Limitation of Immunity For Lower Court: [1895] 1 QB 668 ANDERSON v GORRIE AND OTHERS [COURT OF APPEAL] [1895] 1 QB 668 HEARING-DATES: 7 August 1894 7 August 1894

“No one can doubt that if any judge exercises his jurisdiction from malicious motives he has been guilty of a gross dereliction of duty; but the question that arises is what is to be done in such a case. In this country a judge can be removed from his office on an address by both Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of the colony represents the Sovereign, and over him is the Secretary of State for the Colonies, who represents Her Majesty, and can direct the removal of the judge.”

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[1895] 1 QB 668

ANDERSON v GORRIE AND OTHERS
[COURT OF APPEAL]
[1895] 1 QB 668
HEARING-DATES: 7 August 1894
7 August 1894

CATCHWORDS:
Judge – Court of Record of Colony – Act done in exercise of Judicial Office – Malicious Motive – Immunity from Action.

HEADNOTE:
No action lies against a judge of the Supreme Court of a colony in respect of any act done by him in his judicial capacity, even though he acted oppressively and maliciously, to the prejudice of the plaintiff and to the perversion of justice.

INTRODUCTION:
APPEAL from a judgment of Lord Coleridge C.J. in favour of the defendant Cook, at the trial with a jury.

The action was brought against three defendants, who were judges of the Supreme Court of Trinidad and Tobago, to recover damages for certain acts done by the defendants in the course of certain judicial proceedings, which acts were alleged to have been done maliciously and without jurisdiction and with knowledge of the absence of jurisdiction.

One of the acts complained of was that a rule was issued against the plaintiff calling upon him to shew cause why he should not be dealt with for contempt of Court in petitioning Her Majesty with regard to certain actions in the island of Tobago in which he had been defendant, and as to which he considered that he had a grievance. The rule was not applied for by any person, but was issued by the Supreme Court in Trinidad. The defendant appeared to shew cause, and after several adjournments the rule was discharged.

Another of the acts complained of was that the plaintiff attended before the defendant Cook to be examined as to his means of satisfying certain judgments. The examination was adjourned, and the plaintiff, under certain rules of Court enacted by the local Judicature Ordinance of 1879, was ordered to find bail, which was fixed at the sum of 500l., with one surety for the like amount. In default of finding bail the plaintiff was committed to prison, and an application for a habeas corpus to determine the validity of the committal was refused by the defendant Cook.

The first defendant named in the action died before the hearing.

The jury found, as to another of the defendants, a verdict in his favour, and judgment was entered accordingly.

As to the defendant Cook, the jury found that he had over-strained his judicial powers, and had acted in the administration of justice oppressively and maliciously, to the prejudice of the plaintiff and to the perversion of justice, and they assessed the damages at 500l.

The learned judge directed judgment to be entered for the defendant Cook, on the ground that no action will lie against a judge of a Court of Record in respect of acts done by him in his judicial capacity.

The plaintiff appealed.

COUNSEL:
The plaintiff in person. The immunity of a judge is confined to judicial acts – namely, acts done by him as a judge under his authority from the Crown and within his jurisdiction: Houlden v. Smith n(1) ; Ex parte Fernandez n(2) ; Kemp v. Neville. n(3) If he acts maliciously he is liable to an action: Kendillon v. Maltby n(4) ; and per Cockburn C.J. in Thomas v. Churton n(5) and Dawkins v. Paulet. n(6) The defendant’s acts complained of were ministerial and not judicial, and he is not entitled to the immunity claimed.

[He also referred to Hawkins’ Pleas of the Crown, bk. 2, c. 1, ss. 1, 3, 9, 17; Floyd v. Barker n(7) ; Ashby v. White n(8) ; Calder v. Halket n(9) ; Taaffe v. Downes. n(10) ]

Adam Walker, (Harold Hodge, with him), for the defendant. The acts complained of were judicial acts, and a long series of cases have established the immunity of a judge in such a cases, and that the question of motive is immaterial. [He cited Haggard v. Pelicier Fr res n(11) ; Scott v. Stansfield n(12) ; Fray v. Blackburn n(13) ; Dicas v. Lord Brougham. n(14) ]

[He was stopped.]

The plaintiff, in reply.

n(1) 14 Q. B. 841.

n(2) 10 C. B. (N.S.) 3.

n(3) 10 C. B. (N.S.) 523.

n(4) Car. & M. 402.

n(5) 2 B. & S. 475, 479.

n(6) Law Rep. 5 Q. B. 94; 9 B. & S. 768.

n(7) 12 Rep. 23.

n(8) 1 Sm. L. C. 9th ed. p. 268, at p. 274.

n(9) 3 Moo. P. C. 28.

n(10) 3 Moo. P. C. 36, n.

n(11) [1892] A. C. 61.

n(12) Law Rep. 3 Ex. 220.

n(13) 3 B. & S. 576.

n(14) 6 C. & P. 249.

