CHAPTER VII. Voluntary and irrelevant statements by witnesses. Statement anade to Solicitor before trial. Affidavits containing defamatory matter. If the evidence given by a party or witness in a court of justice be false, such party or witness is liable to be indicted for perjury. And if he go out of his way to slander another by uttering irrelevant and defamatory matter, he may be fined and imprisoned for contempt of court. But beyond this the law of England affords no redress to the party so defamed. Statements made by witnesses must, however, be made with reference to the matter before the court, and spoken in the character of witness, and in the course of such witness's evidence. A voluntary statement made by a witness before he enters the witness-box, or after he has left it, having no reference to the matter before the court, is not necessarily privileged (i). And where, at a preliminary investigation before a magistrate, as to a charge of forgery of a bill of exchange, a witness was called, as an expert, to state his opinion as to the handwriting on the bill, and on cross-examination was asked, if on a former occasion he had not given evidence in a certain suit in the Probate Court (impeaching a testator's signature to a Will), and if he had read the remarks of the presiding judge of that court on the evidence he gave on that occasion ? to which the witness replied Yes." The cross-examining counsel then sat down. The witness then, despite the efforts of the presiding magistrate to stop him, persisted in saying, before he left the witness box, “I believe that Will to be a rank forgery, and shall believe so till the day of my death." The attesting witness to the Will having brought an action of slander against him for this statement, it was held, that the action could not be sustained, even if the words were spoken maliciously; the statement having been made by the utterer in his character of witness, in explanation of, and relevant to the matter put to him in cross-examination (k). The privilege, or immunity, which surrounds the evidence given by a witness in a Court of Justice, necessarily involves the same privilege in statements made by the witness to a Solicitor, Writer to the Signet, or others engaged in the conduct of proceedings in a case pending in a Court of Justice (1). False or scandalous matter contained in affidavits, and in statements in reply thereto, made in the regular course of a (i) See per Cockburn, L.C.J., and Bramwell, B., Seaman v. Netherclift, supra. (k) Seaman v. Netherclift, 1 C. P. D. 540; 45 L. J. 798; on App. 2 C. P. D. 53; 46 L. J. 128. (1) Watson (App.) and Jones (Resp.), A. C. (1905), 480. Part I. judicial proceeding, is not actionable. And so, in one of the CHAPTER VII. earliest cases on the subject, where the plaintiff declared that he made an affidavit in Banco Regis, of certain matters, to have the defendant bound over to his good behaviour; and that the defendant in the hearing of the justices and officers of the court, and others then present, and intending to scandalise the plaintiff, said "There is not a word of truth in that affidavit, and I will prove it by forty witnesses." After verdict for the plaintiff, in which the jury found that the words were spoken falsely and maliciously; it was held, on motion in arrest of judgment, that the action was not maintainable; for the words were spoken by the defendant in defence of himself, in answer to the plaintiff's affidavit, in a legal and judicial way, and were a justification in law (m). And where an affidavit was made in a suit pending in Chancery, by one of the defendants to the suit, imputing fraudulent conduct to an auctioneer who had been proposed by the suitors on the other side as a fit and proper person to sell the estate: in an action by the auctioneer founded upon the defamatory statements contained in the affidavit; it was held, on demurrer, that the action would not lie; that it had neither principle nor analogy to sustain it; and therefore, notwithstanding that the statements contained in the affidavit were false and malicious, and made without reasonable or probable cause, and that the plaintiff had suffered damage in consequence, the action could not be sustained (n). So, no action will lie for false and defamatory expressions contained in an affidavit made and used in the proceedings in an action; though the person they refer to is not a party to the proceedings (0). irrelevant It is clear, therefore, from the preceding authorities, that Scandalous and there can be no libel in any pleading, affidavit, or other form allegations may of procedure in the regular course of justice, if the allegation, be expunged. or statement, however defamatory, be material; and if it be immaterial, the court in which the indignity is committed, may order satisfaction by directing it to be expunged from the record (p), with costs against the party guilty of such irregularity. And so also if charges of a criminal nature are made, (m) Moulton v. Clapham, 1 Roll. Abr. 87, pl. 4; Sir W. Jones, 431; S. C. Boulton v. Clapham, Mar. 20, pl. 45; Astley v. Younge, 2 Burr. 807. (n) Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195. (0) Ibid., and see Henderson v. F.S. Broomhead, 4 H. & N. 569; 28 L. J. J. P. 22. (p) See per Lord Mansfield, C.J., 2 Burr. 810. II Part I. CHAPTER VII. that are false and irrelevant, and not material to the issue; on exception being taken to them on the ground of scandal, they will be ordered to be expunged, with costs, as between solicitor and client, against the offending party (q). But no action can be brought in respect of such scandal, although the matter expunged be irrelevant and impertinent, as well as defamatory (r). Voluntary and extra-judicial affidavit. Defamatory Notice in a legal proceeding. Letter to Judge to influence decision. Libellous statements But there is no privilege attaching to a voluntary and extra-judicial affidavit; such not being made in the regular course of a judicial proceeding (s). A notice in a legal proceeding is, primâ facie, privileged, though containing matter defamatory of the party affected by it and no action will lie for the publication thereof by delivery to a third person for service upon the plaintiff, unless upon proof of express malice. But if the defendant, knowing that he had no claim upon the plaintiff, and no right to serve such a notice upon him, chooses to put a notice of the kind into the hands of a third person for the purpose of being served, that would be a