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Structured Summary of the Provided Opinion

Factual and Procedural Background

The matter began with a plaint alleging a conspiracy by three defendants culminating in the giving of false and malicious evidence at the trial of the plaintiff in Bombay in March 1897. The plaint pleaded that the conspiracy and false evidence caused loss, injury and damage to the plaintiff.

At first instance Russell, J. considered preliminary matters including whether the plaint disclosed a cause of action and questions of jurisdiction and reserved the question of costs for further argument because he thought the summons for trial of preliminary issues might have been applied for earlier than it was and before certain costs were incurred. He heard arguments on costs on 23 January 1900.

Russell, J. held (after reviewing authorities and procedure) that the plaintiff must pay all costs except:

  • the costs of and incidental to the summons taken out by the second defendant on 26 June 1899 calling upon the plaintiff to give security for costs, which summons was not proceeded with; and
  • the costs of and incidental to a similar summons taken out on 9 January 1900 by the first and third defendants.

Russell, J. also held that the plaintiff should not recover costs for substituted service upon the second defendant, and ordered that otherwise costs follow the result of the case. The plaintiff appealed from the decision.

On appeal the matter was heard by Candy and Tyabji, JJ., after appearances by counsel for the parties were recorded.

Legal Issues Presented

  1. Whether the plaint discloses a sufficient cause of action (i.e., whether the allegations, taken together, give the plaintiff a civil remedy).
  2. Whether the High Court of Bombay has jurisdiction to try the suit — specifically, whether any material part of the cause of action accrued within the jurisdiction of the High Court (in Bombay).
  3. Allocation of costs arising from interlocutory and preliminary proceedings, including whether reserved costs remain for the trial judge to decide and which interlocutory costs should be borne by the plaintiff or particular defendants.

Arguments of the Parties

Appellant (Plaintiff) — Principal Allegations and Contentions

  • The plaint alleged that a material part, if not the whole, of the plaintiff's cause of action arose within the ordinary original jurisdiction of the High Court of Bombay because the conspiracy culminated in giving false and malicious evidence at the plaintiff's trial in Bombay in March 1897.
  • The plaint alleged that every loss, injury and damage sustained by the plaintiff was caused by the conspiracy and the evidence given by the defendants in pursuance thereof (see paragraphs 31 and 36 of the plaint as quoted in the opinion).
  • The plaintiff sought to treat the giving of false evidence in Bombay as part of the cause of action so as to establish jurisdiction in Bombay and a civil remedy against the defendants for the conspiracy which produced that evidence.

