021-SLLR-SLLR-1986-V-2-BALTHAZAR-v.-HULANGAMUWA-AND-ANOTHER.pdf
BALTHAZAR
v.
HULANGAMUWA AND ANOTHER
SUPREME COURT.
WANASUNDERA. J., RANASINGHE. J. AND L. H. DE ALWIS. J.
S.C. APPEAL No. 32/85.
A. No. 61 /76(F).
C. COLOMBO No. 79169/M.
MARCH 24. 26. 27 AND 31.1986.
Delict-Defamation-Military Law-Exclusive jurisdiction-Absolute privilege-Malice.
The 1 st defendant an Army Major complained to the Army Commander that the plaintiffwho was the Commanding Officer of the Gemunu Watch had on 6.7.1973 committedan indecent assault on the 2nd defendant who was the wife of the 1 st defendant andattempted to rape her. This complaint was made to the Army Commander at Colomboon or about 14.7.1973 and he convened a Court of Inquiry under the provisions of theArmy Act to investigate the complaint. The Court of Inquiry reported to the ArmyCommander adversely against the plaintiff. As a result His Excellency.called upon theplaintiff to retire from service and the plaintiff acceded to .this request.
The plaintiff sued the two defendants for defamation alleging that the complaint madeby the 1st defendant was false and malicious and without reasonable and probablecause and that the complaint was made in pursuance of a conspiracy between the twodefendants. The defendants pleaded inter alia the defence of absolute privilege.
Held-
The J st defendant had a sufficient interest to mak^ the charge against the plaintiff andthe Army Commander had a reciprocal duty to receive it. The oral complaint relied on bythe plaintiff constitutes an initiation of proceedings before the Court of Inquiry and is apart and parcel of the proceedings. It would therefore be entitled to absolute privilege.The question of malice is therefore irrelevant and all the evidence extraneous to thisissue should be struck out.
The defence of absolute privilege is available even where the statement is voluntary.
"The general principle of law is that no action will lie for defamatory statements made bya party and used in the course of any proceedings before a Court of Justice or tribunalrecognised by law. Such statements include pleadings, interrogatories, affidavits,evidence and the judgment on the record, even though such statements are false andmalicious and irrelevant. No action wilt also lie for defamatory statements contained inany document which is incidental to the proper initiation of judicial or quasi judicialproceedings, namely, an information, complaint, writ by which proceedings are set inaction. The privilege will attach even if the document contained something which wasirrelevant or which should not have been contained in it."'{Cases referred to:
(1) Dawkins v. Lord Rokeby – (1873) L.R. 8 Q.B. 255. 263; (1875) 7 H.L. 744.
(2) Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson -'[1892] 1 Q.B. 431.
{3) Co-partnership Farms v. Harvey Smith – [1918] 2 K.B. 405.
Marks v. Frogley – [189811 Q.B. 888.
Frazer v. Hamilton – 33 T.L.R. 431.
Fraser v. Balfon – 34 T.L.R. 502 (H.L.).
Lincoln v. Daniels – [1962] 1 Q.B. 259; [1961] 3 AllE.R. 740.
Trapp v. Mackie – [ 1979] 1 All E.R. 489.
Nell’s Court of Request Cases – 1.845 p. 87.
(TO) Attennaike v. Don Juanis – (1857) 2 Lorenz 122.
Marshalls Judgments – 402.
Silva v. Balasuriya -(1911) 14 N.L.R. 452.
Wijegunatileke v. JoniAppu – (1920) 22 N.L.R. 231.
Poulierv. Alles-(1924) 27 N.L.R. 219.
AbdulCaderv. H. P. Kaufmann and L. D. Parsons – (1928) 29 N.L.R. 453.
Harrison v. Bush – (1855) 5 E. & B. 348.
Hunt v. Great Northern Railway – [1891] 2 Q.B. 189.
R. v. Rule – [1937] 2 K.B. 375.
Adam v. Ward – [1917] A.C. 309.
Watson v. M'Evan – [1905] A.C. 480.
Bersfordv. White-(1914) 30 T.L.R. 591.
Lilley v. Roney – (1892) 61 L.J.Q.B. 727.
Gerhold v. Baker -(1918) W.N. 368.
Rippon v. Shapcott – C.A. – 1951 – unreported but referred to in Lincoln v.Daniels (7).
Szalatnay-Stacho v. Fink -[ 1946] 2 All E.R. 23 1.
