3PLR – ADDIS V CROCKER AND OTHERS (CA)
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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Addis
v.
Crocker and Others
COURT OF APPEAL
23, 24, 25 MAY 1960
OTHER CITATIONS
[1960] 2 ALL E. R. 629
BEFORE THEIR LORDSHIPS
HODSON
PEARCE AND
UPJOHN LJJ
REPRESENTATION
The plaintiff appeared in person.
T G Roche QC and H P J Milmo for the defendants.
SOLICITORS
Charles Russell AND Co – (for the defendants).
Henry Summerfield Esq. Barrister.
MAIN ISSUE
ETHICS – LEGAL PRACTITIONER – PROFESSIONAL LIABILITY: Solicitors – Disciplinary proceedings before the Disciplinary committee – Privilege against liability for defamation – Solicitors Act, 1957(5 AND 6 Eliz 2 c 27), s 46 – Solicitors (Disciplinary Proceedings) Rules, 1957 (SI 1957 No 2240), r 21 – How treated
HISTORY AND SUMMARY OF PROCEEDINGS
Proceedings before the disciplinary committee constituted under s 46 of the Solicitors Act, 1957, are judicial in character, and the proceedings (including the committee’s findings and order) have the benefit of the absolute privilege against liability for defamation that protects the proceedings before a court of justice, notwithstanding that, under r 21 of the Solicitors (Disciplinary Proceedings) Rules, 1957, the committee hear all applications in private and only pronounce their findings and order in public.
Principles laid down by Lord Esher MR in Royal Aquarium AND Summer AND Winter Garden Society v Parkinson ([1892] 1 QB at p 442) applied.
Barratt v Kearns ([1905] 1 KB 504) considered.
Per Hodson LJ: if the findings and order, as a document, had contained anything which was not relevant or should not have been contained therein, it would not for that reason have caused the proceedings to lose their judicial character or their protection by absolute privilege (see p 637, letter i, to p 638, letter a, post).
Decision of Gorman J ([1959] 2 All ER 773) affirmed.
Notes
As to the tribunals and proceedings to which absolute privilege extends, see 24 Halsbury’s Laws (3rd Edn) 49-52, paras 90, 91; and for cases on the subject, see 32 Digest 102-109, 1328-1413.
For the Solicitors Act, 1957, s 46, see 37 Halsbury’s Statutes (2nd Edn) 1090.
Interlocutory Appeal
By a writ issued on 6 January 1959, the plaintiff, Jasper Jocelyn John Addis, inquiry agent, claimed damages for libel contained in a document headed Findings and Orders, No 2627-1958, dated 14 August 1958, signed by Sir William Charles Crocker, which the plaintiff alleged was falsely and maliciously published by Sir William Charles Crocker, the first defendant, with the knowledge, consent and agreement of the second and third defendants, Sir William Charles Norton and Sir Leslie Peppiatt. The defendants were solicitors and were members of the council of the Law Society. Further, at all material times the defendants were properly appointed members of the disciplinary committee (referred to hereinafter as “the committee”) set up by the Master of the Rolls under s 46(1) of the Solicitors Act, 1957. By his statement of claim the plaintiff alleged that on 23 May 1958, an application in writing, numbered 2627-1958, was made to the committee on behalf of the Law Society, asking that one Leslie Granville Jones, a solicitor, should be required to answer allegations of professional misconduct which were set out in the application: that on 12 June 1958, the committee met to hear this application and that the plaintiff applied to give evidence before the committee regarding allegations in the application which referred to the plaintiff, but his request was refused; that on 14 August 1958, the defendants as members of the committee published their findings and orders relating to the above application (these being the findings and orders complained of by the plaintiff). By para 6 of the defence, the defendants pleaded that the publication of the findings and orders was made by them as members of the committee under the provisions of s 46 to s 49 of the Solicitors Act, 1957, and under the Solicitors (Disciplinary Proceedings) Rules, 1957, and that the publication occurred in the course of and formed part of proceedings before a statutory tribunal exercising judicial functions and was therefore absolutely privileged. Alternatively, the defendants pleaded (by para 7) that the publication was protected by qualified privilege. By his reply, the plaintiff denied that there was absolute privilege and, in answer to the plea of qualified privilege, alleged malice against the defendants. An application was made by the defendants, under RSC, Ord 25, r 4, to strike out the statement of claim and on 6 February 1959, Master Jacob ordered that the statement of claim be struck out on the grounds that it disclosed no reasonable cause of action and that the action was frivolous and vexatious. On appeal to the judge in chambers (Devlin J), this order was reversed on 23 March 1959, and by a subsequent order of Master Jacob, dated 11 May 1959, it was ordered that the question whether the publication complained of was absolutely privileged and was made under and in accordance with the authority of the Solicitors Act, 1957, and the Solicitors (Disciplinary Proceedings) Rules, 1957, should be set down for hearing before the trial of the action. On 8, 9 and 13 July 1959, this question was tried by Gorman J from whose decision (reported [1959] 2 All ER 773) that the publication of the words complained of in para 5 of the statement of claim was absolutely privileged, and was made under the provisions and in accordance with the authority of the Solicitors Act, 1957, and the Solicitors (Disciplinary Proceedings) Rules, 1957, the plaintiff now appealed. The relevant provisions of the Act and the rules are set out in the judgment of Hodson LJ.
