Home > Breach of Expert Duties, Breach of Prosecution's Duties, Case Law Studies, Credibility of Expert Witness, Criminal & Civil Liability of Expert Witness, Expert Evidence, Expert Witness, Limitations to The Immunity Rule, Prosecution > Action — Immunity from civil action — Privilege of witness in court of justice — Conspiracy — Alleged conspiracy to injure by false statements — Report to Director of Public Prosecutions — Evidence at inquiry by Benchers of Inn of Court — Evidence at criminal trial — No civil cause of action: MARRINAN v. VIBART AND ANOTHER. COURT OF APPEAL

Action — Immunity from civil action — Privilege of witness in court of justice — Conspiracy — Alleged conspiracy to injure by false statements — Report to Director of Public Prosecutions — Evidence at inquiry by Benchers of Inn of Court — Evidence at criminal trial — No civil cause of action: MARRINAN v. VIBART AND ANOTHER. COURT OF APPEAL

[1963] 1 QB 528, [1962] 3 All ER 380, [1962] 3 WLR 912

MARRINAN v. VIBART AND ANOTHER.
COURT OF APPEAL
[1963] 1 QB 528, [1962] 3 All ER 380, [1962] 3 WLR 912
HEARING-DATES: 25 July 1962
25 July 1962

CATCHWORDS:
Action — Immunity from civil action — Privilege of witness in court of justice — Conspiracy — Alleged conspiracy to injure by false statements — Report to Director of Public Prosecutions — Evidence at inquiry by Benchers of Inn of Court — Evidence at criminal trial — No civil cause of action.

HEADNOTE:
The immunity of a witness from liability in respect of anything said or done in the course of judicial proceedings (which covers disciplinary proceedings before the Benchers of an Inn of Court) and the preparation of the evidence which is to be given in those proceedings, is an immunity from actions of any sort (including an action based on alleged conspiracy to injure the plaintiff), and not merely from actions for defamation (see, particularly, p. 383, letter B, and p. 385, letter C, post).

Cabassi v. Vila ((1940), 64 C.L.R. 130) followed.

Munster v. Lamb ((1883), 11 Q.B.D. 588), Royal Aquarium and Summer and Winter Garden Society v. Parkinson ([1892] 1 Q.B. 431), Watson v. M’Ewan ([1905] A.C. 480), Hargreaves v. Bretherton ([1958] 3 All E.R. 122), and Lincoln v. Daniels ([1961] 3 All E.R. 740) applied.

Decision of SALMON, J. ([1962] 1 All E.R. 869) affirmed.

NOTES:
The judgment of SALMON, J., is expressly accepted in toto (see p. 382, letter A and p. 384, letter B, post). In considering this decision in relation to the tort of conspiracy it is accordingly material to notice that the reasoning of the decision at first instance was based not only on the principle of immunity from civil action in respect of evidence given in a court of justice, etc., but also on an analysis of the tort of conspiracy (as distinct from the corresponding crime) as consisting not merely of the agreement but of two elements, the agreement and the overt acts causing damage (see [1962] 1 All E.R. 869, holding (i), and at p. 871, letters G-I). This is, it seems, adopted by the Court of Appeal, but there is no express mention of the matter except the general acceptance of the judgment of SALMON, J., in the passages referred to above.

As to privilege of witnesses against actions for evidence given, see 24 HALSBURY’S LAWS (3rd Edn.) 49, para. 89; as to the tribunals to which that privilege extends, see ibid., 49-51, para. 90; and as to its application to all proceedings, see ibid., 51, 52, para. 91; and for cases on the subject, see 32 DIGEST 106, 107, 1371-1384.

As to the tort of conspiracy, see 37 HALSBURY’S LAWS (3rd Edn.) 128, 129, para. 222; and for cases on the subject, see 42 DIGEST 983-986, 137-164.

