(Vide the English decisions approved by Lord Chancellor Simon in Duncan vs. Cammel Laird & Co. (1942) A. C. 624.) There should be no confusion in this connection between the claims of the public interest (to which the rights of every private litigant must of course give priority) and the desire for financial gain to the public revenue. "1.

We have provided that the Crown could be required to make discovery of documents, produce documents, give inspection of documents and to answer interrogatories, but without prejudice to the right of the Crown to withhold any document or refuse to answer any question on the ground that the disclosure of the document or the answer to the question would in the opinion of a Minister of the Crown be injurious to the public interest. We have also exempted the Crown from the operation of the rule which makes it lawful for the Court, where on an order for inspection privilege is claimed, to inspect the document for the purpose of deciding as to the validity of the claim of privilege. On these matters the position in England, after the Crown Proceedings Act, 1947, is identical.

68. In England in December, 1952, at the Winchester Assizes, Devlin J. expressed the opinion that "Crown privilege was become a serious obstruction to the administration of justice". His Lordship stated that in "all cases of Crown Privilege which he had encountered he had never had a case where it had been suggested that it would be injurious to the public interest if the public knew the contents of the documents which the Crown declined to disclose". These observations were the subject of discussions in the House of Commons. The Attorney-General said he had noted the views expressed by His Lordship but he said the principles to be applied were formulated by Lord Simon in the case of Duncan vs. Camel Laird & Co.". We ourselves commend to those charged with the duty of advising the Crown on these matters, the observations contained in the following extract from that judgment:

"In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the minister adequate justification for objecting to production. It is not a sufficient ground that the documents are 'State documents' or 'official' or are marked 'confidential'. It would not be a good ground that, if they were produced, the consequences might involve the department or the government in parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the minister of the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. "

69. In view of the large and representative volume of evidence that we received on the question of the liability of the Crown in Tort we have deemed it desirable to record our views although we are aware that this is not a matter that properly comes within our terms of reference. It is certainly unfortunate that the Crown should still not be liable in Tort, although

Governmental activities have extended widely and rights of the citizen are in jeopardy when they impinge upon acts of government in ordinary matters. Professor Allen set out the position in England in 1945, thus:

"In some of the British Dominions, in the United States, in France and in most continental countries, actions against the State are as commonplace as actions between individuals ... According to the Dicey Legend 'droit administratif' is an elaborate system of privilege for public officials. On the contrary, a slight acquaintance with the system will convince anybody who cares to study it that it is infinitely easier for a citizen in France to pursue a just claim against the State than in England. The modern development of the jurisdiction of the Counseil d'Etat-the highest administrative tribunal in France— has steadily extended the liability of the State and the protection of the individual, in proportion as the activities of the State have increased in every public sphere; and the same is true of the Court of Claims in America and in most Continental countries. In short, these nations have kept pace with changes in the relations between State and citizen, whereas our system of procedure still applies mediaeval methods to a modern world."

70. The history of the Crown Proceedings Act in England is interesting. In 1921 Lord Birkenhead as Lord Chancellor appointed a strong committee to consider the whole question of the Crown as litigant. In 1924, this Committee was still making its investigations when Lord Haldane, aз Lord Chancellor, requested the Committee to prepare a bill "on the assumption that it was both desirable and feasible" to remedy the position of the Crown in regard to civil litigation. The Committee reported in 1927 and submitted a draft Bill. In July, 1928, the Chairman of the General Council of the Bar in England and the President of the Law Society sent a joint memorandum to the "Times" seeking the assistance of the Press to publicise the need for the legislation. They stated:

"There can be no possible question that the position of the Crown with regard to liability and procedure has hitherto been and still is antiquated and absurd as contrasted with that of ordinary individuals and certainly in our view reform in this respect is long overdue.” 1

2

1

Nothing was still done as the Executive was not keen on placing on the Statute Book a legislation which would take away the privileges of the Crown. In 1946 the House of Lords in Adams vs. Naylor and the Court of Appeal in Royster vs. Cavey' drew attention to the need for this legislation. In the former case Lord Simmonds said :

"No one who has experience of these matters will doubt that legislation on the subject of proceedings against the Crown and particularly in regard to tortious acts committed by its servants is long overdue ".

