1 The paper is restricted to superior court judges for two reasons. First, the tortious immunity of justices of the peace is governed by statute and is much less uncertain and controversial: see the Courts Act 2003, s 31(1). Secondly, a distinction between the immunity of judges in superior courts and those in other courts of limited jurisdiction looks to be more or less set in stone. According to Lord Bridge in Re McC[1985] AC 528 at 550, this distinction ‘is so deeply rooted in our law that it cannot be eradicated by the Court of Appeal and probably not by your Lordships' House’. Whether the distinction can be justified is an interesting question in itself, but it falls beyond the scope of this paper. I am concerned only with the nature and extent of the existing superior court judges' immunity; and not with whether others ought to be granted the same immunity.

2 Barristers' immunity in negligence was first recognised judicially in Fell v Brown[1791] Peake 131, though most authoritatively supported in Rondel v Worsley[1969] 1 AC 191. It was finally abolished by the House of Lords in Arthur JS Hall v Simons[2000] 3 WLR 543.

3 The five main reasons cited (all of which were considered to be sub-species of the public interest in the administration of justice) were as follows: the ‘cab rank’ principle; the analogy with the immunities of witnesses in legal proceedings; the divided loyalty (between client and court) argument; the vexatious litigation argument; and the public policy against re-litigating a decision of a court of competent jurisdiction. Some of these rationales have also been invoked in an attempt to justify the immunity of judges, but as will be seen in Section 2 below, they are no more compelling in that context than they are in relation to barristers' immunity in negligence.

4 [1930] AC 558.

5 [1928] 2 KB 520.

6 [1930] AC 558 at 578 per Lord Warrington.

7 For a full account of this, see Way, F ‘a call for limits to judicial immunity: must judges be kings of their courts?’ (19801981) 64 Judicature 390 Google Scholar.

8 See Poulden, P ‘Doctor in trouble: Anderson v Gorrie and the extension of judicial immunity from suit in the 1890s’ (2001) 22 Journal of Legal History 37 CrossRefGoogle Scholar.

9 Critical of this approach, Lord Denning once remarked that ‘they made one liable in damages for a mistake of law made quite innocently and in good faith: see Houlden v Smith[1850] 14 QB 841, and just a hundred years ago they held that a revising barrister was liable in damages for turning a man out of his court – a man who richly deserved to be turned out: see Willis v Maclachlan[1876] 1 Ex D 376’: Sirros v Moore[1975] QB 118 at 134.

10 This principle is generally captured by the somewhat pithier Latin maxim, ubi jus, ibi remedium. Its operation, of course, presupposes a prima facie wrong. And such a presupposition could well be called into question were negligence liability in issue (since the absence of a duty forecloses any prospect of a wrong in the eyes of the law). But the negligence liability of judges is not in issue, as will be explained in Section 2 of this paper.

11 See Lucy, W ‘Equality before and under the law’ (2011) 61 University of Toronto Law Journal 411 CrossRefGoogle Scholar.

12 Boland v Yates Property Corporation Pty Ltd[1999] 74 AJLR 209 at 236.

13 This supposition is thought to flow naturally from the twin facts that, first, the superior court judges are the ultimate arbiters of their own jurisdiction and, secondly, all judicial acts within the court's jurisdiction attract the immunity.

14 See, eg, Olowofoyeku, A ‘the crumbling citadel: absolute judicial immunity derationalised’ (1990) Legal Studies 271 CrossRefGoogle Scholar at 272; id, Suing Judges: A Study of Judicial Immunity (Oxford: Oxford University Press, 1993) p 32; Holdsworth, Ws A History of English Law, vol VI (London: Methuen, 1937) p 239 Google Scholar. Similar claims are made elsewhere in the Commonwealth, where the common law rules are basically similar. See, eg, Harris, Bv ‘Remedies and accountability for unlawful judicial action in New Zealand: could the law be tidier?’ (2008) New Zealand Law Review 483 Google Scholar at 492.

15 [1777] 96 ER 673 at 674–675.

16 Sirros v Moore, above n 9, at 134 per Lord Denning MR. The historical truth of this claim should not be taken as conclusive since just because an action has never succeeded does not mean that an action never could succeed.

17 Ibid, at 135 per Lord Denning MR.

18 The Case of The Marshalsea[1613] 77 ER 1027.

19 Sirros v Moore, above n 9, at 139–140 per Lord Denning MR.

20 Ibid, at 132. Further authority for this proposition can be found in Fray v Blackburn[1863] 3 B & S 576 at 578 per Crompton J.

21 Ibid, at 137.

22 ‘So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action’: Sirros v Moore, above n 9, at 136.

23 [2003] AC 1.