MAIN JUDGMENT
25 May 1960. The following judgments were delivered.
HODSON LJ.
This is an appeal from an order of Gorman J dated 13 July 1959, made on a preliminary question ordered to be tried under RSC, Ord 25, r 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 14 August 1958, 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 Esher MR in Royal Aquarium AND Summer AND Winter Garden Society v Parkinson. In that case a meeting of the London County Council for granting music and dancing licences which was held 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.”
Lord Esher MR said ([1892] 1 QB at p 422):
“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 court act.”\
I will refer also to Dawkins v Lord Rockeby, which is a decision of the House of Lords. 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 a 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 Exchequer Chamber, the Lord Chancellor put the following question to the judges ((1875) LR 7 HL at p 752):
“Whether the opinion and ruling of the learned judge in this case, as stated in the bill of exceptions, and his direction thereupon to the jury, were right in point of law?”;
and the following answer to the question proposed was given by the Lord Chief Baron in the name of the judges ((1875), LR 7 HL at p 752): (1875), LR 7 HL at p 752.
“My Lords, these of Her 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 says or writes in giving evidence before a court of justice. This does not proceed on the ground 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 an 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 bill 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 giving evidence in an ordinary court of justice.”
The House of Lords adopted the opinion of the judges. I do not think that 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 inquiry was intended to investigate the fitness of the officer in question for command, and 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 matter of this kind, to consider, as Sankey J did in a case to which I shall also refer, the constitution and functions and the procedure of the tribunal which falls to be considered, as to whether the rule of absolute privilege applies. The disciplinary committee is set up under the provisions of an Act of Parliament, the Solicitors Act, 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, 1888, a statutory committee was for the first time appointed, the members of which were nominated by the Master of the Rolls, with power to inquire and report to the court if there were any case to answer; and by the Solicitors Act, 1919, they were given power to hear 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(1) of the Act of 1957 provides a:
a The subsection has been amended by the Solicitors (Amendment) Act, 1959,s 1, but not in a manner material to the decision in the present case.
“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 less 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-ss. (2) and (3). Subsection (4):
“Subject to the last foregoing subsection, the disciplinary committee, with the concurrence of the Master of the Rolls, may from time to time make 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-s (5), any such rule may make provision in relation to other matters which I need not read. Subsection (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 tecum, 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.”
Subsection (7):
“The power to make rules conferred by sub-s. (4) of this section shall be 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(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 subsection shall affect any jurisdiction of the Master of the Rolls or any judge of the High Court over solicitors exercisable apart from the provisions of this subsection by virtue of s. 50 of this Act.”
