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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Westcott v Westcott  EWCA Civ 818 (15 July 2008)
Cite as:  1 All ER 727,  2 WLR 838,  EMLR 2,  QB 407,  EWCA Civ 818
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR RICHARD PARKES QC (SITTING AS A DEPUTY
JUDGE OF THE QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON. LORD JUSTICE SEDLEY
THE RT HON. LORD JUSTICE STANLEY BURNTON
| Richard Anders Westcott
|- and -
|Dr Sarah Westcott
Nicholas O'Brien (instructed by BP Collins) for the respondent
Hearing date: 8th May 2008
Crown Copyright ©
Lord Justice Ward:
The factual background
"My father-in-law has flipped and hit me and my six month old baby. I was hit on my upper body. Daniel was hit on his left side. I was hit at least 7 times."
"At this point [when the defendant was pushing Edward out of her way] Richard, Edward's father, came between Edward and I. I have never seen Richard like that before. He was extremely angry and started to shout, "How dare you speak to him [Edward] like that in my house". I replied "Fuck off" and this incensed him. Richard then lost it and started to lash out at me.
Richard lashed out several times hitting my upper arms as I tried to defend myself. I had hold of Daniel with my left arm and was trying to fend Richard off with my right arm. As I pushed Richard's arms away I was edging my way towards the lounge.
I wanted to get past Richard in order to get to the front door but Edward was blocking me. I ended up in the lounge because I couldn't get to the front door.
After a few moments of screaming the words "Help me" I managed to calm myself down and sat down. I got up and went to push past Edward and Richard. At this point Richard lashed out again raising both his arms. He was targeting my upper arms but he hit Daniel at least twice. I don't think he meant to do it but he still did it.
At this stage Edward pushed Richard back and said "That's enough Dad". I gathered up my things and placed Daniel into his pram. Daniel was crying and I was extremely upset. I couldn't believe what had happened. I had never seen Richard like that before. I spoke to Edward briefly before driving away with Daniel."
Her statement concluded:
"I have since taken Daniel to the hospital for a check up but he appears to be OK. Neither of us have any visible injuries and [illegible] not in any pain. I wish to pursue a formal complaint against Richard and will attend court if I am required to do so."
"3. It is common ground that as a result of the defendant's making these allegations to the police Worcestershire Social Services found out about them and advised the defendant to ensure the safety of her son by not visiting the claimant. The claimant contends that as a result he has been seriously compromised in his position as a JP and a member of the Family Panel of the Family Proceedings Court and he maintains that the fact that [as he alleges] social services, without any investigation of the facts, appear to regard him as someone from whom his grandchild should be protected, has caused him particular upset and embarrassment.
4. In consequence of these allegations, which he maintains are wholly false, the claimant issued proceedings in March 2006 seeking damages for slander and libel and an injunction.
5. The Defendant has pleaded justification and absolute, alternatively qualified, privilege. Her pleaded case in support of the defence of absolute privilege is that the complaint that she made by telephone to the police was published to them in their capacity as investigators of crime with the intention that they should make a record of her complaint and use it as part of an investigation and/or prosecution. As a result of the conversation, a policeman came to see her that evening, asked her to tell him what happened, and recorded her account in a written statement which she dictated. The defendant pleads that the written statement was published to the police in their capacity as investigators of crime with the intention that it be used as part of an investigation and/or prosecution. (Strictly, the defendant dictated her statement rather than writing it, so that publication of the statement to that particular policeman was a slander rather than a libel, but nothing turns on that).
6. The claimant admits that the occasion of publication would in principle have been protected by qualified privilege, but contends that the allegations were made maliciously, on the basis that the defendant knew perfectly well that they were untrue. He disputes the validity of the plea of absolute privilege which, if made good, would be a complete defence to his claim even if the defendant had made her allegations maliciously. In those circumstances, the parties agreed that it was desirable to determine the question of absolute privilege as a preliminary issue. It is of course no part of my function to decide what actually happened at the claimant's house that day."
The judgment under appeal
(1) The written statement was part of the process of investigating the possible crime which the prior oral complaint disclosed and fell within the immunity from suit recognised by Drake J. in Evans v London Hospital Medical College  1 W.L.R. 184, 192.
