My Lords, in moving Amendment 95, I will also speak to Amendments 96, 97 and 102. Clause 19 makes provision in respect of the payment of compensation to those who suffer loss or injury as a result of the exercise of powers of temporary possession, but there are concerns about a number of subsections in the clause. Amendment 95 addresses Clause 19(2), which provides a person—the “claimant”—with an entitlement to compensation in respect of,
“any loss or injury the claimant sustains as a result”.
I have two points here. First, would it not be better to replace “injury” with “damage”? Is there a legal reason why the word injury is used? Damage is of course more wide-ranging. Secondly, should the subsection be redrafted to make it clear that the loss or damage—or perhaps injury—must have been sustained as a result of the temporary possession of the land? The amendment would bring the drafting into line with the usual form adopted in clauses relating to compensation for the temporary possession of land, which typically state that the loss, injury or damage must have resulted from the exercise of the powers—I refer in particular to the Crossrail Act 2008. In addition, are those subsections still needed, given that other amendments are being proposed?
Amendment 97 refers to Clause 19(7), which is intended to clarify that, for the purposes of the statutory limitation period, time will not begin to run until the expiry of the last day of the temporary possession period. I understand that the Bill originally sought to achieve this objective by stating that a “claim for compensation” would “accrue on the last day of the temporary possession period”. The Compulsory Purchase Association’s view is that the original drafting would have caused problems, but that the revised drafting is not complete. The original drafting would leave claimants exposed to a potential argument that, because the claim was stated not to accrue until that time, for the purposes of Section 9 of the Limitation Act 1980, they also had no cause of action enabling them to claim for compensation or refer the matter to a tribunal at any earlier time. Thus, in cases where temporary possession is to last a number of years, it could result in claimants having to bear losses without compensation for a number of years, which seems unfair.
The government amendment is intended to address that problem, but it may still permit an argument that, if the cause of action is to be treated as accruing on the last day of the temporary possession period for the purposes of the Limitation Act, notwithstanding that it would otherwise be regarded as accruing before or during the temporary possession period, the cause of action should also be regarded as accruing at that later time for other purposes, including the making of a claim or reference.
The advice that I have received is that an addition should be made to the subsection to confirm that the deemed accrual applies for the purpose of the Limitation Act alone. As such, I am advised that my drafting for Clause 19(7) helps to avoid doubt. The amendment states:
“for all other purposes a claim will accrue as the possible damages suffered as a claimant is not precluded from making a claim pursuant to subsection (2) prior to the last day of that period”.
I understand the complexity of this, and that the Minister may want to respond in writing; the 34 government amendments this afternoon reveal that this is a complex matter. I am not necessarily looking to the Minister to reply to this now. I just hope that before we get to Report, the matter can be clarified so that we have a Bill that is clear in its meaning and will not end up being challenged in the courts. I beg to move.