Roy v. Prior – [1970] 2 All E.R. 729.
Rasselblad (GB) Ltd. v. Orbincon – [ 1985] 1 All E.R. 173.
APPEAL from judgment of the Court of Appeal reported in [ 1984] 2 S.L.R. 29.
H. L. de Silva. P C. with K. Kanag-lswaran and S. Mandaleswaran for theplaintiff-respondent-appellant.
Dr. H. W. Jayewardene, Q.C. with Ronald Perera and Miss T. Keenewinne for thedefendant-appellants-respond'ents.
Cur. adv. vult.
Mav 16. 1986.
WANASUNDERA, J. read the following Order of Court.
ORDER OF THE COURT
This is an action for defamation filed by the plaintiff (appellant) againstthe 1st and 2nd defendants (respondents), husband and wife, jointlyand severally, claiming damages in a sum of Rs. 1 50,000 againstthem. The plaintiff was at all material times holding the rank ofLieutenant Colonel in the Sri Lanka Army and was the CommandingOfficer of the 1st Battalion, Gemunu Watch. The 1st defendant wasalso an officer of the Sri Lanka Army and held the rank of Major in theC.L.I. and was attached to the South-East Area Command. Thedefendants lived in quarters in the Gemunu Watch Camp Area,Diyatalawa, which came'within the authority of and was allotted to theCommander of the Gemunu Watch. He had moved into those quarterswith the permission of Mr. Madawala the then Commanding Officer ofthe Gemunu Watch. At that time the plaintiff was second in commandand lived in the mess and continued to do so even after he became theCommanding Officer of the Gemunu Watch, with the defendants alsocontinuing to occupy the quarters to which they had moved in earlier.
The plaintiff states that on or about the 14th July 1973 the 1stdefendant had maliciously and falsely complained to Major-GeneralAttygalle at Colombo that the plaintiff had on 6th July 1973 at about8.30 p.m. committed criminal force on the 2nd defendant, with intent'to outrage her modesty, and had attempted to commit the offence ofrape on her. The plaintiff averred that the said complaint was made inpursuance of a conspiracy between the 1st and 2nd defendants tohave the plaintiff removed from the office of Commanding Officer andthereafter to secure for the 1 st defendant a higher position in theArmy. It is not quite clear whether the cause of action is based on thisconspiracy or defamation simpliciter, although it had proceeded for allpurposes as one for defamation.
The defendants in their answer stated that on the 14th July 1973the 1st defendant complained to the Army Commander that on thenight of 6th July the plaintiff was guilty of an indecent-assault on the2nd defendant during the absence of the 1st defendant from thehouse. Further answering the defendants stated that consequent onthe complaint the Army Commander convened a ,Court of Inquiry
under the provisions of the Army Act to investigate the complaint andthe Court of Inquiry, after inquiry, had reported to the ArmyCommander adversely against the plaintiff. As a result of this findingHis Excellency the President had called upon the plaintiff to retire fromservice and the plaintiff acceded to this request.
The defendants also took up two legal defences, namely, that thecomplaint was made by the 1st defendant, in the discharge of hisduties as an army officer, to the Army Commander'and that it was aprivileged communication and was made on a privileged occasion.The second legal objection was that the plaintiff had failed to givenotice of the action as required by section 80 of the Army Act.
The plaintiff obtained judgment in the District Court. The DistrictCourt held that the complaint made by the 1 st defendant was falseand made maliciously and without reasonable and probable cause;that the complaint had been made in pursuance of a conspiracybetween the two defendants; that the plaintiff suffered humiliation anddisrepute, that in consequence of the complaint the plaintiff wasremoved from office of Commanding Officer; and that the plaintiff wastherefore entitled to damages in a sum of Rs. 150,000.
It would appear that- on appeal to the Court of Appeal thedefendants had submitted the following principal questions for
adjudication, namely-
(a) That the cause of action set out in paragraph 4 of the plaint wasnot borne out by the evidence.
(£>) That the complaint and the proceedings consequent thereon bythe Military Court of Inquiry were absolutely privileged.
That the complaint related to military discipline and was amilitary matter cognizable by the Military Authorities which hadexclusive jurisdiction to deal with the matter and a civil courtwas precluded from questioning or inquiring into those
proceedings.
(c/) That the plaintiff had failed to comply with the provisions ofsection 80 of the Army Act (Cap. 357). which required thegiving of notice of action.
