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No. 4. — Dawkins v. Rokeby, 45 L. J. Q. B. 12, 13.

son v. Broomhead, 4 Hurl. & N. 569, 28 L. J. Ex. 360, is the first case which goes the whole length of the proposition asserted on behalf of the defendant. That case was founded on Astley v. Younge, 2 Burr. 807, and is not in accordance with general law, and in no other system of law is this absolute privilege of the witness admitted, Cod. Rom. Book IV. It has been held that where distinct malice is proved even a Judge would not be exempt, Kendillon v. Maltby, Car. & M. 402; and in Thomas v. Chirton, 2 B. & S. 475, 31 L. J. Q. B. 139, COCKBURN, C. J., laid it down that a coroner might be liable for defamatory language used by him without reasonable or probable cause. The question is one of animus, Home v. Bentinck, 2 Brod. & Bing. 130, 8 Price 225 (22 R. R. 748); “ of malice,” Jekyll v. Sir J. Moore, 2 Bos. & P. (N. R.) 341, 6 Esp. 63. It is well settled that there is no power in the Sovereign to create fresh Courts. This Court of enquiry, therefore, could not be, and it is expressly provided by the Queen's Regulations that it shall not be, in any sense, a Court of justice, and even if the officers composing the Court be sub modo Judges, and so exempt from civil action, yet, as no oath was administered by that Court, the exemptions would not extend to a witness speaking falsely and maliciously before it, and even if a witness should be exempt, and the defendant should be excused for the words he uttered in that character, yet part of our complaint is in respect of what he did, not in that character, but after his examination was closed : and with the close of his examination his position as a witness ceased.

Bulwer, C. Bowen and Fitzmaurice, for the defendant, were not called upon to argue. At the conclusion of the argument the following question was

submitted to the Judges: Whether the opinion and ruling [ * 13] of the learned Judge in this case, as * stated in paragraph

15 of the bill of exceptions, and his direction thereupon to the jury, were right in point of law?

The opinion of the Judges was delivered by

KELLY, C. B. We are unanimously of opinion that the question put to us by your Lordships must be answered in the affirmative.

A long series of decisions have settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of justice. This does not proceed on the ground that the occasion rebuts the primâ facie presumption that words

No. 4. — Dawkins v. Rokeby, 45 L. J. Q. B. 13.

disparaging to another are maliciously spoken or written. If this were all, evidence of express malice would remove this ground. But the principle we apprehend is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. The authorities as regards witnesses in the ordinary Courts of justice are numerous and uniform. In the present case it appears in the bill of exceptions that the words and writing complained of were published by the defendant, a military man bound to appear and give testimony before a Court of enquiry. All that he said and wrote had reference to that enquiry; and we can see no reason why public policy should not equally prevent an action being brought against such a witness as against one giving evidence in an ordinary Court of justice.

The LORD CHANCELLOR (Lord CAIRNS). Mr. Justice BLACKBURN, on the occasion of the trial, is stated by the bill of exceptions to have declared his opinion to be “that the said evidence so offered to be given by the plaintiff as aforesaid was immaterial and irrelevant, and that 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 a knowledge that the statements so made and handed in by him as aforesaid were false ; and then directed the said jury that, under the circumstances so stated and admitted as above set forth, as a matter of law the action would not lie, 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 a knowledge that the statements so made and handed in by him as aforesaid were false. And the jurors aforesaid by and under the direction of the said justice then gave their verdict for the defendant upon the said issue.”

I think it is of great importance that your Lordships should bear in mind these precise expressions which I have now read, because I feel sure that your Lordships would not desire your decision upon the present occasion to go further than the circumstances of this particular case would warrant. The leading facts which are

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put in prominence by the learned Judge are these: The statements were made by the defendant, who was a military man; the enquiry was a military enquiry; the statements were made in relation to the conduct of the plaintiff as a military man; and were made with reference to the subject of that enquiry. I say this more particularly because an argument was addressed to your Lordships to show that the enquiry in question was not to be considered in the light of a judicial enquiry, and the evidence was not evidence given by a witness on oath. That is quite true, but at the same time your Lordships have it in the bill of exceptions that it was an enquiry connected with the discipline of the army; it was an enquiry warranted by the Queen's regulations and orders for the army; it was called by the Field Marshal commanding-in-chief, in pursuance of those regulations, and the defendant in the action was called before that enquiry as a witness, as a person who was required to

make statements relevant to the enquiry which was then [*14] being conducted, and it * was in the course of that enquiry

that those statements were made. Now, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath, ought to be extended, and must be extended, to a military man who is called before a Court of enquiry of this kind for the purpose of testifying thereupon a matter of military discipline connected with the army. It is not denied that the statements which he made, both those which were made vivâ voce, and those which were made in writing, were relative to that enquiry. Under those circumstances, I submit to your Lordships that the conclusion of the learned Judges is in all respects one which we ought to adopt, and that your Lordships will hold that statements made under these particular circumstances are statements which cannot become the foundation of an action at law.