Respondents (Defendants) — Principal Arguments and Positions

  • The Advocate General argued that there was no obligation on the defendants to raise the preliminary issues and that it is not the practice in that Court to have the case set down for settlement of issues (this was relevant to the procedural question of setting preliminary issues down for trial).
  • The defendants contended — and the judges treated as the dominant legal proposition — that no civil action lies merely for the giving of false evidence, and therefore there is prima facie no cause of action arising out of acts in Bombay consisting of giving evidence (the proper remedy for false evidence is a prosecution for perjury).
  • The defendants argued that alleging the false evidence was given in pursuance of a conspiracy does not convert otherwise non-actionable acts (giving false evidence) into acts giving a civil right of action; the conspiracy must have produced acts which themselves would, independently, have given rise to civil liability.
  • On costs, the respondents (through Mr. Inverarity and as discussed by Russell, J.) asked for certain allocations and suggested possible divisions of costs; the court addressed these suggestions and determined which interlocutory costs should be excepted from the general rule that costs follow the result.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Bartlett v. Wood; Ferguson v. Wilson Illustrating that in the Court of Chancery costs have been in the discretion of the Court and, as a general rule, costs will follow the result. The court referenced these authorities to support the general proposition that costs normally follow the event, while recognizing judicial discretion over costs.
Hodges v. Hodges (Jessel, M.R.) Statement that dismissal with costs ought to include reserved costs, with a practice of directing registrars to insert certain words to preserve reserved costs for trial. The opinion quoted this passage to show a practice and reasoning that reserved costs are to be dealt with at trial and that dismissal with costs should include costs reserved unless otherwise directed.
British Natural & Provident Association v. Bywater (Byrne, J.) Where interlocutory applications have been ordered to stand to the trial and not mentioned to the judge, the costs of such applications are treated as costs in the action and taxed accordingly; where interlocutory applications have been disposed of but costs reserved, such costs are not to be allowed without the special direction of the judge. Used to show that trial judges retain power to deal with costs of interlocutory applications and that reserved costs require express direction to be allowed.
Koosen v. Rose Holds that when Order XIV (as applicable) provides that a judge in chambers shall deal with costs, the trial judge has no jurisdiction to interfere with such costs (a special-case rule). The court treated this as a special case because Order XIV specifically empowered the judge in chambers to decide costs; Russell, J. distinguished it from the present matter where no such special provision applied.
Salaman v. Warner (Lord Esher) Conspiracy gives a right of action only where the acts agreed to be done, and in fact done, would, without preconcert, have involved a civil injury to the plaintiff. Cited to support the principle that mere conspiracy, or conspiracy resulting only in acts that are not civilly actionable, does not give rise to a civil cause of action.
Kearney v. Lloyd (Palles, C.B.) Same principle as Salaman v. Warner: conspiracy confers a right of action only where the acts themselves would have been civilly actionable. Relied upon by the court (and cited by the judges) as authority that the alleged conspiracy must have produced acts which independently would give rise to civil liability; otherwise no civil remedy follows.
Huttley/Hultky v. Simmons (Darling, J. referencing Kearney v. Lloyd) References the Kearney principle and emphasizes the need for conspiratorial acts themselves to be civilly actionable. Used to reinforce the point that the conspiracy alone (without civilly actionable overt acts) does not give rise to a civil claim.
Revts v. Smith; Henderson v. Broomhead; Baboo Gunnesh v. Mugneeram; Dawkins v. Rokeby Authoritative statements that the giving of false evidence, however malicious, does not furnish a civil right of action; the appropriate remedy is a criminal prosecution for perjury. Candy and Tyabji, JJ. relied on these authorities to conclude that the giving of false evidence in court is not actionable in civil proceedings and therefore does not create a civil cause of action against witnesses who gave false evidence.

Court's Reasoning and Analysis

The courts' reasoning falls into two connected strands: (A) procedural and costs matters considered by Russell, J.; and (B) the substantive questions of cause of action and jurisdiction considered by the appellate court (Candy and Tyabji, JJ.).

A. Russell, J. — Procedural and Costs Analysis

  • Russell, J. observed that upon the first defendant's written statement being filed (21 December 1898) it was open to the plaintiff to have had the question whether the plaint disclosed a cause of action and the question of jurisdiction set down for trial on a preliminary issue.
  • He accepted the Advocate General's position that defendants had no obligation to raise preliminary issues and noted that it was not standard practice to set cases down for settlement of issues in that Court, though he acknowledged it could be desirable here.
  • Russell, J. analysed the meaning of the words "Costs, costs in the cause," concluding these mean the costs remain to be dealt with by the Court at the hearing rather than automatically following the event.
  • He reviewed authorities (Hodges v. Hodges; British Natural & Provident Association v. Bywater; Koosen v. Rose) to determine when reserved interlocutory costs should be dealt with by the trial judge and when a judge in chambers' order on costs is final. He distinguished Koosen v. Rose as a special case due to a specific provision in Order XIV.
  • After reviewing the proceedings, Russell, J. apportioned costs: the plaintiff must pay all costs except (i) costs relating to a summons by the second defendant on 26 June 1899 for security for costs which was not proceeded with, and (ii) costs relating to a similar summons by the first and third defendants on 9 January 1900. He refused to make the second defendant pay costs relating to substituted service upon him, and declined a suggested division of costs proposed by Mr. Inverarity.