The Court of Appeal after hearing submissions of counsel allowedthe defendants' appeal and dismissed the plaintiff's action. Indisposing of the appeal the Court of Appeal had dealt with ground (c)aJone and held that the complaint being by one Army Officer againstanother, relating to a matter concerning discipline in the Army, it wascognizable only by a military tribunal and the plaintiff could notmaintain any action in a civil court based on such a complaint.
Mr. H. L. de Silva for the plaintiff-appellant submitted to us that theplaintiff, though an Army Officer, does not cease to be a citizen of SriLanka so as to be deprived of his ordinary civil rights and theprotection of the civil courts. He also stated that the Court of Appealhad wrongly applied the principle of exclusive jurisdiction which relatedonly to matters concerning military discipline and in any eventsubmitted that it would not apply to a malicious civil wrong which wasthe finding of the District Court.
Expanding on this Mr. H. L. de Silva submitted that military law wasonly a part of the law of the land. It is applicable on a statutory basisand was subject to the common law. A man who enlisted as a soldierdid not cease to be a citizen and did not forego his civil rights except to-the extent expressly covered by the military law. It was his submissionthat an Army Officer who inflicts a civil wrong on another officer couldbe held accountable in the civil courts and in this particular case, whichwas an action for defamation, the defendant enjoyed only a qualified. privilege which has been negatived by proof of malice.
Counsel on both sides cited a number of authorities relevant to thisprecise question which seems to be the main issue before us. Some ofthem are similar, to the issue before us though not identical and it maybe possible to glean from them some general principles that may beapplicable to the facts of this case. But before we turn to them thereare certain other submissions that can be conveniently disposed of atthis stage.
Mr. Jayewardene for the respondents has contended that theplaintiff's case has to be dismissed because the precise cause ofaction pleaded in the plaint has not been established by the evidence.This is apart from his main submission that in view of the absoluteprivilege applicable in respect of the cause of action pleaded by theplaintiff, the cause of action should be struck off and the actiondismissed.
Mr. Jayewardene has drawn our attention to paragraph 4 of the,plaint where the plaintiff has alleged that on or about 14th July 1973the defendants had maliciously and falsely complained toMajor-General Attygalle at^Colombo that the plaintiff had on 6th July1973 at about 8.30 p.m. committed criminal force on the 2nddefendant with intent to outrage her modesty and had attempted tocommit the offence of rape on her. Mr. Jayewardene has referred tothe written complaint made by the 1st defendant to the ArmyCommander on 14th July 1973. The content of this document doesnot identify the plaintiff nor has it referred to any offence committed byanyone. It is only the caption which gives some indication of the natureof the complaint and the officer who was involved. But it is concededby plaintiff's counsel that this caption was inserted at the request ofthe Army Commander and Mr. H. L. de Silva said that he was notrelying on it. If the matter rested there, we would have had to upholdMr. Jayewardene's submission.
But Mr. H. L. de Silva has submitted further that he is not relying onthe written complaint P9 referred to above, but he is basing his actionon an oral complaint made by the 1st defendant to the ArmyCommander on the same day soon after the written complaint washanded over to Major-General Attygalle. It would appear that after thewritten complaint was handed over, there had been a conversationbetween the 1 st defendant and the Army Commander. Major-GeneralAttygalle has said in evidence that in the course of that conversationthe 1 st defendant repeated the allegations he had earlier made on the12th July. The first intimation of this incident to the Army Commanderhad taken place on the 12th July when the 1st defendant atDiyatalawa telephoned the Army Commander in Colombo andinformed him that an offence had been committed on his wife (withoutspecifying the offence) and had identified the perpetrator of theoffence as the plaintiff. Even if this material is inadequate, Mr. H. L. deSilva goes further and relies on an averment in the answer which, whiledenying the allegation in paragraph 4 of the plaint, goes on to state"that on the 14th July 1973 the first defendant complained to theCommander of the Army that on the night of the 6th July, the plaintiffwas guilty of an indecent assault on the second defendant during theabsence of the first defendant from his home".
