Raza v Ilangasinghe [2000] FJLawRp 44; [2000] 1 FLR 160 (4 August 2000)

[2000] 1 FLR 160

IN THE HIGH COURT OF FIJI

MEHBOOB RAZA

v

JINDASA ILANGASINGHE

High Court Civil Jurisdiction
Fatiaki J
4 August, 2000
HBC0412.1998

Striking out - whether any reasonable cause of action - Damages for loss sustained by reference to plaintiff's contemptible conduct - Magistrates' Court Act ss6, 65(1); Magistrates' Court Rules Order III r.8.

The plaintiff filed a Writ seeking damages for adverse finding of the plaintiff's behaviour in separate judicial review proceedings, breaches of duty, malicious prosecution and abuse of legal process. The court considered whether the plaintiff's pleadings gave fair notice of a claim for 'malicious prosecution' and/ or 'abuse of legal process'. The plaintiff sought to strike out for no reasonable cause of action.

Held - (1) The pleadings did not expressly state that judicial review proceedings instituted by defendant terminated in the plaintiff's favour or that the defendant had no reasonable or probable cause for instituting the proceedings

appl Whitworth v Hall (1831) 36 R.R. 715.

(2) Termination of court proceedings in a party's favour does not inexorably give rise to a claim or cause of action for malicious prosecution.

(3) The plaintiff's claim does not distinctly plead the essentials of an action for malicious prosecution or abuse of legal process, is so inept and vague as to be incapable of amendment without wholly transforming it.

Plaintiff's Statement of Claim struck out for no reasonable cause of action.

Cases referred to in Ruling

foll Prinson v Lloyds Bank (1941) 2 KB
appl Mohammed Amin v Jogendra Kumar Bannerjee (1947) AC 322
cons Glinski v McIver (1962) AC 726
ref Johnstone v Sutton
foll Herniman v Smith (1938) AC 305
appl Cotterell v Jones (1851) 87 RR 754
cons McC v Mullan & Ors (1984) 3 All ER 908
cons Sirros v Moore (1974) 3 All ER 776
cons Mahesh Prasad v Surendra Prasad Esq. & Anor (unrep) HBC0330.1991
ref Parmiter v Coupland (1840) 55 RR 529
cons Law v Llewellyn [1906] UKLawRpKQB 21; (1906) KB 487
ref Munster v Lamb [1883] UKLawRpKQB 106; (1833) 11 QBD 588
ref Hodson v Pare [1899] UKLawRpKQB 22; (1899) 1 QB 455

Amrit Sen for the plaintiff
Nicholas Barnes for the defendant

4 August 2000.

RULING

Fatiaki, J.

On the 19^th of May 1998 the plaintiff, a barrister and solicitor of the High Court of Fiji, issued a Writ of Summons personally against the defendant, a resident magistrate in the Magistrates Court, Suva, claiming damages for loss allegedly sustained by him as a result of a written Ruling delivered by the defendant on the 10^th of December 1996, in which, in response to an application to transfer an inquest (No. 5/95) then pending before him and in which the plaintiff was the solicitor appearing for the deceased's family, the defendant referred what he considered was the contemptible conduct of the plaintiff, pursuant to Section 6 of the Magistrates Court Act (Cap. 14) read with Order III r.8 of the Magistrates Court Rules, to the High Court to be dealt with as appropriate.

To complete the relevant background to the present action it is necessary to briefly refer to an earlier proceeding instituted by the plaintiff in the High Court, namely, Judicial Review No. HBJ0037 of 1996 in which the plaintiff despite being earlier refused leave to apply for judicial review 'as misconceived and inappropriate' nevertheless, successfully challenged the defendant's finding that the plaintiff had committed acts of contempt against his (the defendant's) Court.

During the course of his decision in the judicial review proceeding, the Chief Justice, after referring to the chronology of events and correspondence said, at p.7 of his unreported ruling:

'Given the circumstances described and all the goings-on directed at the (defendant), one can understand if the (defendant's) reactions was one of umbrage over what he probably perceived as an undeserving campaign of hostility against him.'