CASES-REF-TO:

Cabassi v. Vila, (1940), 64 C.L.R. 130; affg. Cabassi v. Ferrando, [1940] St. R. Qd. 70.
Dawkins v. Rokeby (Lord), (1875), L.R. 7 H.L. 744; affg., (1873), L.R. 8 Q.B. 255; 42 L.J.Q.B. 63; 28 L.T. 134; 32 Digest 102, 1339.
Floyd v. Barker, (1607), 12 Co. Rep. 23; 77 E.R. 1305; 30 Digest (Repl.) 302, 768.
Hargreaves v. Bretherton, [1958] 3 All E.R. 122; [1959] 1 Q.B. 45; [1958] 3 W.L.R. 463; 1 Digest (Repl.) 28, 218.
Hendersonv. Broomhead, (1859), 4 H. & N. 569; 28 L.J. Ex. 360; 33 L.T.O.S. 302; 157 E.R. 964; 32 Digest 108, 1393.
Lincoln v. Daniels, [1961] 3 All E.R. 740; [1962] 1 Q.B. 237; [1961] 3 W.L.R. 866; 3rd Digest Supp.
Munster v. Lamb, (1883), 11 Q.B.D. 588; 52 L.J.Q.B. 726; 49 L.T. 252; 47 J.P. 805;32 Digest 105, 1368.
Revis v. Smith, (1856), 18 C.B. 126; 25 L.J.C.P. 195; 27 L.T.O.S. 106; 20 J.P. 453; 139 E.R. 1314; 32 Digest 107, 1378.
Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431; 61 L.J.Q.B. 409; 66 L.T. 513; 56 J.P. 404; 32 Digest 128, 1592.
Sorrell v. Smith, [1925] All E.R. Rep. 1; [1925] A.C. 700;94 L.J.Ch. 347; 133 L.T. 370; 42 Digest 985, 156.
Watson v. M’Ewan, Watson v. Jones, [1905] A.C. 480; 74 L.J.P.C. 151; 93 L.T. 489; 32 Digest 109, 1407.
Yates v. Lansing, (1810), 5 Johnson’s New York Supreme Ct. rep. 282; affd. (1812), 9 Johnson’s New York Supreme Ct. Rep. 395.

INTRODUCTION:
Appeal. This was an appeal by the plaintiff, Patrick Aloysius Marrinan, from a judgment of SALMON, J., given on Feb. 22, 1962 (reported [1962] 1 All E.R. 869), on a preliminary point of law, holding that the facts alleged in the statement of claim disclosed no reasonable cause of action, and, accordingly, giving judgment for the defendants, Peter Vibart and Thomas Butler. The following statement of the facts is taken from the judgment of SALMON, J.:

“The plaintiff was formerly a practising barrister, but he was disbarred on July 2, 1957. He brings this action claiming damages for conspiracy against the defendants, who are police officers attached to the Criminal Investigation Department of New Scotland Yard. In his statement of claim, the plaintiff alleges that, between July 2, 1956, and July 29, 1957, the defendants conspired together with another person to injure the plaintiff in his reputation and standing as a barrister by making false and defamatory statements against him. The plaintiff goes on to allege: (a) that in statements to the Director of Public Prosecutions, incorporated in notices of additional evidence in R. v. Blythe and Rossi *, the defendants and each of them falsely and maliciously reported that the plaintiff had obstructed Detective-inspector Philip McMahon in the execution of his duty at the Bridewell in Dublin on July 2, 1956, and had advised William Patrick Blythe to escape and avoid re-arrest; (b) that on Oct. 9, 1956, the defendants falsely and maliciously swore at the trial of William Patrick Blythe and Robert Rossi at the Central Criminal Court that an English barrister (known to the prosecution and the defence to be the plaintiff) had obstructed Detective-inspector Philip McMahon in the execution of his duty in their presence, and that they had overheard this English barrister advising William Patrick Blythe to escape and to avoid re-arrest, and © that on June 28, 1957, at an inquiry concerning the plaintiff before the Masters of the Bench of his Inn, the defendants had given evidence in the same sense as the evidence they gave at the Central Criminal Court. The plaintiff further alleges in his statement of claim that, by reason of the defendants’ alleged acts, he has been greatly injured in his character and reputation and has suffered damage. the defendants deny the allegations made against them, and set up the defence that the facts alleged in the statement of claim do not in law support any reasonable cause of action.”