24 Ibid, at [44].

25 Sirros v Moore, above n 9, at 135.

26 Lord Bridge certainly reiterated this principle (albeit obiter) some years later in Re McC, above n 1, at 540: ‘[T]he holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages.’

27 See, eg, Misuse of Drugs Act 1971, s 5, and Criminal Justice and Immigration Act 2008, s 63 (re extreme pornographic images).

28 [1969] 2 AC 256. I am grateful to Andrew Ashworth for drawing this case to my attention and for explaining its import to me.

29 Ibid, at 307–308.

30 Ibid, at 305.

31 Viz, his attempt to harmonise the immunity of the superior and inferior courts.

32 Re McC, above n 1.

33 Sirros v Moore, above n 9, at 140 (emphasis added).

34 The same is true in the US where the equivalent test, promulgated by Field J, is whether acts are ‘palpably in excess of the jurisdiction of the judges’: Randall v Brigham[1868] 74 US 523 at 537.

35 Sirros v Moore, above n 9.

36 This stance is in direct conflict with the one adopted by Lord Denning MR, who had this to say about errors of law and fact: ‘So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly believes it to be within his jurisdiction, he should not be liable’: ibid, at 136.

37 Ibid, at 149.

38 [1666] 85 ER 81.

39 Ibid, at 88–89.

40 At least one other author has noted this, saying that ‘[d]espite a valiant attempt by Lord Denning to rationalise the law...[it] is still hard to state concisely or with precision’: see Rogers, Wvh Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 2010) p 1105 Google Scholar.

41 The one exception is the suggestion that there is no duty owed to litigants by judges, and therefore no corresponding right on the part of litigants. The soundness of this thinking is considered in part (b) of this section.

42 Compare, eg, the law on qualified privilege in the law of defamation where the claimant's right to his reputation gives way to the superior rights of the statement-maker and recipient to utter and read (or hear) the defamatory words.

43 Corrective justice theorists commonly disavow resolutely the role of policy in tort law: see, eg, Beever, A Rediscovering the Law of Negligence (Oxford: Hart, 2007) p 55 Google Scholar; Weinrib, Ej The Idea of Private Law (Cambridge, MA: Harvard University Press, 1995) p 49 Google Scholar. Rights theorists, too, consider the invocation of public policy for dispositive purposes to be anathema: see, eg, Stevens, R Torts and Rights (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar ch 14.

44 One American judge, Douglas J, once asserted that there were nine such reasons, but on close analysis some are mere subsets of others. For details, and rather different critique to my own of the nine supposed rationales: see Olofowoyeku, above n 14, at 276–287.

45 In the context of defamation law, the judge (as well as all others involved in the trial) is afforded an absolute privilege in order to ensure the fullest possible contribution to the conduct of the trial. Furthermore, as Margaret Brazier explains, ‘there seems no compelling reason for treating identically a considered act of a court or other tribunal and words which may easily be spoken without sufficient consideration by even the most scrupulous judge in the course of proceedings’: Brazier, M ‘Judicial immunity and the independence of the judiciary’ (1976) 21 Public Law 397 Google Scholar at 398. For a like-minded distinction between acts and words, see Olowofoyeku, above n 14, at 126–127.

46 This principle finds expression in Art 1 of the Universal Charter of the Judge 1999, which proclaims: ‘The independence of the judge is indispensable to impartial justice under the law.’ See also Sirros v Moore, above n 9, at 132 per Lord Denning MR; MacKeigan v Hickman[1989] 2 SCR 796 at 830–831 per McLachlin J.

47 In fact, there are three more particular policy considerations that feed into this concern. These are wastefulness (in terms of the time and resources taken upon with litigation), the fact that litigation may cause the dignity or esteem of the judiciary to be called into question and the fact that the removal of immunity in its present form would result in unmanageable financial costs. Each of these is dealt with in what follows as separate concerns (rather than sub-concerns which, cumulatively, inform the independence issue). This approach is adopted for the simple reason that this is the way these policy considerations have been presented in the reported cases.

48 Taaffe v Downes[1813] 13 ER 15 at 18. Fox J was more measured. He believed that immunity was ‘necessary to the free and impartial administration of justice’: ibid, at 23.

49 Garnett v Ferrand[1827] 6 B & C 611 at 625.

50 Taaffe v Downes, above n 48, at 23.

51 For a similar conclusion, see Harris, above n 14, at 486.

52 For an unsubstantiated claim that the scope of immunity required by considerations of judicial independence should not be a matter for debate, see Wentworth v Wentworth & Others[2000] NSWCA 350 at [24] per Fitzgerald JA: ‘The protection which judicial immunity is intended to provide to those who perform the controversial but essential function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate.’