B. Candy, J. — Substantive Analysis (Whether Part of Cause of Action Arose in Bombay)

  • Candy, J. formulated the central appellate question: on the facts recited in the plaint, can it be said that a part of the alleged cause of action arose in Bombay?
  • He examined the plaint's assertions (noting paragraphs 30, 31, 36) that the conspiracy culminated in the giving of false and malicious evidence at the plaintiff's trial in Bombay and that all loss and damage flowed from the conspiracy and evidence.
  • He accepted the legal principle that no civil action lies for giving false evidence in a court (the appropriate remedy being a prosecution for perjury), and therefore prima facie there was no cause of action arising out of the giving of evidence in Bombay.
  • The plaintiff sought to avoid this by alleging that the defendants were sued not simply for giving false evidence but for conspiring so that each would give false evidence; Candy, J. rejected the logic that conversion into a conspiracy allegation converts non-actionable acts into actionable ones.
  • He explained the fallacy: if giving false evidence were rendered actionable merely by alleging a conspiracy, then any group of witnesses who gave false evidence could be sued as conspirators, which would nullify the rule that giving false evidence is not a civil cause of action.
  • Candy, J. relied on the established principle (cited judgments such as Salaman v. Warner; Kearney v. Lloyd; Huttley v. Simmons) that a conspiracy gives a cause of action only where the acts agreed to and performed would, if done independently, involve a civil injury to the plaintiff.
  • Applying that principle, Candy, J. held that the acts done in Bombay (giving evidence) involved no civil injury giving rise to compensatory civil relief; consequential damage in Bombay does not itself constitute a part of the cause of action. He therefore affirmed that the demurrer had been rightly upheld and dismissed the appeal with costs.

C. Tyabji, J. — Substantive Analysis (Cause of Action and Jurisdiction)

  • Tyabji, J. divided the issues as twofold: (1) whether the plaint disclosed a sufficient cause of action, and (2) whether the Court had jurisdiction because any material part of the cause of action accrued within the High Court's jurisdiction. He noted these issues were linked though distinct.
  • He summarized the plaint as essentially charging conspiracy to obtain the plaintiff's conviction by giving false evidence; the conspiracy was alleged to have taken place at Hyderabad (outside jurisdiction) while the false evidence was alleged to have been given in Bombay (within jurisdiction).
  • Tyabji, J. emphasized that this was not a malicious prosecution action — there was no allegation that the defendants actually instituted the prosecution; the prosecution was admitted to have been instituted by the Nizam's Government, and the defendants were alleged only to have aided it by conspiring to give false evidence.
  • He applied the principle (citing Kearney v. Lloyd; Huttley v. Simmons; Salaman v. Warner) that mere conspiracy without an overt act causing civil injury does not give a civil cause of action. He further held that the giving of false evidence is not actionable in civil court (citing authorities including Revts v. Smith; Henderson v. Broomhead; Baboo Gunnesh v. Mugneeram; Dawkins v. Rokeby).
  • Tyabji, J. concluded that the allegations of false evidence and conspiracy do not amount to a civil cause of action and that nothing alleged to have occurred in Bombay would give the plaintiff a valid legal right to sue in the High Court of Bombay. Consequently, the suit was rightly dismissed for want of jurisdiction and the appeal was dismissed with costs.

Holding and Implications

APPEAL DISMISSED.

Implications and immediate effects:

  • The appellate court dismissed the plaintiff's appeal and ordered the appeal to be dismissed with costs. The judgment affirms the lower court's treatment of the preliminary issues and the demurrer.
  • The courts held that (i) the giving of false evidence in court is not a civil cause of action and that the proper remedy is a criminal prosecution (perjury); and (ii) alleging that false evidence was given in pursuance of a conspiracy does not, by itself, convert non-actionable acts into actionable ones — the conspiratorial acts must themselves be acts which, without conspiracy, would have given a civil remedy.
  • On costs, Russell, J.'s allocation (that the plaintiff pay all costs save the two specified interlocutory summons costs and excluding substituted service costs as noted) was the basis for the initial order; the appellate dismissal was with costs against the appellant.
  • No new legal principle or precedent was established by this opinion beyond the application and reaffirmation of existing authorities that false testimony is not actionable civilly and that conspiracy is actionable only when the underlying acts would be civilly actionable.

