Lord Justice-Clerk —This case raises a question of much importance. The pursuer asks for damages from a magistrate sitting in a summary court, on the ground that he sentenced her to imprisonment without the option of a fine, under a complaint based upon a clause of a statute which did not empower him to pronounce a sentence of imprisonment, except as an alternative to the non-payment of a pecuniary penalty, the prayer of the complaint being in terms of the statute. She alleges that although it was pointed out by the clerk, as the Court's assessor, that such a sentence could not be pronounced, he insisted on inflicting it on the view that he could deal with the matter, not as it was charged in the complaint, but as constituting an offence at common law, viz., a breach of the peace, for which he had by law the power to pronounce a sentence of imprisonment as a direct punishment. That he had erred in this cannot be doubted, and that consequently he acted outwith and in excess of his jurisdiction is equally plain. The question now before the Court is whether an action of damages can be competently and relevantly raised against him in these circumstances.
We had the advantage of a very able and full argument from the bar, the one party alleging that a judge sitting as the defender did, is immune from all actions at law for damages for anything done by him when sitting in his judicial capacity; the other party maintaining that while such immunity from attack in a court of law applies to judges of superior jurisdiction, there is no law to the effect that inferior magistrates may not be called upon to make reparation where they have gone outside their powers and inflicted a wrong.
Upon the question of immunity of the Judges of the Supreme Court there can be doubt. The principle is clear and the decisions are emphatic. The principle is that such Judges are the King's Judges directly, bound to administer the law between his subjects, and even between his subjects and himself. To make them amenable to actions of damages for things done in their judicial capacity, to be dealt with by judges only their equals in authority, by juries, would be to make them not responsible to the King, but subject to other considerations than their duty to him in giving their decisions, and to expose them to be dealt with as servants, not of him, but of the public. Accordingly, the remedy in their case, if they flagrantly offend against duty, is not by proceedings in any court, but only by address to the Crown from the Houses of Parliament. Between their position and that of judges appointed, not by the King, but by the community or some authority in the community not having the kingly prerogative, but only acting by a delegated authority for local administration, as in the case of Justices of the Peace appointed by the Lord Chancellor, there is no analogy. Therefore any claim for immunity for acts done in local summary courts cannot be based on the fact of the immunity of the Supreme Court Judges. That the highest courts of justice are designated “Supreme Courts,” of itself indicates the distinction. The Supreme Courts have power to right wrongs done in the inferior courts, their jurisdiction being universal, and their duty being to see justice done throughout the land. The other courts have no jurisdiction beyond their own border, and cannot review the conduct of any other judge within their own border.
Is there, then, any immunity attaching to the judges of the inferior courts for their actings when sitting in judgment. Certainly there is. They cannot be made amenable for words used, however severely they may comment on the conduct of individuals, provided such words are uttered where acting in the exercise of their magisterial functions. Of this the case of Waterston is the latest and most emphatic instance. For in that case the magistrate, who was dealing with a charge of crime against a child, sent for the child's father, who was in no way a party to the proceedings, and was not a witness, and used words to him as regarded his conduct in relation to his child, which, while the Court considered them to be highly reprehensible, they held could not be made the ground of an action of damages, the magistrate having at the time been engaged in his official capacity. The principle of this is that the right to express himself freely in dealing with matters before him must not be hampered by apprehension that he may be sued in a civil court and subjected to damages, as if what he said had been uttered by him as an ordinary citizen not acting in a public judicial capacity, it being uttered for what presumably at the time seemed to him to be good and just cause.
But while this is so, it is a totally different question whether a magistrate who does official acts when sitting as such which he has no power to do under a statute in accordance with which he is bound to act, and which judicial acts have the effect of restraining the liberty of the subject, and subjecting him to penalty in his person, is immune from civil consequences for the wrong he has done. I do not think that this has ever been held, and the opposite has been held in many cases. Where a magistrate, professing to sit as such, and dealing with a case which he has no juristion to deal with at all, commits what is an undoubted wrong upon a citizen, both by principle and practice he is held liable for the wrong done. If that is so, can it be said that a magistrate who has before him a case which he can competently try under
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Here I think it is necessary to draw a distinction. It is where the error committed by the inferior magistrate takes effect that his liability to answer for the wrong done arises. It is not for what he has ordered, but for what he has caused another to suffer, that he is amenable to the law. That he has pronounced an illegal sentence is not sufficient to subject him in damages if nothing has been done upon it. But where it has been carried out so that the wrong has been made effective, then he may be answerable. This is illustrated by the English case where an illegal sentence ordering confinement in the stocks was pronounced, but was not carried out, so that the wrong was not suffered. Accordingly it was held that no claim for damages could be sustained.
