High Court of Fiji

09. In Dawkins v Lord Rokeby [1873] LR 8 QB 255 some of the earlier authorities were conveniently summarized by Kelly, C.B. The Chief Baron said at page 263:

“The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law. The principle which pervades and governs the numberless decisions to that effect is established by the case of Flyod v. Barker and many earlier authorities ...... down to the time Lord Coke; and which are to be found collected in Yates v Lansing and Revis v. Smith. These two decisions, Yates v. Lensing and Revis v. Smith are themselves direct authorities that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without reasonable or probable cause, in the ordinary cause of any proceeding in a court of justice.”

10. It is the public policy that renders the protection to the witnesses necessary for the administration of justice as House of Lords held in Watson v. M’Ewan [1905] A.C. 480. The Earl of Halsbury L.C. said in that case at page 487 that:
    

“It is very obvious that the public policy which renders the protections of witness 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.”

11. There are some recent cases too which recognize this common law defence of absolute privilege available to judges, counsel, witnesses or parties for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law. Among them two English Court of Appeal judgments in Mashood Iqbal v Dean Manson Solicitors & Others (No.2) [2013] EWCA Civ 149 and Sudhna Singh v. Governing Body Of Morlands Primary School and Reding Borough Council (supra) are worth to be mentioned. Both cases analyze the earlier cases whilst explaining the limitations and inroads of this defence.
    
12. The courts have on several occasions explained the underlying policy behind this defence recognized by the common law. The well-known paragraph of Lord Justice Fry in Munster v Lamb (1883) 11 QB 588, has been first identified by several subsequent cases to be setting the policy behind this rule. Fry LJ said at page 607:
    

“Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences a false statement, which in many cases is perjured, and which is malicious and affects the character of another? The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexations of defending actions”

13. In the same way, Lord Wilberforce summarized the policy in Roy v Prior [1971] AC 470, and said at page 480 that:
    

“The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjections to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence.”

14. Lord Hoffman, having cited the well-known paragraph of Lord Justice Fry as mentioned in paragraph 13 above, described the underlying policy in Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 in following way at page 208:
    

“The immunity from suit, on the other hand is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement.”

15. All the cases, which explain the underlying policy and the principle including above cited authorities, indicate that, there are two strands of policy underlying the rule. The first is that those engaged in litigation should be able to speak freely without fear of civil liability. The second is a wish to avoid a multiplicity of actions where one court would have to examine whether evidence given before another court was true or not: Sudhna Singh v. Governing Body Of Morlands Primary School and Reding Borough Council (supra). Though it is a well-established defence as discussed above, some deceitful attempts were made to bring the action circumventing the above defence. However, the English and even Australian courts rejected those claims while reiterating the same principle.
    
16. In Watson v M’Ewan (supra) the action was not based on the evidence that the witness gave, but on what he had told the lawyer who took his proof of evidence. The House of Lords, extended the protection, and equally applied the rule to statements made out of court for the purpose of making his proof of evidence. In Marrinan v Vibert [1963] 1 QB 528 the action was filed claiming damages caused by conspiracy to give allegedly false evidence in the earlier proceedings. The original court dismissed the action stating that the claim disclosed no cause of action. On appeal to the Court of Appeal Sellers LJ dismissed the appeal and said at 535:
    

“It has been sought in this case to draw a difference between the action of libel and slander, the action of defamation, and that which is set up in this case, one of conspiracy. I can see no difference in the principles of the matter at all. Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which it is to be so given.”

17. The same attempt was made in Australia in Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 to base a claim on the disguise of conspiracy to give false evidence, but proved abortive as the High Court of Australia having referred to a large number of English cases rejected the same. This was an appeal to the High Court of Australia from the Supreme Court of Queensland. In that case Starke J said at page 141:

“But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another: the rule of law is that no action lies witnesses in respect of evidence prepared Watson v M’Ewan, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.”

18. In Taylor v Serious Fraud Office (supra) the immunity was extended to the investigators, and Lord Hoffmann said it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued, if such statements are disclosed in the court of the proceedings. Lord Hoffmann then agreed with the test proposed by Drake J in Evans v. London Hospital Medical College (University of London) [1981]1 W.L.R. 184, in which Drake J held at page 192 that:
    

“the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated.”

19. However, Lord Hoffmann emphasized in Taylor v Serious Fraud Office (supra) that this immunity does not apply to action for malicious prosecution. His Lordship held at page 215:
    

“...On the other hand, the immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. It does not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court: see Roy v Prior [1971] A.C. 470.”