Attorneys and appearances were recorded in the opinion: Raikes & Jardine for the appellant; Lang & Starling for respondents Nos. 1 and 3; Robertson & Young for respondent No. 2. (This is recorded in the opinion but does not affect the legal analysis summarized above.)

    Templeton v. Laurie

    Russell, J.:— As it occurred to me that the summons for the trial of the preliminary issues might have been applied for earlier than it was, and before certain costs had been incurred, I reserved the question of costs for further argument, and it was fully argued before me on the 23rd of January, 1900.

    It appears to me that immediately upon the first defendant's written statement being filed on the 21st day of December 1898 it was open to the plaintiff to have had the question as to whether the plaint disclosed a cause of action and the question of jurisdiction set down for trial on a preliminary issue. The Advocate General, I think, was right in his contention that there was no obligation on the defendants to raise the preliminary issues at all, and it is not the practice in this Court to have the case set down for settlement of issues, although in this instance it will be very desirable to do so.

    An interesting argument was raised as to the meaning of the words “Costs, costs in the cause,” and I am of opinion that these words do not mean that these costs will follow the event, but that those costs remain to be dealt with by the Court at the hearing. In the Court of Chancery, as is well known, costs have always been in the discretion of the Court, and as a general rule costs will follow the result: see Bartlett v. Wood; Ferguson v. Wilson. In Hodges v. Hodges, Jessel, M.R, says: “The dismissal of an action with costs ought to include all costs reserved. I will give instructions to the Registrar always to insert, without any special directions, in all orders made in this branch of the Court the words ‘inducing costs of all applications ordered to stand over until trial and all costs reserved to be disposal of at the trial,’ so that it will be for the other side to show why they should not be put in.”

    But in British Natural &c. Provident association v. Bywater Byrne, J., says: “Where interlocutory applications have been ordered to stand to the trial and are not then mentioned to the Judge, the costs of such applications are to be treated as costs in the action and taxed accordingly, and need not be mentioned in the judgment. Where interlocutory applications have been disposed of, but the costs have been reserved, such costs are not to be mentioned in the judgment, or order, or allowed on taxation, without the special direction of the judge.”

    The above expressions “so that it will be for the other side to show why they should not be put in” and “where interlocutory applications have been ordered to stand to the trial and are not then mentioned to the Judge” clearly show that the Judge at the trial has still power to deal with such costs. In Koosen v. Rose, which Mr. inveracity brought to my attention, it was held that where, on an application under order 14, the Judge in chambers has made an order as to costs, the Judge at the trial has no jurisdiction to interfere with these costs. But I think that this is a special case, because order 14 specially provides that the Judge in chambers shall deal with the costs. This being so, I have gone through the proceedings and I have came to the conclusion that the plaintiff must pay all the costs save and except the costs of and incidental to the summons taken out by the second defendant on the 26th June, 1899, calling upon the plaintiff to give security for the costs, which summons was not proceeded with; and also save and except the costs of and incidental to the similar summons taken out on the 9th January, 1900, by the first and third defendants. Save and except these two proceedings, the costs of all the others must follow the result of the case; and I do not think that the second defendant ought to pay the costs of and incidental to the substituted service upon him. The plaintiff opposed the summons to set down the case on preliminary issues and failed on the summons and also on one of the questions raised thereby, and I do not think that there should be any division of costs such as was suggested by Mr. Inverarity. The order for costs will therefore be drawn up in accordance with the above judgment.

    The plaintiff appealed. The appeal was heard by Candy and Tyabji, JJ.

    Raikes and Jardine for appellant (plaintiff).

    Lang and Starling for respondents Nos. 1 and 6 (defendants Nos. 1 and 3).

    Robertson and Young for respondent No. 2 (defendant No. 2).

