Action – Immunity from civil action – Privilege of witness in court of justice – No immunity where gist of action malicious abuse of process of court – Action not defeated merely because alleged abuse included giving of false evidence – Evidence given by solicitor to support application for bench warrant – Action for malicious arrest against solicitor – Claim including allegation of perjury by solicitor – Refusal to strike out statement of claim: Roy v Prior , HOUSE OF LORDS (United Kingdom)
Roy v Prior
HOUSE OF LORDS
 AC 470,  1 QB 283,  2 All ER 729,  3 WLR 635, 134 JP 615
HEARING-DATES: 20, 21 APRIL 7 JULY 1970
7 JULY 1970
Action – Immunity from civil action – Privilege of witness in court of justice – No immunity where gist of action malicious abuse of process of court – Action not defeated merely because alleged abuse included giving of false evidence – Evidence given by solicitor to support application for bench warrant – Action for malicious arrest against solicitor – Claim including allegation of perjury by solicitor – Refusal to strike out statement of claim.
The defendant, a solicitor acting for A (who had been charged with a criminal offence) issued a witness summons requiring the plaintiff to attend as a witness at A’s trial. The plaintiff failed to attend. After the defendant had stated on oath that the plaintiff was evading service of the summons, the plaintiff was arrested on a warrant issued by the trial judge and brought to court to give evidence. The plaintiff brought a civil action against the defendant for malicious arrest. The plaintiff claimed that the defendant did not take necessary or sufficient steps to inform the plaintiff of the issue of the witness summons or to serve it on the plaintiff. The plaintiff by his amended statement of claim further alleged that the defendant maliciously and without reasonable or probable cause instructed counsel to apply to the trial judge for a warrant to arrest the plaintiff and that in support of the application the defendant falsely stated on oath that the plaintiff was evading service of the witness summons, and caused and procured the issue of the warrant on which the plaintiff was arrested. On appeal against an order striking out the plaintiff’s statement of claim and dismissing his action, made on the ground that the arrest of the plaintiff was caused by the evidence given by the defendant in court and that a witness may not be sued for what he says in the witness box,
Held – The appeal would be allowed, because —
(i) the plaintiff was not suing the defendant on or in respect of the evidence which the defendant gave in court but because the plaintiff alleged that the defendant procured his arrest by means of judicial process which the defendant instigated both maliciously and without reasonable cause; in actions based on alleged abuses of the process of the court, the court would often have been induced to act by false evidence, but the actions were not brought on or in respect of any evidence given but in respect of malicious abuse of process (see p 731 a, p 733 f, p 733 j to p 734 b, p 735 j and p 736 f, post);
(ii) the existence of the well-settled rule that no action would lie against a witness for words spoken in giving evidence in court, even if the evidence was false and malicious, did not mean that an action brought in respect of an alleged abuse of process of court must be defeated if one step in the abuse of process involved or necessitated the giving of evidence (see p 731 a, p 733 g and j, p 735 h and j and p 736 a and f, post); Daniels v Fielding (1846) 16 M & W 200, Revis v Smith (1856) 18 CB 126, Melia v Neate (1863) 3 F & F 757 and Johnson v Emerson (1871) LR 3 Exch 329 applied;
(iii) (per Lord Wilberforce) the reasons of public policy for which immunity was traditionally conferred on evidence given in court did not apply to evidence given in support of a bench warrant, which was given ex parte and in circumstances in which the person against whom the warrant was sought had no means, and no other party had any interest, in challenging the evidence; so far from the public interest requiring that such evidence be given absolute protection, that interest required that it should have been given carefully, responsibly and impartially; to deny a person whose liberty had been interfered with any opportunity of showing that it was ill-founded and malicious was a far more serious denial than the denial of the right to attack a witness to an issue which had been tested and passed upon after a trial (see p 736 d and e, post).
Decision of the Court of Appeal  3 All ER 1153 reversed.
For the privilege of witnesses against actions for evidence given, see 24 Halsbury’s Laws (3rd Edn) 48, para 89, and for cases on the subject, see 32 Digest (Repl) 123, 124, 1440-1453.
Daniels v Fielding (1846) 16 M & W 200, 16 LJEx 153, 8 LTOS 474, 11 JP 538, 153 ER 1159, 33 Digest (Repl) 406, 223.
Dawkins v Lord Rokeby (1873) LR 8 QB 255, 42 LJQB 63, 28 LT 134; affd HL (1875) LR 7 HL 744, [1874-80] All ER Rep 994, 45 JLQB 8, 33 LT 196, 4 JP 20, 32 Digest (Repl) 119, 1404.