PANEL: LORD ESHER M.R., KAY and A. L. SMITH L.JJ

JUDGMENTBY-1: LORD ESHER M.R

JUDGMENT-1:
LORD ESHER M.R: In this case an action was brought by the plaintiff against several judges of the Supreme Court of a colony for damages for wrongful acts done by them in commiting him for contempt of Court, and in holding him to excessive bail.

The defendants were judges of a Supreme Court in a colony, and the first question is whether these matters were matters with which they had jurisdiction to deal. As to the contempt of Court, it cannot be denied that they had jurisdiction to inquire whether a contempt had been committed, and, further, it cannot be denied that they had power to hold a person to bail in the cases provided for by the colonial statute which expressly gives that power. These two matters were obviously within the jurisdiction of the Court. No one can doubt that if any judge exercises his jurisdiction from malicious motives he has been guilty of a gross dereliction of duty; but the question that arises is what is to be done in such a case. In this country a judge can be removed from his office on an address by both Houses of Parliament to the Crown. In a colony such an address is not necessary. The governor of the colony represents the Sovereign, and over him is the Secretary of State for the Colonies, who represents Her Majesty, and can direct the removal of the judge. But the existence of a remedy would not in either of these cases of itself prevent an action by a private person; so that the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie. The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice. That is the ground stated in Miller v. Hope n(1) , in the year 1824, by Lord Gifford in his judgment in the House of Lords; and in 1892, in Haggard v. Pelicier Fr res n(2) , Lord Watson says: “It is due to the appellant to state that the respondents in their pleadings make no imputation of dishonesty, although their Lordships do not mean to

n(1) 2 Shaw Sc. App. Cas. 125.

n(2) [1892] A. C. 61, at p. 68.

suggest that such an imputation, if it had been made and proved, would have deprived him of the immunity which the law accords to a judge in his position.” Crompton J. in Fray v. Blackburn n(1) , said: “It is a principle of our law that no action will lie against a judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly. … The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions.”

The reasons for the rule were more fully stated by Kelly C.B. in Scott v. Stansfield n(2) , and the only difficulty that has ever been raised on the point was that raised by Cockburn C.J. in Thomas v. Churton. n(3) In that case the Chief Justice said: “I am reluctant to decide, and will not do so until the question comes before me, that if a judge abuses his judicial office, by using slanderous words maliciously and without reasonable and probable cause, he is not to be liable to an action.” All I can say is, that I am convinced that had the question come before that learned judge he must and would, after considering the previous authorities, have decided that the action would not lie. That case was decided in 1862, and there are subsequent cases that confirm the principle which I have stated to be derived from the common law. The case of General Picton, Reg. v. Picton n(4) , has been cited to us; but it cannot be alleged that General Picton was acting as a judge, and therefore that case has no bearing on the matter before us. To my mind there is no doubt that the proposition is true to its fullest extent, that no action lies for acts done or words spoken by a judge in the exercise of his judicial office, although his motive is malicious and the acts or words are not done or spoken in the honest exercise of his office. If a judge goes beyond his jurisdiction a different set of considerations arise. The only difference between judges of the Superior Courts and other judges consists in the extent of their respective jurisdiction. It follows from what I have said that, taking the findings of the jury to be true to the

n(1) 3 B. & S. 576, at p. 578.

n(2) Law Rep. 3 Ex. 220.

n(3) 2 B. & S. 475, at p. 479.

n(4) 30 How. St. Tr. 225.

fullest extent, the action will not lie against the defendant, and the appeal must be dismissed.

JUDGMENTBY-2: KAY L.J

JUDGMENT-2:
KAY L.J: I am of the same opinion. I take the law to be clear that for an act done by a judge in his capacity of judge he cannot be made liable in an action, even though he acted maliciously and for the purpose of gratifying private spleen. It cannot be denied that all the acts complained of were done by the defendant in his capacity of judge, and whether he acted rightly or wrongly cannot be questioned in this action. Agreeing entirely with what the Master of the Rolls has said, and with the judgment of Kelly C.B. in Scott v. Stansfield n(1) , I come to the conclusion that this action will not lie.

JUDGMENTBY-3: A. L. SMITH L.J

JUDGMENT-3:
A. L. SMITH L.J: I concur. I believe it to be settled law that if a judge of a Court of Record in the course of his office does an act, even though he does it maliciously, an action will not lie against him at the suit of the person aggrieved. The plaintiff tried to get outside that rule by saying that the acts done by the defendant were not done in the course of his office; but that contention is not well founded. It is contrary to the allegations of the statement of claim, and has been negatived by the jury by their finding that the defendant overstrained his judicial powers. The appeal must be dismissed.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
The plaintiff in person.

Solicitor for the defendant: W. G. Hooper.

n(1) Law Rep. 3 Ex. 220.

A. M.