151 / 338
words in their context, and one which should in the
circumstances be adopted to avoid inconvenience
and inconsistency with the charters.
(Knowles
v.
Zoological Society of London—(1959) 2 All E.R.
595)-
Defamatory
statements made
before
a Disciplinary
Committee are absolutely privileged.
For the purposes of privilege against liability for
defamation in respect of statements made on a
privileged occasion, proceedings before the Discip
linary Committee constituted under s. 4(5 of the
Solicitors Act, 1957, are judicial in character, and
the privilege attaching to the publication of the
findings and order of the committee is absolute
privilege.
Per Gorman, J.,—In the course of the case of
" Royal Aquarium & Winter Garden Society
v.
Parkinson, (L. R. (1892) i Q.B. 431) the principles
governing the position of courts or tribunals which
are concerned with matters of the kind with which
I am now concerned were set out, and Lord Esher,
M.R., said ((1892) i Q.B. at p. 442) :
" It was argued, in the first place, on behalf of
the defendant, that he was exercising a
judicial
function when he spoke the words complained of,
and therefore was entitled to absolute immunity in
respect of anything he said. It is true that, in respect
of statements made in the course of proceedings
before a court of justice, whether by judge, or
counsel, or witnesses, there is an absolute immunity
from liability to an action. The ground of that rule
is public policy.
It is applicable to all kinds of
courts of justice ; but the doctrine has been carried
further ;
and it seems that this immunity applies
wherever there is an authorised inquiry which,
though not before a court of justice, is before a
tribunal which has similar attributes."
Based on.those authorities, it was the submission
of the defendants that the Disciplinary Committee
was not an administrative tribunal;
that this was
an authorised inquiry which was by nature a judicial
inquiry;
that, as such, the committee was not
merely performing administrative functions, and
that it was right that the findings of the Committee
should be subject to absolute privilege.
I do not
intend to go through all the references made by
counsel for the defendants to the various sections
of the Solicitors Act, 1957, and to the rules ; I have
them in my mind. Having regard particularly to
the fact that the plaintiff conducted his case alone,
I shall quite shortly set out his submissions on the
sections of the Act of 1957 and the various rules
which were made under the Act.
The following were the submissions made by the
plaintiff. While accepting that the principles to be
applied were those laid down in the authorities to
which the Court had referred, the plaintiff submitted
that to come within those principles the committee
must be a tribunal which was equivalent to a court
of law, that is, a tribunal which acted in a manner
similar to a court of law and which had similar
attributes to those of a court of law. On considera
tion of the matters dealt with by the authorities, the
committee was not a tribunal to which the protection
of absolute privilege should attach.
In particular,
by r. 21 of the Solicitors (Disciplinary Proceedings)
Rules, 1957, the committee must hear all application
in private.
In judicial tribunals the judge was
independent and took an oath ;
but the members
of the committee were not independent of the Law
Society, nor did they
take an oath.
The test
whether the proceedings were judicial was the rule
which forbade tribunals to have self-interest, but
the committee, as solicitors, had an interest in the
proceedings before them.
In view of the Supreme
Court's
jurisdiction over solicitors, proceedings
before the committee should be treated as adminis
trative proceedings. He said that it was a fundamen
tal principle of justice that a person should be
allowed to reply to allegations, but that his applica
tion to give evidence before the committee was
refused.
He commented on the fact that the
committee had no power to issue a writ of subpoena,
and referred to r. 27, r. 29, r. 30, r. 31 and r. 34
which latter rule expressly applied the Evidence
Act, 1938, and the Evidence and Powers of Attorney
Act, 1940, to proceedings before the committee.
He contended that, in substance, the committee was
a domestic disciplinary court, similar to that of a
club, and that the word " court" was nowhere
used to refer to the committee.
Summarising his case, the plaintiff contended that,
at the highest, the committee was an administrative
tribunal, administering in private discipline over
solicitors, with powers which were
limited
to
imposing fines, striking off, or suspending, solicitors
from the roll;
the committee had no power to
imprison.
His Lordship continued :—I do not propose to
go through the plaintiff's other submissions ;
I have
them all in my mind.
Bearing in mind the fact that the onus is on the
defendants, I have to decide which of these conten
tions is right.
I have no doubt at all, having thought over the
matter carefully, and having considered the authori
ties and the submissions, that the submissions made
to me by the defendants are right. The publication
of the words complained of in para.
5
of the
37