Sullivan Petitioner v. Norton

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—

Ist— 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 inroduction 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, Munster 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.

10. The Acting Advocate General referred us to the Evidence Act, Sections 149 and 150.

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 under Section 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 L.J (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 L.J.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, 11Q.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 L.J (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.