Dreier, J.c.c., Temporarily Assigned.
Defendant has moved for summary judgment in the captioned cases. Although the respective actions of plaintiffs Hogan and Devlin have not yet been consolidated, the similarity of facts and issues mandates a single resolution.
In this motion the court must give all favorable inferences to plaintiffs. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954). Thus viewed, the affidavits before the court justify the following statement of facts. R. 4:46-2.
On August 16, 1974 Thomas Hogan, husband of plaintiff Barbara Hogan, hired defendant, a private detective, to investigate her activities involving plaintiff Robert Devlin. The surveillance ran from August 17 to August 29, 1974. The report tendered by defendant chronicled a series of occasions on which defendant observed plaintiffs together in compromising situations, and concludes with the following statement: "Investigation indicates a clear and apparently static pattern of association between subject and male subject."
Subsequently in October 1974 Thomas Hogan instituted suit against his wife, seeking a divorce on the grounds of adultery and naming plaintiff Devlin as corespondent. The essential contents of the report were later repeated by defendant in the form of an affidavit filed with the court in the divorce action. The divorce was ultimately granted on May 10, 1976 on Mrs. Hogan's counterclaim (based upon other grounds) and the original complaint dismissed with prejudice.
For purposes of this motion, plaintiffs have produced responsive affidavits showing that the observations claimed to have been made by defendant on various occasions must have been fabrications.
Although framed in only two counts, a fair reading of plaintiff Devlin's complaint sets forth causes of action sounding in privacy, intentional infliction of mental distress, and negligence. The complaint of plaintiff Hogan alleges causes of action in negligence, privacy, intentional infliction of mental distress, and libel. Both seek compensatory and punitive damages.
Defendant argues that regardless of what causes of action are set forth in the respective complaints, all are barred by his timely claim of absolute privilege.*fn1 His argument is that
the report was made by him as a witness in an incident judicial proceeding, and thus was absolutely privileged.
The doctrine of absolute immunity with respect to statements made in the course of judicial proceedings is one firmly established in our law. La Porta v. Leonard , 88 N.J.L. 663 (E. & A. 1916); Rogers v. Thompson , 89 N.J.L. 639 (E. & A. 1916); Rainier's Dairies v. Raritan Valley Farms, Inc. , 19 N.J. 552 (1955); Fenning v. S.G. Holding Corp. , 47 N.J. Super. 110 (App. Div. 1957); Middlesex Concrete, etc. v. Carteret Industrial Ass'n , 68 N.J. Super. 85 (App. Div. 1961). The doctrine is derived from the English rule, which differs slightly from the American rule in that England affords a "true" absolute privilege without regard to the relevancy of the statements to the subject matter of the proceedings. Munster v. Lamb ,  11 Q.B.D. 558. The only dilution of the rule which has occurred in New Jersey (and in most American jurisdictions) is the requirement that the defamatory matter uttered have some relation to the nature of the proceedings. Thus, statements made in the course of judicial proceedings, but not relevant thereto, are excluded from the privilege. However, as stated in Fenning v. S.G. Holding Corp., supra , 47 N.J. Super. at 118; "The pertinency thus required is not a technical legal relevancy * * *. As to the degree of relevance needed to invoke the absolute shield of this immunity, the courts are most liberal * * *." The privilege has also been held to apply to
quasi-judicial proceedings before a tribunal recognized by law which, though not a court in the ordinary sense, exercises judicial functions in a manner similar to that in which a court acts in respect of an inquiry. Rainier's Dairies v. Raritan Valley Farms, Inc., supra; Gatley, Libel & Slander (4 ed. 1953), at 181.
However, the privilege does have its limits. As stated in Fenning, supra:
In analyzing the respective causes of action alleged by plaintiffs this court has the initial responsibility of determining whether the occasion upon which defendant published the report was absolutely privileged. Accordingly, three questions suggest themselves:
I. Given the facts of this case, is the policy behind the privilege furthered by its application in the instant matter?
II. If such privilege exists, what causes of action are affected thereby?
III. Are there alternative remedies available to plaintiffs if they are barred by a successful assertion of the privilege?
Early in the development of the law of defamation, privileged defamatory matter was divided into two general categories: (1) absolutely privileged and (2) qualifiedly privileged. The difference between the two is that a finding of malice destroys the latter, but the former remains absolute, even in the face of intentional falsehood. Rogers v. Thompson,
supra , 89 N.J.L. at 640; Rainier's Dairies v. Raritan Valley Farms, Inc., supra , 19 N.J. at 558; Prosser, Law of Torts (4th ed. 1971), § 114-115, at 776-796.