* (October, 1956), Central Criminal Court, unreported.
This defence was the point of law set down for trial as a preliminary issue.

COUNSEL:
Leonard Lewis for the plaintiff. H.P.J. Milmo, Q.C., and P. C. Bowsher for the defendants.

PANEL: Sellers, Willmer and Diplock, L.JJ.

JUDGMENTBY-1: SELLERS, L.J.

JUDGMENT-1:
SELLERS, L.J.: This action is, in my view, misconceived. Those who take part in the administration of justice (and it is one of the important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings. I am inclined to think that the plaintiff (who is not unversed in the law) must know that the action does not lie and that he has issued the writ in order to annoy others and give vent to his feelings rather than genuinely to seek a redress to which he believes himself to be entitled. In these circumstances, a preliminary issue was properly raised on the pleadings and the learned judge, at a timely stage in this action, has rightly ruled that no actionable wrong has been disclosed as averred by the plaintiff in his writ and in the statement of claim.

I would be content to decide this case in the same terms as the clear judgment of SALMON, J. n(1) who sets out the relevant facts from the statement of claim, which I do not repeat, and deals with the arguments which have been submitted to the court, both before him and to this court. It is quite clear, on authority going back well into history, which learned counsel for the defendants cited briefly to us, that no court would entertain an action of this character. I do not propose to review those authorities in any detail. The principles can be found in the cases already referred to in the judgment, going back to Revis v. Smith n(2), through Henderson v. Broomhead n(3) and down to Dawkins v. Lord Rokeby n(4) in which one finds some of the earlier authorities conveniently summarised by KELLY, C.B. n(5). The Chief Baron said:

n(1) [1962] 1 All E.R. 869.

n(2) (1856), 18 C.B. 126.

n(3) (1859), 4 H. & N. 569.

n(4) (1873), L.R. 8 Q.B. 255.

n(5) (1873), L.R. 8 Q.B. at p. 263.

“The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognised by law. The principle which pervades and governs the numberless decisions to that effect is established by the case of Floyd v. Barker n(6) and many earlier authorities… down to the time of LORD COKE; and which are to be found collected in Yates v. Lansing n(7) and Revis v. smith n(2). These two decisions, Yates v. Lansing n(7) and Revis v. Smith n(2), are themselves direct authorities that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.”

n(2) (1856), 18 C.B. 126.

n(6) (1607), 12 Co. Rep. 23.

n(7) (1810) 5 Johnson’s New York Supreme Ct. Rep. 282; affd. (1812), 9 Johnson’s New York Supreme Ct. Rep. 395.
Then he continues to make other extracts from cases, which have been repeated from time to time, from LORD MANSFIELD n(8) onwards. I draw attention to the width of the language used by the Chief Baron in the passage which I have just read.

n(8) In R. v. Skinner, (1772), Lofft at p. 55.

There has been a recent case in this court, in which we had to consider the privilege of statements made before a court and in relation to judicial proceedings — Lincoln v. Daniels n(9). There was cited n(10) in the course of the judgment in that case a passage from FRY, L.J., in Munster v. Lamb n(11), which was heard in 1883, where the learned lord justice said:

n(9) [1961] 3 All E.R. 740; [1962] 1 Q.B. 237.

n(10) [1961] 3 All E.R. at p. 743; [1962] 1 Q.B. at p. 247.

n(11) (1883), 11 Q.B.D. at p. 607.

“The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they hadnot spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.”
SIR WILLIAM BRETT, M.R., said also n(12):

n(12) (1883), 11 Q.B.D. at p. 599.