His lordship was also mindful that '... as regards the (judicial review) application the court is not concerned with the merits of the Ruling itself, ... (but) ... with ... the decision-making process by which the learned Magistrate arrived at his findings in the Ruling' nevertheless, at p.10 his lordship said:

'... much as one may understand his (the defendant's) difficulties, it was however no reason for him as a judicial officer to adopt a modus operandi in his Ruling that was contrary to law.'

and at p.11 the Chief Justice said:

'He (the defendant) breached the rules of natural justice by not giving proper notice to the (plaintiff) of his intended action as encapsulated in his Ruling. Nor did (the defendant) accord the (plaintiff) any opportunity to defend (himself) against his findings which were clearly adverse to (the plaintiff's) interests.'

and finally at p.12/13:

'It seems clear also that (the defendant's) ruling fell foul of the principle of legality ... in that he did not follow proper procedures when adjudicating the issues already referred to .... No court can have jurisdiction to adjudicate a criminal cause without the charges against a defendant being first formally laid by the appropriate authorities ....'

Having highlighted those various passages, I hasten to add that the defendant's referral order (as opposed to his contempt findings) was not directly challenged by the plaintiff nor commented upon adversely in the Chief Justice's decision in the judicial review proceedings. Certainly no order quashing the same was ever made or drawn to my attention although it might be said that the basis or justification for such an order is much less apparent given the Chief Justice's decision.

The cause(s) of action pleaded in the plaintiff's Statement of Claim are not entirely clear and are pleaded as follows (after setting out a brief chronology of events leading up to the delivery of the defendant's ruling):

'11. At all material times the defendant in his position under the office of Resident Magistrate was under a duty to exercise his powers and perform his office in the jurisdiction to which he was appointed in a fair and disponsionate (sic) manner.

12. The Plaintiff charges and the fact is that the defendant in making the findings, orders and in the reasons for the rulings delivered on 10 December, 1996 was acting and did arrive at the decision delivered perniciously, maliciously, in breach of the aforesaid duty and negligently.'

Then follows what appears to be a host of Particulars which collectively allege numerous breaches by the defendant of his aforesaid duty.

As for the loss and damage that the plaintiff alleges he sustained as a result of the actions and conduct of the defendant para.13 particularises these as being:

'(a) The Plaintiff sought judicial review in proceedings No. HBJ0037 of 1996 to which the Plaintiff will crave leave to refer to and rely on the affidavits filed therein;

(b) Has been held up to hatred ridicule and contempt amongst his professional peers and the public by reason of the finding of the defendant;

(c) Has and continues to be unable to accept work which is allocated before the defendant thereby sustaining loss of income and suffering further embarrassment and humiliation.'

Faced with the above pleadings State Counsel, representing the defendant, moves to strike out the Statement of Claim as disclosing no reasonable cause of action and under the Court's inherent powers. The defendant's affidavit in support of the motion more clearly sets out the various grounds for the application where he deposes (after setting out Section 65(1) of the Magistrates' Court Act):

'4. THAT I am a judicial officer of the Magistracy and as such no claim can be maintained against me personally for duties performed by me while acting in such capacity.

5. THAT I did not make the Ruling referred to by the Plaintiff due to any malice, bad faith, negligence, or in breach of any agreement. I did not convict the Plaintiff nor did I punish him. When I reported the plaintiff to the High Court, I believed that I had the jurisdiction to do so under the existing laws as far as I could understand and interpret such laws ...

6. THAT the Statement of Claim ... appears inter alia to claim defamation ... It is established law that judicial officers cannot be sued for words spoken in Court, this is an absolute privilege for such statements regardless of the motive of the speaker.

7. THAT the Statement of Claim also alleges negligence ... However the correct course of action when a party to proceedings feels aggrieved by a judicial decision is to appeal. To bring proceedings for negligence against a magistrate is, ..., an abuse of process.

8. THAT the Plaintiff makes reference ... to judicial review proceedings No. HBJ0037 of 1996 ... As can be seen from that decision the Hon. Chief Justice has clearly considered particulars (a)(d)(e)(f)(g) and (h) of the Plaintiffs Statement of Claim ... and therefore are res judicata and cannot now be relitigated.

9. THAT the general tone of the Statement of Claim is one of complaints about the manner in which I exercise my powers as a Magistrate and my competence and ability to perform my duties ... The matters should be referred to the appropriate channels ... (for) disciplinary procedures and not by way of Writ.

10. THAT Plaintiff alleges he has suffered loss ... because of his inability to accept work allocated to me: All loss is self-inflicted as ... I remain willing to carry out my duties ... regardless of which counsel appears before me.'

In reply the plaintiff in his affidavit opposing the application deposes:

'8. ... the Defendant ... in bad faith, acting unjudicially and in excess of jurisdiction ... in denial of natural justice not only scandalised me and embarrassed my professional status but also found me guilty of (contempt).