Elsee v Smith (1822) 2 Chit 304, 33 Digest (Repl) 387, 5.
Hargreaves v Bretherton  3 All ER 122,  1 QB 45,  3 WLR 463, 1 Digest (Repl) 28, 278.
Johnson v Emerson (1871) LR 3 Exch 329, 40 LJEx 201, 25 LT 337, 33 Digest (Repl) 405, 199.
Marrinan v Vibart  1 All ER 869,  1 QB 234,  2 WLR 1224; affd CA  3 All ER 380,  1 QB 528,  3 WLR 912, Digest (Cont Vol A) 536, 4147a.
Melia v Neate (1863) 3 F & F 757, 33 Digest (Repl) 412, 297.
Revis v Smith (1856) 18 CB 126, 25 LJCP 195, 25 LTOS 106, 20 JP 453, 139 ER 1314, 32 Digest (Repl) 123, 1447.
Ross v Norman (1850) 5 Exch 359, 191 LJEx 329, 15 LTOS 208, 155 ER 157, 33 Digest (Repl) 417, 360.
Watson v M’Ewan, Watson v Jones  AC 480, [1904-07] All ER Rep 1, 74 LJPC 151, 93 LT 480, 32 Digest (Repl) 126, 1476.
Whitworth v Hall (1831) 2 B & Ad 695, [1824-34] All ER Rep 484, 9 LJOSKB 297, 109 ER 1302, 33 Digest (Repl) 400, 143.
Appeal. This was an appeal by the plaintiff, Premananda Roy, from an order of the Court of Appeal (Lord Denning MR, Winn and Cross LJJ) dated 15th July 1969 and reported  3 All ER 1153, allowing the appeal of the defendant, Ronald Albert Prior, from an order of MacKenna J dated 25th June 1969 dismissing the appeal of the defendant from an order of Master Jacob dated 25th March 1969 refusing to strike out the statement of claim and dismiss the plaintiff’s action for damages for malicious arrest. The facts are set out in the opinion of Lord Morris of Borth-y-Gest.
7th July. The following opinions were delivered.
LORD MORRIS OF BORTH-Y-GEST. My Lords, the appellant (the plaintiff) brought a civil action against the respondent (the defendant) claiming damages for malicious arrest. The plaintiff who is a medical practitioner alleges that the defendant who is a solicitor wrongly procured his (the plaintiff’s) arrest and imprisonment by instituting judicial process maliciously and without reasonable cause.
The defendant acted on behalf of a Mr Advani who was charged with a criminal offence and who was tried at the Central Criminal Court. Mr Advani had been a patient of the plaintiff. It was thought that the plaintiff could give medical evidence as to Mr Advani’s responsibility for his actions. The defendant on or about 27th May 1968 issued a witness summons requiring the plaintiff to attend as a witness at the trial of Mr Advani.The plaintiff claims that the defendant did not take the necessary steps to tell him (the plaintiff) of the issue of the summons or to serve it. The trial of Mr Advani took place some 16 days later, ie on 12th June 1968. The plaintiff claims that on that date the defendant, acting maliciously and without reasonable or probable cause, instructed counsel to apply to the trial judge for the issue of a warrant for the arrest of the plaintiff and that in support of the application he (the defendant) falsely stated on oath that the plaintiff was evading service. The result was that a warrant stated on oath that the plaintiff was evading service. The result was that a warrant was issued. At about 1.00 am on 13th June 1968 the plaintiff was arrested. He was them imprisoned and kept in custody until he was brought to court at 10.30 am. Later he gave evidence.
It is provided as follows by the Criminal Procedure (Attendance of Witnesses) Act 1965:
‘2. (1) For the purpose of any criminal proceedings before a court of assize or quarter sessions a witness summons, that is to say, a summons requiring the person to whom it is directed to attend before the court and give evidence or produce any document or thing specified in the summons, may be issued out of that court or out of the High Court…
‘3. (1) Any person who without just excuse disoberys a witness order or witness summons requiring him to attend before any court shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court…
‘4. (1) If a judge of the High Court is satisfied by evidence on oath that a witness in respect of whom a witness order or witness summons is in force is unlikely to comply with the order or summons, the judge may issue a warrant to arrest the witness and bring him before the court before which he is required to attend:
‘Provided that a warrant shall not be issued under this subsection in the case of a witness subject to a conditional witness order unless notice has been given requiring him to attend the trial, nor in the case of a witness subject to a witness summons unless the judge is satisfied by such evidence as aforesaid that the witness is likely to be able to give material evidence or produce any document or think likely to be material evidence in the proceedings.