53 Groenvelt v Burwell[1700] 1 Salk 396 at 397 (emphasis added).

54 Arthur JS Hall v Simons, above n 2.

55 Three of the 109 judges began their professional lives as solicitors, but they cross-qualified and were also called to the Bar prior to becoming High Court judges. See http://www.judiciary.gov.uk/about-the-judiciary/judges-magistrates-and-tribunal-judges/list-of-members-of-the-judiciary/senior-judiciary-list.

56 For the history and instances of this lower level of immunity resulting in judicial liability, see Sirros v Moore, above n 9, at 133–134 per Lord Denning MR.

57 It has been noted in New Zealand that the vulnerability of inferior court judges to personal suit has not shown itself to ‘result in their being inundated with suits’: see Harris, above n 14, at 487.

58 In the year from 1 October 1999 to 30 September 2000, there were 511 people who obtained tenancies. The high-water mark occurred in the year to 30 September 2003 (when 698 people obtained tenancies). The number fell to its lowest in the year to 30 September 2008 (when only 494 people obtained tenancies). The statistics are drawn from: http://www.barstandardsboard.org.uk/news/statistics/.

59 Nor shall I so argue. Rather, in Section 3 of this paper I will suggest reasons why judicial liability should instead be subsumed within the tort of misfeasance in a public office.

60 According to a recent study conducted by Lord Judge, it is the possible drop in salary that, in some cases, dissuades some barristers from pursuing judicial careers: see Daily Telegraph, 7 January 2009.

61 It has its origins in Henderson v Henderson[1843] 3 Hare 100 at 114–115 per Sir James Wigram V-C. Whether it deserves to be so entrenched, and whether we really need it, are interesting questions to which the answer is not obvious: see, eg, the critique in Watt, G ‘the danger and deceit of the rule in Henderson v Henderson: a new approach to successive civil actions arising from the same factual matter’ (2000) 19 CJQ 287 Google Scholar.

62 It is perhaps noteworthy that precisely the same argument was raised in relation to the former barristers' immunity in negligence, but to no avail. Lord Bingham was unconvinced that the danger of cases being effectively re-litigated was a sufficient justification for a blanket immunity: see Arthur JS Hall v Simons, above n 2, at 37.

63 See, eg, Hunter v Chief Constable of the West Midlands Police[1982] AC 529. See also New Brunswick Rly Co v British and French Trust Corporation Ltd[1939] AC 1 and India v India Steamship Co Ltd (No 2)[1994] 2 Lloyds Rep 331 for concrete examples of it not being applied.

64 Johnson v Gore Wood & Co (A Firm)[2002] 2 AC 1 at 30 per Lord Bingham.

65 Hunter v Chief Constable of the West Midlands Police, above n 63, at 536 per Lord Diplock. In the mid-nineteenth century, when the Court of Chancery was significantly overburdened, it is possible that the res judicata principle was also seen as essential on floodgates grounds: see Watt, above n 61, at 294. This argument, however, seems no longer to be invoked.

66 Tughan v Craig[1918] 1 IR 245 at 257. In similar vein it was said in Floyd v Barker[1607] 77 ER 1305 at 1307 that ‘if the judicial matters of record should be drawn in question, by partial and sinister supposals and averments of offenders, or any on their behalf, there never will be an end of causes: but controversies will be infinite; et infinitum in jure reprobatur’.

67 The Civil Procedure Rules, r 3.4(2) permits the court to strike out a statement of case if it discloses no real grounds for bringing the claim or if it would amount to an abuse of the court's process.

68 Taaffe v Downes, above n 48, at 18 (emphasis added).

69 As has been observed, ‘public confidence in the judiciary and its independence may be enhanced by the community seeing the judges themselves being called to account and in seeing litigants gaining appropriate compensatory remedies for unlawful judicial action’: see Harris, above n 14, at 516. In similar vein, see Feldthusen, B ‘Judicial immunity: in search of an appropriate limiting formula’ (1980) University of New Brunswick Law Journal 73 Google Scholar at 80.

70 Fray v Blackburn, above n 20, at 578 (emphasis added).

71 r 3.4(2), above n 67.

72 I am indebted to Robert Stevens for his advice on the resource intensity of striking out actions in cases in which there are patently no grounds for bringing a claim.

73 Re McC, above n 1, at 540 per Lord Bridge. For a more colourful expression of the argument, see United States v Chaplin[1944] 54 F Supp 926, where O'Connor J opined (at 934): ‘The house should not be burned to destroy the mouse.’

74 He said forthrightly, ‘I do not think that the vexation argument, taken by itself, has any validity’: see Arthur JS Hall v Simons, above n 2, at [40].

75 Ibid.

76 In Sirros v Moore, above n 9, at 133, Lord Denning opined: ‘If the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages.’