Mr. H. L. de Silva concedes that, although all this material is notidentical with the precise cause of action pleaded in the plaint, hehowever submits that at least one matter stated in the plaint is
substantially the same as the averment pleaded in the plaint, thoughdifferently worded, and as such it is adequate to maintain the action.As a general principle it has been stated that in a libel you must in yourpleadings declare upon the words and it is not sufficient to state theirsubstance. The learned trial judge had not given his mind to thisimportant discrepancy, which is of some substance. To say the least,it would have had a substantial bearing oh the reckoning of damagesapart from any other implications. Since it is possible to dispose of thisappeal on the main issue, it is unnecessary to go into this matter atthis stage.
As stated earlier, counsel for the appellant has criticised the basis ofthe ruling of the Court of Appeal, namely, that the subject matter ofthis action is a military matter not cognizable by the court, but fallswithin the exclusive domain of the military authorities. He also statedthat there was no authoritative decision of the English courts on thismatter. One of the defences taken from the outset by the defendantswas that the alleged statement was absolutely privileged. In theauthorities that were cited to us, we find that this was an alternativeground for decision along with the ground of exclusive jurisdiction. Itseems correct that the question of the exclusive jurisdiction of amilitary tribunal has not been passed on by the House of Lords inEngland although there are decisions of the Court of Appeal, andprobably. it is for this reason that Mr. Jayewardene pressed before usthe alternate ground of absolute privilege on which there are definitiverulings of the highest court in England. In regard to this submission Mr.
L. de Silva submitted that this is a civil action for defamation on avoluntary statement made by the 1st defendant and not a militarymatter and can be litigated in the ordinary courts. He further submittedthat the 1st defendant only enjoys a qualified privilege under thecommon law in respect of his complaint and that this has beenforfeited by the finding of malice on the part of the defendants by thelearned trial judge.
We are relieved to some extent by the concession'made by counselfor the appellant that there would be absolute privilege for an inquiryrelating to a purely military matter under law from going into thedifferences in the English and the Roman-Dutch law on this subject.The extension of absolute privilege to inquiries relating to militarymatters, even when there is malice, in analogy to the principle thatabsolute privilege exists in respect of statements made in the course ofproceedings before courts of justice is a settled principle of English law
and decided by the highest courts. Vide Dawkins v. Lord Rokeby (1),Royal Aquarium v. Parkinson (2), Co-partnership Farms v. HarveySmith (3). Marks v. Frogley(A). Frazer v. Hamilton (5). Frazer v. Balfori(6). Lincoln v. Daniels (7) and Trapp v. Mackie (8). Whatever be theposition in Roman-Dutch law. this English principle relating to judicialproceedings has been adopted in this country and has also been thesettled law of this country for almost 150 years. Vide Nell's Court ofRequests Cases 1845 (9). Attennaike v. Don Juanis (10). Marshall'sJudgments (11). Silva v. Balasuriya (12). Wijegunatileke v. Joni Appu(13). Poulier v. Alles (14) and Abdul Cader v. Kaufmann (15).
As far as we understood Mr. H. L. de Silva's submission, he statedthat because this is a voluntary statement not made under legalcompulsion, it enjoys only qualified privilege which is forfeited by proofof malice. But counsel has conceded – and that was also the holding ofthe trial judge – that the Army Commander had in the circumstancesof this case a duty to entertain the complaint. In the circumstances ofthis case can a reciprocal right in the 1 st defendant also be inferredentitling him to make that complaint ?
In Harrison v. Bush (16), Lord Campbell, C.J., said:
"A communication bona fide upon any subject matter in which the
party communicating has an interestis privileged, if made to a
person having a corresponding interest or duty, although it containscriminating matters which, without this privilege, would beslanderous and actionable."
In Hunt v. Great Northern Railway (17), Lord Esher, M.R. said:
"A privileged occasion arises if the communication is of such anature that it could be fairly said that those who made it had aninterest in making such a communication and those to whom it wasmade had a corresponding interest in having it made to them. Whenthese two things co-exist, the occasion is a privileged one."
In R. v. Rule (18), the Court said:
"The common interest may be in respect of very varied and -different matters; indeed the only limitation appears to be that itshould be something legitimate and proper, something which thecourts will take cognizance of and not merely an interest which isdue to idle curiosity or a desire for gossip."
The above principles were stated in the context of qualified privilege.
