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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Stocker v Stocker [2016] EWHC 147 (QB) (29 January 2016) URL: https://www.bailii.org/ew/cases/EWHC/QB/2016/147.html Cite as: [2016] EWHC 147 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Ronald Terance Stocker |
Claimant |
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- and - |
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Nicola Stocker |
Defendant |
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David Price QC (instructed by David Price Solicitors and Advocates) for the Defendant
Hearing dates: 21st and 22nd January 2016
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Crown Copyright ©
Mr Justice Nicol :
The contact between the Defendant and Mr Roche
'Hi this is quite difficult I am the ex wife of Deborah [Bligh]'s latest boyfriend, I am trying to understand why she does not seem to have much contact with your daughters as she has a lot of access to my son and I am very worried. Should I be? I would be very grateful if you would reply and apologise for bothering you, but as a parent I am sure you understand.'
'Are you able to give me any more information on Deborah, eg the court ruling on how you have the girls and she doesn't I am really worried as [the son of the Claimant and the Defendant whom I shall call 'J'] has told me that she has given up her job and moved in with Terry so she will be with my son 50% of the time and already she has done a few things that I have concerns about. Also from your perspective [J] has told me that Daddy is going to help her get her girls back, which I think you should know. By the sounds of it this woman does not deserve children and I don't want her to have mine as she cant be bothered to look after her own. I have a friend who speaks fluent french if it is easier for you to send me details in french.'
'Can you give me more information about your ex-husband, such as whether he has already been arrested, and, if so, when and why, is he violent or not, as I don't want my girls to go to just anyone's place (if he's violent with her that's her problem, but I don't want my daughters to risk being in the middle of it) as I need to go to court on 18/01/13. And I'd like to know where my children might be taken as like you said if they move to his I'd like to know what I can do about it…'
'If you or your solicitor need any more information I am more than happy to help.'
'It was my understanding that the information Eric [Mr Roche] was seeking from me would be passed on to his lawyer to be used at the court hearing. I felt that he was entitled to know this information and use it for that purpose, just as I was entitled to know about who [J] would be living with.'
'Thank you very much for this information, my lawyer will know how to make good use of it.'
'I wanted to have something in writing from [the Defendant] that I could use at the hearing on 18 January so that is why I sent her the email on 2 January. I passed Nicola's email on to my lawyer, Alexandra Deval, who included it in the file of evidence I relied on at the custody hearing on 18 January. This file was given to Deborah's lawyer and to the court in advance of the hearing. No objection was made by Deborah's lawyer to the email.'
'For his part, Mr Roche does not file any document likely to establish that Mrs Bligh is not living with her daughter, as she stated, and was housed in unknown conditions with another man. The investigative measure requested does not in this case seem to be justified.'
Absolute privilege: the pleadings
'The email was made in the course of or in connection with judicial proceedings. …The email was a response to an email from Mr Roche [of 19.15 on 2nd January 2013]… [which had] sought information from the Defendant about the Claimant for the purpose of the substantive hearing to determine custody on 18 January…the allegations complained of were germane to the subject matter of the proceedings; alternatively, they did not have no relevance to it…Mr Roche passed the email to his lawyer, Maitre Deval, who included it in the file of evidence to be relied on by Mr Roche at the hearing. In accordance with French procedure the file was provided to Ms Bligh's lawyer and the Court in advance of the hearing…the availability of a defence of qualified privilege does not provide sufficient protection.'
'As the Defendant manifestly intended or at least foresaw, her communication with Mr Roche was deployed by him to prejudicial effect in the French custody proceedings, causing Ms Bligh further and ongoing distress, which in turn, distressed the Claimant.'
Elsewhere in the pleadings (paragraph 13.4 of the Re-Amended Reply) the Claimant has said that his claim does not extend to the publication of the email in court. But, Mr Price argues, it is the Claimant's own case that the Defendant 'intended or at least foresaw' that her email would be deployed in the French custody proceedings.
Absolute privilege: the law
'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 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 so 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 precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called.'
'(1) A statement by a witness or prospective witness, whether made to a solicitor for the purposes of the preparation of a statement, proof of evidence or affidavit, or made in a statement, proof of evidence or affidavit, is absolutely privileged unless it has no reference at all to the subject-matter of the proceedings.
(2) In deciding whether the statement has any reference to the subject-matter of the proceedings any doubt should be resolved in favour of the witness.'
i) If a statement was actually used in Court, then it necessarily followed that any earlier communications preparatory to that deployment had also to be protected by absolute privilege. Were it otherwise, witnesses would be discouraged from coming forward and that would be detrimental to the administration of justice.
ii) The test should be objective. If it turned on subjective matters, such as the defendant's purpose in making the statement, uncertainty would be introduced and the value of the privilege being absolute would be undermined.
iii) Watson v M'Ewan concerned evidence gathered by a lawyer, but the same principles should apply to evidence gathered by a litigant on his or her own account. That was of particular importance given the growing phenomenon of litigants in person.
Absolute Privilege: Discussion
'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.'
'As Ms Williams submitted, judicial proceedings immunity does not retrospectively immunise an antecedent act if that act is not itself within the immunity.'
'If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered.'
'That same consideration of avoiding a circumvention of the immunity should serve to justify its application at the early stages of a litigation or a prosecution where evidence is being collected with a view to court proceedings. It may be that here some delicate questions of fact may arise as to whether or not the material in question was or was not provided with a view to court proceedings. But while the line may be difficult to draw in some cases the distinction in principle is clear. In the case of statements, as Drake J recognised in Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184,191, the statement must be made "for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered".
'The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out. In Mann v O'Neill (1997) 71 ALJR 903 the judgment in the High Court of Australia of Brennan CJ, Dawson, Toohey and Gaudron JJ states, at p.907: "the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted unless its necessity is demonstrated'." And in Roy v Prior [1971] AC 470, where this House held that a defendant was not entitled to the absolute immunity which he claimed, Lord Wilberforce stated at p. 480: "Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of the public interest."'
No real or substantial tort