Eardley Norton, a
formidable Barrister of the Madras High Court in the colonial era, faced a
predicament of facing a defamation case for representing and defending his
client.
The Zamindar of
Bodinayakanur was being prosecuted for his alleged role in a conspiracy to
commit a dacoity. Norton, appearing for the Zamindar, argued that the case was
concocted and that a senior member of the Madras Civil Service, Sullivan, was
aware of this yet kept up the case for ulterior purposes.
Sullivan sued Norton
for defamation and it was in this case that the Madras High Court was asked to
decide the contours of counsel’s privilege.
In 1886 a full bench
consisting of Collins, Kernan, Muthuswami Ayyar, Brandt and Parker (what a
bench!) sat to hear this matter. The law laid down by the Madras High Court has
held the field ever since.
The court ruled that
it would be beyond measure embarrassing to advocates and disastrous to the
interests of clients, if an advocate were to be exposed to the liability of
civil or criminal charges for defamation for words uttered in court.
The court approved the
dictum,
“If anyone needs to be
free of all fear in the performance of arduous duty, an advocate is that
person”.
This celebrated axiom
hangs below the portrait of Eardley Norton in the Madras High Court today.
_________________________________________________________
Madras High Court
Sullivan
vs
Norton on 1 January, 1886
Bench: A J Collins, Kt., Kernan, M Ayyar,
Brandt, Parker
ORDER Arthur J.H. Collins, Kt., C.J., Kernan,
Muttusami Ayyar, Brandt and Parker, JJ.
1. This is a petition of the Hon'ble Henry
Edward Sullivan, Senior Member of Council and a member of the Madars Civil
Service, complaining of the conduct of Mr. Eardley Norton, Barrister-at-Law and
an Advocate of the High Court of Judicature, Madras.
2. The prayer of the petition is as follows:
(1) That this Hon'ble Court will call upon the
said Eardley Norton to explain under what circumstances he applied for and
obtained a subpoena against your petitioner and to justify the statements made
by him upon such application.
(2) That he may also be called upon to explain
his conduct in making charges against your petitioner during the trial of the
case of a grossly defamatory character in the absence of any evidence on the
record to justify the same.
(3) That this Hon'ble Court will pass such
orders on this petition and on the affidavit filed herewith a to your Lordships
may seem fit and proper.
(4) That the said Eardley Norton may be ordered
to pay the costs of and incident to this petition and the order to be made
thereon.
3. Mr. Sullivan alleged in his affidavit
accompanying the petition that he had been subpoenaed as a witness on behalf of
the defence in the prosecution of the Queen-Empress of India against the
zamindar of Bodinayakanur and others who were charged with abetment of dacoity
and other offences under the
Indian Penal Code; and that although he was in Court he was not called at the
trial, but that Mr. Norton, who defended the zamindar, made charges of a
grossly defamatory character against him not only during the course of the
trial but also when making an application to the High Court for leave to summon
certain witnesses, he (Mr. Sullivan) being one of those witnesses.
4. The words principally complained of were--
1st-- Mr. Norton when making an application to
the High Court for leave to summon witnesses, said:
The defence is that this is a concocted case and
that Mr. Sullivan knew it to be so concocted and he kept the case up for
ulterior purposes. Why should Mr. Sullivan try to ruin my client ? He knows
that if he is able to smash the zamindar of Bodinayakanur, he will have a
strong case against Mr. Crole.
That it is a concocted case and concocted to Mr.
Sullivan's knowledge and for reason of personal animosity.
And in his speech to the jury at the trial he
said:
He was not at all quite certain of calling
witnesses, though, as at present advised, he believed he would call some.
Independently of witnesses, he would take his stand upon the fact that no
motive had been proved against his client for the commission of the offence
with which he was charged. Nor had the prosecution even suggested the shadow of
a motive why a person in the position of the zamindar of Bodinayakanur should
behalf himself in the manner alleged for the purpose of committing that which
was a dacoity with the mere object of loot. If he were forced to call evidence,
he would say that there had been a persecution, and that the motive that
influenced the persons who had worked out the case against his client was
simply the desire to reach, through his client, Mr. Crole, the then Collector
of Madura : they were influenced by animosity and a spirit of revenge. There
existed very bitter feeling on the part of some persons against Mr. Crole,
whose conviction - moral conviction was to be obtained through the physical
conviction of the zamindar.