‘(2) Where a witness who is required to attend before a court of assize or quarter sessions by virtue of a witness order or a witness summons fails to attend in compliance with the order or summons, that court may — (a) in any case, cause to be served on him a notice requiring him to attend the court forthwith or at such time as may be specified in the notice; (b) if the court is satisfied that there are reasonable grounds for believing that he has failed to attend without just excuse, or if he has failed to comply with a notice under paragraph (a) above, issue a warrant to arrest him and bring him before the court.’
The facts have not yet been investigated. The reason for this is that a summons was taken out asking for an order that certain paragraphs of the plaintiff’s statement of claim should be struck out on the ground that they disclose no reasonable cause of action. The statement of claim was drafted by and was signed by the plaintiff himself. The summons asked that the action should be dismissed. The summons was taken out under the provisions of RSC Ord 18, r 19. No evidence was therefore admissible on the application. The sole question was whether on the assumption that the facts as alleged could be proved a reasonable cause of action was disclosed. We do not know whether the plaintiff is able to substantiate the allegations which he makes. The statement of claim as drafted by the plaintiff was as follows:
‘1. The Plaintiff is a general medical practitioner, living at 863 Finchley Road, London, N.W.11, carrying on medical practice mainly at 92 St. Stephens Gardens, London, W.2.
‘2. The Defendant is a solicitor of the Supreme Court and was employed by or on behalf of one Mr. T. Advani in connection with the defence of the said Mr. Advani in a criminal cause at the Central Criminal Court.
‘3. The said Mr. Advani, the Defendant’s client, had been registered as the Plaintiff’s patient under the National Health Services.
‘4.The Defendant, as the solicitor of the said Mr. Advani, issued a witness summons on or about 27th May 1968 requiring the Plaintiff to attend Mr. Advani’s trial as a witness.
‘5. The Defendant omitted to take necessary and sufficient steps to intimate the plaintiff about issue of the said witness summons; omitted to take necessary and sufficient steps to serve the witness sumoons on the Plaintiff; and thus failed to serve the witness summons altogether.
‘6. At the trial of Mr. Advani, on or about 12th June 1968, the defendant falsely alleged that he had taken proper steps to serve the said witness summons on the Plaintiff; accused the Plaintiff, maliciously and without reasonable or probable cause, of having wilfully evaded service of the witness summons; instructed Mr. Advani’s counsel to apply to the judge for the issue of a bench warrant for the arrest of the Plaintiff; and thus caused the judge to issue such a bench warrant.
‘7. In consequence of the said bench warrant, the Plaintiff was arrested, detained and produced in custody before the court.
‘8. The said judge, after having heard the evidence of both the Defendant and the Plaintiff on the question of non-attendance of the Plaintiff as a witness, decided to dismiss the charge of wilful evasion and discharged the Plaintiff.
‘9. The Defendant conducted himself negligently in respect of the Plaintiff in that, having omitted to take necessary and sufficient steps to intimate the Plaintiff about issue of the witness summons and to take necessary and sufficient steps to serve the witness summons on the Plaintiff, he the Defendant, being a solicitor failed to ascertain the reasons for the non-attendance of the Plaintiff as a witness; made unfounded allegations of wilful evasion against the Plaintiff; and thus improperly caused the arrest and detention of the Plaintiff.
’10. The Plaintiff has thereby been injured in his reputation and has suffered injuries in respect of his and his wife’s health.’
The paragraphs which it was sought to strike out were paras 5, 6, 9 and 10.
The master made no order save that certain words in para 6 be struck out. The defendant appealed to the learned judge in chambers.The learned judge dismissed the appeal and restored the words which had been struck out. By leave, the defendant appealed to the Court of Appeal n1. The appeal was allowed; the statement of claim was struck out and the action was dismissed. Leave to appeal was refused. The plaintiff petitioned for leave to appeal. Leave was given on condition that the pleadings should be amended so as to disclose an allegation of malicious arrest. Paragraphs 11 and 12 were thereafter added to the statement of claim. Those paragraphs are as follows:
n1  3 All ER 1153,  1 QB 283
11. Further or in the alternative on the 12th June 1968 at the trial of Mr. Advani the Defendant maliciously and without reasonable or probable cause instructed Mr. Advani’s Counsel to apply to His Honour Judge McKinnon Q.C. for a warrant to arrest the Plaintiff. In support of the said application the Defencant falsely stated on oath that the Plaintiff was evading service of the said witness summons and caused and procured His Honour to issue a warrant for the arrest of the Plaintiff. On the 13th June 1968 at about 1 a.m. the Plaintiff was arrested under the said warrant and imprisoned until 10.30 a.m. on the said date at which hour he was brought in custody before His Honour who after hearing the Plaintiff’s evidence in the matter discharged the Plaintiff from such custody. The Plaintiff states that his arrest and imprisonment were procured by the Defendant maliciously and without reasonable or probable cause by wrongful abuse of the process of court.
