This article identifies the common law and statutory rules of judicial tort immunity, and discusses them in relation to their theoretical foundations. Are judges who sit in a court of law sufficiently distinguishable from other occupational groups to justify this special protection, or are judges simply more sensitive to the adverse consequences of tort liability within their own sphere? The article concludes that there is a valid case for a certain degree of immunity, but not the virtually total immunity suggested in the few modern cases on point.
Au cours de la deuxième moitié' du vingtième siècle, les tribunaux de common law n’ont cessé d’étendre les limites de la responsabilité civile des groupes professionnels. En règle générale, les arguments fondés sur les conséquences néfastes d’un élargissement de la responsabilité ont été rejetés en faveur du dédommagement de la victime. C ’est toutefois clairement à rebours de cette tendance que s’inscrit une décision récente de la Cour d’appel de l’Angleterre qui confirme et peut-être même élargit la traditionnelle immunité des juges.
Le présent article examine les principes de common law et les dispositions législatives régissant l’immunité des juges et évalue leur fondem ent théorique. La fonction des juges est-elle si différente des autres professions pour justifier cette protection particulière ou bien se peut-il simplement que les juges soient plus sensibles aux répercussions d’une extension de la responsabilité dans leur domaine d’activité? L ’auteur conclut que les juges devraient bénéficier d’une certaine immunité, mais non de l’immunité virtuellement complète que la jurisprudence récente semble consacrer.
Sirros v. Moore et al.,7 a decision of the English Court of Appeal, is one of the few modern decisions on point,8 and certainly the only one to examine the issue of judicial liability in any depth. The great majority of the cases considered by the court in Sirros were decided in the seventeenth, eighteenth, and nineteenth centuries. This is perhaps a credit to the honesty and competence of the judiciary, and perhaps a credit to the rules of judicial immunity which were designed to limit the number of tort actions which might be brought against judges.
Not only are the cases on point somewhat outdated, but they are also inconclusive. The judges in Sirros v. Moore could not agree upon the principles to be extracted from the cases, and academic writers have put forward still other views.9 Even agreement upon the statement of a rule does not take one very far because the rules employ terms such as “jurisdiction” and “malice”, upon the definition of which there is rarely agreement or certainty.
What do emerge from the older authorities are suggestions that judicial liability (perhaps more accurately phrased as judicial immunity, since most judicial acts are immunized from tort liability) may depend upon four different categories of variables. First, the scope of immunity might depend upon the status of the court — superior or inferior,10 of, or not of, record.11 Second, immunity might depend upon the type of error which the judge had committed, particularly as regards an action in trespass. The major issue was whether the error went to the judge’s jurisdiction; to a lesser extent, distinctions were drawn between errors of law- and fact. Third, relevant both to an action in trespass and to the less well-recognized action on the case, were considerations of the standard of care observed by the judge — intentional, reckless, or negligent error. Finally, closely related to the third category, but conceptually distinct, were considerations of the judge’s purpose or motive in performing the impugned act, attracting liability for malice or other improper purpose. It is apparent that when the variables within each category are combined with one another in a variety of ways, as they have been,12 the question of judicial immunity becomes potentially very complex.
This article does not attempt, except incidentally, to determine what the law of judicial immunity expressed in the older authorities actually was. Instead, as in the majority judgments in Sirros v. Moore, the focus is on what the scope of judicial immunity ought to be. The article begins with a general exploration of the arguments which support a special rule of judicial immunity. Next, the common law and statutory provisions on point are briefly summarized in order to provide a model for discussion. Then the various factors within each of the four categories identified above are examined to test their responsiveness to the rationales which support judicial immunity. Finally, there is a brief discussion of potential alternative compensation schemes which might co-exist with a fairly extensive rule of judicial immunity.
