Scottish Court of Session Decisions

Lord Justice-Clerk.—The Court had the advantage in this case of a very full and able debate, and after considering the case, I have come to the conclusion that the decision of the Lord Ordinary is right. Great stress was laid by the reclaimer upon the decision of Lord Wynford in the House of Lords in an early case, as indicating that there was a difference between the law of England and the law of Scotland in this matter. But I am satisfied that it has been decided in this country in several cases since then that the privilege of a Judge in any Court of law is absolute. If there was any difference of opinion on that matter expressed in the decisions, I should myself adopt the opinion which held it absolute. But I think that in the cases of Harvey v. Dyce and Williamson v. Umphray and Robertson, we have distinct and clear expression regarding the law of Scotland on this matter. Nothing could be more complete than the opinion of the late Lord President, concurred in by the rest of the Division. He speaks of the absolute privilege accorded to Judges, counsel, and witnesses by the law and practice of both countries.

The policy of the law is obvious, and there seems to me to be no conceivable ground for holding that the policy does not apply with as great force to a Judge in an inferior Court as to a Judge in a superior Court.

It only remains to consider whether the circumstances of this case fall within the rule that the words complained of must be uttered with reference to and in course of a judicial inquiry. Of that in this case I have no doubt. The Judge, when the case came before him, desired to see the accused child's father, and it was when the father appeared that he is said to have made the statements complained of from the bench. Had he said nothing offensive, but spoken to the father about his son's upbringing or similar matters, it could hardly have been suggested that this did not take place in reference to and in the course of a judicial inquiry. That the words used were offensive and grossly slanderous if untrue cannot make any difference on the answer to be given to the question whether they were uttered in the judicial proceedings. I express no opinion upon the Bailie's conduct as regards propriety. The only question before the Court is, whether he had absolute privilege, and holding as I do that such privilege applies to all Judges, and that he was acting in his capacity as a Judge at the time, I am of opinion that the Lord Ordinary has acted rightly in granting absolvitor.

Lord Moncreiff (whose opinion was, in his Lordship's absence, read by the Lord Justice-Clerk).—In this case the Lord Ordinary has sustained the third plea in law for the defender and assoilzied him. The plea in question is to the effect that the words complained of by the pursuer being alleged to have been used by the defender while sitting as a Magistrate and Police Judge with reference to the charge he was considering in that capacity, are absolutely privileged.

The words in question are said to have been used by the defender in these circumstances:—On 16th August 1901 the pursuer's son, a boy of nine years of age, and another boy were brought before the defender at the Police Court, Edinburgh, charged with having stolen a bottle of lemonade from a lorry. The pursuer's wife, the boy's mother, was present, but the defender having ascertained that the pursuer was the boy's father, postponed the case and sent for him. I assume at that stage no plea had been given or taken. On the pursuer appearing in Court the defender, after asking him whether he was the clubmaster of the Abbotsford Club, which is a working men's club, immediately addressed him in the words which are complained of:—“Well, I have to tell you that not only are you ruining other people but you are ruining the boy. I know several families who are going straight to the devil from your club. You take their money, then send them out, while their wives and families are starving, and they are nearly killed when you are done with them.”

It is in respect of these words that the present action of damages is raised. I may say at this point that in any remarks which I may make on the only question now before us I shall assume, as I am bound to do, the accuracy of the pursuer's statements, and, inter alia, the accuracy of his version of the words used by the defender.

The Lord Ordinary has made a most able analysis of the authorities bearing upon the nature and limits of the absolute privilege which attaches to a Judge in this country and in England. In that analysis I entirely concur, and shall presently add only a very few observations on the authorities.

I do not, however, agree in the opinion which the Lord Ordinary indicates on one point of the case. I take a more serious view than his Lordship appears to do of the words which the defender is said to have used. In my opinion they are (as stated by the pursuer) not merely extravagant but defamatory to the pursuer (who was not a party to the case before him), and utterly indefensible. It is said that the defender was speaking not against the pursuer as an individual but against a system of which he strongly disapproved. This explanation is not open to him. His one ground of appealing to the protection of absolute privilege as a Judge is that his remarks had reference to the case before him, that is, the case of the pursuer's son. And when he said, “And not only are you ruining other people but you are ruining the boy,” it cannot, I think, be said that he was speaking of the club or the system and not of the man.

Further, the pursuer avers that the defender sent for him and addressed him in these terms, not for the purpose of dealing with the case before him, but in order that he might have an opportunity of ventilating his views in regard to such clubs, and with the malicious motive of abusing the pursuer, against whom the pursuer alleges the defender and others had unsuccessfully tried to obtain a conviction on the charge of shebeening. If this had been an unprivileged case, or even a case of qualified privilege, I should have had no hesitation in sending it to trial. As it is, it is with great hesitation that I have come to the conclusion that this is a case to which absolute privilege applies, and that whatever other redress or punishment may attach to such an outburst—and it must not be assumed that there is none—the defender is not liable to an action of damages at the instance of the pursuer.