publication, and might amount to a libel if express malice were proved (t). A letter addressed to a judge upon the subject-matter of the case that is coming before him for hearing, being an irregular and improper proceeding, is not privileged (u). A solicitor has no privilege to libel his client in his bill of costs delivered at the request of the client to another solicitor, Bill of Costs. although the bill be delivered in pursuance of a judge's in Solicitor's Privilege of speech of Counsel. order (v). But where, in objections in writing lodged on taxation of a solicitor's bill of costs, pursuant to the orders and rules of court, certain defamatory statements were made on the plaintiffs who were the solicitors concerned, it was held, that the occasion of the publication was absolutely privileged (x). The same protection which (as already shown) the law gives to witnesses and parties, with regard to statements made by them in the regular course of judicial proceedings, is also, with (q) See Ex parte Simpson, 15 Vesey, 476; Christie v. Christie, 42 L. J. Ch. 544; L. R. 8 Ch. App. 499. (r) Kennedy v. Hilliard, 10 Ir. C. L. R. 195. (8) Maloney v. Bartley, 3 Camp. 210. (t) Bank of British North America v. Strong, 1 App. Cas. 307, 312. (u) Gould v. Hulme, 3 C. & P. 625, per Tindal, C.J. (v) Bruton v. Downes, 1 F. & F. 668, per Bramwell, B. (x) Pedley and another v. Morris, 61 L. J. Q. B. D. 21; 65 L. T. 526; and vide Lilley v. Roney and another, 61 L. J. Q. B. D. 727. Part I. some limitations, given to counsel when speaking as advocates CHAPTER VII. in behalf of their clients in courts of justice. No action, either of slander or libel, will lie against counsel for words spoken by them in their professional capacity in the course of any trial or other inquiry, before a duly constituted tribunal of justice; provided the words so spoken be relevant to the subject-matter of the inquiry (y). Counsel must not be a violation And the privilege extends to comments made by counsel upon facts proved in a cause, or proposed to be proved, and relevant to the matter in issue. It would be impossible that justice could be well administered if counsel were to be questioned for the too great strength of their expressions (2). Where on an application for a criminal information against Words of a solicitor, for having sent to one of Her Majesty's counsel two letters and a challenge to fight a duel, and for afterwards redressed by publishing the letters in a newspaper: the principal grounds of the law. relied on in showing cause against the rule, were 1st, that the defendant had been provoked by the observations of the applicant in his address to the jury in defence of a woman charged with bigamy, in which the learned counsel animadverted on the conduct of the defendant (who was the solicitor engaged on behalf of the prosecution), and imputed to him the concoction of evidence to sustain the indictment; and 2ndly, that the imputation was not made in the exercise of his right as counsel, nor in the discharge of his duty as such. It was held, that although such observations by counsel might not be justifiable unless warranted by facts proved, or which might legally be proved, yet they must not be redressed by a violation of the law (as by a challenge to fight a duel); but must be made matter of legal complaint and redress (a). It has been held by the court of Queen's Bench in Ireland, Proctor acting that a proctor, acting as advocate in an Ecclesiastical court, is as advocate. not privileged in making observations during the progress of a cause, reflecting on the integrity of the presiding officer of the court, and accusing him of partiality and unfairness; if such observations be not relevant to the cause (b). A solicitor, acting as advocate, has the same privilege of Solicitor (y) Brooke v. Sir Henry Montagu, Cro. Jac. 90; Wood v. Gunston, Styles, 462. (z) Hodgson v. Scarlett, 1 B. & Ald. 232; Needham v. Dowling, 15 L. J. C. P. 9. (a) Butt, Q.C. v. Jackson, 10 Ir. L. R. 120 (T. T. 1846). (b) Higginson v. O'Flaherty, 4 Ir. C. L. R. 125. acting as advocate. Part I. CHAPTER VII. speech as counsel. And so where the defendant, an attorney, attended on behalf of K. before magistrates, on a summons for an assault upon the plaintiff in turning him off the premises of one J. his employer; the defendant stated in the course of the inquiry, that J. had sufficient reasons for the assault, as he had been plundered by the plaintiff to a frightful extent; it was held, that no action would lie against the defendant for the words uttered by him in defence of his client (c). And the rule is the same even if such words be wholly irrelevant and unjustifiable; and though they be spoken maliciously and without any reasonable or probable cause (d). Summary of authorities. From the preceding authorities it may be collected generally that no action of slander, nor any proceedings either civil or criminal for libel, can be maintained against a judge of any or either of His Majesty's Courts of Justice for anything said or done by him in his judicial capacity; nor against the president of an Ecclesiastical court duly constituted; nor can any action of slander or libel be sustained against counsel, jurors, suitors, complainants, prosecutors, defendants, or witnesses, in respect of anything spoken or written by any such in their several capacities aforesaid, relative to the matter in hand, in the ordinary course of the administration of justice; even if it be false and malicious, and uttered without reasonable and probable cause. And the privilege extends to statements made by a party or witness to a solicitor before trial; and to statements contained in affidavits, pleadings, and other proceedings in the usual and regular course of legal procedure. But an action for a malicious prosecution may be supported against a person prosecuting another upon an unfounded. charge, if malice, and the absence of reasonable and probable cause, can be established: and an indictment for perjury may be maintained in respect of any false evidence, whether oral or written, given upon oath or affirmation in the course of any judicial proceeding, and material to the issue. And as to irrelevant, immaterial, and opprobrious matter, the court may order such to be expunged from the proceedings; and in some cases, such matter may amount to a contempt of court, and be punishable accordingly. (c) Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. Ex. 404. (d) Munster v. Lamb, 11 Q. B. D. 588; 52 L. J. 726. |