I interpose a reference to s 50 of this Act, which deals with the jurisdiction 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 s 47, sub-s (2) reads:
“Subject to s. 54 of this Act, on the hearing of any application or complaint made to the disciplinary committee under this Act, other than an application under s. 38 thereof, the committee or a division thereof shall have power to make such order as they may think fit, and any such order may in particular include provision for any of the following matters, that is to say-(a) removing from or striking off the roll the name of the solicitor to whom the application or complaint relates; (b) suspending that solicitor from practice; (c) payment by that solicitor of a penalty not exceeding £500, which shall be forfeit to Her Majesty; and (d) payment by any party of costs or of such sum as the committee or division may consider a reasonable contribution towards costs: Provided that upon proof of the commission of an offence with respect to which express provision is made by any section of this Act, the committee or division shall, without prejudice to their power of making an order as to costs, impose the punishment, or one of the punishments, specified in that section.”
Appeals against orders are dealt with in s 48. Subsection (1) reads:
“Subject to the next following subsection, an appeal against any order made by the disciplinary committee or a division thereof on an application or complaint under this Act shall lie to the High Court at the instance either of the applicant or complainant or of the person with respect to whom the application or complaint is made, and every such appeal shall be made within such time and in such form and shall be heard in such manner as may be prescribed by rules of court.”
Section 49 provides:
“(1) Every order made by the disciplinary committee or a division thereof on an application or complaint made to the committee under this Act shall be prefaced by a statement of their findings in relation to the facts of the case and shall be signed by the chairman of the committee or by some other member of the committee authorised by the committee in that behalf.
“(2) Every such order [other than an order to which I need not refer in detail] shall be filed with the society, and as soon as it has been so filed shall be acted upon by the society and be enforceable in the same manner as a judgment or order of the High Court to the like effect.”
Subsection (3) I need not read; but sub-s (4) provides that
“The file kept by the society for the purposes of this section shall be open to inspection by any person during office hours … “
I pass now to the general provisions of the Act. Section 88(1) deals with appeals. Subsection (2) reads:
“Any instrument or other document whatsoever which was, or was treated as having been, made, issued, served or kept, and any other thing done, under or for the purposes of any enactment repealed by this Act shall be treated as having been made, issued, served, kept or done under or for the purposes of the corresponding provision of this Act; and, save where the context otherwise requires, any document referring, or to be construed as referring, to any enactment repealed by this Act shall be construed as referring to the corresponding provision of this Act.”
The plaintiff’s contention is that there can be no absolute privilege here, and he has put forward five contentions. First of all, his main contention is that the proceedings were held in private. His second contention is what I call for convenience his autrefois acquit contention, which is in effect this, that a solicitor may well be subject to criminal prosecution and afterwards may be called before this committee on a disciplinary charge, and that the functions of that committee in so acting are inconsistent with those of a judicial body. His third contention is that the procedure laid down by the rules is inconsistent with the judicial function. His fourth contention is that there was here such an irregularity in proceeding (to which I shall refer in further detail) as to show that the tribunal was not acting judicially; and his fifth contention is that even if the hearing itself was protected by absolute privilege, the findings and order, or that part of it which contained the libel, was outside the scope of a judicial inquiry.
Before dealing with those contentions, I must refer to the rules. One of the plaintiff’s contentions is that the rules are such that the conduct of the tribunal is inconsistent with that of a judicial body. I can deal with that shortly. We have been referred to a number of the rules, one of which is the one which he of course desires to draw to the particular attention of the court-the rule about hearings in public; but the other rules are, broadly speaking, on the same lines as the Rules of the Supreme Court. It is true that in some respects they go further. There is, for example, r 31, to which the plaintiff has drawn particular attention and which provides that
“The committee may dispense with any requirements of these rules respecting notices, affidavits, documents, service, or time, in any case where it appears to the committee to be just so to do.”
That is a power which goes further than any Rule of the Supreme Court, which contains only RSC, Ord 70, r 1, which, in the appropriate cases, enables breaches of the rules to be overlooked. There is a further ruleb to which the plaintiff has drawn attention with regard to cases in which the tribunal may adjourn proceedings, enabling fresh charges to be made. There again, he says that that goes outside the scope of a judicial inquiry. But however that may be, the answer to this point with which I am dealing first is, I think, that the rules are statutory rules and orders which have come into existence in pursuance of the Act of Parliament to which I have referred, and they do not form any basis for a sound contention that the procedure of this tribunal is such that it cannot properly be regarded as judicial.