Even when there is no duty to make a statement, it is privileged if itis made in the protection of some lawful interest such as property orreputation. In A'dam v. Ward (19), the plaintiff, a member of, Parliament, had in the course of a debate defamed a General of theArmy. The General complained to the Army Council, which went intothe matter and found that the strictures were unjustified. The ArmyCouncil directed the defendant, who was its secretary, to publish inthe newspapers a letter vindicating the General. This letter alsocontained some defamatory material concerning the plaintiff. TheHouse of Lords held that the occasion of this publication wasprivileged. In the course of his judgment Lord Atkinson said:
"Every subject of the Crown, whatever position of our far-flungEmpire he may inhabit, has and must have an interest in the BritishArmy, its courage, the confidence of its men in their offices, itsdiscipline and efficiency.. .It would be a disgrace and injury to theService if a man publicly accused of the shameful breach ofduty…was allowed to continue in command of a brigade in theArmy, unless and until he had been cleared of the accusation madeagainst him. Every subject, therefore, who had an interest in theArmy had an interest in being by a public communication informedof the General's acquittal."
Salmorid on Torts (14th Ed.) p.233 states:
"The same principle is applicable even when the interest of thedefendant is merely the general interest which he possesses incommon with all others in the honest and efficient exercise by publicofficials of the duties entrusted to them. Thus any member of thepublic may make charges of misconduct against any public servantand the communication will be privileged; but the charge must be. made to the proper persons-that is to say, to those who have acorresponding interest."
It has been mentioned earlier that as an additional feature andreinforcing his interests the 1st defendant occupied the premisesallocated to the commander of the Gemunu Watch and the plaintiffwas its Commanding Officer. The plaintiff was not only an officersuperior in rank to the 1 st defendant in the Army, but also havingsome direct influence over his position. The complaint was clearlymade by the 1st defendant in his capacity as an officer of the Army
relating to the conduct and discipline of an Army officer in his capacityas a superior officer. It is beyond doubt that the 1 st defendant had asufficient interest to make that charge against the plaintiff and theArmy Commander had a reciprocal duty to receive it.
We will now deal with Mr, H. L. de Silva's submissions that absoluteprivilege would not apply to the complaint since it was in the nature ofa voluntary complaint. No doubt the compulsory nature of theimpugned statement has been the subject of comment in some of thereported cases. But in those cases this was. stated as a fact inmarshalling the evidence and not with a view to drawing a distinctionbetween voluntary and compulsory statements. This was one groundamong others which went into such decisions. Absolute privilege restson a broader basis and is dependent on a number of factors.
The general principle of law is that no action will lie for defamatorystatements made by a party and used in the course of anyproceedings before a court of justice or tribunal recognised by law.Such statements include pleadings, interrogatories, affidavits,evidence, the judgment or the record, even though such statementsare false and malicious and irrelevant. No action will also lie fordefamatory statements contained in any document which is incidentalto the proper initiation of judicial or quasi-judicial proceedings, namely,an information, complaint, writ by which proceedings are set inmotion. The privilege will attach even if the document containedsomething which was irrelevant or which should not have beencontained in it. Gatley, paragraphs 401 and 409 to 41 1.
Mr. H. L. de Silva has submitted with reference to this matter thatthe complaint of the 1st defendant is not a statement entitled toabsolute privilege because it falls outside the range or the terminalpoints covering such privilege which is accorded by the law. The caselaw shows that the courts have applied this principle sparingly andhave not been inclined to extend this principle of absolute privilegeother than to "quasi-judicial tribunals recognised by law". Even asregards courts and such tribunals, it is confined strictly only tostatements in which public policy and the public interest require thatsuch protection should be given. A voluntary statement relating to apersonal matter as in this case, Mr. de Silva submits, does not qualifyfor protection. To enjoy absolute privilege it must constitute a formalcomplaint and constitute part of the proceedings. In Linclon v. Daniels(supra). Lord Justice Devlin in analysing the legal position stated:
"The absolute privilege which covers proceedings in or before acourt of justice can be divided into three categories. The firstcategory covers all matters that are done coram judice. Thisextends to everything that is said in the course of proceedings byjudges, parties, counsel and witnesses, and includes the contentsof documents put in as evidence. The second covers everything thatis done from the inception of the proceedings onwards and extendsto all pleadings and other documents brought into existence for thepurpose of the proceedings and starting with the writ or otherdocument which institutes the proceedings. The third category isthe most difficult of the three to define. It is based on the authorityof Watson v. M'Ewan (20), in which the House of Lords held thatthe privilege attaching to evidence which a witness gave coramjudice extended to the precognition or proof of that evidence takenby a solicitor. It is immaterial whether the proof is or is not taken inthe course of proceedings. In Beresford v. White, (21) the privilegewas held to attach to what was said in the course of an interview bya solicitor with a person who might or might not be in a position tobe a witness on behalf of his client in contemplated proceedings."
