Scottish Court of Session Decisions

Lord Justice-Clerk.—I entirely concur with the decision of the Lord Ordinary rejecting the proposed issues based upon evidence given by the defender in the witness-box in a judicial proceeding. Nothing is, I think, more clearly settled in our law than this, that a witness is absolutely privileged in giving his evidence, pertinent to the issue, and cannot be subjected in damages for slander for what he says in the Court of justice.

As regards the two issues which the Lord Ordinary has approved in the case, I am unable to agree with him in allowing the first of the two issues. It is evident that information which a medical man obtains as to a patient in his professional capacity is confidential, and ought not to be disclosed to others. At the same time, it must depend on circumstances whether any disclosure made to others is a wrong, for which compensation may be sought by an action of damages in a Court of law. And it would be necessary that a pursuer proposing to take an issue should be most specific in putting in issue the matters said to have been disclosed, of which it is alleged that the disclosure was an actionable wrong. The form of the issue proposed in this case is such as I have never seen. The question asked is only whether there were disclosed “matters relative to the pursuer and her state of health.” I do not think that any such issue should be allowed. It is also objectionable because, if allowed, it might enable the pursuer to bring forward the alleged slander dealt with in the second of the approved issues, and this might plainly lead to injustice, for it might lead to damages being given twice for the same wrong.

As regards the second issue allowed by the Lord Ordinary, and the relative issue in the other case, I am of opinion that these must be allowed. The words of alleged slander complained of seem to me to be such as fairly to bear the innuendo that the pursuers put upon them, and if the innuendo were made out to the satisfaction of the jury under the directions of the Judge at the trial there would be a case for damages.

I have only to add that I do not see at present any sufficient ground for inserting a statement of malice in the issue. It is possible that a question may arise on that matter at the trial, but in my judgment the case ought to be sent to trial on the issue as adjusted by the Lord Ordinary.

Lord Young.—I agree with the Lord Ordinary when he says that this is a case of much interest and legal importance. That your Lordship also thinks so I infer from the observations which you have made upon the established rule of law, that everyone giving evidence in a Court of justice, being admissible as a witness, and answering the questions which are properly put to him, which those allowed by the Court are presumed to be, is privileged, and that it is in the interests of justice, and the public for whom justice is administered, that he should not give his answers under any apprehension of being liable to an action of damages should his evidence be defamatory of anyone, whether a party to the action or not. The ground upon which that rule of law is founded your Lordship has explained, and it is indeed obvious. It is in the interests of the public that the truth should be ascertained in a Court of justice, and that witnesses should give their evidence without any such apprehension or fear.

Your Lordship is of opinion that the second issue should be allowed here, because it does not relate to the statements made by the defender in the witness-box, but to the information previously given by him to the party who called him as a witness. I think the interests of justice, and of the public in its administration, apply to the one as well as to the other. It would be no encouragement to the fearless speaking of the truth in the witness-box to say to the witness:—“You need be under no apprehension of an action of damages for what you shall swear to in the witness-box, but keep in view that you are liable to such action if you have beforehand informed the party who calls you of the facts which you can testify, and to testify which you are called.”

Now, what are the facts in this case? The case does present, as I have said, agreeing with the Lord Ordinary, questions of very general interest and importance, but still, like most cases, it has its own specialties and peculiarities, of which the chief here is that the whole matter arises out of a disagreement between husband and wife. The wife believed—I assume honestly—she had been illused by her husband, so as to affect her health, and that to such extent that she could not endure its continuance, and therefore left his society and residence, and went to reside with her father at some distance. Then, with a view to obtain separation from her husband and her support from him without the necessity of living with him and submitting to the continuance of the illusage, it occurred to her, or she was advised, that her proper course was to raise an action of separation and aliment. With a view to that, she was advised to resort to the defender, who is a well-known and indeed very eminent member of the medical profession, and that with the view of ascertaining and getting his testimony, should his medical opinion prove favourable to her, that the condition of broken-down health in which she undoubtedly was, was attributable to such illusage as she alleged her husband had subjected her to, and was not attributable to any other cause. The defender visited her in order to examine her person, and ascertain from her the facts connected with the matters upon which she desired his medical opinion and advice. He did examine her person, and questioned her as to matters about which she might not have given information without questioning, the result being as noted at the time in the defender's professional note-book. (His Lordship read the defender's note of October 25, 1901.)—Now, these are the notes which the defender made on and at the time of his examination and interview. No one can doubt that these notes were made privately, and with a view to reminding him, should his services be again required regarding what he had seen and heard, the impression thereby made upon him and the advice which he gave.