77 Brazier, above n 45, at 400.

78 Exemplary damages are categorically distinct from aggravated damages (the latter being designed to fulfil a compensatory – not punitive – function in relation to a claimant's dignitary interest): see Murphy, J ‘the nature and domain of aggravated damages’ (2010) CLJ 353 CrossRefGoogle Scholar.

79 For further analysis, see Olowofoyeku, above n 14, at 157–161.

80 See Arenson v Casson[1977] AC 405 at 431–432 per Lord Kilbrandon: ‘The judge has no bargain with the parties before him. He pledges them no skill. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties, and behave towards them as a judge should...[I]f it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care.’

81 See above n 71. Instead of recognising this confluence of duties, Abimbola Olowofoyeku, above n 14, at 279, has attempted to dismiss the ‘no duty’ argument on the basis that ‘the question to whom a duty is owed is irrelevant when the question is not negligence’. But this is clearly wrong. Tort law is concerned with reparative responses to breaches of a whole host of duties; not just the duty to take reasonable care in the law of negligence.

82 Arthur JS Hall v Simons, above n 2, at [201].

83 [1703] 2 Ld Raym 938 at 953.

84 This is not to say that the tort system itself is beyond controversy. Some – including most famously, Patrick Atiyah – would happily countenance it being replaced by a suitably extensive social security system.

85 [2006] 2 AC 395 at [8].

86 More extensive accounts, reaching the same conclusion can be found in Olowofoyeku, above n 14, at 193–195 and Brazier, above n 45.

87 There is nothing in the decided cases that speaks of such absolute commitment. And it is only if there is such a commitment that comparisons become impossible, making any apparently countervailing considerations irrelevant. On the matter of ‘commitments’ and the impossibility of comparison, see Warner, R ‘excluding reasons: impossible comparisons and the law’ (1995) 15 Oxford Journal of Legal Studies 431 CrossRefGoogle Scholar.

88 Although it can be argued that judges are more accountable than most public officers by virtue of the fact that they must give reasons for their decisions in a public forum, it is also true that a presence of the general public in court cannot be guaranteed, and that not all cases get fully reported.

89 It is trite administrative law that decisions made by reference only to value Y are irrational where both value X and value Y are pertinent considerations.

90 Two things are only incommensurable ‘if it is neither true that one is better than the other nor true that they are of equal value’. Raz, J The Morality of Freedom (Oxford: Oxford University Press, 1986) p 122 Google Scholar.

91 Rawlinson v Rice[1998] 1 NZLR 454. The subsequent trial was later dismissed when it was held that District Court judges should be afforded the same immunity as High Court judges. But the immunity question is a separate and subsequent one to that of whether a judge is a public officer.

92 [1828] 5 Bing 91 at 107. Cf Re McC, above n 1, at 541 per Lord Bridge. In his Lordship's view, expressed obiter, judges should not be seen as public officers. But note also that in this case Lords Keith and Brandon reserved their judgment on the matter.

93 See Olowofoyeku, above n 14, at 10–13.

94 Ibid, at 13.

95 In the US, no distinction is drawn between the superior and inferior courts in terms of the immunity enjoyed by judges.

96 The liability under the Act does not involve the personal liability of the judge: see Maharaj v Attorney-General of Trinidad & Tobago (No 2)[1979] AC 385 at 399 per Lord Diplock.

97 For details of this so-called ‘horizontal effect’ of the Human Rights Act on tort law, see Wright, J Tort Law and Human Rights (Oxford: Hart, 2001) pp 23–25 Google Scholar, and the various tort cases discussed therein illustrating this horizontal effect at work.

98 A more trivial, third point that could be made is that the limitation period under the Act is less generous to the claimant than the common law would be.

99 See Kuddus v Chief Constable of Leicestersire[2002] 2 AC 122.

100 [2000] 3 All ER 1 at 7, quoting Nourse LJ in Jones v Swansea City Council[1990] 1 WLR 54 at 85.

101 Chamberlain, E ‘What is the role of misfeasance in a public office in modern Canadian tort law?’ (2010) 88 Canadian Bar Review 579 Google Scholar at 580.

102 For a recent example involving an American judge, see http://www.bbc.co.uk/news/world-us-canada-10747919.

103 Sirros v Moore, above n 9, at 133.

104 Epstein, Ra ‘Private-law models for official immunity’ (1979) 42 Law and Contemporary Problems 53 CrossRefGoogle Scholar at 61.

105 See, Poulden, above n 8, at 37–38.

106 See the various (then) contemporary accounts of the use of the forma pauperis procedure in Poulden, ibid, at 56.

107 The facility to strike out vexatious litigation is not a new one, but it appears not to have been as rigorously applied in the past as it is now.