It is the second and third categories that have a bearing on thematter before us. In Watson v. M'Ewan (supra), the Earl of HalsburyLord Chancellor reasoned that if this absolute privilege is not granted,a plaintiff could say:
"'I do not bring the action against you for what you said in thewitness-box, but I bring the action against you for what you told thesolicitor you were about to say in the witness box.' If that could bedone the object for which the privilege exists is gone, because thenno witness could be called; no one would know whether what hewas going to say was relevant to the question in debate betweenthe parties. A witness would only have to'say, T shall not tell youanything; I may have an action brought against me tomorrow if I do;therefore I shall not give you any inormation at all’. It is very obviousthat the public policy which renders the protection of witnessesnecessary for the administration of justice must as a necessaryconsequence involve that which is a step towards and is part of theadministration of justice-namely, the preliminary examination ofwitnesses to find out what they can prove."
An examination of the case law shows how difficult it is to delimitthe second and third categories. In Watson v. M'Ewan (supra), theHouse of Lords held that a witness who makes a statement to theclient and solicitor in preparing the evidence for the trial is absolutelyprotected. In Lilley v. Roney (22), a letter of complaint to the LawSociety against a solicitor's accompanied by an affidavit in terms of therules under the Solicitor's Act was held to be absolutely privileged.Lord Devlin in Lincoln v. Daniels (supra) commenting on this case said:
"Lilley v. Roney is no authority for the proposition that allproceedings must be regarded as initiated when first a letter ofcomplaint is written to the body authorised to try them. The letter inthat case followed the form given in the Schedule to the SolicitorsAct Rules, and, as required by the rules, was accompanied by anaffidavit. Cave, J. said: 'The letter with the.affidavit is the form givenfor setting in motion what are admittedly judicial proceedings'. Onsuch a point form is of the first importance, it is by form rather thanby the substance of the complaint that a writ is to be distinguishedfrom a letter before action. When the body to whom the letter isaddressed has many other functions besides that of investigatingcomplaints, it may not be easy to.say when 'proceedings' begin."
We find the following cases falling on the other side of the line;namely, where the privilege was denied: Gerhold v. Baker (23), Rippon .v. Shapcott (24), Szalatnay-Stacho v. Fink (25), Lincoln v. Daniels(supra) and Roy v. Prior (26).
In Gerhold's case (supra) the plaintiff carried on business in Londonand had applied to a London tribunal constituted under the MilitaryServices Act, 1916 for exemption from military service. He claimedthe exemption on the basis that he cultivated a farm in Essex, whichcame under the Tendering tribunal in Essex. The military member ofthe London tribunal wrote to the defendant, who was a member of theTendering tribunal being its agricultural representative, stating that thechairman of the London tribunal wanted the defendant's assistance indeciding the matter. In reply the defendant, while expressing hisinability to be present, included some very derogatory remarks aboutthe plaintiff as a farmer. Bankes, J., without elaborating on the reasons,held that this case can be distinguished from Watson v. M’Ewan(supra).
In Rippon v. Shapcott (supra), the plaintiff was a barrister whosename was included in a list of counsel entitled to conduct defencesbefore courts-martial in Germany. The list had been prepared by thedefendant, a member of the Judge-Advocates Department inconsultation with the Bar Council. The alleged libel was contained in a
letter written by the defendant to the Bar Council to the effect that theJudge-Advocate General had removed the plaintiff’s name from thelist and stated that this was due to misconduct on the part of theplaintiff. Although the letter was not in form a complaint as such, theBar Council took action on it. It was held that the letter could not beaccorded absolute privilege.
Szalatnay-Stacho v. Fink (supra) was a war time case relating to theCzechoslovakian Government in exile in London. The Public Prosecutorof the Czechoslovak-Military Court of Appeal sent the lettercomplained of together with some statements to the Military Office ofthe President of the Republic of Czechoslovakia. Somervell, L. J.. heldthat "the effect of the letter was that the defendant was forwarding adossier for investigation and any action that may be thought proper"and that it was too remote from actual or contemplated proceedings.