Although framed in terms of defamation, the privilege has also been recognized by the courts of this State to bar other causes of action that arise from conduct of parties and/or witnesses in connection with a judicial proceeding. In Rainier, supra , the privilege was held to bar an action for tortious interference with business relations, the court stating:
If the policy, which in defamation actions affords an absolute privilege or immunity to statements made in judicial and quasi-judicial proceedings is really to mean anything then we must not permit its circumvention by affording an almost equally unrestricted action under a different label. [19 N.J. at 564]
Similar reasoning was held to bar such a claim in Middlesex Concrete, etc. v. Carteret Industrial Ass'n, supra , 68 N.J. Super. at 91.
There is a strong public policy favoring free expression in the judicial system, justifying the application of an absolute privilege in favor of those who involve themselves in judicial or quasi -judicial proceedings. Underlying the privilege's creation as an exception to the general rules of liability is the "supervening public policy that persons in such circumstances be permitted to speak and write freely without restraint or fear of an ensuing defamation action, this sense of freedom being indispensable to the due administration of justice." Fenning, supra , 47 N.J. Super. at 117. Once the privilege has attached, even a showing of actual malice will not destroy it. Rainier's Dairies, supra , 19 N.J. at 558; Rogers v. Thompson, supra , 89 N.J.L. at 640.
Nevertheless, this court remains mindful of the need to balance the competing interests involved here. As stated by Justice Van Vechten Veeder in his article, "Absolute Immunity in Defamation," 9 Col. L. Rev. 463, (1909), quoted by the court in Laun v. Union Electric Co. of Mo. , 350 Mo. 572, 166 S.W. 2d 1065, 1071 (Sup. Ct. 1943):
The absolute immunity in defamation accorded on certain occasions * * * presents a conflict or antinomy between two principles equally regarded by the law -- the right of the individual on one hand, to enjoy his reputation, unimpaired by defamatory attacks, and, on the other hand, the necessity, in the public interest, of a free and full disclosure of facts in the conduct of the legislative, executive and judicial departments of government.
In carrying out its responsibilities this court will not lightly extend the grant of absolute privilege to new situations unless the policy upon which the privilege is based is found to exist. Coleman v. Newark Morning Ledger Co. , 29 N.J. 357 (1959), (dissenting opinion of Justice Weintraub at 386); Laun, supra at 1070.
The facts of this case present a situation that is one of first impression in this State -- the extension of the privilege to situations where the actions taken precede any legal proceedings, here by a period of approximately two months.
The appellate authority in New Jersey has treated only situations where statements were made during judicial or quasi -judicial proceedings. Thus in Middlesex the report was commissioned some nine months after suit had been commenced. 68 N.J. Super. at 88-89. Similarly, the acts complained of in Rainier's Dairies occurred subsequent to the triggering of the administrative process. 19 N.J. at 552. See also, Fenning v. S.G. Holding Corp., supra (letter written during rent increase application); Thourot v. Hartnett , 56 N.J. Super. 306 (App. Div. 1959) (defamatory matter contained in the complaint); Rogers v. Thompson, supra (during creditors' meeting in bankruptcy proceedings); and cf. Spoehr v. Mittelstadt , 34 Wis. 2d 653, 150 N.W. 2d 502 (Sup. Ct. 1967) (pretrial conference); Stewart v. Hull , 83 Ky. 375 (Ct. App. 1885) (pre-trial discovery); Thornton v. Rhoden , 245 Cal. App. 2d 80, 53 Cal. Rptr. 706 (D. Ct. App. 1966) (pretrial discovery).*fn2
Defendant cites Restatements, Torts , § 588, which provides as follows:
A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as part of a judicial proceeding in which he is testifying if it has some relation thereto. [Emphasis supplied]
In support of his position defendant argues that the emphasized portion of this Restatement section is embodied in the decisional law of New Jersey. Specifically, defendant relies on dictum found in Middlesex Concrete, supra:
The privilege or immunity is not limited to what a person may say under oath while on the witness stand. It extends to statements or communications in connection with a judicial proceeding. It protects a person while engaged in private conferences with an attorney with reference to litigation. [citations omitted].
If this were not so, every expert who acts as a consultant for a client with reference to proposed or actual litigation, and thereafter appears as an expert witness, would be liable to suit at the hands of his client's adversary on the theory that while the expert's testimony was privileged, his preliminary conferences with and reports to his client ...