9. ... I was further humiliated by the defendant in referring his ruling against me to the High Court to be dealt with for contempt ...

10..... Section 65(1) of the Magistrate Court Act provides immunity to judicial officers ... but only if the officer acts in good faith, within jurisdiction and judicially (arid not otherwise).'

There can be no doubting from the above extracts, that the plaintiff forcefully asserts that the defendant, in publishing his RULING on the plaintiff's transfer application, acted '... in bad faith, unjudicially and in excess of jurisdiction ...' but, having said that, it is only in his written submissions that plaintiff's counsel makes plain that '(the plaintiff's) first cause of action is malicious prosecution and abuse of legal process'.

As for the existence of a triable issue counsel writes:

'... this is not a case where there can be examination of documents and the Courts can decide on its merits but it involves a state of mind of the defendant i.e. if in fact he was malicious.'

and in rejecting the availability of the statutory defence under Section 65(1) of the Magistrates' Court Act counsel states:

'... in the Judicial Review (proceedings) it has already been established that the defendant did not have any power to cite the Plaintiff for contempt of Court and did so regardless ...'

and finally, in regards to the defendant's belief that he did have such power, counsel writes:

'The alleged belief ... of the defendant cannot be determined by affidavit, but evidence has to be called to see if the action taken by the defendant was a reasonable one - such it would operate on the mind of a reasonable man.'

The power to strike out pleadings as disclosing no reasonable cause of action is so well established that detailed analysis is unnecessary. Suffice it to say that it is a power to be exercised cautiously and sparingly and only where the pleadings are ex facie so defective and untenable as to be incapable of succeeding even with minor amendments.

Whatsmore 'the function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties': Halsbury's Laws of England Vo1.36 para.4.

Moreover it is not the function of 'particulars' to take the place of necessary averments in the pleading, nor 'to state the material facts omitted ... in order by filling the gaps to make good an inherently bad pleading': per Scott L.J. in Pinson v. Lloyds Bank (1941) 2 KB 72.

In the present context the question that arises is, do the averments in the plaintiff's Statement of Claim give fair notice of a claim for 'malicious prosecution' and/or 'abuse of legal process'?

The 'locus classicus' of the nature, rationale, and ingredients of a claim for damages for 'malicious prosecution' can found in the leading case of Mohammed Amin v. Jogendra Kumar Bannerjee (1947) AC 322 where Sir John Beaumont in delivering the opinion of the Privy Council said at pp.330/331:

'The foundation for the action (for damages for malicious prosecution) lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his favour (if that is possible), and that he has suffered damage ... that damage might be claimed in an action under three heads (1) damage to the person, (2) damage to property, and (3) damage to reputation ... the word 'prosecution' in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company [Quartz Hill Consolidated Gold Mining Co. v. Eyre [1883] UKLawRpKQB 126; (1883) 11 QBD 674]. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, ..., that such a case does not necessarily and naturally involve damage to the party sued. A civil action which is false will be dismissed at the hearing ... But a criminal charge involving scandal to reputation or the possible loss of life or liberty to the party charged does necessarily and naturally involve damage, and in such a case damage to reputation will be presumed.'

A fortiori where the particular charge is against a senior barrister and solicitor and 'officer of the Court' who has been referred to the High Court to be dealt with on a concluded finding of 'contempt of court' in breach of various provisions of the Penal Code (Cap. 17) and which finding was subsequently quashed in judicial review proceedings.

As for pleading such a cause of action Halsburys Laws of England 4^th edn. (Vol. 45) para. 1368 clearly provides that in an action for 'malicious prosecution':

'A plaintiff must expressly state in his Statement of Claim:

(1) The previous proceedings instituted by the defendant of which he complains;

that in so far as they were capable of doing so they terminated in his favour;

(2) that there was no reasonable or probable cause for the defendant instituting or carrying on those proceedings;

(3) that the defendant was actuated by malice; and

(4) that he has suffered damage.

Any actual financial loss must be pleaded as an item of special damage.'

[See also: the precedent pleadings in Atkins Court Forms (1990 Issue) Vol. 25 at pp.333 to 348]

In light of the above, the clear answer to the question earlier posed at p.8 is: 'no, the averments in the plaintiff's Statement of Claim do not distinctly plead the essentials of an action for malicious prosecution or abuse of legal process'.

