Lincoln v Daniels
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS |
| Judgment Date | 17 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0717-3 |
| Date | 17 July 1961 |
| Court | Court of Appeal |
(Appeal by the Defendant)
[1961] EWCA Civ J0717-3
Lord Justice Sellers
Loiid Justice Devlin and
Lord Justice Danckwerts
In The Supreme Court of Judicature
Court of Appeal
Mr NEVILLE FAULKS, Q.C., and Mr J.J. DEAN (instructed by Messrs Kramer & Co.) appeared as Counsel on behalf of the Respondent (Plaintiff).
Mr ALAN R. CAMPBELL (instructed by Messrs Basil Greenby & Co.) appeared as counsel on behalf of the Appellant (Defendant).
SELLERS L. J. p. 1
DEVLIN L. J. 13
DANCKWERTS L. J. 31
LORD JUSTICE SELLEBS: By the a appeal the defendant seeks to avoid the total judgment against him for £7,500 and costs entered by Salmon J. on. the verdict of a jury on the 24th June 1960. He asks that judgment should be entered in his favour, or that the damages should be only nominal or greatly reduced or that a new trial be ordered.
The jury found that a letter of the 12th February 1958 written by the defendant to the Secretary of the General Council of the Bar of England was defamatory of the plaintiff and that the allegations were not in substance true end they awarded for this defamation £4,000 damages. The jure also found that a further communication from the defendant of the 19th February 1958, similarly addressed, was defamatory of the plaintiff and was not in substance true and for this they awarded £3,500 damages. There had beer, no plea of qualified privilege and no question of malice arose for the jury's decision.
In support of the appeal it was submitted:
(1) that the written documents complained of were in the circumstances absolutely privileged and could not be the subject of on action in the courts;
{2} that certain words in the first letter were incapable of a defamatory meaning or the defamatory meaning alleged and that the learned judge ought so to have ruled;
(3) that there was misdirection of the jury in the summing-up in certain specified matters; and(4) that the award of damages having regard to the circumstances of publication was grossly excessive on any reasonable measure for assessment.
In this judgment I shall endeavour to avoid any incursion into the prolonged and discordant, even bitter, wrangles between various factions interested in the management and control of Gordon Hotels, Ltd, which form the background of this case.
At the time of these publications Mr Ashe Lincoln had become a director of that company together with Lord Keyes with the intention that Lord Kayos should become its chairman and Mr Ashe Lincoln its vice-chairman, as indeed both of-them did respectively. Mr Ashe Lincoln has been a Bueen's Counsel for several years and a barrister since 1929 and he has throughout been in active practice. He was and is a Master of the Bench of the Inner Temple, The appellant's case is that he wrote as lie did as he wished to bring to the notice of those responsible for the good conduct of the Dar the matters of complaint he had against Mr Ashe Lincoln's conduct in relation to the management and control of Gordon Hotels, Ltd. At the time Mr Daniels was not a director of the company. He and his daughter. Miss Zena Daniels, held a substantial number of shares between then and had formed a Shareholders' Committee, which no doubt consisted of other shareholders as well but any further representation has not been outstanding or obvious.
It may well be that if that Daniels had written in good faith and from a sense of duty he would have escaped all liability, notwithstanding the defamatory things he said, on the basis of a qualified privilege. But he made no such claim. His motive in writing as he did could readily have been impugned and he did not risk asking the jury to find that he acted without malice.
The case has been argued on the basis that the two documents were the complaint of the defendant, the delivery of which was the appropriate step in proceedings of inquiry by the proper tribunal into Mr Lincoln's alleged misconduct. The letter of the 12th February 1958 it was said initiated the proceedings and the document of the 19th February 1958 headed "Memorandum re P. Ashe Lincoln" was supplementary to the letter.
Before the letter of the 12th February 1958 was written Mr Daniels had telephoned Mr Eoulton, the Secretary of the Bar Council (to use an abbreviated description), and as a consequence addressed the letter to him. It is to be inferred, and I do not think it was really challenged, that Mr Boulton intimated that that was the right avenue of complaint.
Mr Daniels is a member of the public. He appears to be a successful man of business and a man of much force, at least when encouraged by the auxiliary power of his daughter, but there is no reasqn to think that he or his daughter were conversant with the organization and direction of the profession of the Bar.
The plea of absolute privilege seemed, to this court to require an understanding of the provisions for dealing with complaints of misconduct of a member of the profession both by the Bar Council and by the Inner Temple. The evidence, as it stood, seemed obscure and inadequate. We doubt the parties relied on the knowledge the judge would have at firat hand and it may be that judges could have regard to what they know of the practice in the profession, subject to the possibility that the practice of the four Inns way vary in detail though not in substance. On the whole the court thought that in a matter of general importance coming before the court for the first time, the evidence should be amplified and learned counsel agreed. In the course of the hearing the court has therefore been supplied with a statement from the Inner Temple on the direction of the Treasurer of that society and the court is indebted to him and those responsible for providing the information for their ready assistance.
The first question is whether the evidence establishes that an inquiry by the Masters of the Bench of the Inner Temple into the conduct of a member of the profession, whether barrister, Queen's Counsel or Bencher, is a judicial or quasi-judicial proceeding so comparable to a court of law that it would command the same privilege for those participating in it. In ( Addis v. Crocker 1961 1 Q.B., p. 11) it was decided in this court, upholding Gorman J., that the proceedings of the disciplinary committee set up under Solicitors Act, 1957, section 46, were in function and procedure so similar to those of a court of law; that its findings were absolutely privileged. It was submitted that no less could be said of the disciplinary proceedings of the Inns of Court in relation to the Bar and that having regard to the constitution, powers and authority of an Inn of Court it was immaterial that its authority was not derived from a statute.
There is no doubt that in a court of law the observations of the judge, counsel, parties and witnesses are the subject of absolute privilege. This was established clearly in 1833 in Hunster v. Lamb (11 Q. 3.D. 538) where the existing authorities were reviewed by the court. The basis of the rule was suecintly stated by Fry L.J, on page 607:
"The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to project persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them., but to the vexation of defending actions."
The Master of the Rolls, Sir William Bett, at page 599,said;
"Inasmuch as the words were uttered with reference to and in the course of the judicial inquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been."
Some years earlier, in 1875, Dawkins v. Lord Rokeby had been heard before a full court of the Exchequer Chamber who held that a court of inquiry instituted by the Coramander-in- Chief of the Army under the Articles of War to inquire into a complaint made by an officer in the army, though, not a court of record, nor a court of law, nor coming within the ordinary definition of a court of justice, was nevertheless subject to the absolute privileges in respect of its hearings as a court of law.
The judgment of the court was given by Kelly C.3., who stated at page 263;
"The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recog nised by law."
It was held that the court of inquiry was a court duly and legally constituted and recognised in the Articles of War and many Acts of Parliament and that once called into existence it had all the qualities and incidents of a court of justice, which the judgment examines in detail.
It was restated in Royal Aquariam and Summer and Winter Garden ( Society Limited v. Parkinson 1892 1 Q.B.D. 431) that the absolute immunity from liability to an action in respect of statements made in the course of proceedings before a court of justice was applicable to all kinds of courts of justice and that the immunity had been carried further and would apply wherever there is an authorised...
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