“… inasmuch as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been.”
It has been sought in this case to draw a difference between the action of libel and slander, the action of defamation, and that which is set up in this case, one of conspiracy. I can see no difference in the principles of the matter at all. Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given. LORD ESHER, M.R., has been well cited too; in Royal Aquarium and Summer and Winter Garden Society v. Parkinson n(13) he says n(14):

n(13) [1892] 1 Q.B. 431.

n(14) [1892] 1 Q.B. at p. 442.

“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…”
In this case it is not suggested that there is any difference between the proceedings in a criminal court and the proceedings before the Masters of the Bench of Lincoln’s Inn.

As it chances, there has been found by the industry of the defendants’ counsel a case which is very much in point, from the High Court of Australia — Cabassi v. Vila n(15) — where an allegation was made to found a cause of action of a conspiracy arising out of evidence which had been given in the course of the trial. The headnote reads (upholding a decision of the Supreme Court of Queensland):

n(15) (1940), 64 C.L.R. 130, affg. Cabassi v. Ferrando, [1940] St. R.Qd. 70.

“The principle that no civil action lies in respect of evidence (although false and maclicious) given by witnesses in the course of judicial proceedings extends to prevent the maintenance of an action for conspiracy by an unsuccessful litigant against witnesses whom he alleges to have conspired together to give false evidence.”
There is a valuable passage which I would select and entirely approve from the several judgments in that case, from the judgment of STARKE, J., where he says n(16):

n(16) (1940), 64 C.L.R. at p. 140.

“No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.”
Then he cites authorities, most, if nt all, of them being English authorities, and continues:

“Actions against witnesses for defamation have failed and so have actions analogous to actions for malicious prosecution, which SIR WILLIAM BRETT, M.R., thought were brought ‘in despair’ (Munster v. Lamb n(17)), and now we have an action against witnesses for conspiracy to give, adduce and procure false evidence justified by the proposition taken from Sorrell v. Smith n(18) that a combination of a set of persons or a conspiracy for the purpose of injuring another followed by actual injury is actionable. But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another: the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v. M’Ewan, Watson v. Jones n(19)), given adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.”

n(17) (1883), 11 Q.B.D. at p. 602.

n(18) [1925] All E.R. Rep. 1; [1925] A.C. 700.

n(19) [1905] A.C. 480.

I have n doubt that the judgment of SALMON, J., was correct, and I would dismiss this appeal.

JUDGMENTBY-2: WILLMER, L.J.

JUDGMENT-2:
WILLMER, L.J.: Like SELLERS, L.J., I find myself completely in agreement with the decision of SALMON, J., and with the reasons he gave for it. In those circumstances, I propose to add only one observation to what has already fallen from my Lord.

In order to complete the citation of authority, I think that it is well to refer to the weighty words of the EARL OF HALSBURY, L.C., in Watson v. M’Ewan, Watson v. Jones n(20). He there said:

n(20) [1905] A.C. at p. 486.

“… for very obvious reasons, the conduct of legal procedure by courts of justice, with the necessity of compelling witnesses to attend, involves as one of the necessities of the administration of justice the immunity of witnesses from actions being brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument.”
There the principle involved is stated in the widest possible terms, certainly wide enough to embrace a case of this sort.

I agree that the appeal should be dismissed.

JUDGMENTBY-3: DIPLOCK, L.J.