In particular, other than a brief reference to 'judicial review proceedings No. HBJ0037 of 1996' in the particulars of damage and loss, there is no express averment that the proceedings instituted by the defendant (whatever they were) 'terminated in (the plaintiff's) favour', this particular averment is a pleading requirement that has been settled since Whitworth v. Hall (1831) 36 R.R. 715, and, despite the use of the word 'maliciously' in para. 12 of the Statement of Claim, there is no averment at all that the defendant had 'no reasonable or probable cause for instituting the proceedings'.

The necessity for this latter averment is no better illustrated than in the judgment of the House of Lords in Glinski v McIver (1962) AC 726 where Lord Devlin said at p.765:

'My Lords it is a commonplace that in order to succeed in an action for malicious prosecution the plaintiff must prove both that the defendant was actuated by malice and that he had no reasonable and probable cause for prosecuting.'

(my underlining)

and, in highlighting the difference between 'malice' and want of 'reasonable and probable cause', Lord Denning said at p.759:

'... we all know that malice or improper motive is never a ground for saying there is no reasonable or proper cause. In the words of Lord Mansfield: 'from the most express malice, the want of probable cause cannot be implied': See: Johnstone v. Sutton.'

(also: per Viscount Simonds ibid at 744)

Whatsmore in Herniman v. Smith (1938) AC 305 the House of Lords in upholding an appeal quashing a suit for malicious prosecution for no absence of 'reasonable and probable cause', affirmed the definition of 'reasonable and probable cause' enunciated by Hawkins J. in Hicks v. Faulkner (1878) 8 QBD 167, 171 and Held:

'It is not required of any prosecutor (in an action claiming malicious prosecution) that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for the prosecution. Circumstances may exist in which it is right, before charging a man with misconduct, to ask him for an explanation; but no general rule can be laid down, and where a person is satisfied, or has apparently sufficient evidence, that he has in fact been cheated, there is no obligation to call on the cheat and ask for an explanation, in as much as to ask for this may only have the effect of causing material evidence to disappear or be manufactured.'

In light of the above and given the nature of the proceedings before the Honourable Chief Justice, his observation's may not be conclusive on the absence or presence of 'reasonable and probable cause' on the defendant's part in referring the matter to the High Court.

As for the so-called claim of 'abuse of legal process' the learned editor of Clerk & Lindsell on TORTS (16^TH edn.) states at para.19-40:

'An action lies for the abuse of ordinary civil process, which differs only from an action for malicious prosecution in that the gist of it seems to be the special damage. Malice and absence of reasonable and probable cause must be proved in the same manner in the one as in the other.'

In respect of this claim too, absence of any averment that the defendant had no 'reasonable or probable cause' is equally fatal to the plaintiff's Statement of Claim as is the absence of any claim for 'special damage'; [per Taulford J. in Cotterell v. Jones (1851) 87 RR 754 at 768].

It is common ground in the present case that the plaintiff was not charged with any criminal offence nor was any sort of trial conducted against him. No conviction was entered against him by the defendant albeit that there were adverse findings made, nor, was any penalty or sentence imposed. Having said that however, the particular finding of contempt of court in this case was undoubtedly criminal in nature and tenor, and, it is at least arguable that a referral to the High Court based upon such a finding amounts to the prosecution of a criminal charge as opposed to '... prosecuting an ordinary civil action' for which a claim for 'malicious prosecution' would not ordinarily be available in the absence of 'special damage'.

As for the second 'element', there can be no doubting that the Chief Justice's decision in the Judicial Review proceedings (op. cit) tantamounts to a vindication of the plaintiff's grievances and might even be said to have '... determined the proceedings (initiated by the defendant) in his (the plaintiff's) favour...' but does that necessarily or inevitably give rise to a claim for malicious prosecution against the defendant as appears to be assumed in the plaintiff's claim?

It is axiomatic that the termination of court proceedings in a party's favour does not inexorably give rise to a claim or cause of action for 'malicious prosecution'. If this were not so, the courts would be inundated with civil claims for every criminal prosecution which ended with the acquittal of an accused person or where a conviction was subsequently quashed on appeal. A fortiori where the quashing is ordered in a judicial review proceeding and not in an appeal where the merits (as opposed to the process) of the decision is under consideration.

In McC v. Mullan and Others (1984) 3 All ER 908 where the respondent successfully applied for an order of certiorari quashing a training order of a magistrate court and after which the respondent sued the magistrate seeking damages for false imprisonment, the House of Lords in considering the ambit of an immunity from suit provision granted to magistrates unless they acted 'without jurisdiction or in excess of jurisdiction', Held:

'(2) The quashing of a magistrate's decision or order by certiorari for excess or want of jurisdiction was not conclusive against the magistrate on the issue of their civil liability for acting without jurisdiction since an excess of jurisdiction affording sufficient grounds for judicial review was not to be equated with the excess of jurisdiction for the consequences of which magistrates were personally liable.'