The question for you, gentlemen, to decide is,
should I have been committed to stand my trial here, had the case been opened
in the Lower Court as it had been opened in this ? And at the same time I am
also entitled to say this, now that we have traced these documents to the
police from Mr. Garstin, I am fairly entitled to ask you whether you think that
it is likely that, under these circumstances, with all these facts before you,
Mr. French is the true culprit upon whom the responsibility of the introduction
of Mr. Crole's name rests, an introduction which my learned friend has
characterized as a mistake. And if you agree with me that the responsibility
rests, not with Mr. French, but with a powerful, if nameless, clique, then ask
yourselves, is this a prosecution instituted in the ends of public justice or
to promote the ends of private malice ?
You may remember that I wished to recall Mr.
Garstin to ask him whether he had not communicated this scandalous record to
the Government, that the learned Chief Justice and that I must give names, that
I replied to Mr. Grant Duff, to the Hon'ble Mr. Sullivan, to the Hon'ble Mr.
Master and that his Lordship finally ruled the question irrelevant until and
unless I could prove a conspiracy. I have already told you, gentlemen, that I
cannot with the evidence at my disposal, establish that what the law would
alone hold to be a conspiracy. But there is enough upon the record already to
entitle me to ask you to believe that the present case is the outcome of
personal vindictiveness against Mr. Crole, that it is not a prosecution, but a
persecution.
As I have begun so I will end. No motive is
opened. No motive is alleged : you cannot convict upon so bald a statement as
that advanced by the prosecution. Give me your verdict, gentlemen, and in
giving it believe the theory for the defence that this in a case cast upon the
waters to gratify the shameful ends of private malice.
5. The petition supported by affidavits was
originally heard before Muttusami Ayyar and Brandt, JJ. And a rule was granted
calling upon Mr. Norton under the provisions of Section
10 of
the Letters Patent (amended) as an Advocate of the High Court to explain the
matter urged against him contained in the affidavits.
6. Upon the rule coming on for argument, the
Acting Advocate General (Mr. Shephard) and Mr. Branson appeared for Mr.
Sullivan in support of the rule, and Mr. Norton showed cause against it.
7. Mr. Norton contended that the order of the
Court calling upon him to answer the matters contained in the affidavits was
bad in law, as it was issued by a Divisional Bench consisting of only two
Judges : that it should have been issued under the scale of the Court : and
that it should have been heard by a Full Bench. He also contended that the
order was issued without such reasonable cause as was contemplated by Section
10 of
the Letters Patent.
8. He further submitted that, taking everything
to be true as stated in Mr. Sullivan's affidavit, no reasonable cause has been
shown to enable the High Court to proceed under Section
10;
and that in all he said with regard to Mr. Sullivan he was acting under his
instructions and was absolutely privileged, Minister v. Lamb 11Q.B.D. 588 : 52
L.J. (Q.B.D.).
9. The
Acting
Advocate General in supporting the rule contended that Mr. Norton had exceeded
his privilege as an advocate. He admitted that in an ordinary case it would be
sufficient for counsel to say that he was instructed but in the present case
Mr. Sullivan's position should be taken into account and that counsel must,
before he makes such serious allegations, satisfy himself of the truth of the
charges or at least take more than ordinary pains to satisfy himself that the
charges are true. He contended that it was impossible for Mr. Norton to say
that he was acting under instructions with respect to the matter complained of
in his summing up his evidence to the jury. There was no evidence of any kind
before the jury that Mr. Sullivan had been privy to the conspiracy alleged or
had been guilty of misconduct of any kind and yet Mr. Norton had reiterated his
charges against Mr. Sullivan, and although he did not mention Mr. Sullivan's
name, yet he submitted to the jury that Mr. Sullivan was guilty of gross misconduct
in connection with the trial.