(2) There was no rational distinction between the complainant's statement to the police and a statement made by any other witness. To deny the complainant the same protection would undermine the policy underlying the decision in Taylor v Director of the Serious Fraud Office  2 AC 177 namely, as the judge defined it,
"the public interest in free and uninhibited communication by those involved in police investigations should be given priority, notwithstanding the risk that a malicious person may benefit."
(3) Any analogy with the policy considerations which apply to malicious prosecution was unhelpful for the torts are different.
(4) Article 8 of the E.C.H.R. added nothing because:
"The test of necessity imposed by Article 8(2) as a justification for interference with Convention rights is in practice no different from the test of necessity in the interests of the administration of justice which was stated by the House of Lords in Taylor: see per Lord Hoffmann at 214D and G."
(5) If the written statement was protected by absolute privilege, then the oral statement which preceded it should be protected also because:
"If that were not the case, the object of the protection which applies to the subsequent written statement would be wholly undermined and the immunity would be outflanked, for the complainant could be sued on the original oral complaint instead."
The arguments addressed to us
Discussion: first, absolute privilege and immunity from suit
"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."
"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 malice, 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 vexation of defending actions."
"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." I add the emphasis.
"This case differs entirely from that which was cited, Toogood v Spyring, where the person to whom the defendant stated he had been robbed by the plaintiff was a perfect stranger to the transaction, and there was no duty or authority for communicating the party's suspicions to him. The defendant having been robbed, had a perfect right to say, acting on his belief, that the person in custody was the man. If he had sought to load him with obloquy, as for example, if he had said that he had been robbed by him on other occasions, that would have been merely gratuitous, and no privilege would have applied to it."
Martin B. was also of the opinion that the occasion was privileged:
"The statement was made to an officer of the law, and was one the defendant was entitled to make. In Toogood v Spyring Park, B., said that "If fairly warranted by any reasonable occasion or exigency and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within narrow limits.""
"It is not at all easy to determine the scope and extent of the principle in Watson v M'Ewan. I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and pre-cognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court."
"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 given before the court and in the preparation of the evidence which is to be so given."
The Court of Appeal expressly approved the dictum of the trial judge, Salmon J.:
"This immunity exists for the benefit of the public, since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled and possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation."
"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 possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated."
"The first question which arises is whether this letter is to be regarded as sufficiently closely connected to the process of giving evidence for it to be necessary to extend absolute privilege to it, assuming always that absolute privilege would attach to evidence to the like effect given to the Commission."
He answered that question affirmatively, but concluded that because the Commission was not acting in a manner similar to a court of justice, that privilege could not be claimed. Nevertheless, the public interest in ensuring that the Commission should not be frustrated in the exercise of its functions overrode the public interest that Hasselblad was entitled to have the allegation that its private rights had been infringed investigated by the court. In the course of that discussion the Master of the Rolls said at p. 503 (and the remarks must be obiter):
"Mr Burton [counsel for the appellant] takes the point that an informer in England has only the benefit of qualified privilege: Shufflebottom v Allday (1857) 5 W.R. 315. Bringing the matter more up to date and relating it to an inquiry similar to that undertaken by the Commission, Mr Burton submits, rightly, that if Mr Orbison's letter had been addressed to the Director General of the Fair Trading, he could have been sued for libel and would have had to be content with the defence of qualified privilege."
"It is clear that the defendant made a statement to the police to the effect that she was being harassed by the plaintiff and that a witness statement was taken from her. The contents of that witness statement and the details of any previous discussions leading to the taking of the witness statement would appear to be covered by the rule as to immunity."
"Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle.
Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but nonetheless valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial."
He dealt with the position of investigators and continued at p. 215:
"I therefore agree with the test proposed by Drake J. in Evans v. London Hospital Medical College (University of London)  1 W.L.R. 184, 192:
"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."
This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels - but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other."
"Under the existing rules all those who participate in a criminal investigation in good faith are entitled to claim the protection of qualified privilege. But that is an imperfect protection, because qualified privilege requires to be pleaded and established as a defence. No action can be struck out on the ground of qualified privilege. The requirement therefore is to extend to informants, investigators and prosecutors whose statements are revealed by the operation of the disclosure rules the benefit of the absolute privilege in respect of the statements made which is already accorded to witnesses and potential witnesses," (emphasis added).