Lord Templeman in his judgment in the case, after examining numerous authorities including Sirros v. Moore (1974) 3 All ER 776, said at p.929:

'If in the course of a trial which a magistrate is empowered to undertake the magistrate misbehaves or does not accord the accused a fair trial, or is guilty or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed but the magistrate acts within jurisdiction.'

It is convenient at this juncture to consider the statutory immunity afforded to a magistrate in terms of Section 65(1) of the Magistrate's Court Act (Cap. 12) which the defendant plainly relies upon as providing 'a complete defence to this claim' and which reads (so far as relevant):

'No magistrate ... acting judicially shall be liable to be sued in any civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.'

It will be seen at once that a magistrate's statutory immunity from suit in this country differs in material respects from that conferred under the equivalent United Kingdom and New Zealand legislations, and extends so long as he or she is '... acting judicially ... in the discharge of his judicial duty ...' irrespective of 'whether or not (such action or order) is within the limits of his jurisdiction' and so long as he honestly 'believed himself to have jurisdiction' to do or to order what he did.

In similar vein Saunders J. in striking out the plaintiff's Statement of Claim for want of a cause of action where the claim was that the defendant 'had acted maliciously within his jurisdiction', said, of the meaning of the above section, in Mahesh Prasad v. Surendra Prasad Esq. and Another Lautoka Civil Action No: 330 of 1991 (unreported) at p.2:

'This means that ...... a resident magistrate, cannot be sued in any civil court, if, at the time he acts, or orders an act to be done, in the discharge of his judicial duty, he believes himself to have jurisdiction to do or to order the act complained of, whether he has jurisdiction in fact, or not.'

In the present case the defendant has categorically deposed:

'5. THAT I did not make the Ruling referred to by the Plaintiff due to any malice, bad faith, negligence, or in breach of any agreement. I did not convict the Plaintiff nor did I punish him. When I reported the plaintiff to the High Court, I believed that I had the jurisdiction to do so under the existing laws as far as I could understand and interpret such laws ...for suitable action to prevent such recurrences and safeguard the interest of the lower Court ... I further state that His Lordship the Chief Justice has not said in any of his three decisions relating to the judicial review that my reporting of the Plaintiff to the High Court amounted to an act of malice, bad faith or dereliction of my duty. With respect I state that the reasoning behind his lordship's final decision appears to be that I made a procedural error.'

In light of the foregoing it might well be that Section 65(1) of the Magistrates Court Act provides a complete defence, but it is inappropriate that I should reach a concluded view on the matter in this present application and I refrain from expressing one.

Furthermore in so far as the plaintiff seeks damages for 'hatred, ridicule and contempt' which is the ancient formula first used by Baron Parke in Parmiter v. Coupland (1840) 55 RR 529 at 532 for defining a libellous publication, there is not the slightest doubt in my mind that the plaintiff's Statement of Claim does not even begin to establish a cause of action or claim for damages for defamation and, even if such a claim could be raised by substantial amendments (which I very much doubt), nevertheless, it would be inadmissible in so far as'... neither party, witness, counsel, jury or judge can be put to answer civilly, or criminally, for words spoken (or written) in office': per Lord Mansfield C.J. in R. v. Skinner (1772) Lofft 55 at 56.

More particularly, in Law v. Llewellyn (1906) 2 KB 487 where the Statement of Claim was struck out as disclosing no reasonable cause of action, Romer L.J. after referring to Munster v. Lamb [1883] UKLawRpKQB 106; (1883) 11 QBD 588 and Hodson v. Pare [1899] UKLawRpKQB 22; (1899) 1 QB 455, said at p.491:

'... a magistrate is a 'judge' within the meaning of the rule that defamatory observations made by a judge in the course of his judicial duties, that is, when sitting as a judge, are not actionable, even though it is alleged or suggested that the observations were made without reasonable or probable cause, and maliciously.'

For the foregoing reasons I conclude that the plaintiff's Statement of Claim as drafted, discloses no reasonable cause of action and is so inept and vague as to be incapable of amendment without wholly transforming it. Accordingly the Statement of Claim is hereby struck out.

Action dismissed.

Marie Chan