Rule 21 is the rule which introduces the first point.
“The committee shall hear all applications in private, but shall pronounce their findings and orders in public.”
The document to which I have referred is headed “Findings and Order” and is obviously drawn up in that form in order to comply with the rule and with the Act of Parliament the relevant sections of which I have read. It was (as the evidence of a Mr Warren shows) not read out in full, but it was handed out and published publicly, although the hearing had taken place, in accordance with the rule, in private.
Perhaps, having said that, it may be convenient to postpone returning to the point about publicity and deal with the last point-that even if the hearing itself was protected the findings and order are not. I think that the short answer to that is that the findings and order were an intrinsic part of the hearing, and if the hearing itself is protected by absolute privilege the same applies to the findings and order; and the subsidiary point that matters irrelevant to the findings and order were included in the document which is called “Findings and Order” really, I think, comes under another point which the plaintiff has made, to which I shall refer in a moment. So far as publicity is concerned, this is, I think, the most formidable-indeed I think the only formidable-part of the plaintiff’s case; because he is quite right in saying that it is axiomatic, so far as British justice is concerned, that proceedings should be, wherever possible or convenient, subject to the overriding rule that justice must be administered in public; and he quite rightly relies on the observations of the House of Lords in Scott v Scottin 1913, where that was laid down in very clear terms, and on the observations of Lord Hewart CJ in R v Sussex Justices, Ex p McCarthy ([1924] 1 KB 256 at p 259), when he said that justice must not only be done but must “be seen to be done”. He relies also on, and is able I think to get some assistance from, the decision of Sankey J in Copartnership Farms v Harvey-Smith. That was a case concerning the activities of a tribunal which was set up by Act of Parliament for the purpose of dealing with applications for exemption from military service. Clause 4 of the regulations in that case ([1918] 2 KB at p 412) reads as follows:
“All applications to the local tribunal shall be heard in public, unless the tribunal, in any particular case, due regard being given to the interests of the parties and of any other person concerned in the application, consider that an application or any part of the proceedings thereon shall be heard in private; provided that the tribunal may exclude the parties and the public at any time during the hearing of an application for the purpose of conferring upon any question affecting the decision of the application.”
Sankey J said ([1918] 2 KB at p 412):
“In my view that is a power which is one of the attributes of a judicial tribunal, and the mere fact that it is granted to the tribunal in question does not, I think, show that it is not a judicial tribunal. To my mind it points the other way, the intention being that there may be no doubt but that the local tribunal shall have the attributes of a judicial tribunal”;
and he came to the conclusion that the object of these regulations was to assimilate the tribunal to a judicial tribunal-
“that is to say, to make it a tribunal acting in a manner similar to that in which courts of justice act.”
That case is only of assistance in so far as it shows, I think, indirectly, that Sankey J was paying attention (as indeed counsel for the defendants conceded it was right to pay attention) to this particular feature of justice, that it was prima facie to be administered in public.
But of course the plaintiff Mr Addis (who conducted this case, if I may say so, with great intelligence) was not able to say that courts must always sit in public, because he knew (as indeed Scott v Scott shows) that there are many cases where the courts do not sit in public because the interests of justice demand otherwise: there are cases concerning secret processes and cases of wards of court and so forth. But he says that unless a court generally sits in public (subject to exceptions) the protection should not apply. There is, of course, no authority for such a broad proposition as that, and indeed an examination of the authorities leads to the contrary conclusion, particularly in the cases where this question has arisen. I have already cited Dawkins v Lord Rokeby; and there is another case which brings out the point very clearly-Barratt v Kearns, which was a case where a commission had been issued by the bishop of a diocese under the Pluralities Act, 1838, and the Amendment Act of 1885, to inquire into the inadequate performance of the ecclesiastical duties of a benefice, and where the decision was that that was a judicial tribunal and the occasion on which a witness gave evidence before the commissioners was absolutely privileged and no action was maintainable in respect of evidence so given. It so happened that the counsel engaged in the case for the plaintiff drew attention in his argument to the fact that this was a private inquiry; but although he was Mr Fraser, a man who subsequently became a leading authority on the law of libel, he did not even take the point that the fact that it was a private inquiry disabled the tribunal or those who gave evidence before it from claiming absolute privilege. There is no need for me, I think, to go into the facts of that case. For the purposes of this point it is sufficient to say that the inquiry was in private; it is quite clear that that was so; and nevertheless it was said that the rule of absolute privilege applied. It was pointed out by counsel, on behalf of the defendants that of course there are numbers of other cases where justice is administered in private, as in judges’ chambers. No one would be likely to dispute that proceedings in judges’ chambers are judicial proceedings for all purposes and would be the subject of absolute privilege. The public has no access to chambers, and justice, in the various divisions of the High Court, not always in respect of the same matters, is administered in chambers. Moreover, there is one Act of Parliament (there may be others) where it is specifically provided that cases shall be tried in private: anatomical evidence in nullity cases is directed by Act of Parliamentc to be heard in camera. So that in my opinion it is not maintainable, as a matter of law, that the fact that this tribunal is directed by its rules to hear in private and to give its findings and order publicly-and only its findings and order publicly-destroys the right to claim absolute privilege.
