Trapp v Mackie
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Salmon,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen |
| Judgment Date | 13 December 1978 |
| Judgment citation (vLex) | [1978] UKHL J1213-3 |
| Court | House of Lords |
| Docket Number | No. 2. |
| Date | 13 December 1978 |
[1978] UKHL J1213-3
Lord Diplock
Lord Salmon
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
House of Lords
My Lords,
This is an appeal by the pursuer, Dr. Trapp, against an interlocutor pronounced by the Second Division of the Court of Session dismissing Dr. Trapp's action against Mr. Mackie for damages for loss, injury and damage which he claims to have suffered as a result of "maliciously false evidence" alleged to have been given by Mr. Mackie at a local inquiry held pursuant to the Education (Scotland) Act 1946 in the summer of 1960.
In 1959 Dr. Trapp was rector (headmaster) of the Gordon Schools at Huntly. On 30 November 1959 he was dismissed from his post by the Aberdeenshire Education Committee of which Mr. Mackie was then the chairman. Dr. Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. The Secretary of State appointed Mr. Kissen Q.C. (as he then was) to hold a local inquiry into the matter. It was in the course of that inquiry that Mr. Mackie gave the evidence on which Dr. Trapp seeks to found this action.
When the record had been closed, the Lord Ordinary (Lord Ross) dismissed the action on the ground that the occasion on which the words complained of were spoken was one which Mr. Mackie was entitled to absolute privilege. Dr. Trapp's motion for review of the Lord Ordinary's interlocutor was dismissed by the Second Division of the Court of Session. Their unanimous decision was delivered on 20 March 1978 by the Lord Justice Clerk (Lord Wheatley).
My Lords, upon the immunity from suit of witnesses in respect of evidence they have given before courts of justice and tribunals acting in a manner similar to courts of justice, there is no difference between the law of Scotland and the law of England. That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established more than a hundred years ago by the decision of this House in Dawkins v. Lord Rokeby 7 H.L.C. 744 (1875) L.R. 7 H.L.C. 744, where the unanimous answer of the judges to the question asked them by the House was adopted and the ratio decidendi of the judgment of the Court of Exchequer Chamber (1873) L.R. 8 Q.B. 255 was approved.
The kind of tribunal in which the evidence of witnesses is entitled to absolute privilege was described by Lord Atkin in O'Connor v. Waldron [1935] A.C. 76 at p.81, as a tribunal which "has similar attributes to a court of justice or acts in a manner similar to that in which such courts act." That the "or" in this phrase is not intended to be disjunctive is apparent from the fact that Lord Atkin was confirming the accuracy of the law as it had been stated by Lord Esher in Royal Aquarium etc. Ltd. v. Parkinson [1892] 1 Q.B. 431 at p.442. Lord Esher having spoken of "an authorised inquiry which, though not before a Court of justice, is before a tribunal which has similar attributes", went on to explain that what he meant by similar attributes was "acting … in a manner as nearly as possible similar to that in which a Court of justice acts in respect of an inquiry before it".
In the course of the hearing which, as in both courts below, has been conducted by Dr. Trapp in person with skill and erudition, your Lordships' attention has been drawn to what must be nearly every reported case upon this topic in Scotland, and in England where most of the authorities are to be found. I do not find it necessary to refer to them. They provide examples of inquiries and tribunals which have been held to fall upon one or other side of a line which as Lord Atkin said in O'Connor v. Waldron (ubi sup) "is not capable of very precise limitation".
No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v. Lord Rokeby, "give their testimony free from any fear of being harassed by an action of an allegation, whether true or false, that they acted from malice".
So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.
To attract absolute privilege for the testimony of witnesses the tribunal, by whatever name it is described, must be "recognised by law", a phrase first used by the Court of Exchequer in Dawkins v. Lord Rokeby (ubi. sup. page 263). This is a sine qua non; the absolute privilege does not attach to purely domestic tribunals. Although the description "recognised by law" is not necessarily confined to tribunals constituted or recognised by Act of Parliament (see Lincoln v. Daniels [1962] 1 Q.B. 237) it embraces all that are, and so includes the local inquiry in the instant case at which Mr. Mackie's evidence was given. This was held by the commissioner, Mr. Kissen Q.C., appointed for the purpose by the Secretary of State under section 63 and section 81(3) of the Education (Scotland) Act 1946.
The nature of the question into which it was the commissioner's duty to inquire is stated in section 81. Subsections ( 1) and (2) deal with the dismissal of a certificated teacher by resolution of an education authority. They require that the teacher should be given notice of the resolution but contain no provision for him to be heard by the committee before the resolution is passed. Subsection (3) is as follows:
"If at any time within six weeks after the adoption of a resolution for the dismissal of a certificated teacher a petition shall be presented to the Secretary of State by the said teacher, praying for an inquiry into the reasons for the dismissal, the Secretary of State shall make such inquiry as he sees fit, and if as the result of such inquiry he is of opinion that the dismissal is not reasonably justifiable he shall communicate such opinion to the education authority with a view to reconsideration of the resolution, and in the event of the education authority not departing from the resolution within six weeks thereafter may attach to the resolution the condition that the education authority shall pay to the teacher such sum not exceeding one year's salary as the Secretary of State may determine; and any sum so determined may be recovered by the teacher as a debt from the education authority."
The inquiry is thus initiated by a petition by the aggrieved teacher to the Secretary of State. The question into which it thereupon becomes the duty of the Secretary of State to inquire, is whether the dismissal of the teacher was reasonably justified. Such a question partakes of the nature of a lis inter partes, an issue raised between the dismissed teacher and the education authority no different from the kind of issues between pursuer and defender that daily form the subject matter of civil suits in courts of justice.
Section 85(3) gives to the Secretary of State a discretion as to the means that he will adopt in making the inquiry called for by the subsection; but the nature of the question that is the subject of the inquiry will make it appropriate in most cases arising under the subsection to adopt a procedure which will enable the parties to the dispute, the teacher and the education authority, to address oral argument and to adduce evidence in support of their respective contentions. The procedure which the Act provides by which this can be done is a local inquiry. Section 63 empowers the Secretary of State to cause a local inquiry to be held for the purpose of the exercise of any of his functions under the Act. If he exercises this power, as he did in the instant case, the provisions of Schedule 1 have effect with regard to the inquiry.
Under Schedule 1, a local inquiry is held by a commissioner appointed by the Secretary of State. The commissioner's function is to hold the inquiry and to report thereon to the Secretary of State. The Schedule gives the commissioner a wide discretion as to the procedure to be adopted at a local inquiry. It leaves it to him to adopt the procedure appropriate to the kind of question into which he is appointed to inquire. This is necessary since questions of very different kinds from those arising under section 81(3) may also be the subject of local inquiries, such as, for example, schemes prepared by education authorities for the exercise of their powers and duties under the Act for which the approval of the Secretary of State is needed. For such inquiries the procedure followed in a court of justice may be quite unsuitable, but the Schedule equips the commissioner with the necessary powers to enable him to conduct the inquiry before him in a manner similar to that in which contested civil actions are conducted in the regular courts of justice, where the question into which he is appointed to inquire renders appropriate this manner of proceeding.
Thus, the commissioner, by...
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