    Candy, J.:— It is unnecessary to recapitulate the introductory facts. The question for our decision may be formulated thug: On the facts recited in the plaint, can it be said that a part of the alleged cause of action arose in Bombay?

    The plaintiff says (paragraph 31): “A material part, if not the whole, of the plaintiff's cause of action arose within the ordinary original jurisdiction of this Honourable Court, inasmuch as the conspiracy between the three defendants herein culminated in giving false and malicious evidence to the peril and prejudice of the plaintiff in his trial in Bombay in March, 1897.” And again (paragraph 36): “The plaintiff charges that every loss, injury and damage which he has sustained was caused by the conspiracy on the part of the three defendants herein and the evidence given by them in pursuance thereof.” The object of the conspiracy is thus stated (paragraph 30): “All the three defendants have, on the occasions hereinbefore referred to, given falsa evidence with a view of substantiating a false theory as to the cause of the death of the said Marion Edith Whittaker in order to mislead the respective tribunals and to secure the conviction of the plaintiff for complicity in the alleged abortion.”

    Now it is admitted that no action will lie against the defendants in respect of the evidence which they gave either at Hyderabad or in the Sessions Court at Bombay. Prima facie, therefor there is no cause of action arising out of their acts in Bombay and thus it cannot be said that any part of the cause of action arose in Bombay.

    But it is sought to avoid this difficulty by the allegation that the defendants are net sued simply for giving false evidence, but they are sued for the conspiracy by which they conspired together that each one should give false evidence, and as they did give false evidence in Bombay, it follows that they were conspiring in Bombay, and thus there was a cause of action partly arising in Bombay.

    The fallacy of this argument lies in supposing that though no action will lie against the defendants for giving false evidence, yet it will lie against them if it be alleged that the false evidence was given in pursuance of a conspiracy. If this argument were good, then though no action would lie against A for giving false evidence, yet, if there were more witnesses than one who gave false evidence against the plaintiff, then an action will lie against A, B, C, &c; for it is difficult to suppose a case in which it would not-follow, as a matter of course, that the witnesses must have given false evidence in pursuance of a conspiracy.

    It is impossible by a system of permutation and combination to render of no effect the rule of law, and to say that A is not sued for giving false evidence, but for conspiring with B and C that they should give false evidence, and B is sued, &c. The fact is that it is no cause of action that the defendants entered into a conspiracy. You must show that the results of that conspiracy have given a right of action to the plaintiff. This was forcibly put in the judgment of Lord Esher in Salaman v. Warner, and similarly reference may be made to the judgment of Palles, CB., in Kearney v. Lloyd, which is, as stated by Darling, J., in Hultky v. Simmons, to the effect that conspiracy to do certain acts gives a right of action only where the acts agreed to be done, and in fact done, would, had they been without preconcert have involved a civil injury to the plaintiff.

    Now it is clear that the acts done in Bombay by the defendants involved no civil injury to the plaintiff. They involved injury no doubt, but not an injury for which compensation could be recovered in a civil action.

    Then it was contended that a part of the cause of action was that part of the damage caused to the plaintiff in Bombay. Assuming that such damage is alleged in the plaint, it is in my opinion, clear that the fact that any damage was suffered in Bombay would not constitute a part of the cause of action. It may be necessary to prove the fact of injury in Bombay in order to ascertain a full measure of damages; but that fact would not constitute any part of the cause of action. If this argument were sound, actions on account of false evidence would always lie, because, although it cannot be denied that giving false evidence furnishes no cause of action, still there would in every case be the damage, which in reality must he taken to be the only and the whole cause of action.

    This argument also fails; and as frankly admitted by Mr. Raikes, it is impossible to twist this case into one of malicious prosecution; it is simply one of conspiracy to give false evidence; and in my opinion the demurrer was rightly upheld by Mr. Justice Russell. The appeal must be dismissed with costs.

    Tyabji, J.:— Two questions have been argued before us. The first is whether the plaint discloses a sufficient cause of action, and the second is whether this Court has jurisdiction to try this suit. These two questions were argued before Russell, J., as two preliminary issues. He found the first in the affirmative and for the plaintiff and the second in the negative and for the defendants.

