JUDGMENT

Lord Kilbrandon (delivering judgment of the Board) :

The legislature has conferred certain powers, and laid certain duties, upon the appellants in relation to education. Act No. 43 of 1961 provides as follows:-

20. It shall be the duty of the Minister to secure the provision of primary education in

(a) national primary schools;

(b) national-type primary schools.

21. (1) The Minister may, subject to the provisions of this Act, establish national primary schools...."

In order to carry out these functions, the appellants entered into constracts with the respondent for the construction of class-rooms etc. at primary schools. It is not necessary, in the view their Lordships take of the appeal, to go into details about the contracts, to particularise the various sums said to be due under them, or to trace through the Courts below the various claims and counter-claims arising thereon. The question with which their Lordships are concerned is, a sum having fallen due from the appellants to the respondent under a contract which was completed on 5 February 1964, and the writ claiming payment being dated 14 June 1965, is the respondents's claim barred in virtue of the provisions of the Public Authorities Protection Ordinance 1948 s. 2? That section substantially reproduces s. 1 of the United Kingdom Public Authorities Protection Act 1839 s. 21(1), and the appeal has accordingly been presented on the basis at the law of the United Kingdom as it was until the passing of the Law Reform (Limitation of actions, & c) Act 1954.

Section 2 of the Public Authorities Protection Ordinance 1948 is in the following terms:-

2. Where, after the coming into force of this Ordinance, any suit, action, prosecution or other proceeding is commented in the Federation against any person for any act done in pursuance or execution of intended exception of any such written law, duty or authority the following provisions shall have effect-

(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within twelve months next after the ceasing thereof;

(b) whenever in any such suit or action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client;".

The question thus is, whether the failure by the appellants to pay the sum due under the contract was neglect or default in the execution of a written law, duty or authority.

It must be said at once of the Public Authorities protection Act that from the first it was a Statute which

there were none to praise,

And very few to love".

It has been strictly construed. The early view was that the intention of Parliament was to give protection against claims for damages in tort, and that actions upon contract did not come within its scope. In Milford Docks Co. v. Mlford Haven UDC. [1901] 65 JP 483 Romer LJ said that the Act "does not apply to actions for the price of goods sold and delivered and for work and labour done." Three years later Lord Young expressed himself more strongly

Now, I Know of no principle or authority which could have influenced the legislature to place public bodies in a favoured position in regard to liability for breach of contract and consequently in construing this section I decline to atribute such an intention to the legislature"; McPhie v. Corporation of Greeock [1904] 7 F 246.

These expressions of opinion cannot now be accepted as stating the law. In cases arising out of breach of contract, as in cases arising out of tort, the question is the same, although it may be more difficult to find the answer in the former than in the later class: is the suit one in respect of a neglect (e.g. negligence) or default (e.g. breach of contract) in the execution by the authority of law, duty or authority? The phrase "execution of duty or authority" is somewhat inelegant, but