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c Matrimonial Causes Act, 1950, s 32(4); see also Official Secrets Act, 1920, s 8(4), which provides that sentence must be passed in public but that all or part of the rest of the trial may be in camera.
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That brings me to consider the way in which this tribunal functions, and the procedure. I have already deliberately read a great part of the Act of Parliament which deals with the functions, and I have referred to the rules which deal with the procedure. The constitution of the tribunal authorised by Act of Parliament speaks for itself. The functions are judicial functions, not administrative functions. This is not comparable with a meeting concerned with the issue of licences. If there is a prima facie case brought before this tribunal, it has to hear and determine it. This does in a sense affect the status of the solicitor: he is liable to be struck off the roll if he is convicted of unprofessional conduct, and disabled from practising. There is power to fine him, power to make him pay costs, power to administer the oath, power to obtain a subpoena. No doubt that last provision was inserted in order to get over the difficulty as to the attendance of witnesses, which would otherwise only be cured by application to the High Court, as in R v Wiltshire Appeal Tribunal, Ex p Thatcher, where the King’s Bench Division of the High Court came to the assistance of an inferior court in directing the issue of a subpoena, with the sanction which that involved. The subpoena would, of course, have to be enforced by the High Court. There is further the right of appeal to the High Court. The orders of the committee are enforceable; and there is the further point that the jurisdiction is (as is shown by the passages which I have read from the Act of Parliament) concurrent with the existing High Court jurisdiction: see s 47(1) and s 50(2) of the Act.
Although I have mentioned the matters of functions and procedure, I think I should add a word of caution, that the plaintiff quite correctly drew attention to some observations which he found in Halsbury’s Laws Of Englandd which come from the speech of Lord Sankey LC himself, the judge who had heard Copartnership Farms v Harvey-Smith, in a House of Lords case, Shell Co of Australia Ltd v Federal Comr of Taxation, where, in a matter of this kind where the decisions of commissioners of taxation were being considered, Lord Sankey LC ([1930] All ER Rep at p 680; [1931] AC at p 297) said:
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d See Vol 9 (3rd Edn) 343.
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“… it may be useful to enumerate some negative propositions on this subject: (i) A tribunal is not necessarily a court in this strict sense because it gives a final decision. (ii) Nor because it hears witnesses on oath. (iii) Nor because two or more contending parties appear before it between whom it has to decide. (iv) Nor because it gives decisions which affect the rights of subjects. (v) Nor because there is an appeal to a court. (vi) Nor because it is a body to which a matter is referred by another body.”
That should be referred to, in order to show that I am not giving undue weight to the points as to functions and procedure, which, taken individually, may not be decisive but, taken cumulatively, I think have a very strong bearing on the case.
The next point, the autrefois acquit point, does not, I think, bear examination. It is quite obvious that in the ordinary case where a man is prosecuted for a crime he may well be sued in a civil court in respect of the same offence; and indeed the civil hearing is clearly a judicial hearing. That point is illustrated by such a case as Hollington v Hewthorn AND Co Ltd where a man was prosecuted for dangerous driving and was convicted and then in a civil action arising out of the same facts an attempt was made to get in, as evidence of dangerous driving, his conviction: the Court of Appeal held that that could not be done. That is only an illustration of the point, which has no substance.
