The Privy Council has today upheld the Mauritian courts’ interpretation of English law principles governing judges’ immunity from civil liability in an important judgment concerning the constitutional law of former British colonies.
The appellant, Mr Hurnam, was a practising barrister in Mauritius. In 2003, he was convicted for conspiring with one of his clients to hinder a police investigation by fabricating an alibi. In 2016, he brought a claim in the Intermediate Court of Mauritius against one of the magistrates who had convicted him, Magistrate Mungly-Gulbul (as she then was; she has since become Chief Justice of Mauritius). On 8 April 2019, the claim was called on for mention before the Presiding Magistrate of the Intermediate Court and the respondent before the Board, Magistrate Veerabudren, who adjourned the hearing to be re-listed for 29 May 2019. Mr Hurnam represented himself at the hearing.
What occurred at the hearing on 8 April 2019 is disputed. But, on 5 July 2019, Mr Hurnam issued proceedings against Magistrate Veerabundren, alleging that during an “acrimonious” exchange at the hearing the magistrate “show[ed] her muscles”, “yelled in a tone and a language which provoked him”, “went on rambling” and “sighed – ‘chut’”. Mr Hurnam asserted that the magistrate’s conduct caused him harm, and thereby constituted a civil wrong, entitling Mr Hurnam to damages under Article 1382 of the Mauritian Code Civil.
Magistrate Veerabudren raised a preliminary objection that Mr Hurnam’s action against her could not proceed because she was immune from civil suits in discharging her judicial and administrative responsibilities as a magistrate of the Intermediate Court. That objection succeeded at first instance, resulting in Mr Hurnam’s claim being summarily dismissed; the first instance decision was upheld on appeal to the Supreme Court of Mauritius. Relying on the English Court of Appeal’s decision in Sirros v Moore [1975] QB 118 and subsequent Mauritian cases, the first instance court and the Supreme Court held that judges of the Intermediate Court (an inferior court of record) were immune from personal liability in performing their judicial function. The Mauritian courts also rejected Mr Hurnam’s argument that judicial immunity had been put on a statutory footing on enactment of the Public Officers’ Protection Act 1957 (the 1957 Act).
On Mr Hurnam’s appeal to the Privy Council, the Board was first required to consider the source of the principles of judicial immunity under Mauritian law. Mauritius is a mixed civil and common law jurisdiction, having been ceded by France to Britain in the early 1800s. Prior to Mauritius becoming a British colony, its law was French law principally as set out in the Code Napoléon. After cession French law remained (and remains) the source of general law in Mauritius subject to statutory changes from time to time. The question before the Board was whether the principles governing the immunity of judges from personal liability had to be found in French law as in force in Mauritius or whether English legal principles had been received into Mauritian law, and if so by what mechanism.
This is the first time in almost 60 years that the Privy Council has had to consider the reception of English law in a territory acquired by conquest or cession. Relying on a line of authority traced back to Ruding v Smith (1821) 2 Ag Con 371 concerning the law governing issues of sovereignty in such territories, the Board accepted arguments advanced on behalf of Magistrate Veerabundren that English public law was received in Mauritius upon its cession to Britain by France and that the question of the immunity of judges was a constitutional matter, which was governed by English legal principles. This decision is likely to have ramifications for other former British colonies, in the Caribbean and elsewhere.
The Board then examined the history of judicial immunity in English law and, in doing so, waded into a long-running, unresolved question about the purpose and effect of nineteenth century statutory reforms to the protections extended to justices of the peace (forerunners to modern-day magistrates). The Board held that this history disclosed a long-established principle that a judge acting within jurisdiction had immunity from personal liability, whether or not the judge was sitting in a superior or inferior court. It followed that a judge (even one of an inferior court) could not be held personally liable for words uttered or gestures made in open court during the hearing of a matter within the judge’s jurisdiction.
In doing so, the Board characterised Lord Denning MR’s suggestion in Sirros v Moore [1975] QB 118 that justices of the peace lacked immunity for acts within jurisdiction as likely to have been made per incuriam and lent firm support to the view that the nineteenth century legislation (which remains in force in modified form in the UK and certain Commonwealth jurisdictions) applied to administrative functions of a justice of the peace, leaving the judicial functions governed by common law principles.
The Board also rejected Mr Hurnam’s arguments based on the 1957 Act. Mr Hurnam had argued that section 6 of the Act modified the law of judicial immunity so that a magistrate who acts within jurisdiction but with malice or without reasonable and probable cause can be held personally liable for their actions. The Board held that section 6 left the principles governing judicial immunity for acts within jurisdiction unaffected and instead simply regulated the protection for ministerial or administrative acts, rather than judicial acts, undertaken by judges, officers and clerks. For legislation to have the effect of modifying what the Board described as “an important constitutional safeguard” such as judicial immunity, clear and unambiguous language demonstrating that intention was required.
The Board dismissed Mr Hurnam’s appeal and upheld the summary dismissal of his action against Magistrate Veerabundren.
Andrew McLeod acted as sole counsel for the successful respondent, instructed by RWK Goodman LLP.
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