11. The
Acting
Advocate General also contended that the rules of the English common law did
not apply to advocates in this country in cases of defamation - Indian
Penal Code, Section
499 -
and a person uttering defamatory words against another would be guilty of
defamation unless he came within the 9th exception given by the Act: in fact
the imputation must be made in good faith for the protection of the interest of
the person making it or of any other person or for the public good; and that
the privileges of an advocate in India, so far as liberty of speech is
concerned, is not as great as it is by the common law of England.
12. I am of opinion that a Divisional Court
consisting of two Judges has power to direct a rule to be issued calling on an
advocate of the High Court to answer matters alleged against him underSection
10 of
the Letters Patent (amended).
13. The first paragraph of the prayer of the
petition was not argued before us. Mr. Sullivan had no right to ask this Court
to inquire why Mr. Norton obtained a subpoena against him. The High Court
granted it for reasons that appeared to them sufficient.
14. The only point really involved in this case
is, will the High Court take notice of defamatory words against an individual
used by an advocate during the progress of the case.
15. The common law of England is that an
advocate is not civilly or criminally responsible for anything the may say in
his office as advocate.
16. The Courts in this country are undoubtedly
bound to administer, within the original jurisdiction, inter alia, the common
law as it prevailed in England in the year 1726 and which has not been
subsequently altered by statutes especially extending to India or by the Acts
of the Legislative Council of India.
17. Now there can be no doubt what the common
law in England in relation to the privileges of advocates was and is. In Brook
v. Montague Cro.Jao. 90, the Court of King's Bench held that a counsellor in
law retained hath a privilege to enforce anything which is informed him by his
client and to give it in evidence, it being pertinent to the matter in
question, and not to examine whether it be true or false.
18. In R.
v. Skinner Lofit. 55, Lord Mansfield, C.J., said "Neither party, witness,
counsel, jury, or judge can be put to answer, civilly or criminally, for words
spoken in office".
19. In Hodgson v. Scarlett 1 B. and A. 232, it
was held by Lord Ellenborough, C.J., that an action for defamation will not be
against a barrister for words spoken by him as counsel in a cause pertinent to
the matters in issue.
20. In Kennedy v. Brown 32 L.J.C.P. (N.S.) 137,
Erle, C.J., says, "The Advocate is trusted with interests and privileges
and powers, almost to an unlimited degree. His client must trust to him at
times for fortune and character and life. The law trusts him with a privilege
in respect of liberty of speech which is in practice bounded only by his own
sense of duty, and he may have to speak upon subjects concerning the deepest
interests of social life and the innermost feelings of the human soul,.... His
words and acts ought to be guided by a sense of duty- that is to say, duty to
his client -binding him to exert every faculty and privilege, and power in order
that he may maintain that client's right, together with duty to the Court and
himself, binding him to guard against the abuse of the powers and privileges
intrusted to him, by a constant recourse to his own sense of right".
21. In Dawkins v. Lord Rokeby L.R. 8 Q.B. 255,
the Court of Exchequer Chamber presided over by Kelly, C.B., and consisting of
nine judges, held that The authorities are clear, uniform and conclusive, that
no action of libel or slander lies, whether against judges, or 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 Floyd v.
Barker 12 Co. Rep. 23, and many earher authorities from 27 Edw. 111, pl. 15 ; 9
Hen. IV, 60, Pl. 9 ; and 9 Edw. IV, 3, pl. 10, down to the time of Lord
Coke". See also Revis v. Smith 18 O.B. 126 : 25 L.J. (C.P.) 195, in which
a number of authorities are cited.
