Addis v Crocker
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE UPJOHN,LORD JUSTICE HODSON |
| Judgment Date | 25 May 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0525-3 |
| Date | 25 May 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0525-3
Lord Justice Hodson
Lord Justice Pearce and
Lord Justice Upjohn
In The Supreme Court of Judicature
Court of Appeal
THE APPELLANT (Plaintiff, MR. J.J.J. ADDIS) appeared in person.
The Hon. T.G. ROCHE, Q.C. and Mr. H.P.J. MIIMO (instructed by Messrs, Charles Russell & Co.) appeared on behalf of the Respondents (Defendants).
LORD JUSTICE HODSON This is an appeal from an order of Mr. Justice Gorman dated 13th July, 1959, made on a preliminary question ordered to be tried under Order 25 Rule 2. The action is an action for libel brought by the plaintiff, who has sued three members of the Disciplinary committee of the Law Society, The libel is contained in the Findings and Order, which itself is contained in a document dated 14th August, 1953, published by the Committee who had heard an application made by the Law Society requiring a solicitor to answer allegations of professional misconduct as a solicitor. The words complained of are defamatory of the plaintiff, but the learned judge held that the defendants were protected by absolute privilege.
The principle of law to be applied is to be found conveniently stated in the judgment of Lord , Master of the Rolls, in the Royal Aquarium came, reported in 1892 1 Queen's Bench Division at page 431. In that case a meeting of the London County Council for granting music and dancing licences which was hold under the- provisions of an Act of Parliament was held "not a court within the meaning of the rule by which defamatory statements made in the course of proceedings before a court are absolutely privileged". At page 442 Lord said; "It is true that, in respect of statements made in the course of proceedings before a court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of courts of justice; but the doctrine has been carried further and it seems that this immunity applies wherever there is an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes. In the case of Dawkins v. Lord Rokeby the doctrine was extended to a military court of inquiry. It was so extended on the ground that the case was one of an authorised inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a court of justice acts' in respect of an inquiry before it. This doctrine has never been extended further than to courts of justice and tribunals acting in a manner similar to that in which such courts act".
I will refer also to Dawkins v. Lord , which is a decision of the House of Lords reported in Law Reports, 7 House of Lords, at page 744. That was a case arising out of a military court of inquiry. His Royal Highness the Duke of Cambridge, who was then Commander-in-Chief, directed that a court of inquiry should be held to inquire into certain matters set forth in c letter written under His Royal Highness's authority by the Adjutant-General of the Forces, The letter directed certain officers to sit as members of a court of inquiry to be assembled under the presidency of General Woodford; and. the court of inquiry sat and heard evidence. In the House of Lords, on appeal from the , the Lord Chancellor put the foil lowing question to the judges; "Whether the opinion and ruling of the learned judge in this case, as stated in the bill of exceptions, and his direction direction to the jury, were right in point of law?" and the following answer to the question proposed was giver; by the Lord Chief Earen in the name of the judges "My Lords, those of Majesty's judges who have had the honour of attending your Lordships during the argument of this case, are unanimously of opinion that the question put to them by your Lordships must be answered in the affirmative. A long series of decisions has settled that no action will lie against a witness for what he say::; or writes in giving evidence before a court of justice. This does not proceed on the -.-round that the occasion rebuts the prima facie presumption that words disparaging to another are maliciously spoken or written. If this were all, evidence of express malice would remove this ground. But the principle, we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on c-.n allegation, whether true or false, that they acted from malice. The authorities, as regards witnesses in the ordinary courts of justice, are numerous and uniform. In the present case, it appears in the hill of exceptions that the words and writing complained of were published by the defendant, a military man, bound to appear and give testimony before a court of inquiry. All that he said and wrote had reference to that inquiry; and we can see no reason why public policy should not equally prevent an action being brought against such a witness as against one given evidence in an ordinary court of justice". The house of Lords adopted the opinion of the judges, I do not think it is necessary to read their speeches. I only make this observation because it has a bearing on this case that, so far as one can tell from the report, the inquire was intended to investigate the fitness of the officer in question ior command, end although witnesses were compellable, in the sense that they were ordered to attend, they were not sworn; nor is there any indication that the inquiry was open to the public.
It is necessary, in a flatter of this hind, to consider, as Mr. Justice did in a case to which I shall also refer, the constitution and function;-; and the procedure of the tribunal which falls to be considered, as to whether the rule of absolute privilege applies. The Disciplinary Committee is sot up under the provisions of an Act of parliament, the Solicitors Act of 1957, which in turn succeeded earlier Solicitors Acts. The history of the matter, so far as it is necessary to state it, is that by the Solicitors Act of 1888 a statutory committee was for the first time appointed, the members of which were nominated by the faster of the Rolls, with power to inquire and report to the court if there were any case to answer; and by the Solicitors Act, 1319, they wore given power to hoar and determine matters affecting solicitors, as they have now, and they were given powers of punishment which have since been increased, Moreover, the right of appeal was then introduced.
The present position I must refer to in a little detail. Section 46 sub—section 1 of the 1957 Act provides; "The Master of the Rolls shall appoint from among members of the Council and such former, members of the Council as are practising as solicitors in England a disciplinary committee consisting of such number of persons, not being lest; than three nor more than nine, as he may from time to time think fit, and may from time to time remove any member from, or fill any vacancy in, or, subject to the limits aforesaid, increase the number of the members of that committee". I omit sub-sections 2 and 3. Sub—section 4; "Subject to the last foregoing sub-section, the disciplinary committee, with the concurrence of the blaster of the Rolls, may from time to time wake rules for regulating the making to the committee, and the hearing and determining by the committee or a division thereof, of applications or complaints under this Act". By sub-section 5, any such rule may make provision in relation to other matters which I need not read. Sub-section 6; "For the purposes of any application or complaint made to the disciplinary committee under this Act, the committee or any division thereof may administer oaths, and the applicant or complainant and any person with respect to whom the application or complaint is made may issue writs of subpoena ad testificandum and duces tocum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action". Sub—section 7; "The power to make rules conferred by sub—section 4- of this section shall he exercisable by statutory instrument, and the Statutory Instruments Act, 1946, shall apply to a statutory instrument containing such rules in like manner as if the rules had been made by a minister of the Crown".
Section 47 sub—section 1 deals with the jurisdiction and powers of the Disciplinary Committee. "In addition to any other jurisdiction conferred upon the disciplinary committee by this Act, any application (a) by a solicitor to procure his name to be removed from the roll? (b) by another person to strike the name of a solicitor off the roll, or to require a solicitor to answer allegations contained in an affidavit, shall be made to that committee". The proviso is important; "Provided that nothing in this sub-section shall affect any jurisdiction of the Easter of the Rolls or any judge of the High Court over solicitors exercisable apart from the provisions of this sub-section by virtue of section fifty of this Act".
I interpose a reference to section 50 of this Act, which deals with the the is diction of the Supreme. Court over solicitors; but I do not think it necessary to read the section, which deals with what have been called the concurrent jurisdictions.
Returning to section 47, sub-section 2 reads: "Subject to section fifty-four of this Act, on the hearing of any application or complaint made to the disciplinary committee under this Act, other than an application under section thirty-eight thereof, the committee or a division thereof shall have power to make such order as they may think fit, and any such order ma;, in particular include provision for any of...
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