JUDGMENT-3:
DIPLOCK, L.J.: I agree. The statement of claim in this action alleges that the defendants conspired together with another person to injure the plaintiff in his reputation and standing as a barrister by making false and defamatory statements of and concerning him. The particulars of the overt acts relied on, both as giving rise to the inference that there was a conspiracy and as causing the damage, consist of three sets of statements. First, statements alleged to have been made to the Director of Public Prosecutions for the purposes of a prosecution against two persons, Blythe and Rossi; second, statements alleged to have been made on oath in the witness-box during the trial of those two persons at the Old Bailey; and thirdly, statements alleged to have been made at an inquiry concerning the plaintiff before the Masters of the Bench of Lincoln’s Inn. It is conceded by counsel for the plaintiff that the occasion on which each of those statements was made was absolutely privileged, but he says that he is not relying on those statements as constituting a cause of action but on the antecedent agreement which must be inferred from the statements that the defendants conspired together to injure the plaintiff; and he points out that a conspiracy to injure a plaintiff is an actionable conspiracy, irrespective of whether the means employed are in themselves tortious or not. It follows, therefore, if he is right, that an action will lie against witnesses, counsel, juries, the judges of the court itself, for actions which they have taken in the course of the administration of justice during the hearing of cases, provided that that action was taken with the primary intention of injuring the plaintiff. It matters not, therefore, so far as the cause of action is concerned, whether the evidence which witnesses are alleged to have given should be true or false. Similarly, an action would lie against a jury (on counsel for the plaintiff’s argument) for a verdict of guilty, even though that verdict were justified by the facts, provided that the dominant motive of the jury had been to injure the plaintiff. Similarly (as counsel for the defendants pointed out), an action might lie against the members of this court in respect of a judgment which they delivered — as this one will be — expressing views adverse to one of the parties in the proceedings.

The rule of public policy is laid down very clearly in the House of Lords in the speech of the EARL OF HALSBURY, L.C., in Watson v. M’Ewan, Watson v. Jones n(21), where he said this, in 1905:

n(21) [1905] A.C. at p. 486.

“By complete authority, including the authority of this House n(22), it has been decided that the privilege of a witness, the immunity frm responsibility in an action when evidence has been given by him in a court of justice, is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable — it is settled law and cannot be doubted.”

n(22) See Dawkins v. Lord Rokeby, (1875), L.R. 7 H.L. 744.
Counsel for the plaintiff has sought to persuade this court that that rule of public policy, for reasons which it is impossible to explain, applies only to actions for defamation and that, if one is sufficiently ingenious to discover some other way of bringing an action against a witness for evidence which he has given in a court, then public policy does not apply to that, although all the evils of the action are precisely the same as if it were a direct action for defamation. It seems to me quite plain on the authorities — and on the English authorities as well as the Australian authority directly in point — that that argument is without foundation.

An attempt very similar to that in this case was made in 1856, in Revis v. Smith n(23). There, instead of bringing an action for defamation, an attempt was made to bring a special action on the case, analogous to malicious prosecution. As CROMPTON, J., said in Henderson v. Broomhead n(24): “That seems to have been done in despair” words which, in my view, are appropriate to this attempt in 1962. Yet another attempt was made quite recently, in Hargreaves v. Bretherton n(25), where an action was brought claiming damages against the defendants for “falsely and maliciously and without just occasion or excuse [committing] perjury in relation to the facts of the case”. LORD GODDARD, C.J., dealt with the authorities which have been referred to by SELLERS, L.J., in the present case; and there is only one passage in his judgment to which I desire to refer, for it seems to me to be apt to this case. It is a short paragraph towards the end of his judgment, in which he said this n(26):

n(23) (1856), 18 C.B. 126.

n(24) (1859), 4 H. & N. at p. 579.

n(25) [1958] 3 All E.R. 122; [1959] 1 Q.B. 45.

n(26) [1958] 3 All E.R. at p. 125; [1959] 1 Q.B. at p. 54.

“I hope counsel for the plaintiff will not think that I have been discourteous to him if I say that it seems to me that this is an obvious ‘try-on’. Attempts have been made over a period of two hundred or three hundred years to bring these actions, but they have universally failed.”

In my opinion, this appeal is, as LORD HALSBURY said n(21), “absolutely unarguable”. I agree that it should be dismissed.

n(21) [1905] A.C. at p. 486.

DISPOSITION:
Appeal dismissed. Leave to appeal to the House of Lords refused.

SOLICITORS:
Lesser & Co. (for the plaintiff); Solicitor, Metropolitan Police (for the defendants).

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