’12. By reason of the premises the Plaintiff has suffered in body and mind and has been put to expense and inconvenience and has suffered loss and damages.’
The judgments in the Court of Appeal n2 were based on the ground that the arrest of the plaintiff was caused by the evidence which the defendant gave in court and that as a witness may not be sued for what he says in the witness box it followed that the action was not maintainable; if a civil action may not be brought in respect of what a witness says on oath in court neither, it was held, should an action lie in respect of instructions to apply for an arrest.
n2  3 All ER 1153,  1 QB 283
With every respect I consider that this reasoning fails to give due regard to the nature of an action for malicious arrest. What the plaintiff alleges is that the defendant acting both maliciously and without reasonable cause procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. The fact that in order to procure the arrest someone (who might or might not be the defendant himself) would have to give evidence on oath (see s 4 of the Criminal Procedure (Attendance of Witnesses) Act 1965) does not have the result that an action, if otherwise sustainable, could not be brought. The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (although if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.
It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v Lord Rokeby n3 and Watson v M’Ewan n4). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the worlds spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v Bretherton n5). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v Vibart n6).
n3 (1873) LR 8 QB 255
n4  AC 480, [1904-07] All ER Rep 1
n5  3 All ER 122,  1 QB 45
n6  1 All ER 869,  1 QB 234
This, however, does not involve that an action which is not brought in respect of evidence given in court but is brought in respect of an alleged abuse of process of court must be defeated if one step in the course of the abuse of the process of the court involved or necessitated the giving of evidence. It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based on alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respeect of any evidence given but in respect of malicious abuse of process (see Elsee v Smith n7).
n7 (1822) 2 Chit 304
In Daniels v Fielding n8, a plaintiff succeeded in an action for malicious arrest. In the Exchequer Chamber Rolfe B said n9:
n8 (1846) 16 M & W 200
n9 (1846) 16 M & W at 207
‘The action is in its character similar to an action for a malicious prosecution on a criminal charge, and the declaration ought therefore, in analogy to the course of pleading in such actions, to state what the false charge or statement was by which the judge has been misled.’
The fact that the false statement had been in an affidavit did not in any way debar the plaintiff from succeeding in his claim. In Ross v Norman n10, the declaration alleged that the defendant maliciously and without any reasonable or probable cause of action caused the plaintiff to be arrested. The arrest was brought about by procuring an order for a capias from a judge as the result of a false affidavit. Certain points were unsuccessfully argued on demurrer. One of the points raised in support of the demurrer was that the declaration had not shown that the affidavit was wilfully false within the defendant’s knowledge, but there was no suggestion that the action would not lie because the defendant was protected in respectof what he has sworn.
n10 (1850) 5 Exch 359
That the curts have distinguished between actions brought in respect of malicious process and those brought in respect of evidence given in proceedings was illustrated by Revis v Smith n11. The Court of Chancery ordered the sale of a testator’s real estate and the plaintiff, an auctioneer, was proposed to the court as a fit and proper person to be appointed by the court to sell the property. The defendant swore and filed an affidavit which seriously reflected on the plaintiff and which contained many defamatory statements. As a result the court did not appoint the plaintiff. He sued the defendant for damages. It was held that the action did not lie. In the Judgments a distinction was drawn between the claim them made and cases in which the process of the courlts had been abused maliciously and without reasonable or probable cause. Jervis CJ held that no action for defamation would lie against the defendant.
n11 (1856) 18 CB 126
In Melia v Neate n12 there was a claim for damages for having maliciously and without reasonable or probable cause procured an order of a judge for the arrest of the plaintiff for an alleged debt. The action was brought against three persons: one was a builder, another was his attorney and the other was the attorney’s clerk. A contract for the erection of a curch had been entered into between the plaintiff and the builder. The builder claimed that a sum for extras was due; the architect told the builder that no sum was due. The attorney on behalf of the builder then issued a writ against the plaintiff claiming that a sum was due; the writ was served by the clerk. There followed an application to a judge in chambers to arrest the plaintiff on the ground that he was about to leave England. The application was supported by an affidavit jointly made by the builder and the clerk. As a result the plaintiff was arrested. In the action which he later brought it was said that there was no justification for certain statements in the affidavit. These were fully considered and examined. The jury were directed that to sustain the action it was necessary to prove that the defendants had caused the arrest maliciously and without reasonable and probable cause. There was no suggestion that any immunity from liability could result from the fact that the arrest had been the result of the affidavit.
