When one examines these two appeals, I think it is impossible to say that any different question arises in the one from that which arises in the other. The same judgment is applicable to both.
When one examines with care the different allegations made in the condescendences and the answers, I do not think any question arises as to the confidential nature of the employment between patient and medical man. I do not propose to express any opinion upon what would be the legal determination of that question if it arose. It may be that it raises very serious and difficult questions, and I certainly am not disposed to express an opinion either way in respect of questions which upon other grounds have no difficulty at all in their solution. The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a Court of justice, it is too late to argue that as if it were doubtful. By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a Court of justice, is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable—it is settled law and cannot be doubted. The remedy against a witness who has given evidence which is false and injurious to another is to indict him for perjury; but for very obvious reasons, the conduct of legal procedure by Courts of justice, with the necessity of compelling witnesses to attend, involves as one of the necessities of the administration of justice the immunity of witnesses from actions being brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument.
But then comes the question which, so far as I know, has been raised for the first time in this case. The ingenious suggestion has been made that although it is true that a witness is protected from an action in respect of evidence actually given in a Court of justice, yet no such protection exists in respect of his attendance before the solicitor at what is called apparently in Scottish law his precognition—what we call the interview between the intended witness and the solicitor who takes from him what we call the proof—that is to say, reduces to writing the evidence which the witness is about to give. One very serious element of difficulty which those who insist upon such a liability have to meet is manifest—namely, that in the whole course of the diligent inquiry that the learned counsel on both sides have made into this matter they have not found that any such liability has ever been sought to be established before. So far as I know personally in my experience no such question has ever arisen. The learned Judges who have allowed these issues have done so apparently for the first time in this case.
It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them—that is, to the solicitor or Writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply—that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, “I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box.” If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, “I shall not tell you anything; I may have an action brought against me to-morrow if I do; therefore I shall not give you any information at all.” 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 may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony.
The hardship to which I refer is this: That although when a witness does give evidence which is wilfully false you can indict him for perjury; on the other hand, if he makes the same statement, not upon oath, to a person taking down the evidence he is prepared to give, it seems to be very difficult to devise anything that would bring him to justice for that false statement. The answer, of course, dealing with it as a matter of convenience and indeed of necessity for the administration of justice, I suppose, is this: Unless he does give evidence in a Court of justice, in which case he can be indicted for perjury if his evidence is wilfully false, nobody knows anything about it—it slumbers, I suppose, in the office of the solicitor, and nobody hears or cares anything about it. Practically, I think that would be the answer. But whether that be a good answer or not, what seems to me to be an overwhelming consideration in the determination of this case is that a witness must be protected for his preliminary statement or he has no protection at all, and that there is that protection established is, as I have already said, beyond all possibility of doubt.
Now, the reason why I think that this is the only question that arises is this: It is true that the gentleman sued is an eminent medical man, and that there is a mixture of the points both in the condescendences and in the answers which has rather tended to confusion; but if one comes to look with care at the different forms of procedure one sees that everything that passed, everything that is alleged to have passed, passed between the defender and those who were engaged in the legal business. The communication complained of was no communication to strangers—to persons outside the litigation. The communication such as it is was made to the counsel and to the solicitor who was taking down the evidence. Under those circumstances it seems to me that it comes within the whole mischief of the supposed liability of a witness for what he had stated. I do not care whether he is what is called a volunteer or not; if he is a person engaged in the administration of justice, on whichever side he is called his duty is to tell the truth and the whole truth. If he tells the truth and the whole truth, it matters not on whose behalf he is called as a witness; in respect of what he swears as a witness he is protected—that cannot be denied— and when he is being examined for the purpose of being a witness he is bound to tell the whole truth according to his views, otherwise the precognition, the examination to ascertain what he will prove in the witness-box, would be worth nothing.
Under those circumstances, my Lords, it appears to me that there is but one point in this case, namely, whether the preliminary examination of a witness by a solicitor is within the same privilege as that which he would have if he had said the same thing in his sworn testimony in Court. I think the privilege is the same, and for that reason I think these judgments ought to be reversed, and I move accordingly.
I concur in the result which has been arrived at, and for the reasons which have been expressed by my noble and learned friend on the Woolsack.
So do I.
Campbell, K.C.—I understand your Lordships to intend that we should get the costs of the appeal.
Yes. I think in this case the proper order is to remit to the Court of Session to dismiss the action with costs; and in the cross appeal we dismiss the appeal with costs, and the order will be the same in the case of Watson v. Jones.