Morphy, H. Lorne

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Hargreaves v. Bretherton

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Osgoode Hall Law JournalVolume 2, Number 1 (April 1960) Article 14Hargreaves v. BrethertonH. Lorne MorphyFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMorphy, H. Lorne. "Hargreaves v. Bretherton." Osgoode Hall Law Journal 2.1 (1960) : 158-163.http://digitalcommons.osgoode.yorku.ca/ohlj/vol2/iss1/14OSGOODE HALL LAW JOURNALDuPont shareholders, giving them full rights as General Motorsshareholders at General Motors meetings. Furthermore, no DuPontrepresentatives were to sit on the Board of General Motors.This is an ingenious solution that should remove all taint fromthe investment, even where the most zealous "trustbusters" on theSupreme Court are concerned. It is amusing to reflect that Frank-furter J., who wrote such a scathing indictment of the Court in thedissent, was appointed by President Roosevelt for his liberal views,and was generally regarded by American conservatives as a fieryradical. The Warren Court has been the centre of controversy forsix years because of its alleged "legislative" actions. If Justice Frank-furter's views be correct, then the Court was here overturning judicialprecedent to carry out a legislative objective.The American Constitution is built on the premises that func-tions are divided between the Legislative, Executive, and Judicialbranches of Government. It is true that a certain overlap is neces-sary, but it is questionable whether an appointed Court should usurpthe functions of the democratically elected legislature. If LaBuy J.'ssettlement is upset by the Supreme Court in favour of the Govern-ment's plan, then the question of the Court's role will become avitally important political question, since the resultant economic dis-location will frustrate the legislator's plans for a booming economy.A Bill was introduced in the American Senate last year whichsought to curb the Supreme Court from some of its more enthusiasticventures. It was voted down, but the fact that a number of dis-tinguished legislators voted for it shows how deep the mistrust ofthe Supreme Judicial authority is in many thoughtful quarters. Thisreprimand may well be instrumental in preventing the Court fromoverruling the learned District Court Judge. If his decision stands,it could quite conceivably be a watershed in the annals of Govern-ment regulation of business for its judicious balancing of the respec-tive interests of the general public and the investor.DONALD COCK*HARGREAVES v. BRETHERTON - TORT - PERJURY - LACK OF REM-EDY - The claims of those who have suffered from the abuses ofjudicial proceedings have for centuries been faced with the rule that:... neither party, witness, counsel, jury, or Judge, can be put to answer,civilly or criminally, for words spoken in office.1The issue was recently raised again in the English case ofHargreaves v. Bretherton,2 a decision of the Queen's Bench Division*Mr. Cock is in the Third Year at Osgoode Hall Law School.I Rex v. Skinner (1772), Lofft 55 at p. 56, 98 E.R. at p. 530.For the problems of tort liability arising from activities of public ser-vants see R. J. Gray, Private Wrongs of Public Servants, 47 Calif. L. Rev.(1959).2 [1958] 3 W.L.R. 463, [1958] 3 All E.R. 122.[VOL. 2:154Case Commentwhich has been followed in Canada in Oak v. Frobisher Ltd.,3 a de-cision of the Saskatchewan Court of Queen's Bench.In the Hargreaves case it was alleged, in the statement of claim,that the defendant falsely and maliciously and without just occasionor excuse committed perjury and that it was a reasonable and prob-able consequence of the aforesaid perjury that the plaintiff wasconvicted. The alleged perjury had been committed during a crim-inal trial under the Prevention of Fraud (Investments) Act 1939,which resulted in the plaintiff being sentenced to eight years pre-ventive detention. The issue before the court was whether an actionlies at the suit of the person who states that he has been damnifiedby false evidence given against him.Before discussing the decision of the court an examination ofearlier decisions is in order.As early as 1596 a similar issue was raised in the case ofDamport v. Sympson.4 There a witness had falsely sworn that asilver fountain valued at £500 was worth only £180 by reason ofwhich the jury gave only £200 damages. The plaintiff sued thewitness for the difference but it was held an action did not lie forthe following reasons:(a) The law intends the oath of all to be true.