Part II.—In what Cases an Action will lie.
13
Sect. 3.
Damnum absque injuria.
Nature of privilege.
Statements so made are said to be "privileged," and fall into two classes according as the privilege is "absolute" or "qualified"; in the former case no action can under any circumstances be maintained; in the latter it can only be maintained upon proof of express malice.
Absolute privilege.
Words spoken by a judge acting in his judicial capacity (t), by a magistrate while sitting as such (u), by a member of Parliament in Parliament (a), by a witness in a trial (b), or before a parliamentary committee (c), or before a military Court of inquiry (d), or when giving a proof of his evidence to a litigant's solicitor (e), or at an inquiry under a bishop's commission (f), by counsel (g) or advocate (h) in the conduct of a case, are absolutely privileged, and no action will lie for the damage ensuing therefrom even if they are irrelevant or are uttered maliciously. All documents properly used in a judicial proceeding are also absolutely privileged (i).
Qualified privilege.
A qualified privilege attaches to statements made in the discharge of a duty, or reasonably made in order to protect some interest of the maker. So reports of legal proceedings and of public meetings (k) and fair and bond fide comment on, or criticism (l) of, matters of public interest are not in general actionable without proof of malice.
Unfounded legal pro-ceedings.
15. A person may be seriously damnified by having legal proceed-ings brought against him; but it has been found necessary to excuse from legal liability a person who brings such proceedings against another, but does so with reasonable and probable cause and without malice. If there be malice and a want of reasonable and probable cause, then indeed an action may lie, but damage is an essential part of the injuria. In the case of an unsubstantiated criminal charge the presumed damage done to the defendant's position is sufficient (n), and it would seem that damage may be
- (t) Anderson v. Gorrie, [1895] 1 Q. B. 668; Scott v. Stansfield (1868), L. R. 3 Ex. 220; Thomas v. Churton (1862), 2 B. & S. 475 (coroner).
- (u) Law v. Llewellyn, [1906] 1 K. B. 487.
- (a) Dillon v. Balfour (1887), 20 L. R. Ir. 600; R. v. Abingdon (1794), 1 Esp. 226.
- (b) Seaman v. Netherclift (1876), 1 C. P. D. 540, affirmed 2 C. P. D. 53; Henderson v. Broomhead (1859), 4 H. & N. 569; Revis v. Smith (1856), 18 C. B. 126.
- (c) Goffin v. Donnelly (1881), 6 Q. B. D. 307.
- (d) Dawkins v. Lord Rokeby (1875), L. R. 7 H. L. 744.
- (e) Watson v. McEwan, [1905] A. C. 480.
- (f) Barratt v. Kearns, [1905] 1 K. B. 504.
- (g) Munster v. Lamb (1883), 11 Q. B. D. 588.
- (h) Mackay v. Ford (1860), 5 H. & N. 792; Pedley and May v. Morris (1891), 61 L. J. (Q. B.) 21; Lilley v. Roney (1892), ibid. 727.
- (i) Revis v. Smith, supra ; Henderson v. Broomhead, supra.
- (k) Lewis v. Levy (1858), E. B. & E. 537; Kimber v. Press Association, [1893] 1 Q. B. 65; Stevens v. Sampson (1879), 5 Ex. D. 53; Macdougall v. Knight (1890), 25 Q. B. D. 1; Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64).
- (l) Thomas v. Bradbury, Agnew & Co., Ltd., [1906] 2 K. B. 627; Campbell v. Spottiswoode (1863), 3 B. & S. 769; Merivale v. Carson (1887), 20 Q. B. D. 275; Joynt v. Cycle Trade Publishing Co., [1904] 2 K. B. 292.
- (m) As to the burden of proof and respective functions of judge and jury, see Abrath v. North Eastern Rail. Co. (1883), 11 Q. B. D. 440, affirmed (1886) 11 App. Cas. 247; Brown v. Hawkes, [1891] 2 Q. B. 718; Watson v. Smith (1899), 15 T. L. R. 473.
- (n) Rayson v. South London Tramways Co., [1893] 2 Q. B. 304.