20. In that Roy v Prior [1971] A.C. 470 cited by Lord Hoffmann and mentioned above, Lord Morris of Borth-y-Gest differentiated the actions based on the evidence given in court and the action for malicious proceeding without a reasonable cause. The court affirmed that the former warrants the immunity, but the latter not. In that case, the plaintiff sued the defendant for the malicious arrest secured through the abuse of judicial process. His Lordship said, at page 477:
    

“What the plaintiff alleges is that the defendant, acting both maliciously and without reasonable cause, procured and brought about his arrest. The plaintiff is not suing the defendant on or in respect of the evidence which the defendant gave in court. The plaintiff is suing the defendant because he alleges that the defendant procured his arrest by means of judicial process which the defendant instituted both maliciously and without reasonable cause. ... The gist of the complaint, where malicious arrest is asserted, is not that some evidence is given (Though if evidence is given falsely it may be contended that malice is indicated) but that an arrest has been secured as a result of some malicious proceeding for which there was no reasonable cause.

...

It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process (see Elsee v Smith (1822) 2 Chit. 304).”

21. Though the courts continuously affirmed the long-established principle of absolute privilege to the witnesses in respect of evidence whether viva voce or written, they (courts) never hesitated to strike a balance between two conflicting the principles, i.e. the principle that a wrong should not be without a remedy, and the principle that those involved in the judicial process should be immune from civil suits for what they say in the course of the proceedings.
    
22. The House of Lords in Darker v chief Constable of West Midlands [2000] UKHL 44; [2001] 1 AC 435 drew distinction between the act itself and the evidence that may be given about the act or its consequences. The House of Lords said the distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to the evidence that may be given as to the consequences of those acts. It unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. Accordingly a police officer who gave evidence that he had found a quantity of drugs in premises in the possession of an accused would be immune from suit even if the evidence was perjured, but a police officer who had planted the drugs in those premises, which were said in evidence to have been found there, would not be immune from suit in respect of the act of planting the drugs there (Lord Hope of Craighead said, at page 449).
    
23. The sentiments expressed by their Lordships in Darker v Chief Constable of West Midlands (supra) reflect the above mentioned ‘balancing exercise’ that the courts ought to do. Lord Hope of Craighead said, at page 446:
    

“The question that has been raised relates to the further extent of the immunity. Where are the boundaries to be drawn? It arises because there is another factor that must always be balanced against the public interest in matters relating to the administration of justice. It is the principle that a wrong ought not to be without a remedy. The immunity is derogation from a person’s right of access to the court which requires to be justified.”

24. In the same manner Lord Cooke of Thorndon supported the above proposition and said at page 453:
    

“Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P’s proposition in Rees v Sinclair [1974] 1NZLR 180, 187, “The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice...”

25. In the meantime Lord Clyde emphasized that, immunity should only be allowed with reluctance as it runs counter to the policy that no wrong should be without remedy said at pages 456 and 457:
    

It is temptingly easy to talk of the application of immunities from civil liability in general terms. But since the immunity may cut across the rights of others to a legal remedy and so runs counter to the policy that no wrong should be without a remedy, it should be only allowed with reluctance, and should not readily be extended. It should only be allowed where it is necessary to do so.”

26. In the same manner, the immunity from liability for negligence in Rondel v Worsley [1969] 1 AC 191 for barristers and solicitors conducting and preparing for court proceedings has now been abolished by Arthur JS Hall v Simons [2000] UKHL 38; [2000] 3 WLR 543;[2002] 1 AC 615; [2000] 3 All ER 673. The further opment of law in this regarregard is the majority decision of Supreme Court in Jones v. Kaney [2011] UKSC 13. Whilst affirming the immunity for defamation, the Supreme Court held that, the expert witness should no longer enjoy immunity from suit for negligence in relation to an expert report prepared for the purpose of litigation. The above analysis indicates the principle of absolute privilege available to witnesses from defamation in respect of evidence in proceedings, and the approach of the English courts in striking the balance between two conflicting interests. Two recent cases namely, Sudhna Singh v. Governing Body Of Morlands Primary School and Reding Borough Council (supra) and Crawford v Jenkins [2014] EWCA Civ 1035 (24 July 2014) have extensively discussed how the courts struck the balance between the above conflicting interests and in the first case, Lord Justice Lewison summarized principle and stated at paragraph 66 that:
    
    • (i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;
      
    • (ii) The core immunity also comprises statements of case and other documents place before the court;
      
    • (iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;
      
    • (iv) Whether something is necessary is to be decided by reference to what is practically necessary;
      
    • (v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity;
      
    • (vi) In such cases the principle that a wrong should not be without a remedy prevails.
      
27. The courts also expressed their views on the test applicable to the evidence when determining the privilege, and I will discuss that test later in this ruling to avoid repetition.
    
28. Presently in United Kingdom, the new law on defamation which is The Defamation Act 2013 applies to causes of action occurring after its comment on 1 January 2014. This Act was brought to amend the law on defamation. In fact, this Acis Act has considerably changed a number oamation procedures and also repealed some common law defences, namely, justification has bhas been abolished by section 2 (4), fair comment has been abolished by section 3 (8) and Reynold defence has been abolished by section 4 (6). However, except those that are expressly repealed by this Act, other common law defences remain intact, subject however to the limitations imposed by the courts from time to time for the interest of justice and striking balance between two conflicting interests as discussed above. The reason being that, (a) this Act expressly excludes those three common law defences, and (b) it did not codify the law on defamation, but intends to amend it, as provided in its long title.
    