(b) Such perjury can be punished by statute and if a civil actionwas allowed it would be double punishment which is notreasonable.(c) If there was such an action there would be a precedent bythis time, but as there is not, it is a good argument thatthe action is not maintainable.(d) Perjury is not punishable at common law and it did notbecome a criminal offence justicable in the ordinary courtsuntil the reign of Elizabeth.(e) An action based on such an order necessarily involved aninquiry into what the jury would have given by way ofincreased damages if it were not for the perjury, and thatcould not be tried. If it were otherwise, the evidence of everywitness might be questioned.In 1620, one Eyres sued a bailiff named Sedgewicke in a situa-tion where no inquiry of the jury's action was necessary. 5 Here thebailiff had allowed a prisoner to escape, and to cover his incompe-tence, he made a false affidavit in Chancery alleging that theplaintiff Eyres had by force rescued the prisoner. In consequenceof the bailiff's perjury Eyres was imprisoned and upon release sued3 (1959), 27 W.W.R. 594.4 (1596), Cro. Eliz. 520, 78 E.R. 769.5 Eyres v. Sedgewicke (1620), Cro. Jac. 601, 79 E.R. 513.1960]OSGOODE HALL LAW JOURNALthe bailiff and proved his case to the satisfaction of a jury. Amotion in arrest of judgment, however, held that there was no suchaction.Sir John Holt C.J. in 1703 expressed the rule: 6If one perjures himself in a cause to the damage of another person whois either plaintiff or defendant no action upon the case lies: nor is Itreason it should, for the perjury is a crime of so high a nature that itconcerns all mankind to have it punished, which cannot be an actionupon the case, where nothing but damages shall be recovered by theparty injured, which is not sufficient to secure the public against sodangerous a creature who hath offended against the common justice ofthe kingdom. Therefore, for examples sake and public security theprosecution of such an offence is vested in the Crown.In face of such failure various attempts were made to framethe action differently, one of which was libel; it also proved unsuc-cessful. Then, in 1856, after the tort of malicious prosecution hadbeen recognized, an attempt was made to draft an action analogousto it. The action in Revis v. Smith7 alleged falsity, malice and ab-sence of reasonable cause. The court held no action was maintain-able against a witness though he speak maliciously and falsely.Thus, the auctioneer who had been deprived by the court of thecontrol of a sale due to a false affidavit as to his sharp businesspractices, had no remedy for the £500 of lost fees.It was argued on behalf of the auctioneer that the rule againstdouble punishment was no longer valid law in that there werenow several legal wrongs for which there were both civil and crim-inal penalties; and further, that many of the old cases were overruledsince actions for malicious prosecutions were now allowed and there-fore there was no longer an absolute privilege for the abuse ofjudicial proceedings. Creswell J. replied: 8It is enough to say the world has gone on very well without such actionsas these; and I doubt whether it would continue to do so if such thingswere allowed.Public policy was the basis of the ruling in Dawkins v. LordRokeby9 when Lord Chief Baron (Sir F. Kelly) stated:' 0... The principle, we apprehend, is that public policy requires that wit-nesses should give their testimony free from any fear of being harassedby an action on an allegation, whether true or false, that they actedfrom malice.In 1905, the House of Lords dealt with slanderous evidence"and the Earl of Halsbury L.C. stated: 12By complete authority, including the authority of this House, it hasbeen decided that the privilege of a witness, the immunity from respon-sibility in an action when evidence has been given by him in a Court6 Ashby v. White, 25 Ruling Cases 52 at p. 75.7 (1856), 18 C.B. 126, 139 E.R. 1314.s Supra, footnote 7 at p. 141.9 (1875), L.R. 7 H.L. 744.lO Ibid., at p. 753.l1 Watson v. McEwan, (19051 A.C. 480.1 2 Ibid., at p. 486.160 [VOL. 2:158Case Commentof Justice, is too well established now to be shaken. Pactically I maysay that in my view it is absolutely unarguable-it is settled law andcannot be