I have lastly to mention one further point which I listed as one of the points made by the plaintiff, namely, irregularity in the proceedings. The authorities to which I have already made reference, including Dawkins v Lord Rokeby itself, indicate quite clearly that irregularity in the proceedings does not destroy the privilege. If further authority for that is required it is to be found in Munster v Lamb, and in Scott v Stansfield. I mention this point because the plaintiff drew our attention to the fact that, this being an inquiry as to the conduct of a solicitor in permitting his clerk to do something wrong, the solicitor’s defence was that whatever had gone wrong had gone wrong without his knowing anything about it, and the only question before the committee, it being admitted that there had been an error, was: was the solicitor himself at fault? He was acquitted. In dealing with that issue, the matter to which evidence was directed was the information that the solicitor had. He thereupon told the committee what he himself had been told. There was nothing irregular in that; but even if there had been, on the authorities to which I have made reference it would not have made any difference. The same, of course, applies to the findings and order: if the findings and order, as a document, had contained anything which was not relevant or should not have been contained therein, it would not for that reason (by virtue of the same authorities) have caused the proceedings to lose their character, which was such that the members of the tribunal, as well as the witnesses and all those who appeared before the tribunal, were protected by absolute privilege.
I would dismiss the appeal.
PEARCE LJ.
I agree with what my Lord has said. It is clear from the cases to which he has referred that absolute privilege is given to proceedings in courts of law in order that judges, advocates and witnesses may perform their respective parts free from a deterrent fear of actions for defamation. This privilege can create hardship for some persons in particular cases, but it is on balance an advantage to the community. For the same reason, the privilege is extended to tribunals which act judicially in a manner similar to courts of justice, but not to merely administrative tribunals. Difficulty may arise in deciding whether a particular tribunal has the characteristics of courts of law sufficiently to entitle it to share their privilege; but in my view this tribunal clearly has those characteristics.
This is a tribunal established and authorised by Act of Parliament. Its members are men of standing in the legal profession chosen and appointed by the Master of the Rolls. Its functions are purely judicial and in no wise administrative. It must adjudicate inter partes on the cases brought before it; and its findings and orders affect status. It has power by s 47 of the Act to order costs and to administer fines which go to the Crown. Its procedure is governed by statutory instrument. An appeal by way of re-hearing lies to the Divisional Court under a statutory instrument which has effect as if it were a rule of court (s 48(1)); and its orders are enforceable in the same manner as a judgment or order of the High Court to the like effect (s49(2)). It may administer the oath to the witnesses before it (s 46), and their attendance can be enforced by a subpoena issued out of the Crown Office (s 46(6)). The purpose of the High Court in lending its power to enforce the attendance of witnesses is to help the judicial process of an inferior court. It would seem anomalous and unfair that the High Court should compel the attendance of a witness before a tribunal, which may administer the oath to him, without extending to that witness the protection of privilege for the evidence which may be elicited from him. Moreover, the jurisdiction exercised by this tribunal is similar to that which from olden days was vested in the Master of the Rolls and the judges, and is still vested in them concurrently with this tribunal (see s 47(1) and s 50(2)). In the light of all these considerations I find it impossible to say that it is not exercising its functions in a manner similar to those of a court of justice.
It has been argued that this tribunal does not have such privilege because by virtue of r 21 it hears all applications in private and only pronounces its findings and orders in public. But that fact, though of great importance, is by no means conclusive, as is shown by Barratt v Kearns (to which my Lord has referred). In chambers procedure and certain other instances, from long-established custom or for more recent reasons, the High Court has hearings which are not in public. In view of the other attributes of this tribunal, the privacy of its hearings does not, in my opinion, differentiate it from courts of law to an extent sufficient to deprive it of the protection of absolute privilege.
I agree that the appeal should be dismissed.
UPJOHN LJ.
