John Bairstow & Ors v Queens Moat Houses Plc

The Civil Evidence Act 1995 did not apply retrospectively to proceedings begun before 31 January 1997 where the Lord Chancellor’s commencement order contained no transitional provision. An express statutory restriction in section 16(3) could not be displaced by rules made under separate, general rule-making powers. The Rule Committees’ instruments could not be treated as orders of the Lord Chancellor, nor could Rules 8 and 9 of the Rules of the Supreme Court (Amendment) 1996 impliedly amend the Act. Accordingly, the former hearsay regime applied. Independently, the proceedings fell within Rule 9 because directions and orders concerning evidence had already been made.

Four employees began wrongful-dismissal actions against the defendant in 1993. By consent, the actions were to be tried concurrently, and successive case-management orders addressed expert witnesses, discovery, witness statements, expert reports and subpoenas.

After 31 January 1997, the defendant contended that the Civil Evidence Act 1995 applied. Nelson J declared that it did. The appeal concerned whether the Act and related statutory instruments had retrospective effect, and whether the proceedings were excluded by Rule 9 because evidence-related directions or orders had been made.

Appeal allowed unanimously. Phillips LJ gave the leading judgment, with Pill LJ and Beldam LJ agreeing in the result.

1. Commencement and transitional effect. Section 16(3) of the Civil Evidence Act 1995 expressly provided that the Act did not apply to proceedings begun before commencement unless the Lord Chancellor’s commencement order contained transitional provisions. The commencement order, S.I. 1996 No. 3217, contained none. The Act therefore had no retrospective application.
2. Rule-making powers. The instruments changing the Supreme Court and County Court rules were made by the respective Rule Committees under the Supreme Court Act 1981 and the County Courts Act 1984. They could not be treated as orders made by the Lord Chancellor under section 16(2) of the 1995 Act. A purposive approach could not disregard Parliament’s express requirements as to the exercise of delegated power.
3. Implied amendment. The general power in section 87(3) of the Supreme Court Act 1981 did not authorise an implied reversal of section 16(3). Section 1(1) of the 1995 Act made a fundamental change to the law of evidence, while sections 2 and 3 were ancillary procedural provisions. Rule 8 could not therefore be construed as giving the substantive change retrospective effect, and Rule 9 could not achieve that result by implication.
4. Application to the proceedings. Rule 8 had no application to proceedings begun before 31 January 1997, so the unamended Order 38 rules 20 to 34 applied. Alternatively, the proceedings were plainly within Rule 9 because directions and orders concerning evidence had been made, including directions about experts, discovery, witness statements and reports.
5. Additional observations. Pill LJ adopted and applied the strict approach to delegated legislation stated in McKiernon v The Secretary of State for Social Security Unreported Transcript, 29th October 1989. Beldam LJ observed that the presumption against retrospectivity could not operate against the express wording of section 16(3), notwithstanding the dictum in Blyth v Blyth [1966] AC 643.

The declaration was set aside and there was a declaration that the Civil Evidence Act 1995 did not apply. Costs of argument on paragraph 1 of the summons were awarded to the appellants; a certificate for two counsel was granted below; paragraphs 2 and 3 of the summons were restored to the trial judge, with related costs reserved. Leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Allowed the appeal and declared that the Civil Evidence Act 1995 did not apply to the proceedings.
2. High Court of Justice (Nelson J): On 27 June 1997 declared that the Civil Evidence Act 1995 applied to the trial.