A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in respect of proposed proceedings against her husband for separation and aliment. He was later instructed by the husband in the same proceedings. In preparing his witness statement he included some very damaging allegations based on matters that he had learned when acting for the wife, which included allegations of taking morphine and planning to procure an abortion. He subsequently gave oral evidence of these matters in the court proceedings. The wife brought an action against him for breach of confidence and for slander, relying on both what was said to the husband’s lawyers and what was said in court.
Held: The appellant was immune. In respect of the indemnity given to witnesses, the phrase ‘in office’ can only refer to giving evidence. The only qualification to this is a prosecution for perjury or, possibly, an attempt to pervert the course of justice.
The public policy which renders the protection of witnesses necessary for the administration of justice must also and as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. The privilege surrounding evidence actually given in a Court of Justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of Justice when what is intended to be stated in the court is narrated to them.
Earl of Halsbury LC said: ‘The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a court of justice, it is too late to argue that as if it were doubtful. By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from 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. The remedy against a witness who has given evidence which is false and injurious to another is to indict him for perjury; but 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 brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument.’
He continued: ‘It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them – that is, to the solicitor or writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply – that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, ‘I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box.’ If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, ‘I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all.’ It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice – namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony.’

Judges:

Earl of Halsbury LC, James, Robertson LL

Citations:

[1905] AC 480, [1905] UKHL 1, (1905) 13 SLT 340, (1905) 7 F (HL) 109

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and . .
Appeal from – AB v CD SCS 1-Nov-1904
Lord Young said: ‘everyone giving evidence in a Court of justice, being admissible as a witness, and answering the questions which are properly put to him, which those allowed by the Court are presumed to be, is privileged, and that it is in the . .

Cited by:

Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Meadow v General Medical Council Admn 17-Feb-2006
The appellant challenged being struck off the medical register. He had given expert evidence in a criminal case which was found misleading and to have contributed to a wrongful conviction for murder.
Held: The evidence though mistaken was . .
Cited – General Medical Council v Professor Sir Roy Meadow, Attorney General CA 26-Oct-2006
The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .
Cited – Buckley v Dalziel QBD 3-May-2007
There was a heated dispute between neighbours, culminating in some generous or perhaps over-generous pruning by the claimant of the defendant’s trees and shrubs on the boundaries. The defendants reported the matter to the police. Both Mr and Mrs . .
Cited – Westcott v Westcott QBD 30-Oct-2007
The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
Held: ‘the process of taking a witness . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Martin v Watson HL 13-Jul-1995
The plaintiff had been falsely reported to the police by the defendant, a neighbour, for indecent exposure whilst standing on a ladder in his garden. He had been arrested and charged, but at a hearing before the Magistrates’ Court, the Crown . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Lincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
Cited – Iqbal v Mansoor and Others QBD 26-Aug-2011
The claimant sought the disapplication of the limitation period in order to pursue the defendant solicitors, his former employers, in defamation. . .
Cited – Cabassi v Vila 12-Dec-1940
High Court of Australia – The claim sought to sidestep the rule giving immuity to witnesses before a court by alleging a conspiracy to give false evidence.
Held: Starke J said: ‘But it does not matter whether the action is framed as an action . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Defamation, Scotland

Updated: 07 June 2022; Ref: scu.184731