29. The imperial laws which include the common law, the rules of equity and the statute of general application which were in force in England at the date when Fiji obtained a local legislature on 02.01.1875 shall be in force within Fiji by operation of section 22 of the High Court Act (see: section 25 of the Magistrate’s Court Act as well), subject however to the section 25 of the same Act. Undoubtedly, the common law on defamation is applicable in Fiji and numberless cases have been decided and determined in Fiji accordingly. The section 25 however restricts the imperials laws and provides that, they are applicable subject to any existing or future Acts of the Parliament of Fiji. In Fiji, the Defamation Act No. 14 of 1971, Cap 34 (The Act) is in force since 23.14.1971. The Act makes certain provisions in relation to the action for defamation and the defences therewith.
    
30. The question therefore is whether the Act has replaced the common law on defamation or supplemented the law in force in Fiji at the time the Act was brought, and especially whether the section 13 of the Act limited the scope of the absolute privilege recognized and developed by the common law to only newspaper report of courts proceedings. In fact, the main argument in this case is also related to this question as mentioned above. The section 13 reads as follows:

Absolute privilege of newspaper report of proceedings in court

13. A fair and accurate report in any newspaper or broadcast of proceedings publicly heard before any court or other judicial proceeding shall, if published contemporaneously with such proceedings, be absolutely privileged:

Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

31. At a glance it will be understood that, absolute privilege is limited to newspaper report of proceedings in court, as this is the only one section which speaks about the absolute privilege in the Act. Generally any section or provision of any Act should not be interpreted in isolation of other provisions of that Act and especially the section like section 13 of the Act, which seems to be, at a glance, limiting the centuries old common law defence of absolute privilege which has been safeguarded and developed by the common law courts from sixteenth century to date.
    
32. Apart from the three main rules of interpretation of statutes, i.e. literal, golden and mischief rules, the courts have accepted some other intrinsic and extrinsic aids too in ascertaining the intention of the legislature. Intrinsic assistance is derived from the particular statute itself, which is the object of interpretation. The courts use the entire provisions of the particular statue to understand the meaning of a particular part of it. In this process, the title either long or short, other provisions, heading and sub-heading of a particular Act may be referred to for guidance. Lord Simon of Glaisdale in The Black-Clawson [1975] UKHL 2; [1975] AC 591 said at page 647:
    

“The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity—it is the plainest of all the guides to the general objectives of a statute.” (Emphasis added)

33. Accordingly, the long title of the Act too may be referred to in this case as well. The long title of the Act reads as follows:
    

“An Act to Amend the Law Respecting Defamatory Words and Libel”

34. It is evident from the above long title of the Act that, the purpose of the Act was to amend the law in force before the enactment of the Act and obviously it is the common law on defamation as per the section 22 of the High Court Act. Hence the consequential question is whether the Act completely repealed the then existing common law on defamation or supplemented it. The answer for this question is found in section 19 of the Act, which reads under sub-heading ‘Clarification’ as follows:

Clarification

19. For the purpose of avoiding doubt it is hereby declared that the provisions of this Act, except where the context otherwise requires, shall not replace any law for the time being in force, but shall supplement it.

35. The legislature in its wisdom thought that, there would a doubt in relation to the then existing law when the Act was passed to amend that law. Therefore, in order to avoid such doubt and to clarify it, the legislature had brought this section 19. This section in its unambiguous language provides that, unless context otherwise requires, the Act shall not replace any law for the time being in force, but supplemented the same. On perusal of the entire provisions of the Act it reveals that, nowhere in the Act the context requires the replacement of any law for the time being in force.
    
36. Sometimes it may be argued that, if the Expressio unius est exclusio alterius which means "the expressionntion of one thing excludes all others" is applied in interpreting section 13, it will be inferred that, the Act intended to exclude other instances for which the defence of absolute privilege is applicable. This maxim is not applicable in this context, for several reasons. Firstly, the context does not require the replacement of the any law for the time being in force and section 19 is unambiguously provides that the Act supplemented the law in force for the time being. Secondly, the use of Parliamentary debate as the extrinsic aid to interpret this section more clearly ascertains the intention of the legislature when passing the Act in relation to the law for the time being in force. The House of Lords in a landmark judgement Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 established the principle that the Hansard could be used to ascertain the intention of the legislaturkewise, Lord Denning in n Davis v Johnson [1978] UKHL 1; [1979] AC 264 said that asserting that the courts could not use Ha was similar ilar to saying that the judges “should grope about in the dark for the meaning of an Act without swig on the light”.
    
37. The following is what transpired in the Parliamentary debate on 24.02.1971 when the Act was placed before the House for the second reading:
    

Parliamentary Debate