doubted. The remedy against a witness who has given evi-dence which is false and injurious to another is to indict him for perjury.A further variation13 failed recently in Australia where theclaimant alleged "conspiracy with others to defraud the plaintiff bythe giving of false evidence". The court indicated the plaintiff's onlyremedy was an equitable proceeding to set aside the judgment on thebasis of fraud. But Williams J. stated: 14I have been unable to find any case in which a judgment has been setaside when the only fraud alleged was that the defendant or a witnessor witnesses alone or in concert had committed perjury.It was therefore with no great difficulty that the court inHargreaves v. Bretherton15 dismissed the action. Lord Goddard C.J.went so far as to say the action was an obvious "try on".1 6 TheChief Justice stated that the rule of absolute privilege as set outin Rex v. Skinner17 is firmly supported by precedent and is still validlaw. With respect, such is not the case in either England or Canada.A witness is not immune from criminal liability for perjury' 8 nordoes the rule account for punishment for contempt of court.19From this it would appear that the ancient policy considerationof protecting the witness from liability in order that he testify freely,as enounced in Dawkins v. Lord Rokeby20 and Watson v. McEwan,21lacks validity in the face of these sanctions. It necessarily followsthat once a portion of the privilege for perjury is removed, there isno logic in retaining the balance against civil actions.Practically, it could be questioned how many witnesses areaware of the privilege and testify only because they know of theirimmunity to civil actions. If some do, it is submitted that the courtwould be better served without their testimony. To state otherwise,and for the courts to hold differently is to encourage the prostitutionof the judicial process. For is not the implication, in the policythat witnesses must be undeterred by fear of actions, that the judicialsystem has no other guarantees to protect the witness who hashonoured his oath and testified truthfully? If our courts are courts1 3 Cabassi v. Vila (1940), 64 C.L.R. 130.14 Ibid., at p. 147.15 Supra, footnote 2.16 Supra, footnote 2, at p. 468.17 Supra, footnote 1, 'Neither party, witness, counsel, jury, or judge,can be put to answer, civilly or criminally, for words spoken in office."Is Canadian Criminal Code.S. 112. Every one commits perjury who, being a witness in a judicialproceeding, with intent to mislead gives false evidence, knowing that theevidence is false.S. 114. (1) Every one who commits perjury is guilty of an indictableoffence and is liable to imprisonment for fourteen years, but if he commitsperjury to procure the conviction of a person for an offence punishable bydeath, he is liable to imprisonment for life.19 See, In the Matter of Lewis Duncan, [1958) S.C.R. 41.20 Supra, footnote 9.21 Supra, footnote 11.1960]OSGOODE HALL LAW JOURNALof justice, surely such a witness should have no tribulations thatneed protection by this absolute privilege.Part of the difficulty originates in the historical fact that theabsolute privilege rule was developed to protect witnesses fromdefamation actions and was later adopted by the courts in perjurycases. It is questioned whether such an adoption was judicious. Ifthe reasoning above is accepted-i.e., that the honest witness shouldnot require the privilege-then the extension of the rule was un-necessary. Further, if one is slandered in court he suffers only apossible loss of reputation; but if one is perjured he can be impris-oned or may even lose a civil suit--either of which could be equallyas injurious as defamation.Secondly, the Chief Justice expressed concern that an actionfor damages for alleged perjury could be brought, not only whenthere had been no conviction for perjury, but on the evidence of asingle witness, while he could not be convicted in a court of criminaljurisdiction without the concurring testimony of two.2 It is sub-mitted that such is not a reason on which to rest a decision but isonly a caution to be exercised if such an action were to be allowed.In so stating his alarm, Goddard C.J. could not have consideredthe judgment of his own court in Hornal v. Neuberger ProductsLtd.23 which held where fraud or other matter, which is or maybe a crime, is alleged against a party or against persons not partiesto the