22. In Munster v. Lamb 11 Q.B.D. 588 : 52 LJ.
(Q.B.D.), the Master of the Rolls says, referring to Dawkins v. Rokeby L.R. 8
Q.B. 255, and other cases, "if it is right and wise that such a privilege
shall be extended to a Judge... and if the privilege is equally given to a
witness,... how can it be considered that it is not equally, I would say more,
beneficial to the public that a counsel and an advocate should come to the
performance of his duty with an equally free and unfettered mind ? If any one
needs to be free of all fear in the performance of his arduous duty an advocate
is that person. His is a position of difficulty : he does not speak of that
which he knows, but he has to argue and to support a thesis which it is for him
to contend for; he has to do this in such a way as not a degrade himself; but
he has to do it under difficulties which are often pressing. If in this
position of difficulty he had to consider whether everything which he uttered
were false or true, relevant or irrelevant, he could not possibly perform his
duty with advantage to his client; and the protection which he needs and the
privilege which must be acceded to him is needed and accorded above all for the
benefit and advantage of the public."
23. From the cases I have quoted it is abundantly
clear that an advocate speaking in a Court of Justice in England is not liable
either civilly or criminally for defamatory words spoken in his office if they
are pertinent to the inquiry. But it is aid by the Acting Advocate General that
the principles of the common law thus laid down are not applicable to this
country, and that the privileges as to the liberty of speech of an advocate in
his office as advocate in this country are materially abridged, and that an
advocate is liable, if he uses defamatory language against an individual, to be
prosecuted for defamation unless he can bring himself within the 9th exception
of Section
499 of
the Indian Penal Code; and Section
150 of
the Evidence Act (Act 1 of 1872) is also referred to as supporting this
contention. That Section however refers to questions put in cross-examination
by any barrister, pleader, vakil or attorney of the class referred to in Section
148 and
gives the Court the power, if such Court is of opinion that such question was
asked without reasonable grounds to report the circumstances to the High Court,
but it limits the scope of the Section to questions asked under the
circumstances mentioned in Section
148.
24. It is also said that Mr. Norton should have
considered the position of Mr. Sullivan as a Member of Council before he carried
out his instructions and made the allegations complained of against Mr.
Sullivan.
25. I cannot agree with the Acting Advocate
General. I think that the advocates in this country have and should have the
same privileges in respect of liberty of speech bearing always in mind the
remarks of Erle, C.J., in Kennedy v. Brown 32 LJ.C.P. (N.S.) 137, they have so
long enjoyed in England; and that in this country it would be beyond measure
embarrassing to the advocate and disastrous to the interests of the client, if
the advocate was exposed to the liability of a criminal or civil charge for
defamation for words uttered in Court. To quote again the words of the Master
of the Rolls in Munster v. Lamb 11 Q.B.D. 588 : 52 L.J. (Q.B.D.), "If any
one needs to be free of all fear in the performance of his arduous duty an
advocate is that person." I see no reason to fear that the privilege will
be abused, but if it should unfortunately turn out that I am mistaken, measures
can at once be taken to prevent the abuse of the privilege, should the powers
the High Court possesses under Section
10 of
the Letters Patent (amended) prove insufficient. I hold therefore that an
advocate in this country cannot be proceeded against either civilly or
criminally for words uttered in his office as advocate.
26. I disagree with the learned Acting Advocate
General that an advocate is bound to consider the position in life of the
person whose conduct he is condemning. His words and acts ought only to be
guided by a sense of duty-duty to his client-and by a constant recourse to his
own sense of right to guard against the abuse of the powers and privileges
intrusted to him.
27. Mr. Sullivan complains that Mr. Norton acted
recklessly, unprofessionally and unscrupulously and without that due care and
caution (see Section
52, Indian
Penal Code, definition of good faith) which as an Advocate of the High Court
he was bound to take. Mr. Norton's reply is, "I acted under my
instructions: all I said and did was within the four corners of those
instructions: and my duty to my client compelled me to say what I said."
28. There is no allegation in the petition that
Mr. Norton was actuated by malice against Mr. Sullivan, and it cannot be said
that the defamatory matter complained of (if true) was not relevant to the
inquiry. I am of opinion that no reasonable cause has been shown to empower the
High Court to take proceedings under Section
10 of
the Letters Patent (amended), and I think therefore that this petition should
be dismissed.
29. Brandt, J.-- As stated in the few words
delivered at the bearing in dismissing the application, we were all agreed that
Mr. Norton was protected in what he said by the privilege of counsel, but that
this was a proper case for inquiry under the 10th Section of the Letters Patent
(amended).