Now, I cannot see any impropriety, and indeed I feel sure that there was none, in his making these notes with regard to what had passed, and what he had been told of the lady's habits, and the impression made upon him, and the advice he gave, that she should go to a nursing home until the birth of her child, that being in his opinion the best for her health and so also the best for the child of which she was pregnant, and the impression made upon his mind by the way in which they took that advice, viz., that they were not anxious that the gestation should be prolonged by sending her to a nursing home to be attended to there. The action of separation and aliment is brought by the wife against her husband. She was of course at liberty to call the defender as her witness, to give the result of his examination, and the opinion which he thereupon had formed, and he would have been called, no doubt, as her witness if he had not most distinctly given both her and her father to understand that his opinion was not favourable to her view, and that he attributed her condition, not to the alleged cruel treatment by her husband, but to her own infirmity and bad state of health, produced or aggravated by the way in which she had for a long while been living—using opiates, and alcoholics largely and constantly. It so happened that, about two years after his examination of the pursuer, and his interview with her, the defender was resorted to professionally by her husband. He avers, and probably nobody will doubt the truth of the averment, that, when resorted to by the husband, and asked by him to examine the pursuer, he accepted the employment and made the examination without any recollection of having examined the pursuer before and upon her own employment, but that he was informed then that this was the lady he examined two years before. He is then asked by the husband:—“Well, what passed between you and my wife then? My wife resorted to you for advice upon her then condition, tell me what was that condition, and what passed between you and my wife regarding it.” I cannot think it doubtful that the defender acted not only legally but with perfect propriety in giving the husband information of what had passed between him and his wife, but it is I think unnecessary for us to decide that, if the view be sound which I take of the subsequent examination of the defender as a witness, although called not by the wife, but by the husband in the action of separation and aliment.

Was he in that action an admissible witness for the husband? We must hold that he was, for his evidence was admitted by the Judge, and we cannot hold that the less conclusive because no objection was taken to his admissibility. The only parties interested were the husband and the wife, and they were respectively represented by presumably competent law-agents and counsel. The Judge does not always, or even usually, interpose any objection to the competency of a witness. Nor does he generally, although perhaps not so infrequently, suggest an objection to the competency of questions put to a witness. If the parties are agreed, and the Judge interposes no objection, then the evidence given by that witness is competent evidence. Now, it is stated, and not disputed upon record here, that all the evidence which the defender gave was in answer to questions which were not objected to by either party or by the learned Judge. I must therefore hold that in that action between husband and wife the defender was a competent witness, and that what he was asked, and what he gave evidence upon, was legally admissible evidence upon which the Court could and must proceed in determining the facts according to which the case before the Court was to be determined.

It was contended that although no action at the instance of the pursuer can be sustained against the defender for having given that evidence—I will speak about her father by and by—an action may be brought against him for having given the information which led to him being called as a witness. There is no averment or suggestion that any statement was made previous to the trial or previous to the examination of the defender as a witness, other than of the facts which he was asked about and gave his evidence about in the witness-box. He furnished the husband with the note which he made, and which I have already read. I have also already said that he, in my opinion with perfect propriety, informed the husband of the note which he had made of the interview with his wife, and the opinion which he had then formed and still retained—whether my opinion is right upon that or not, he in point of fact furnished the husband with the note, and it must have been produced in process before he was examined upon it in the witness-box, and before it was put in evidence.

Lord Trayner.—No. It was handed to him.

Lord Young.—It was before both parties, was before the wife and her advisers as well as before the husband and his advisers, and was before the Judge. It may be assumed that the defender was entitled to refuse if asked to give information privately in precognition or otherwise, although, as I have said, he acted with perfect propriety in giving it. No one is bound to submit to precognition by a litigant, or intending litigant. I have already pointed out that the professional note-book was legal evidence—regularly and without objection judicially admitted without reference to information by precognition or otherwise prior to the trial. It is therefore obvious that had there been no such prior information the notes would have been produced, and the testimony of their writer regarding the facts noted given publicly in open Court exactly as they were. How the Judge would or ought to have dealt with an objection by the witness had he seen fit to state any, either to produce the notes or answer all or any of the questions put to him about them, we are not called upon to decide.

I have indicated, I hope sufficiently, my opinion that the husband was legally entitled to all the evidence which he obtained and adduced regarding the examination of his wife by the medical man to whom she resorted in the circumstances, as to which there is no doubt or indeed dispute.

What I have said refers principally at least to the action at the instance of the wife against the defender. Her father, it is or may be suggested, is in a different position. I cannot see any ground for that. The rule and the reason for it which your Lordship referred to, and to which I have made so frequent reference, of privilege against any action of damages for defamatory facts sworn to by a witness in Court, apply not only to the parties iu the action before the Court, but also to any outsider. A witness is not liable to an action of damages for an answer to a question relevant to the case in which he is examined—is not liable to a third party any more than to a party in the action. If that were not so, then, to a large extent at least, the reason for the rule would be frustrated. Therefore I can see no distinction between the wife and her father with respect to this action against the defender, and my opinion upon the whole matter is, that there is here no relevant case against him, and I think it is only just and fair to him to state, so far as my opinion goes, that nothing which he is alleged to have done or said was improper.

