Judicial Immunity: In Search of an Appropriate Limiting Formula

Abstract

During the last half of the twentieth century the common law courts have consistently expanded the potential tort liability base of professional and occupational groups. In general, arguments about the adverse consequences of broader liability rules have been rejected in favour of the plaintiff's claims for relief In sharp contract is the English Court of Appeal’s confirmation, and perhaps extension, of the longstanding and restrictive principles of judicial immunity.

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 modem cases on point.