I therefore move your Lordships, that the judgment of the Court of Exchequer Chamber be affirmed, and this appeal dismissed with costs.

Lord CHELMSFORD and Lord HATHERLEY concurred.
LORD PENZANCE. I also agree in the view which has been

No. 4. - Dawkins v. Rokeby, 45 L. J. Q. B. 14. — Notes.

stated, but I wish to say one word on the supposed hardship of the law, which is brought into question by the appeal.

It is said that a statement in effect of a libellous nature, which is palpably untrue, known to be untrue by him who inade it, and dictated by malice, ought to be the subject of a civil remedy, though made in the course of a purely military enquiry. This mode of stating the question assumes the untruth, and assumes the malice. If by any process of demonstration free from the defects of human judgment the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man.

But this is not the state of things under which this question of law has to be determined. Whether the statements were in fact untrue, and whether they were dictated by malice, are, and always will be, open questions upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation, or again, the witness may be cleared by the jury of the imputation, and may yet have had to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.

These considerations have long since led to the legal doctrine that a witness in the Courts of law is free from any action, and I fail to perceive any reason why the same considerations should not be applied to an enquiry such as the present and with the same result. Lord O'HAGAN and Lord SELBORNE concurred.

Judgment of the Court of Exchequer Chamber affirmed ;

and appeal dismissed with costs.

ENGLISH NOTES. The principal case was followed in Dawkins v. Prince Edward of Saxe Weimar (1876), 1 Q. B. D. 499, 45 L. J.Q. B. 567, 35 L. T. 323, 24 W. R. 670. The plaintiff brought three actions charging the defendants in each with conspiracy to make a false statement to the

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Commander in Chief that the plaintiff was unfit to command his regiment. The defendants too out a summons for stay of proceedings on the ground that they were members of a Military Court of enquiry and that the statements complained of were made in the discharge of their duties as such members. These statements being uncontradicted the proceedings were stayed.

Cases of absolute privilege may be classed as follows: 1. Proceedings in either of the Houses of Parliament. For instance, a petition to Parliament, or to a Committee of Parlia

Lake v. King (1680), 1 Saund. 131; Kane v. Mulvaney (1866), 2 Ir. Rep. C. L. 402; or evidence given before or statement made in a Select Committee of the Houses of Parliament. Goffin v. Donnelly (1881), 6 Q. B. D. 307, 50 L. J. Q. B. 303, 44 L. T. 141, 29 W. R. 440.

In Stockdale v. Hansard (1839), 9 Ad. & El. 1, 2 P. & D. 1, 7 C. & P. 731, 2 M. & Rob. 9, the Court of Queen's Bench decided that a report of proceedings in the House of Commons, containing a libellous statement, was not privileged, though published by the Order of the Hou The Statute 3 & 4 Vict. c. 9 has however overridden this decision.

The privilege attached to speeches, &c., made in one of the Houses of Parliament does not attach to the publication by a Member of Parliament, without the authority of the House, of a speech made by him in the House containing libellous matter, although such publication was due to the fact that the speech of the defendant had been misreported in a newspaper, or misrepresented. Rex v. Abingdon (1794), 1 Esp. 224, 5 R. R. 733; Rex v. Creevey (1813), 1 M. & S. 273, 14 R. R. 427. The case is distinguished in Wason v. Walter (1868), L. R., 4 Q. B. 73, 38 L. J. Q. B. 34, 39, 19 L. T. 409, 17 W. R. 169, 8 B. & S. 671, from the case where a newspaper for the information of the public makes a faithful report of a debate in Parliament. See notes to Nos. 5 & 6, p. 74, post.

2. Proceedings in a Court of Justice.

For instance, no action lies against a judge of a Superior Court for anything said or done by him while sitting as a judge however maliciously it may be done. Floyd v. Barker (1608), 12 Co. Rep. 24; Ex parte Fernandez (1861), 10 C. B. (N. S.) 3, 30 L. J. C. P. 321, 4 L. T. 324, 9 W. R. 832; Scott v. Stansfield (1868), L. R., 3 Ex. 220, 37 L. J. Ex. 155, 18 L. T. 572, 16 W. R. 911; Anderson v. Gorrie (1894), 1895, 1 Q. B. 668, 71 L. T. 382.

A judge of an inferior Court is privileged only when he said or did the thing complained of in a case which was within the jurisdiction of the Court, or where he had reason to believe a state of facts which gave

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