Judges priviledge

MagicSean

I'll keep it vague. In court today a solicitor brought up financial difficulties in mitigation. He presented a letter from a bank as proof of mortgage difficulties. The judge commented that the bank appeard to have resorted to blackmail. He said a few other things about the letter too. He also named the bank. The letter appeared to disturb the judge to such an extent that a man who looked to be going to prison beforehand was then given probation.

I was curious if the judge had left himself open to defamation proceedings by commenting on the bank resorting to blackmail or is there any protection given to judges in court.

Reloc8

Nope.

Fully protected. S. 17(2)(f) Defamation Act 2009.

MagicSean

Reloc8 wrote: »

Nope.

Fully protected. S. 17(2)(f) Defamation Act 2009.

But are the judges musings a part of his function?

Reloc8

The test is whether he or she when making the statement was performing a judicial funcition, not whether it was necessary for him or her to say what they said in order to do so.

Section 17(1) also provides that common law defences of privilege continue to exist after the enactment of the Defamation Act 2009.

Common Law Position :-


E.OK v D.K & ors (2001) 3 IR 568. (Supreme Court - expert witness has full immunity from suit in respect of evidence given during the course of trial)

"Moreover, it is recognised that justice is more likely to be achieved where persons participating in litigation whether as parties, witnesses, judges, jurors or lawyers can discharge their function without the fear of being held to account, at the suit of, perhaps, a disgruntled litigant for the manner in which he performs his role. That these factors should result in a witness being protected from proceedings in respect of evidence given in court has been long recognised..."

Q.E.D protection afforded to judges is not less than that afforded to expert witnesses.

Also in that case the Supreme Court approved the following passage from Hall & Co. v Simons (2000) 3 WLR 543 (House of Lords) :-

"No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects witnesses, lawyers and the judge. The administration of justice requires that participants in court proceedings should be able to speak freely without being inhibited by fear of being sued, even unsuccessfully, for what they say. The immunity has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it is said that a similar immunity against proceedings for negligence is necessary to enable advocates to conduct the litigation properly."

Its a full and absolute protection for words said by a judge when sitting as a judge. Very sensibly so.

MagicSean

What if the local paper were to repeat what he said?

Our man in Havana

Not a problem.

They are simply reporting what was said under privilege.

The same also applies to reporting speeches made in the Dáil.

Reloc8

Re publication by newspaper - absolute privilege under S. 17(2)(i) Defamation Act 2009

"(i) a fair and accurate report of proceedings publicly heard before, or decision made public by, any court—

(i) established by law in the State, or

(ii) established under the law of Northern Ireland"

And yes what the Judge said is inherently part of proceedings.

The above does not preclude any other defence available including fair comment/justification.