In Roy v. Prior (supra) the Court held that the immunity did notextend to-, evidence contained in an affidavit given by a solicitor insupport of a bench warrant which was given ex parte and incircumstances in which the person against whom the warrant wassought had no means and no other party had any interest inchallenging the evidence.
Some of these cases were reviewed in Lincoln v. Daniels (supra). Inthis case the defendant wrote two letters to the Secretary of the BarCouncil containing defamatory matter concerning the plaintiff, whowas a Queen’s Counsel. The Court of Appeal, while stating that theposition was not entirely satisfactory, held that the Bar Council was adistinct body from the Inns of Court and derived its powers from thegeneral meeting of the Bar and did not exercise judicial functions. Theletters therefore did not initiate proceedings and were too remotefrom possible subsequent proceedings before the Benchers to whichabsolute privilege would have been accorded. Devlin, L. J., said-
"lt is a question how far the principle in Watson v. M'Evan(supra) is to be taken. The other authorities in which the case hasbeen considered show that the connection between the twothings-the evidence and the precognition, the document and thedraft, the actuality that is undeniably privileged and theforeshadowing of it-must be reasonably close."
His exact reasoning appears to be contained in the followingpassage
"I have come to the conclusion that the privilege that coversproceedings in a court of justice ought not to be extended tomatters outside those proceedings except where it is strictlynecessary to do so in order to protect those who are to participatein the proceedings from a flank attack. It is true that it is notabsolutely necessary for a witness to give a proof, but it is practicallynecessary for him to do so, as it is practically necessary for a litigantto engage a solicitor. The sense of LORD HAL'SBURY'S speech isthat the extension of the privilege to proofs and precognition ispractically necessary for the administration of justice; without it,-inhis view, no witness could be called. I do not think that the samedegree of necessity can be said to attach to the functions of the BarCouncil in relation to the Inns of Court. It is a convenience to thepublic to have a central body to deal with, but that is as high as itcan be put. In my judgment the defence of absolute privilege fails."
Turning to the facts of the present case, if the plaintiff had based hisarguments on the written complaint P9. then this may well have beena border-line case and the plaintiff could have pressed the argument-that the letter being vague and unspecific in form was in the nature ofa general intimation and not a charge and was too remote to beconsidered as an actual initiation of proceedings. But unfortunately forthe plaintiff a reliance on P9 would at the same time imperil his casehaving regard to the first objection taken by Mr. Jayewardene thatthere was nothing defamatory of the plaintiff in P9. Now, when wecome to the so-called complaint of the 14th July relied on by Mr. H. L.de Silva, we find that it is closer in proximity to the proceedings thanP9' It would also appear that this oral complaint constituted adiscussion between the Army Commander and the 1 st defendant afterP9 was handed over, whereby the Army Commander made inquiriesand elicited the details and circumstances relating to the vaguestatements contained in P9. There is no doubt that it is upon thismaterial that Major-General Attygalle, the Army Commander, thenproceeded to take definitive action to convene a court of inquiry. Thisstatement therefore determines the starting point or the point ofinitiation of the proceedings and falls within class two referred to byLord Devlin and is not a matter ol precognition or remoteness. Thestatement relied on by plaintiff's counsel is not just a vague request forinvestigation-that could-have been said of P9-but contained specificcharges and constituted a specific request for investigation and reliefThe very fact that counsel for the plaintiff relies on the oral statementalso shows that the complaint did not require a specific form – in factthe applicable statutory provisions do not prescribe a form.
In Hasselblad (GB) Ltd. v. Orbinson (27) a written complaint wassent to European Economic Community which had power to holdinquiries. The U.K. Court of Appeal held that, since the Commission'sproceedings relied heavily on written communications to provide thefoundation for its decision, the letter was regarded as having beensufficiently closely connected to the process of giving evidence lor it tobe covered by absolute privilege.
In all the circumstances of this case we would hold that the oralcomplaint relied on by the plaintiff constituted an initiation ofproceedings before the court of inquiry and constitutes a part andparcel of the proceedings It would therefore be entitled to absoluteprivilege. If so, the question of malice is irrelevant to the decision andall the evidence extraneous to this issue should be struck out Wetherefore make no pronouncement either way on the other lactualmatters referred to by the learned trial judge.
We therefore affirm the judgment of the Court of Appeal on thisground and dismiss the appeal with costs. The defendants would beentitled to costs in all three courts.
Appeal dismissed.