The principle which I have stated as governing the matter seems to be well established by the authorities. Erskine in his Institutes says—“Where a sentence is glaringly illegal, lata culpa equiparatur dolo , the law, from the grossness of the error, presumes a perverse will.” The magistrate so acting is presumed to have been led astray by evil motive, or by such rashness and disregard of the citizen's rights as will be held equivalent to direct dole. It would be difficult to state the matter more concisely and clearly, and it appears to me that the decisions of the Courts are entirely in accordance with the idea that, whatever may be the privileges attaching to a Judge of the Higher Courts, it has never been held to extend to such Courts as are called Courts of Summary Jurisdiction, which was the nature of the Court in this case.
Reference was made in the course of the debate to the Act of George the Third, commonly called the Twopenny Act, by which Justices of the Peace were protected from any award of substantial damages unless it was averred that the acts were done “maliciously and without any reasonable and probable cause.” It also enacted that no damages or costs could be recovered by the plaintiff if the justice could prove his guilt, and that he had not undergone greater punishment than was assigned by law to the offence. I refer to the Act for the purpose of indicating what I think is a plain inference to be drawn from it, viz., that these inferior judges must have been subject to actions of damages by the law as it then existed, otherwise it would have been unnecessary to pass a law limiting their liability. And it is to be noticed that the exemption is a limited exemption It refers only to a conviction “had or made under any Act or Acts of Parliament,” and so had no reference to acts done in administering the common law, as to which it left the liability of justices as it was before. And further, I remark that although that Act was extended to Scotland by the Act 9 Geo. IV, cap. 29, it could never apply to this case, seeing that the pursuer here did suffer a greater punishment than was assigned by law to her offence, and seeing that the Act under which she was tried gave no power to commit to prison without the option of a fine. I notice in passing, with reference to England, that new rules as regards liability of justices were established by the Act 11 and 12 Vict. cap. 44, and the Twopenny Act, in so far as inconsistent with it, was repealed. But that does not affect what I have already said—that the passing of such Acts proceeded and could only proceed upon the footing that such inferior judges as the Act deals with did not possess the general immunity which attaches to the Supreme Court Judges. But I think there is a further and necessary inference to be drawn from it, viz., that the doctrine sometimes stated in English cases, that judges of what are called there “Courts of Record” are immune from actions of damages, did not apply to some courts. The phrase “Court of Record” is not one which conveys any clear idea to the mind of one not versed in English law and practice. But whatever a Court of Record may mean, and to whatever courts it might apply, the Twopenny Act plainly indicates that courts of inferior magistrates were never included in the phrase. Accordingly, such actions have been repeatedly sustained. The most notable case is that of Pollock.
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It only remains to be seen whether, under the legal decisions which have been pronounced, it can be held that in such a case as the present, in which a magistrate sitting in a Police Court has pronounced a sentence of imprisonment for a term, without the option of a fine, where he had no jurisdiction to do so, he is free from any action. I am unable to find, after an examination of the cases quoted in the debate, that they lead to any such conclusion. The case of Haggart was a case similar to Waterston's case, being based on remarks made by Lord President Hope about the conduct of an advocate. Harvey v. Dyce was a case of slanderous words used by a sheriff. The only other case founded on in opening by the reclaimer was the case of Haggard in Appeal Cases 1892. That case has no bearing on the present, as the question there turned upon the right of a judge to dismiss a civil case as vexatious. One other case was referred to in reply by the reclaimer — that of Anderson v. Gorrie , 1895, 1 Q.B. 668. That case also has no bearing, being the case of a Supreme Court judge of a colony, and it was held that his position was analogous to that of a Supreme Court judge in this country, and that he could not be sued for an act done in his capacity as judge, whether he acted rightly or wrongly.
On the question whether in this case it is necessary to aver specific malice, and to put malice in issue, I concur with the Lord Ordinary that the case being one in which the wrong complained of was an entirely ultra vires act by the magistrate, it is not necessary for the pursuer to prove malice. I adopt the words of Lord Pitmilly, who said in a similar case—“It is no matter whether it was from error or malice, if … grossly illegal and irregular, the party is entitled to claim damages alike from the private party and the judge.”
But I guard myself, as he did, from its being supposed that any culpa levissima would warrant damages against a judge.
This doctrine is emphatically confirmed by Bell in his Principles, where too he says—“He (the magistrate) will also be liable if there be gross irregularity in imprisonment, though no malice be shown.”
I would therefore move your Lordships to adhere to the Lord Ordinary's interlocutor. His Lordship has held that the case is not suitable for trial by jury. In accordance with practice, the discretion of the Lord Ordinary will not be interfered with except in very special circumstances. But in the present case I am satisfied that the Lord Ordinary has exercised his discretion wisely.
The Court refused the reclaiming note, adhered to the interlocutor reclaimed against, and remitted the cause to the Lord Ordinary to proceed.
Counsel for the Pursuer (Respondent)— George Watt, K.C.— Ingram. Agent— Henry Robertson, S.S.C.
Counsel for the Reclaimer— Morison, K.C. — Murray. Agents— Macpherson & Mackay, S.S.C.