The Gazette 1958-61

inconceivable that he should have been influenced by it and therefore in the absence of any intention to influence the Court of Criminal Appeal, the article was not a contempt. (D.C.) See also The Times, June 22, 1960. The proceedings of the Disciplinary Committee of the 'Law Society are privileged, and may not be questioned in a Court of Law. The Court of Appeal (Hodson, Pearce and Upjohn, L.JJ. upholding Gorman J. held that proceedings before the disciplinary committee constituted under s. 46 of the Solicitors Act, 1957, are judicial in character, and the proceedings (including the committee's findings and order) have the benefit of the absolute privilege against liability for defamation that protects the proceedings before a court of justice, notwithstanding that, under r. 21 of the Solicitors (Disciplinary Proceedings) Rules, 1957, the committee hear all applications in private and only pronounce their findings and order in public. Principles laid down by Lord Esher, M.R., in Royal Aquarium & Summer & Winter Garden Society v. Parkinson (1892) i Q.B. at p. 442) applied. Per Hodson L.J. : The plaintiff's contention is that there can be no absolute privilege here, and he has put forward five contentions. First of all, his main contention is that the proceedings were held in private. His second contention is what I call for convenience, his autrefois acquit contention, which is in effect this, that a solicitor may well be subject to criminal prosecution and afterwards may be called before this committee on a disciplinary charge, and that the functions of that committee in so acting are inconsistent with those of a judicial body. His third contention is that the procedure laid down by the rules inconsistent with the judicial function. His fourth contention is that there was here such an irregularity in proceedings (to which I shall refer in further detail) as to show that the tribunal was not acting judicially; and his fifth contention is that even if the hearing itself was protected by absolute privilege, the findings and order, or that part of it which contained the libel, was outside the scope of a judicial inquiry. Perhaps, having said that, it may be convenient to postpone returning to the point about publicity and deal with the last point—that even if the hearing itself was protected the findings and order are not. I think that the short answer to that is that the findings and order were an intrinsic part of the hearing, and if the hearing itself is protected by absolute privilege the same applies to the findings and order; and the subsidiary point that matters irrelevant to the findings and order were included

in the document which is called " Findings and Order " really, I think comes under another point which the plaintiff has made, to which I shall refer in a moment. So far as publicity is concerned, this is, I think, the most formidable—indeed I think the only formidable—part of the plaintiff's case; because he is quite right in saying that it is axiomatic, so far as British justice is concerned, that proceedings should be, wherever possible or convenient subject to the overriding rule that justice must be ad ministered in public. The constitution of the tribunal authorised by Act of Parliament speaks for itself. The functions are judicial functions, not administrative functions. This is not comparable with a meeting concerned with the issue of licences. If there is a prima facie case brought before this tribunal, it has to hear and determine it. This does in a sense affect the status of the solicitor : he is liable to be struck off the roll if he is convicted of unprofessional conduct, and disabled from practising. There is power to fine him, power to make him pay costs, power to administer the oath, power to obtain a subpoena. No doubt that last provision was inserted in order to get over the difficulty as to the attendance of witnesses, which would otherwise only be cured by application to the High Court. There is further the right of appeal to the High Court. The orders of the com mittee are enforceable; and there is the farther point that the jurisdiction is concurrent with the existing High Court jurisdiction. The plaintiff drew our attention to the fact that, this being an inquiry as to the conduct of a solicitor in permitting his clerk to do something wrong, the solicitor's defence was that whatever had gone wrong without his knowing anything about it, and the only question before the committee, it being admitted that there had been an error, was : was the solicitor himself at fault ? He was acquitted. In dealing with that issue, the matter to which evidence was directed was the information that the solicitor had. He thereupon told the committee what he himself had been told. There was nothing irregular in that; but even if there had been, on the authorities to which I have made reference it would not have made any difference. The same, of course, applies to the findings and order : if the findings and order, as a document, had contained anything which was not relevant or should not have been contained therein, it would not for that reason (by virtue of the same authorities) have caused the proceedings to lose their character, which was such that the members of the tribunal, as well as the witnesses and all those who appeared before the tribunal, were protected by absolute privilege. I would dismiss the appeal. 43