At p. 221 Lord Hutton added:
"Therefore, just as the preliminary examination of a witness by a party's solicitor out of court is a step towards the administration of justice which requires to be protected, I consider that the investigation of a suspected crime is a step towards the administration of justice so that the protection of absolute privilege should be given to those who, in the course of their public duty in investigating a suspected crime, speak or write to persons who may be able to provide relevant information, and to such persons in respect of what they say or write to the investigators " (again with the emphasis added by me).
"178. Until quite recently problems like this seldom troubled the English courts. There was a long-established rule that an informer was only protected by qualified privilege (see Shufflebottom v. Allday (1857) 28 L.T.(O.S.) 292), but it would be likely to be a rare case in which an aggrieved defendant would be able to adduce the evidence he or she needed in order to sue an informer for defamation.
195. I must make it clear that I am not addressing the case, which the S.F.A. probably had in mind, in which some malicious informant spontaneously proffers to an S.R.O. information about an investment adviser which is untrue and defamatory, and the claimant can prove his case in a libel action without the need to rely on documents disclosed in civil or criminal proceedings. Whether any extension of absolute privilege needs to be made in such a case will have to be decided on some other occasion."
This is it.
"The public policy consideration applies with equal validity to those who are mere witnesses and to those who are initial complainants. It may be unjust that a malicious informant should be accorded comparable protection, but it is difficult to draw a principled distinction in this respect between malicious witnesses and malicious complainants."
It was not necessary for the judge to rule upon whether the oral complaint by Mrs Dalziel was also protected because that claim for slander was dismissed because it had been brought out of time and Mrs Dalziel succeeded on that limitation point.
"Analogies were sought to be drawn with the immunity afforded in respect of evidence given in a court of law, which extends also to statements made to solicitors engaged in preparation for pending proceedings: Watson v M'Ewan No such analogy is, however, helpful. The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law. That was held in Roy v Prior  A.C. 470 in relation to an action for malicious arrest.
Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice."
" 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  A.C. 470.
Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it."
Lord Hope of Craighead said at p. 219:
"Such material [material revealed by the prosecution] may however still be actionable on other grounds where malice and lack of reasonable and probable cause can be established. Just as proceedings for perjury are available to deal with the witness who would otherwise be protected against statements made in the witness box, so also the public interest requires that a remedy for malicious prosecution should remain available against those who would be entitled to the benefit of the absolute privilege but who have acted maliciously and without reasonable and probable cause during the investigation process. But that is a quite separate matter as it is the malicious abuse of process, not the making of the statement, which provides the cause of action."
Absolute immunity and human rights
"77. the parliamentary immunity enjoyed by the M.P. in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary."
As for proportionality the court held:
"78. In this regard the court notes that the immunity concerned was absolute in nature and applied to both criminal and civil proceedings. The court agrees with the applicant's submission that the broader the immunity, the more compelling must be its justification in order that it can be said to be compatible with the Convention. However, it recalls its analysis in the above-mentioned Fayed case as followed by the Commission in the Young case, to the effect that, when examining the proportionality of an immunity, its absolute nature cannot be decisive."
The parliamentary immunity was not regarded as imposing a disproportionate restriction on the right of access to the court. As for the alleged violation of Article 8, the court held in paragraph 102 that the central issues of legitimate aim and proportionality that arise in relation to the applicant's Article 8 complaint were the same as those arising in relation to her Article 6(1) complaint. Accordingly there was no violation of Article 8.
"I cannot leave this particular class of relevant evidence withheld from the court" [the identity of the informant who gave information of ill treatment of children to the N.S.P.C.C.] "without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public interest lies in generally respecting it."
Lord Justice Sedley:
Lord Justice Stanley Burnton:
The circumstantiality of the allegations was such that if, as I must now assume, they were in fact erroneous, it is difficult to reconcile them with good faith and a sound mind. It may, of course, be that at the trial, where, if it takes place, these questions may be canvassed, some perfectly innocent explanation may emerge. In the meantime, however, I make no assumption either as to the good or as to the bad faith of the informant. But, whether I am right or wrong, what is plain is that, if the appellant society's claim to withhold disclosure is upheld, the non-disclosure would serve to protect a malicious or reckless as well as a bona fide informant.
The effect of the decision of the House of Lords was to protect the informant against the claim for defamation, on the ground that the public interest required it. It was, it must be conceded, assumed that such a claim could be brought, and it was not suggested that it would be precluded by absolute privilege. However, why, I ask rhetorically, should the protection against such a claim depend on the adventitious circumstance that the person accused does not know the identity of the informant?