permissible. But that certainly does not apply to section 8.

One must first read the words in the context of the Act read as a whole, but one is entitled to go beyond that. The general rule in construing any document is that one should pul oneself "in the shoes" of the maker or makers and take into account relevant facts known to them when the document was made. The same must apply to Acts of Parliament subject to one qualification. An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time. That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind.

It has always been said to be important to consider the "mischief" which the Act was apparently intended to remedy. The word "mischief" is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act. There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law farther than was necessary to remedy the "mischief". Of course it may and quite often does go farther. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for. The mischief which this Act was intended to remedy may have been common knowledge forty years ago. I do not think that it is today. But it so happens that a Committee including many eminent and highly skilled members made a full investigation of the matter and reported some months before the Act was passed (Cmd. 4213).

I think that we can take this Report as accurately staling the "mischief" and the law as it was then understood to be, and therefore we are fully entitled to look at those parts of the Report which deal with those matters.

But the Report contains a great deal more than that. It contains recommendations, a draft Bill and other instruments intended to embody those recommendations, and comments on what the Committee thought the Bill achieved. The draft Bill corresponds in all material respects with the Act so it is clear that Parliament adopted the recommendations of the Committee. But nevertheless I do not think that we are entitled to take any of this into account in construing the Act.

Construction of the provisions of an Act is for the Court and for no one else. This may seem technical but it is good sense. Occasionally we can find clear evidence of what was intended, more often any such evidence, if there is any, is vague and uncertain. If we are to take into account evidence of Parliament's intention the first thing we must do is to reverse our present practice with regard to consulting Hansard. I have more than once drawn attention to the practical difficulties that would involve but the difficulty goes deeper. The questions which give rise to debate are rarely those which later have to be decided by the Courts. One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have had about questions which later come before the Court will not often appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would I think generally be dangerous to attach weight to what some other members of either House may have said. The difficulties in assessing any references there might have been in Parliament to the question before the Court are such that in my view our best course is to adhere to present practice.

If we are to refrain from considering expressions of intention in Parliament it appears to me that a fortiori we should disregard expressions of intention by Committees or Royal Commissions which reported before the Bill was introduced. I may add that we did in fact examine the whole of this Report—it would have been difficult to avoid that—but I am left in some doubt as to how the Committee would have answered some of the questions which we have now to answer, because I do not think that they were ever considered by the Committee.

The Committee in paragraph 2 set out the fact that, whereas we accept foreign judgments as conclusive, foreign Courts do not in effect recognise English judgments, so that a successful plaintiff here has to fight his case over again on the merits. They regarded this as a substantial grievance. This could be avoided by making conventions with foreign countries, but the Committee say that there were two difficulties. First technically we do not enforce the foreign judgment as such, and second that our law depends on case law and is not formulated in the statute book. There is nowhere in the Report any suggestion of any complaint, grievance or difficulty with regard to British or foreign judgments in favour of the defendant, and I think that it is quite clear that they did not consider that there was any "mischief" with regard to such judgments which required the intervention of Parliament.

Moreover when they set out the existing law as they understood it, they do so in a way which was entirely correct if one only has regard to a judgment in favour of the plaintiff or a judgment for costs in favour of a successful defendant, but was clearly not correct with regard to a judgment dismissing the plaintiff's action. A Committee of such eminence could not have been mistaken about the law so the only possible inference is that the Committee intended only to deal with plaintiffs' judgments.

The...

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