Marrinan v Vibart

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE DIPLOCK
Judgment Date25 July 1962
Judgment citation (vLex)[1962] EWCA Civ J0725-3
Date25 July 1962

[1962] EWCA Civ J0725-3

In The Supreme Court of Judicature

Court of Appeal

From Mr. Justice Salmon Middlesex.

Before

Lord Justice Sellers

Lord Justice Willmer and

Lord Justice Diplock

Patrick Aloysius Marrinan
and
Peter Vibart And Thomas Butler

Mr. Leonard Lewis (instructed by Messrs. Lesser & Co., London, E.15) appeared on behalf of the Appellant (Plaintiff).

Mr. Helenus Milmo, Q. C. and Mr. Peter Bowsher (instructed by Mr. J. S. Williams) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE SELLERS
1

This action is in my view misconceived.

2

Those who take part in the administration of justice (and it is one of the important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings. I am inclined to think that the plaintiff (who is not unversed in the law) must know that the action does not lie and has issued the writ in order to annoy others and give vent to his feelings rather than genuinely to seek a redress to which he believes himself to be entitled. In these circumstances a preliminary issue was properly raised on the pleadings and the learned judge, at a timely stage in this action, has rightly ruled that no actionable wrong has been disclosed as averred by the plaintiff in his writ and in the statement of claim.

3

I would be content to decide this case in the same terms as the clear judgment of Mr. Justice Salmon, who sets out the relevant facts from the statement of claim, which I do not repeat, and deals with the arguments which have been submitted to the court, both before him and to this court. It is quite clear, on authority which learned counsel for the respondents to this appeal cited briefly to us going back well into history, that no court would entertain an action of this character. I do not propose to review those authorities in any detail. The principles can be found in the cases already referred to in the judgment, going back to ( Revis v. smith 18 Common Bench), through Henderson v. Broomhead and down to Dawkins v. Lord Rokeby (reported in 8 Queen's Bench), in which one finds some of the earlier authorities conveniently summarised by Chief Baron Kelly at page 263 of that report, which commences on page 255. The Chief Baron said: "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 recognised by law. The principle which pervades andgoverns the numberless decisions to that effect is established by the case of Floyd v. Barker and many earlier authorities….down to the time of Lord Coke and which are to be found collected in Yates v. Lansing and Revis v. Smith. These two decisions, Yates v. Lansing and Revis v. Smith, are themselves direct authorities that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice". Then he continues to make other extracts from cases, which have been repeated from time to time, from Lord Mansfield onwards. I draw attention to the width of the language used by the Chief Baron in the passage which I have just read.

4

There has been a recent case in this court in which we had to consider the privilege of statements made before a court and in relation to judicial "proceedings - Lincoln v. Daniels, reported in 1962 1 Queen's Bench at page 237. There was cited in the course of the judgment in that case a passage from Lord Justice Fry in Munster v. Lamb, which was heard in 1883, reported in 11 Queen's Bench Division at page 588, where the learned Lord Justice said: "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 are 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 protect 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". Sir William Brett, Master of the Rolls,said also, "….in as much 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".

5

It has been sought in this case to draw a difference between the action of libel and slander, the action of defamation, and that which is set up in this case, one of conspiracy. I can see no difference in the principles of the matter at all. Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given.

6

Lord Esher has been well cited too, in the case of ( Royal Aquarium and Summer and Winter Garden society Ltd. v. Parkinson 1892 1 Queen's Bench page 431). At page 442 he says: "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...

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