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Rokeby, of which the plaintiff complained, and which were set out in the plaintiff's declaration :
In the course of his vivâ voce evidence before the Court, Lord Rokeby used the following expressions with regard to LieutenantColonel Dawkins :
“I have seen him in the presence of his superior officers, and on every occasion he showed in his manner a total want of deference to their opinions, not to use a stronger term. He is not, in my opinion, always responsible for his actions, and he is unfit to command others, because he cannot command himself. I have never found one of the superior officers of Colonel Dawkins's regiment who did not state to me that during the whole service he had been constantly taking offence where none was meant, and that he was habitually disrespectful to his commanding officers. His manner on every occasion on which I saw him confirmed that opinion. My enquiries led me to conclude that Colonel Dawkins was of so captious a disposition that he was at times not responsible for his actions."
The written paper which at the close of his examination Lord Rokeby handed in to the Court was to the following effect :
“On every occasion that I have seen him in the presence of his commanding officers his manner has betrayed a total want of deference, not to use a stronger term, and all reports had represented him as habitually insubordinate. I also certainly told him that unless he gained more self-command, and behaved with more respect to those under whose orders he served, I must consider him unfit for command as I did for his present position. I am still of that opinion, and I cannot think I am overstepping my duty in expressing it clearly to him. The then adjutant-general asked whether I wished the lieutenant-colonel, meaning the plaintiff, to be tried for insubordination. I answered I had only placed him under arrest, because I could not permit an officer to treat me with marked disrespect in the presence of a great many junior officers ; but that as I scarcely believed him to be responsible for his actions, I should prefer his being admonished and released. I told the former Court that which I again repeat, namely, that after a long and earnest consideration of all that has passed, I reported to his Royal Highness my conviction that the lieutenant-colonel was unfit to command.”
The act of disrespect referred to in the above paper was this:
In the presence of many officers, Lord Rokeby offered his hand to the plaintiff as he was sitting at table. The plaintiff, instead of taking Lord Rokeby's hand, rose and made him a military salute. For this Lord Rokeby placed him under arrest. It was understood that the result of the Court of enquiry was
that the plaintiff had to leave the service. (* 10] * After the termination of the enquiry the plaintiff de
manded a Court-martial on the defendant for his conduct towards the plaintiff, which was refused, and as the plaintiff could not compel such Court-martial, he brought this action. At the trial, the plaintiff's counsel proposed to prove by evidence that the verbal statements made and the written statements handed in by the defendant to the Court of enquiry were untrue, were known to the defendant to be untrue, and were made and handed in mala fide, and without reasonable or probable cause. But the defendant's counsel interposed, and the learned Judge ruled and directed the jury, that “the evidence offered to be given by the plaintiff was immaterial and irrelevant, and as a matter of law the action would not lie, if the verbal and written statements were made by the defendant, being a military man, in the course of a military enquiry, in relation to the conduct of the plaintiff being a military man, and with reference to the subject of that enquiry, even though the plaintiff should prove that the defendant had acted mala fide and with actual malice, and without any reasonable or probable cause, and with knowledge that the statements so made and handed in by him were false.” To this ruling a bill of exceptions was tendered, which the Judge duly sealed, and on argument before the Court of Exchequer Chamber the bill was, as above mentioned, disallowed. KELLY, C. B., in giving the judgment of that Court, pointing out that the Court of enquiry was a Court duly constituted and recognised by the Articles of War and in Acts of Parliament, and that it followed from the section which provided that such Court should have no power to compel the attendance of witnesses not military, that a military witness was compellable to attend and give evidence, under peril of dismissal, at the will of the Sovereign, in case of disobedience; that such a witness was therefore entitled to the same protection and immunity as any witness in any of the Courts of law or equity; that as a false witness in a Court of law or equity is indictable for perjury, so a witness going out of his way to slander another person before a
No. 4. - Dawkins v. Lord Rokeby, 45 L. J. Q. B. 10, 11.
Court of enquiry, may be put upon his trial before a Court-martial; that in either case the indictment may be rejected or the Courtmartial refused, if no sufficient grounds for its being granted are shown; and that in no case ought a witness to be liable to an action at law for damages should his evidence reflect on the character of another, if he is also liable to heavy punishment should he refuse to appear as a witness at all.
From this judgment the plaintiff now brought error to this House.
The Judges were summoned, and BLACKBURN, J., MELLOR, J., BRETT, J., GROVE, J., and POLLOCK, B., attended.
H. Matthews and Holl, for the appellant. — The grounds upon which Judges and jurors are by the policy of the law absolutely privileged from all proceeaing, civil or criminal, — namely, that it is essential to secure their entire freedom in the execution of their duty, do not apply to prosecutors, or to parties to actions, or to witnesses. Prosecutors and parties to actions who act malâ fide and without probable cause are liable in an action by the party injured for such malicious prosecution or action, and witnesses are liable to be indicted for perjury, or for conspiracy where two or more combine; and there is no sufficient reason why witnesses giving evidence mala fide, without reasonable or probable cause, and which they know to be false, should not be responsible for the injury they thereby occasion. It is said that the testimony given by a witness is a privileged communication, and that on that ground evidence is inadmissible to show what was the motive with which it was given; but the privilege is removed when it is shown that the communication was made mala fide. In Dickson v. Lord Wilton, 1 Fost. & F. 419, Lord CAMPBELL, C. J., held that though the letters and conversation complained of in that action being communications made to a commanding officer were privileged, yet evidence was admissible to show that the letters were written from personal * resentment. So too in Dickson v. Lord Comber- [* 11] mere, 3 Fost. & F. 527, the question left by COCKBURN, C. J., to the jury was whether the defendant had acted honestly and boná fide, or from a bad or improper motive. In Keighly v. Bell, 4 Fost. & F. 763, which was an action against a superior officer for false imprisonment, WILLES, J., left to the jury the question whether the arrest was in the ordinary discharge of military duty or without reasonable or probable cause, although the arrest, being
No. 4. — Dawkins v. Lord Rokeby, 45 L. J. Q. B. 11.