n12 (1863) 3 F & F 757
In Johnson v Emerson n13, a claim was brought against two persons for damages for falsely, maliciously, and without reasonable and probable cause procuring the plaintiff to be adjudicated bankrupt. It succeeded against one of them who appealed. In reference to him Cleasby B in the Court of Exchequer said n14:
n13 (1871) LR 6 Exch 329
n14 (1871) LR 6 Exch at 333
‘It was hardly contested that the part taken by the defendant was such, that if he acted without reasonable and probable cause and was actuated by malice he would be responsible in this action, though he acted only as attorney.’
There had been answers given by the jury which showed that the defendant had acted personally in carrying on the proceedings and had acted of his own accord apart from the instructions of his client as to the steps taken. An affidavit in support of the petition for adjudication had been necessary. It had been prepared by the defendant and sworn to by a creditor. It was said to contain false suggestions and statements. All the facts relating to it were examined. One matter that was considered was therefore whether the adjudication was obtained on an affidavit which was untrue. Cleasby B in his judgment said n15:
n15 (1871) LR 6 Exch at 344
‘I apprehend that, if three things concur, the person prosecuting the proceedings is liable to an action. First, if the proceeding be really without foundation; and this must be evidenced by the proceedings having finally terminated in favour of the plaintiff, whether the proceedings be in bankruptcy or by indictment (see Whitworth v. Hall n16, where it is said that actions for malicious prosecutions, malicious arrests, and taking bankruptcy proceedings, stand upon the same foundation). Secondly, the proceeding must have been taken without reasonable and probable cause. And thirdly, lest persons should be deterred, by fear of the consequences, from enforcing the law with despatch upon bona fide suspicion, before a man can be made responsible it must be shewn that, in taking the proceeding, he was actuated by malice or by some bad motive.’
n16 (1831) 2 B & Ad 695 at 698, [1824-34] All ER Rep at 484
A point was taken in the present case that in paras 6 and 11 of the statement of claim are the words ‘at the trial’. It was contended that the defendant gave evidence on matters relevant to the defenceof Mr Advani and that the defendant was therefore entitled to the immunity from action to which a witness is entitled. This, however, raises questions which can only be determined when the facts are ascertained. The only issue now arising is whether the claim of the plaintiff must at this stage be dismissed. Different considerations would apply if the claim was one for damages in respect of evidence given by a witness. The present claim is not such a claim. The gist and essence of the claim is that process was instituted as a result of which the court was induced to order the arrest of the plaintiff. It is alleged that this was done maliciously and without reasonable cause and that the giving of evidence was merely a step in bringing about the alleged abuse of process.
In my view the learned judge came to the correct conclusion in refusing to dismiss the action.
I would allow the appeal.
VISCOUNT DILHORNE. My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Morris of Borth-y-Gest and for the reasons he has given I too would allow the appeal.
LORD WILBERFORCE. My Lords, I have had the benefit of reading in advance the opinion prepared by my noble and learned friend Lord Morris of Borth-y-Gest. That opinion demonstrates that a man cannot be debarred from bringing an action for unlawful arrest by reason only of the fact that a step in procuring the arrest consisted of evidence given in court in the course of another person’s trial. I agree with this proposition but wish to add that I would disagree with the striking out of this action on another broader ground. Even if one concentrates attention on the evidence given by the defendant in the Central Criminal Court, I can see no reason of public policy for basing immunity from civil action on this circumstance. The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred on witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence.
But none of this applies as regards such evidence as was given in support of the application for a bench warrant. It was given ex parte; the plaintiff had no means, and no other party any interest, in challenging it; so far from the public interest requiring that it be given absolute protection, that interest requires that it should have been given carefully, responsibly and impartially. To deny a person whose liberty has been interfered with any opportunity of showing that it was ill-founded and malicious, does not in the least correspond with, and is a far more serious denial than, the traditional denial of the right to attack a witness to an issue which has been tested and passed upon after a trial. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest. So checked, the present case provides no justification for protecting absolutely whalt the solicitor siad in the court. I need not add that I am not prejudging in any way whether what he said was well-founded or lacking in malice. That is for the action to decide.