Lord Uthwatt said in the same case :

"The case is a good example of the shifts to which the Crown is driven by the maintenance of the rule that against the Crown no action for tort will lie. I agree with what my noble and learned friend, Lord Simmonds, has said on the desirability of legislation dealing with the Crown's liability in tort. Such legislation is long overdue and the increasing activities of the State in affairs whch affect the ordinary man make the matter urgent."

(1) London Times, July 5, 1928, reproduced in Appendix 8 of Law and Orders by Allen. (2) (1946) A.C. 543.

(3) (1947) K. B. 204.

These matters hastened the passage of the Bill and in 1947 the Crown Proceedings Act became law and the Crown was put in matters of civil litigation in the same position as the subject. The position in Ceylon in regard to the tortious acts of the Crown is precisely the same as that which existed. in England prior to 1947. The principle that the King can do no wrong is antiquated and militates against the rule of law; we feel it is an anachronism. and should be abolished. We quote the following observations of the Ministers' Powers Committee in England as we feel they apply equally to present conditions in Ceylon.

"We are bound to confess that Continental critics are justified in their contention that under the rule of law in England the remedy of the subject against the Executive Government is less complete than the remedy of subject against subject . . . . . While it is no part of our duty to make any recommendation as to the expediency of passing, such a Bill into law, we think it is only right that we should point out that there is this lacuna in the Rule of Law.. and that the passing of such a Bill would fill the lacuna ".1

... . .

CHAPTER IX-ADMISSION OF FACTS,

71. The absence of provision in our present Code enabling the admission of facts is a cause of avoidable delay in the disposal of cases. Provision has therefore been made not only for the admission of documents but also for the admission of facts. It enables the Court to dispose of so much of an action in regard to which there is no dispute. Where a party refuses or neglects to make admission of facts when so required, the costs of proving such facts shall be paid by the party so neglecting or refusing, whatever the result of the action, unless the Court otherwise directs. This provision: has been adopted from the English practice, and it was incorporated in the Indian Code as far back as 1908. This provision will result in diminishing. at least some of the delay and expense involved in litigation by enabling the real contest in a case to be narrowed down as far as possible and by eliminating unnecessary proof.

CHAPTER X-WITNESSES

72. We have received complaints that there is no provision under our Code for the payment of expenses of expert witnesses. We have therefore provided that in determining the amount of expenses payable to a witness the Court may in the case of any person summoned to give evidence as an expert allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

73. We have also sanctioned the existing practice which is supported by law that the expenses of a witness may be deposited with the Proctor. Where money is deposited with the Proctor it will have the same effect as if it has been deposited in Court.

74. At present where a witness resides within a four mile limit no payment need be made. We think that this rule should apply where a witness carries on a business or personally works for gain at a place within the four mile limit. We have provided that where a fine has been imposed on a witness for failure to appear he should be allowed in the discretion of the

(1) Report of the Committee on Ministers' Powers, Cmd. 4060, p. 112.

32

Court to pay the fine by instalments. The present Code contains no provi– sions in regard to mode of seizure and sale of property of a witness who has been proclaimed. We have therefore provided that the provisions in regard to seizure and sale in execution proceedings should apply.

75. Evidence was placed before us that summonses are sometimes issued indiscriminately and the time for appearance in Court is fixed without due regard to the convenience of witnesses. This is not a matter that can be set right by legislation. We think it desirable to record this complaint here to enable Judges to realize that this complaint exists and that attention should be paid to applications for the issue of summonses before they are allowed. Indiscriminate issue of summonses may amount even to an abuse of the process of Court.

76. It has been brought to our notice that a Court has no power at present to warn a witness to appear at a subsequent hearing of the proceedings or to furnish security for such appearance. We have empowered a Court to warn a witness for this purpose provided the expenses of the witness are duly deposited or secured.

77. We have incorporated into the Code with necessary modifications the provisions contained in the English practice in regard to the appointment of a Court Expert. A Court Expert will include scientific persons, medical men, engineers, accountants, actuaries, architects, surveyors, and other specially skilled persons whose opinions on any question may be relevant to the issues involved in a case.