    The plaint was accepted under clause 12 of the Letters Patent, and the question of jurisdiction therefore depends upon the further question whether any material part of the cause of action accrued within the jurisdiction of the High Court. These two questions, though forming distinct issues, are so connected with, and have such a material bearing upon, each other, that the decision of the one will practically dispose of the other. 1 will however discuss them in the order in which they were treated by Mr. Justice Russell and were argued before us.

    The first question, then, is, does the plaint disclose a sufficient cause of action? Now the plaint is an exceedingly lengthy and intricate document, giving the history of the case in great detail, but the draftsman does not appear to me to have very accurately formulated the exact propositions of fact and law on which he intended to base the plaintiff's right to relief. I think, however, the gist and substance of the allegations in the plaint may be shortly stated as a charge of conspiracy on the part of the defendants to obtain the conviction of the plaintiff of a criminal offence, and to give false evidence in furtherance of that conspiracy. The plaint also asserts that, as a matter of fact, the defendants did give false evidence. The conspiracy is alleged to have taken place at Hyderabad out of the jurisdiction, but the false evidence is stated to have been given in the High Court of Bombay within the jurisdiction. In considering whether these facts give the plaintiff a right to sue the defendants in a civil Court, it is to be remembered that this is not a suit for malicious prosecution. There is no allegation in the plaint that the defendants actually prosecuted the plaintiff. As a matter of fact, the prosecution of the plaintiff in Hyderabad is admitted to have been instituted by His Highness the Nizam's Government. The utmost that is alleged against the defendants is that they desired and furthered and aided the prosecution by conspiring among themselves to give false evidence. The substance of the plaint, then, is that the defendants merely conspired in Hyderabad to give false evidence in order to obtain the plaintiff's conviction—and not that they prosecuted him on a false charge.

    Now I am of opinion that this of itself furnishes no cause of action. A mere conspiracy to injure a man without an overt act resulting in the injury does not furnish any cause of action—Kearney v. Lloyd; Huttley v. Simmons; Salaman v. Warner. If therefore the plaint had stopped at the mere allegation of the conspiracy, it is clear, on the above authorities, that it would not have disclosed any valid cause of action. Does, then, the fact that false evidence is actually asserted to have been given in pursuance of the conspiracy make any difference? I am clearly of opinion that it does not It has been held over and over again that the giving of false evidence, no matter how malicious and mala fide it may be, furnishes no right to sue in a Civil Court, the only remedy being a prosecution for perjury—Revts v. Smith; Henderson v. Broomhead; Baboo Gunnesh v. Mugneeram; and Dawkins v. Rokeby. The mere fact that the giving of the false evidence is alleged to be the result of a conspiracy does not, in my opinion, make any difference. I should therefore feel inclined to hold that the plaint does not disclose any cause of action, although there are certain other overt acts alleged—such as the giving (though not as the result of the conspiracy) on the part of the first and second defendants, respectively, a demonstration and lecture, the arranging of the post-mortem examination in a manner prejudicial to the plaintiff, the writing of letters to the presiding Magistrate—all of which acts were done out of the jurisdiction of this Court.

    It follows from what I have said that, in my opinion, nothing is alleged in the plaint to have taken place in Bombay which could give a valid legal right to the plaintiff to sue the defendants in this Court, and that therefore this suit was rightly dismissed for want of jurisdiction. The vague allegations of counsel in argument that damages and mental anguish may have been caused in Bombay, though not specifically stated in the plaint, do not make any difference. I would dismiss the appeal with costs.

    Appeal dismissed.

    Attorneys — for plaintiff:— Messrs. Edgelow, Gulabchand and Wada.

    Attorneys for respondents Nos. 1 and 3:— Messrs. Crawford, Brown & Co.

    Attorneys for respondent No. 2:— Messrs. Roughton and Byame.

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    Templeton v. Laurie
    (Jul 11, 1900)