I agree. The plaintiff, Mr Addis, has argued his case with considerable skill. Much of his strongest point, and one which I found impressive, was his submission that a tribunal which is compellable by its rules on all occasions to conduct its hearings in private so far departs from the idea fundamental to British justice, that in general hearings should be in public, that it does not act in a manner similar to that in which courts of justice act, with the result that the tribunal does not satisfy the test laid down by Lord Esher MR in the passage in Royal Aquarium AND Summer AND Winter Garden Society v Parkinson ([1892] 1 QB at p 442) which has already been read by Hodson LJ (Ante, p 631, letter C). It is clear, however, from earlier authority, that the courts have not taken that view. Two examples may be mentioned. One was the commission that was appointed by the Bishop of Winchester, an ecclesiastical commission which was to deliberate in private. That is Barratt v Kearns. The second is the leading case of Dawkins v Lord Rokeby. A study of the reports both in the House of Lords and in the proceedings in the Exchequer Chamber does not disclose whether the hearing of the court of inquiry which was set up was in public or in private; but it was a court appointed to consider certain matters and to report to the convening authority. The matter that it had to consider was the fitness for command of an officer in the Coldstream Guards who had been put in close arrest by his superior officer for insubordination. I cannot think for one moment that such an investigation would have been conducted in public. Furthermore, it is quite clear that the report was a private document to be handed only to the convening authority after signature by each member. That case, therefore, I think affords strong support for the view that a tribunal which does not conduct its hearing in public does not necessarily fail to act in a manner similar to a court of justice.
In general, no doubt, a tribunal having judicial functions to perform should deliberate in public. But there may be good reasons, either in particular cases or indeed in particular classes of cases, where justice demands that the hearing should be in private. The High Court sometimes hears cases in private, and examples have been given by both my Lords, which I need not repeat. In this case one can well understand the reason that may have actuated those responsible for framing r 21: justice to the solicitor against whom a complaint is made. One can well understand how serious it might be if a complaint had to be deliberated in public and then a period necessarily elapses while the tribunal has to put its findings into writing.
In my judgment, this tribunal is entitled to the benefit of the rule applicable to courts of law and may claim absolute privilege.
Appeal dismissed. Leave to appeal to the House of Lords refused.
CASES REFERRED TO IN JUDGMENT
Barratt v Kearns [1905] 1 KB 504, 74 LJKB 518 92 LT 255, 32 Digest 104, 1346.
Copartnership Farms v Harvey-Smith [1918] 2 KB 405, 88 LJKB 472, 118 LT 541, 32 Digest 104, 1347.
Dawkins v Rokeby (Lord), (1873), LR 8 QB 255, 42 LJQB 63, 28 LT 134, affd HL, (1875), LR 7 HL 744, 32 Digest 102, 1339.
Hollington v Hewthorn AND Co Ltd [1943] 2 All ER 35, [1943] KB 587, 112 LJKB 463, 169 LT 21, 22 Digest (Repl) 244, 2412.
Munster v Lamb (1883), 11 QBD 588, 52 LJQB 726, 49 LT 252, 47 JP 805, 32 Digest 105, 1368.
R v Sussex JJ, Ex p McCarthy [1924] 1 KB 256, 93 LJKB 129, 88 JP 3, sub nom R v Hurst, Ex p McCarthy, 130 LT 510, 33 Digest 294, 97.
R v Wiltshire Appeal Tribunal, Ex p Thatcher (1916), 86 LJKB 121, 115 LT 650, 80 JP 409, 22 Digest (Repl) 447, 4885.
Royal Aquarium AND Summer AND Winter Garden Society v Parkinson [1892] 1 QB 431, 61 LJQB 409, 66 LT 513, 56 JP 404, 32 Digest 128, 1592.
Scott v Scott [1913] AC 417, 82 LJP 74, 109 LT 1, 16 Digest 130, 276.
Scott v Stansfield (1868), LR 3 Exch 220, 37 LJEx 155, 18 LT 572, 32 JP 423, 32 Digest 104, 1352.
Shell Co of Australia Ltd v Federal Comr of Taxation [1930] All ER Rep 671, [1931] AC 275, 100 LJPC 55, 144 LT 421, Digest Supp.