As I have said, the Lord Ordinary has not only analysed the authorities but has quoted material passages from the opinions of the Judges. I adopt that analysis, and it is unnecessary for me to add much to what he has said. The absolute privilege of Judges is founded on the public policy that it is essential to the ends of justice that persons in such positions should enjoy freedom of speech without fear of consequences in discharging their public duties in the course of the judicial inquiry. The difficulty is to determine the limits of this protection and to decide at what point a Judge who is dealing with a case before him can be held to exceed and go beyond his proper province and jurisdiction. I do not know that there is any complete and exhaustive definition to be found on this point in the opinions of the Judges; but the following passage from the opinion of Lord Penzance in the case of Dawkins v. Lord Rokeby contains the gist of it—“If by any process of demonstration free from the defects of human judgment, the untruth and malice could be set above or beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man. But this is not the state of things under which this question of law has to be determined. Whether the statements were in fact untrue, and whether they were dictated by malice, are and always will be open questions on which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of a jury.”

The reason for the wideness of the protection is simply this: If a Judge were liable to be sued in respect of words uttered in his judicial capacity, on the averment that what he said was irrelevant or not pertinent to the case or in excess of the occasion, or even that he uttered the words maliciously, experience tells us that although he might after trial succeed in clearing himself of the imputation he would be exposed to being called on to answer what ex facie of the summons was apparently a relevant charge. Now, if that were once permitted the protection of absolute privilege would disappear; and therefore the only sound rule is to grant that protection unless it can be demonstrated—that is, shewn so clearly that no man of ordinary intelligence and judgment could honestly dispute it—that the words used had no connection with the case in hand. The result of this, no doubt, is that in an exceptional case like that which we have before us, of a Judge who is unable to restrain himself, hardship is inflicted on the person to whom the remarks are addressed. But on the other hand it is to be remembered that, thanks to the protection afforded by the privilege, ninetynine out of a hundred Judges are enabled to discharge their duties without fear or favour and without the dread of an impending action.

As shewing the amount of licence, if I may use the word, that is allowed to a Judge or other privileged person who is speaking to the case in hand, I may refer to the opinion of Lord Esher, Master of the Rolls, in the case of Munster v. Lamb .

On the authorities I have only a few more words to say. I am quite satisfied that under the requisite conditions an inferior Judge has absolute privilege as well as a Judge of the Supreme Court—Harvey v. Dyce . On that point I cannot regard Allardice v. Robertson as now a binding authority. I have re-read the whole of that case, and although a perusal of its different stages discloses sufficiently some of the reasons why it has been disregarded as an authority, I do not think it would serve any good purpose to analyse it more than the Lord Ordinary has done. I can find no trace in later cases of it being regarded as an authority to any effect, either in this country or in England.

There remains the question which from an early stage in the argument appeared to me to be the only question of difficulty in the case, and that is whether upon the pursuer's shewing the defender by the excess of his language did not forfeit the privilege which he otherwise would have possessed. At one time I thought it might have been practicable to send the case for trial, leaving the question of privilege to arise at the trial. That is done every day in cases where qualified privilege is pleaded by the defender but not disclosed on the face of the pursuer's statements; and I see no radical incompetency in adopting the same course in regard to absolute privilege (although I am not aware that it has ever been done in this country unless it be in Allardice v. Robertson ) where there is a dispute as to facts which might on proof be conclusive one way or another on the question.

But in the present case, taking the most favourable view for the pursuer, I have come to be of opinion that absolute privilege is disclosed. The boy being only nine years of age, the Judge would, in the event of the boy either pleading or being found guilty, have to decide how he was to deal with him—whether he should be sent to a reformatory or given back to his parents to chastise and look after. The defender was therefore entitled to send for the boy's father, and to address him in connection with the charge against the boy. But unfortunately instead of doing so in temperate language, when the pursuer appeared in answer to the summons, and the defender recognised him as the keeper of one of the clubs of which the defender disapproved, the strong views which the defender entertained on the temperance question and in regard to those clubs predominated and got the better of him, and he used language defamatory to the pursuer which was utterly uncalled for and indefensible. Still he was speaking in connection with the case before him—that is, the charge against the boy. What seems to have been passing through his mind was that the father's avocations were in some way answerable for the boy's criminal instincts, or that the pursuer was not a person in whose custody the boy should be left.

I do not excuse the language which the defender used; it cannot be excused, and I wish that I saw in the defences some expression or sign of regret for its use. But I am unable to say that the words complained of were not uttered in connection with the case depending before the defender. I am therefore for affirming the Lord Ordinary's interlocutor.

Lord Pearson concurred.

LORD KINCAIRNEY, who was sitting in the Division at the advising, but had not been present at the hearing, gave no opinion.

LORD YOUNG and LORD TRAYNER were absent.