action, the standard of proof to be applied is that applicablein civil actions, and not the higher standard of proof required incriminal matters. To remove all concern it could be made a con-dition precedent of the civil action that there be a conviction forperjury.24Fear of an abundance of such actions if allowed-especially sincethere is Legal Aid-was Lord Goddard's next reason for disallowingthe action. It is submitted that this is a fallacious basis-if it is abasis-on which to rest a judgment. Would the Chief Justice havedisallowed the tort of negligence if its present prominence couldhave been foreseen? Surely his concern over a multitude of pennilessplaintiffs is also unwarranted and hardly deserves comment. Thereare few cases to-day involving perjury and there is no reason tosuggest that if there was a civil remedy the number of cases wouldincrease.22 Canadian Criminal Code.S. 115. No person shall be convicted of an offence under section 113 or114 upon the evidence of only one witness unless the evidence of that witnessis corroborated in a material particular by evidence that implicates theaccused.23 [1957] 1 Q.B. 247.24 See Smith v. Selwyn, [1914] 3 K.B. 98. A plaintiff against whom afelony has been committed by the defendant cannot make that felony thefoundation of a cause of action unless the defendant has been prosecutedor a reasonable excuse has been given for his not having been prosecuted.[VOL. 2:158Case CommentLastly he states that the penalty for committing perjury is notthat one should be asked to pay damages but that he should besentenced for the crime which he has committed. This harks backto the rule against double punishment which is clearly no longervalid law. Thus, there would appear to be no valid explanation whythe injured party should be barred from indemnification, whichwould in addition, serve as a further deterrent against perjury.In conclusion it is submitted that the only true basis for LordGoddard's judgment is that precedent prevents such an action. Thisrests on the old basis of the absolute privilege principle not to deterthe free flow of witnesses. This principle has been undermined bythe sanctions now enforced and thus there is little reason to allowthis historical dogma to dictate modern thought.Undoubtedly, however, legislation is now necessary to makeperjury tortious. It is no longer sufficient to state, as the courtshave done, that the "world has gone on very well without suchactions". 25 The truth is that much hardship has occurred.H. LORNE MORPHYREGIS PROPERTY V. DUDLEY - LANDLORD AND TENANT - REPAIRS -EXCEPTION OF FAIR WEAR AND TEAR - EFFECT OF ExcEpTIoN - Therecent House of Lords decision in Regis Property Co. Ltd. v. Dudley1seems to have resulted in a new interpretation of the fair wear andtear exception clause found in the tenant's repairing covenant ofmost leases. A sample of a covenant to repair may be found in theShort Form of Leases Act.2 The previous law as stated in Taylorv. Webb 3 appears to have been overruled.Before discussing what the fair wear and tear exception is, andhow it may now be redefined, it is necessary to review the law priorto the Taylor v. Webb case, as an aid in seeing how the court inRegis Property arrived at its present position.In Gutteridge v. Munyard,4 Tindal C.J. stated the effect, of arepairing covenant containing an exception of reasonable wear andtear in these words:What the natural operation of time flowing on effects, and all that theelements bring about in diminishing the value, constitute a loss, which,so far as it results from time and nature, falls upon the landlord. But25 S upra, footnote 7, at p. 141.-Mr. Morphy is in the Third year at Osgoode Hall Law School.1 [1958] 3 All E.R. 491 (H.L.).2R.S.O. 1950, c. 361. "And also will, during the said term, well andsufficiently repair, maintain, amend and keep the said demised premiseswith the appurtenances in good and substantial repair, and all fixtures andthings thereto belonging, or which at any time during the said term shall beerected and made by the lessor, when, where, and so often as need shall be,reasonable wear and tear and damage by fire, lightning and tempest onlyexcepted."3 [1937] 1 All E.R. 590.4173 E.R. 57, (1834), 7 Car. & P. 129, 174 E.R. 114, (1834), 1 M. & Rob. 334.1960]

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Hargreaves v. Bretherton

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