The Gazette 1958-61

255 / 338

inconceivable that he should have been influenced
by it and therefore in the absence of any intention to
influence the Court of Criminal Appeal, the article
was not a contempt. (D.C.) See also The Times,
June 22, 1960.
The proceedings of the Disciplinary Committee of the
'Law Society are privileged, and may not be questioned in
a Court of Law.
The of Appeal (Hodson, Pearce and
Upjohn, . upholding Gorman J. held that
proceedi efore the disciplinary committee
constituted under s. 46 of the Solicitors Act, 1957,
are judicial in character, and the proceedings
(including the committee's findings and order) have
the benefit of the absolute privilege against liability
for defamation that protects the proceedings before
a court of justice, notwithstanding that, under r. 21
of the Solicitors (Disciplinary Proceedings) Rules,
1957, the committee hear all applications in private
and only pronounce their findings and order in
public.
Principles laid down by Lord Esher, M.R., in
Royal Aquarium & Summer & Winter Garden
Society v. Parkinson (1892) i Q.B. at p. 442) applied.
Per Hodson L.J. : The plaintiff's contention is
that there can be no absolute privilege here, and he
has put forward five contentions. First of all, his
main contention is that the proceedings were held
in private. His second contention is what I call for
convenience, his autrefois acquit contention, which
is in effect this, that a solicitor may well be subject
to criminal prosecution and afterwards may be
called before this committee on a disciplinary charge,
and that the functions of that committee in so acting
are inconsistent with those of a judicial body. His
third contention is that the procedure laid down by
the rules inconsistent with the judicial function.
His fourth contention is that there was here such
an irregularity in proceedings (to which I shall
refer in further detail) as to show that the tribunal
was not acting judicially; and his fifth contention
is that even if the hearing itself was protected by
absolute privilege, the findings and order, or that
part of it which contained the libel, was outside the
scope of a judicial inquiry.
Perhaps, having said that, it may be convenient to
postpone returning to the point about publicity and
deal with the last point—that even if the hearing
itself was protected the findings and order are not.
I think that the short answer to that is that the
findings and order were an intrinsic part of the
hearing, and if the hearing itself is protected by
absolute privilege the same applies to the findings
and order; and the subsidiary point that matters
irrelevant to the findings and order were included
in the document which is called " Findings and
Order " really, I think comes under another point
which the plaintiff has made, to which I shall refer
in a moment. So far as publicity is concerned, this
is, I think, the most formidable—indeed I think the
only formidable—part of the plaintiff's case;
because he is quite right in saying that it is axiomatic,
so far as British justice is concerned, that proceedings
should be, wherever possible or convenient subject
to the overriding rule that justice must be ad
ministered in public.
The constitution of the tribunal authorised by
Act of Parliament speaks for itself. The functions
are judicial functions, not administrative functions.
This is not comparable with a meeting concerned
with the issue of licences. If there is a prima facie
case brought before this tribunal, it has to hear and
determine it. This does in a sense affect the status
of the solicitor : he is liable to be struck off the roll
if he is convicted of unprofessional conduct, and
disabled from practising. There is power to fine him,
power to make him pay costs, power to administer
the oath, power to obtain a subpoena. No doubt
that last provision was inserted in order to get over
the difficulty as to the attendance of witnesses,
which would otherwise only be cured by application
to the High Court. There is further the right of
appeal to the High Court. The orders of the com
mittee are enforceable; and there is the farther
point that the jurisdiction is concurrent with the
existing High Court jurisdiction.
The plaintiff drew our attention to the fact that,
this being an inquiry as to the conduct of a solicitor
in permitting his clerk to do something wrong, the
solicitor's defence was that whatever had gone
wrong without his knowing anything about it, and
the only question before the committee, it being
admitted that there had been an error, was : was
the solicitor himself at fault ? He was acquitted.
In dealing with that issue, the matter to which
evidence was directed was the information that the
solicitor had. He thereupon told the committee
what he himself had been told. There was nothing
irregular in that; but even if there had been, on the
authorities to which I have made reference it would
not have made any difference. The same, of course,
applies to the findings and order : if the findings
and order, as a document, had contained anything
which was not relevant or should not have been
contained therein, it would not for that reason (by
virtue of the same authorities) have caused the
proceedings to lose their character, which was such
that the members of the tribunal, as well as the
witnesses and all those who appeared before the
tribunal, were protected by absolute privilege.
I would dismiss the appeal.
43