30. We were all further agreed as to the
contention that a rule could not legally be made by a Divisional Bench of the
Court calling on Mr. Norton under that provision of law to answer and explain
in respect of the matters alleged against him being untenable.
31. I entirely concur with the learned Chief
Justice and my learned colleagues that there were not grounds for calling upon
Mr. Norton for any explanation in respect of any thing said or done by him in
proceedings prior to trial or during the course of the trial in which his
client was concerned prior to the conclusion of the evidence taken therein.
32. As regards counsel's speech to the jury on
the whole case, I was and remain of opinion that in the case of an issue to be
tried as to whether by inuendo or implication the Hon. Mr. Sullivan was
indicated in the several passages of that speech there would have been
sufficient evidence to lay before a jury with a view to their giving a verdict.
As however on mature consideration could not undertake to say that question
should be answered beyond doubt in the affirmative, the further question
whether, if it were beyond all reasonable doubt that the imputations were
directed at that gentleman, there would be reasonable cause for exercising the
powers conferred upon this Court by the Letters patent does not call decision.
33. Mr. Norton did not disclaim an intention on
his part to imply that he reiterated and emphasized the allegations which under
instructions he had made prior to and during the preceding part of the trial
against the Hon. Mr. Sullivan, and it certainly is not going too far to say
that the jury might, whether rightly or wrongly, understand that those
observations were directed at that gentleman.
34. As we are agreed that there are not grounds
on which Mr. Norton should be censured even. I abstain from saving anything
further than it is in my opinion a question whether his client's interests
might not have been equally well protected without suggesting that the
conspiracy, if there was one, was the result of personal feelings of enmity on
the part of individuals indicated with more or less precision.
35. As to the law on he subject the English
cases are sufficiently stated by the learned Chief Justice. There are among
them authorities which I can accept without hesitation as sufficient for the
disposal of the matter before us, without expressing any opinion as to whether
we should be bound to go to the extreme length to which the case of Munster v.
Lamb 11 Q.B.D. 588 : 52 LJ. (Q.B.D.), has carried the law as now expounded in
England.
36. As regards the arguments of the learned
Acting Advocate General, first that the Courts in this country are not bound
absolutely to follow the English precedents, or to adopt them as conclusively
applicable to all libel or slander suits, Abdul Hakim v. Tej Chandar Mukarji 3
A. 815, but that regard may and should be had to the provisions of law, if any,
in pari materia, specially applicable to this country, and secondly that some
consideration should have been had for the position and presumably high
character of the petitioner in this case. I am by no means prepared to express
entire dissent from the several propositions propounded in the case cited ; and
as to the second, I consider it sufficient to say that the legal maxim quoted
in Court that "all men are equal in the eye of the law" though it
undoubtedly is true, absolutely true in one sense, is after all but a maxim,
and such maxims are from the nature of the case capable of misleading and of
being misapplied unless applied with reservation and nice discrimination; and
this particular maxim is in my opinion by no means of itself conclusive in
respect of the proposition put forward by the learned Advocate General.
37. I would refer to one instance only in which
the maxim is not and cannot be adhered to the letter an instance of everyday
occurrence : when there is a question as to the probable truth or untruth of a
particular statement, and a statement in one sense has been made by a person of
hitherto high accredited probity and truth, and of position such as presumably
to place him above temptation to speak untruly, and a contradictory statement
on the other side by one whose character is not above suspicion and whose
circumstances might lay him open to temptation, a Judge who on those grounds
accepted the statement of the former in preference to that of the latter would
not, I presume, be obnoxious to a charge of having violated the legal maxim
above enunciated.
38. Again, having regard to probabilities,
experience shows that there is at least equal truth in the proposition nemo
repente fuit, turpissimus: men of good character do not as a rule at one bound
become absolutely depraved. To the extent that under instructions counsel might
suggest the possibility of such a change, I am willing to accept the
applicability of the maxim, but not further, in this particular case.