CHAPTER XI-TRIAL

78. Delays at the trial stage are due largely to a failure to narrow down as far as possible the triable issues in an action and the material necessary to constitute proof. One of the chief methods therefore in effecting a reduction in the length and consequent expense of trials would be by an endeavour to restrict as much as possible the issues to be tried in a case and the material produced as evidence. This we have sought to achieve by providing for various steps to be taken before trial which would tend to limit the issues that have to be tried and also the number of witnesses and the volume of other material to be tendered at the trial. The solution to this problem lies in the effective use of preliminary investigation and the other provisions, viz., Discovery, Inspection, Admission of facts and documents. The simple provision we have made for the discovery and inspection of documents after the close of pleadings is likely to help each party to know the case of the other and thus eliminate not only surprise but also the accumulation of unnecessary material to meet unnecessary points. Where there has been a preliminary investigation there will not be much difficulty in defining and limiting the scope of the trial both in regard to issues and the volume and mode of proof. Simpler cases however are not likely to go through this stage. Where a Judge has the opportunity to scrutinise the pleadings in a simple case, he often finds there is hardly a defence. According to the present practice it is not unusual for a Judge to give the normal date on his trial roll for a money case where no real defence is disclosed; this is particularly noticeable in the heavier Courts like the District Courts of Colombo. More than 50 per cent. of this type of case will end in a settlement if a short trial date is given.

79. Under the procedure we have provided, it will be possible both in actions governed by the new procedure and in actions governed by the old procedure for the Court to have some opportunity with the assistance of Proctors of gaining some idea of the case before it is fixed for trial. In the

type of case that will not go through the stage of preliminary investigation it will be the duty of Proctors and parties to endeavour to limit the scope of the trial by taking the relevant steps before trial for this purpose. Where parties fail to do this it will be the duty of the Court at the trial stage to make effective orders for costs which will gradually make Proctors and parties realize the folly of not taking adequate steps before trial.

80. In Ceylon we have had fixed dates of trial which, if the case is heard on the day fixed, are of a great advantage as they result in a substantial saving of costs and of inconvenience. In England, where there have been no fixed dates for trial (except in the Commercial Court), it has been pointed out that "no single step would be likely to achieve greater results in reducing the cost of litigation". The following observations of the Evershed Committee provide instructive reading :

"It is impossible to assess the financial loss suffered by the community, or even by the litigants, owing to dates not being fixed. We are satisfied, however, that it is very considerable. It is not only to be thought of in terms of the time wasted by litigants and their witnesses in waiting about at the Courts for their cases to start on the day on which they first appear in the list. It is not merely that the case may not be started at all on that day. Nor is the resultant loss to be measured merely by the additional costs thereby imposed on the litigants in respect of witnesses' fees and expenses, although particularly in the case of expert witnesses, these may be considerable. The real basis of the loss occasioned by the absence of a fixed date system lies in the fact that when once it is known that a case may appear in the list for trial on some day about a month ahead, no party or ordinary or expert witness can safely make any certain engagement on any day within that period. The matter thus affects not merely, e.g., the expert witness, such as the doctor or accountant, whose place cannot be taken at the last moment by a different expert not familiar with the case, but all that expert witness's other clients, to none of whom can he safely make any binding commitments during that period. This, we think, is one of the factors which lead to witnesses being reluctant to be involved ' in a court case, and which lead expert witnesses to charge such high fees, since they know that they will have to keep themselves free to go to court at very short notice on an uncertain future day.

99 1

81. In Scotland, on the Continent and in almost all the Commonwealth countries, dates are fixed for trial. England has been "the only civilized country in the world where litigants are not told as a matter of course the date on which their actions will be heard". In Ceylon, although the system of fixed trial dates has been in existence ever since the Civil Procedure Code was enacted, and even before, postponement of cases for want of time appears to be so frequent that there does not seem to be any certainty as to when a case is likely to be reached or when it is likely to be concluded. This is a source of delay and expense to the parties, and a source of great hardship to parties and their witnesses. The Judicial Commission commented on this in 1936 as follows:

"Whether the Courts succeed in getting rid of arrears or not, it would, as we have insisted, be a plain duty of the judge to use the utmost care in framing the trial roll so as to attain as nearly as possible to the ideal, a case to be tried on the date for which it is set down."

82. Our provision for preliminary investigation is likely to result in a more rational trial roll. Even in cases where there has been no preliminary investigation, in new procedure actions, the parties and their Proctors are

(1) Interim Report of the Committee on Supreme Court Practice and Procedure. Cmd. 7764, paragraph 61.