Lord Trayner.—I agree with the Lord Ordinary in thinking that the second and fourth issues proposed by the pursuer cannot be allowed. They refer to statements made by the defender when under examination as a witness. I think it well settled that what is stated by a witness in the witness-box is absolutely privileged, except in the case where the witness gives expression to a calumnious statement altogether irrelevant to the subject-matter of the case in which he is being examined, or to the questions put to him. The present defender's statements do not fall within that exception. I further agree with the Lord Ordinary in thinking that the pursuer is entitled to the third issue. What is there complained of is a statement made by the defender of and concerning the pursuer, which (as innuendoed by the pursuer) is clearly actionable; and the innuendo does not appear to me unreasonable. On the contrary, I think the statement complained of quite capable, and reasonably capable, of being read as meaning what the pursuer avers the defender did mean. I am, however, for disallowing the first of the issues proposed by the pursuer, and which the Lord Ordinary has allowed. It is founded on a breach of confidence. But I cannot say that every breach of confidence is actionable. A medical man called in to advise a patient is well advised when he declines to say even that he had been consulted, but it depends on what he says whether his statement is actionable or not. It may be indiscreet, but not actionable. For example, if a medical man said to A that he had been called in to see B, and on being asked by A what was the matter with B, he replied that he was labouring under a severe cold—that would not be actionable. On the other hand, if he stated that B was labouring under some malady, the consequence of misconduct, that would or might be actionable. In the present case, if you exclude the part of the defender's statement which as innuendoed is slanderous, there is nothing in it which can be regarded as an actionable breach of confidence. In coming to the conclusion that this issue should be disallowed, I am not influenced to any extent by the consideration that the statement complained of was made to the pursuer's husband. In the position in which the pursuer and her husband stood towards each other—and that in the knowledge of the defender—I think the defender had no right to make to the pursuer's husband any statement which he could not justifiably, or without incurring liability for damages, have made to a stranger.

Lord Moncreiff.—As all your Lordships have done, I have considered this case most anxiously. I agree that no issue should be allowed as to the evidence given by the defender in Court. The privilege of a witness is absolute, and the pursuer at the trial did not even object to the defender's evidence on the ground of confidentiality. The plea of confidentiality is the privilege of the client or patient; and if the client or patient does not object the witness is entitled and bound to disclose what was communicated to him in confidence.

But the Lord Ordinary has allowed two issues in respect of statements made not on oath. The first is based on an alleged breach of confidentiality, the damages claimed being £2500.

I am not prepared to hold that statements voluntarily given in answer to questions in precognition are necessarily privileged. But the pursuer was bound to specify and put in issue the statements complained of. She has not done so, and does not propose to do so, and I am not surprised, because apart from the alleged slander at the conclusion of the defender's notes there is nothing in them to warrant the large claim made. But the alleged slander forms the subject of the second issue, on which also damages (£2500) are asked; and thus the two issues overlap. The pursuer is not entitled to double damages for the same wrong. I am therefore on that ground for disallowing the first issue allowed by the Lord Ordinary. At the same time the breach of confidentiality, if proved, may possibly have some bearing on the second issue allowed.

The second issue as to the alleged slander raises questions of considerable delicacy. I felt from an early stage of the discussion that a satisfactory decision upon them could not be arrived at without inquiry. The defender pleads that the communications which he made to the pursuer's husband and his legal advisers in October 1903 were privileged; and he may succeed in proving that they were. But at the present stage we must decide that question on the assumption that the pursuer will succeed in proving her averments. And on that assumption, having considered the authorities, I have come to the conclusion that a case of privilege is not disclosed on the pursuer's averments. The words complained of are undoubtedly calumnious. They are not said to be true in the sense that the pursuer and her father intended to produce premature labour for the reason alleged. Veritas is not pleaded. If the pursuer had averred that the defender at once communicated his suspicion to the pursuer's husband, a case of privilege might perhaps have been held to be disclosed on the ground that such a communication must be presumed to have been made to prevent the commission of a crime of which it was the husband's right and interest to be warned. But she does not aver that, and it is admittedly not the case. The defender did not communicate his suspicions until two years later, and then according to the pursuer, in circumstances which prima facie do not infer privilege.

The defender, however, may succeed at the trial in shewing that he had a right and a duty to make the disclosure. This will depend mainly at least upon the evidence as to what took place at the first interview between the defender and the pursuer and her father. If the defender can prove that what was said upon that occasion, or what he observed, was such as to induce a reasonable belief in the truth of his suspicion, it may go a long way to establishing a case of privilege even although, as we must assume, the suspicion was unfounded.

If the defender succeeds in satisfying the Court that the communication was privileged the pursuer cannot succeed without proving that the communication was made maliciously. Personal malice is not averred or suggested, and the first thing the Judge will have to decide is whether the pursuer has made averments which entitle her to a proof of malice. If he holds that she has not, the defender will be entitled to a verdict. If he holds that she has, the question of malice will be left to the jury.

I should have preferred that these delicate questions should be tried by a Judge without a jury. But the pursuer does not agree to this course, and the Lord Ordinary, a Judge of long experience, has selected trial by jury. We do not, according to practice and decisions in both Divisions of the Court, interfere with a Lord Ordinary's discretion as to the mode of inquiry in the absence of very exceptional circumstances.

I therefore reluctantly agree with the majority that the second issue allowed by the Lord Ordinary should be allowed as it stands, and the case go to trial.