Seaman v. Netherclift in Europe

Definition of Seaman v. Netherclift

((1876), 2 C. P. D. 53). Statements made by a witness while giving evidence are absolutely privileged if they have reference to the litigation.

The defendant, while giving evidence in a dispute as to the genuineness of a signature to a will witnessed by the plaintiff, said he believed the signature to the will to be a rank forgery. The plaintiff sued him for defamation. Held, the words were absolutely privileged. [1]

Seaman v Netherclift: 1876

Ratio: The court considered the protection of a witness in court from defamation actions and otherwise.
Held: Sir Alexander Cockburn CJ said: ‘I am very far from desiring to be considered as laying down as law that what a witness states altogether out of the character and sphere of a witness, or what he may say dehors the matter in hand, is necessarily protected.’

Bramwell JA said: ‘I am by no means sure that the word ‘relevant’ is the best word that could be used; the phrases used by the Lord Chief Baron and the Lord Chancellor in Dawkins v Lord Rokeby, would seem preferable, ‘having reference,’ or ‘made with reference to the inquiry” and ‘I think the words ‘having reference to the inquiry’ ought to have a very wide and comprehensive application, and ought not to be limited to statements for which, if not true, a witness might be indicted for perjury, or the exclusion of which by the judge would give ground for a new trial; but ought to extend to that which a witness might naturally and reasonably say when giving evidence with reference to the inquiry as to which he had been called as a witness.’

This case is cited by:

Cited – Samuels v Coole and Haddock (a Firm) CA (Bailii, [1997] EWCA Civ 1755, [1997] CLY 4860)
The defendant solicitors had acted for defendants in an action brought by the plaintiff. They swore and filed an affidavit in support of an application to strike out elements of the action. The affidavit spoke as to abusive and threatening calls and . .

The Dr. Zulkifli Hasan wrote:

“In order to get the fairest and truest results from cases, it is very important that expert witnesses should speak freely and fearlessly. This case, in an era in which the use of expert witnesses was growing significantly, was a good illustration of how the courts were careful to give protection to witnesses against defamation actions. The defendant was a handwriting expert. He had given evidence in a case that a signature on a will was a forgery, though his view was not shared by the court.

Later, in another case, also about a witness contesting a will, he expressed his opinion again during cross examination that the signature in the earlier case had been a “rank forgery”. That led to one of the attesting witnesses to that earlier will suing for slander. However, this case of slander was dismissed, as the remark was uttered in court while giving expert evidence and was therefore “privileged”.”

Judicial Proceedings in Absolute Privilege under English Law

Statements made in the preliminary stages before a hearing can be treated as being made in the course of proceedings, as long as they are used in the proceedings for which they are made or other relevant court proceedings. Such statements include:

• Statements of case
• Affidavits
• Witness statements
• Expert reports
• Interviews with potential or actual witnesses
• General out of court statements made by or to investigators which could fairly be held to be part of the process of investigating a crime with a view to a prosecution

Interestingly, it wouldn’t apply if a statement was made in the proceedings which was not relevant to the claim, so for example, if, as in the case of Seaman v Netherclift. A witness was asked: “Where you at York on a certain day?” The witness replied, “Yes, and AB picked my pocket there.” That would not have the protection of absolute privilege as it was entirely unconnected to the proceedings.

Resources

Notes

1. Definition of Seaman V. Netherclift is from A Concise Law Dictionary (1927).

See Also

• Torts
• Civil Actions
• Defamation
• Libel
• Slander
• Absolute Privilege