a matter of military discipline, would not otherwise have been cognisable by a Court of law. Dawkins v. Lord Rokeby, 4 Fost. & F. 806, is to the same effect, although the direction of WILLES, J., in that case was against the plaintiff on the ground of the strong expressions of opinion given by Lord MANSFIELD in The King v. Skinner, Lofft. 55, and Sutton v. Johnstone, 1 T. R. 493 (1 R. R. 257); affirmed in House of Lords, 1 T. R. 784 (1 R. C. 765). That case and also the two actions of Warden v. Bailey, first in the Common Pleas, 4 Taunt. 67 (13 R. R. 560), and afterwards in the Court of Queen's Bench, Bailey v. Warden, 4 M. & S. 400 (16 R. R. 502), are discussed by COCKBURN, C. J., in Dawkins v. Lord F. Paulet, 9 B. & S. 768, 39 L. J. Q. B. 53 (in error, 10 B. & S. 972), when his Lordship expressed himself of opinion that the reports of the plaintiff's superior officer to the Adjutant-General afforded ground for an action for libel if they were made of actual malice and without reasonable or probable cause, though made in discharge of military duty.
Whether the defendant can or cannot be called to account for what he actually said in answer to the questions put to him when before the Court of enquiry, he must surely be responsible for the libellous statements contained in the paper, which, after the close of his examination, he voluntarily, and without being asked by anybody, handed into the Court. As to that paper he cannot claim protection on the ground that he was open to punishment if he had not handed it in. It is clear that the defendant went out of his way to make those statements, and whatever may be the privileges of a witness before a military Court of enquiry, they cannot exceed the privileges of a witness in a Court of law. The thing was not done in time of war. There was no public necessity for his making those statements, and there is nothing in the case which a jury is not as capable of giving an opinion upon as any military tribunal. As the plaintiff has been refused a Court-martial there is good reason why he should be allowed to take the opinion of a jury. We say that a witness before a Court, such as this Court was, would have no greater immunities than such as attach to witnesses before Courts of record. But their immunities are not so extensive. There is a large difference in this particular between Courts of record and other Courts, Hawkins' Pleas of the Crown, Book 1, c. 72. ss. 5, 6; c. 73. ss. 8, 9; Floyd v. Barker, 12 Co. Rep. 23; and it is clear that a witness giving his evidence upon his oath, and there
No. 4. — Dawkins v. Lord Rokeby, 45 L. J. Q. B. 11, 12.
fore liable to an indictment for perjury, is not in the same position as a witness before a Court of enquiry, which is neither a judicial body nor capable of administering an oath, — a witness therefore against whom the injured party has no remedy by any criminal proceedings.
But take as granted that a Judge of a military Court of enquiry, or of a Court-martial, has the same privilege as a Judge of a Court of record. Still Judges, jurors, witnesses and counsel have their privileges, but these are not all the same, for Judges and jurors have absolute privileges, counsel and witnesses have not. Gates v. Lancing, 5 Johnson's Amer. Rep. 282, at p. 291. An action formerly lay against a witness for false affidavit, Case of False Affidavits, 12 Co. Rep. 128; an information will lie for perjury, * Anonymous Case, 3 Dyer, 288 a; any one injured (* 12] by perjury may bring an action, 5 Eliz. c. 9. In Damport v. Sympson, Cro. Eliz. 520, the action was not allowed because the witness is not to be twice punished, once civilly and again criminally. Coxe v. Smithe, 1 Levinz, 119, shows that the action is not founded on the oath, but because it was maliciously done. In Savil v. Roberts, 1 Salk. 13, 1 Ld. Raym. 374, Carth. 416, 5 Mod. Rep. 394, 405, an action was allowed for malicious prosecution. In Cotterell v. Jones, 21 L. J. C. P. 2, 11 C. B. 717, an action for malicious prosecution was not allowed, because there was no allegation that legal damage had been sustained beyond what the award of costs of the prosecution would sufficiently compensate or punish. In Eyres v. Sedgewicke, Cro. Jac. 601, an action for false oath in a Court of justice was not allowed on the ground that every Court shall have power to deal with misdemeanours committed in its own Court. But in the case of this plaintiff the Court of enquiry had no power to deal with the misdemeanour committed by the defendant before it, and “if the witness is not liable criminally, he is liable civilly.” Revis v. Smith, 25 L. J. C. P. 195, 18 C. B. 196. In that case the action was held not to lie, because the witness believed what he said was true, and there was no averment of malice. In Daniels v. Fielding, 16 M. & W. 200, 16 L. J. Ex. 153, which was an action for occasioning the plaintiff's arrest by false affidavit, there was proof adduced that the defendant thought he had reasonable and probable cause to occasion the arrest. BOVILL, C. J., said that the foundation on which such an action rests is that the party obtaining the arrest has imposed on the Judge. Hender