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Fagan v. Burgess [1998] IEHC 52; [1999] 3 IR 306 (25th March, 1998)
THE
HIGH COURT
1997
No. 2297P
BETWEEN
STEPHEN
FAGAN
PLAINTIFF
AND
RORY
BURGESS
DEFENDANT
JUDGMENT
of Mr. Justice O'Higgins delivered on the 25th day of March 1998.
1. This
is a Motion by the Defendant Mr. Burgess in which he seeks to have the
proceedings struck out on the grounds that it discloses no reasonable cause of
action and is frivolous and vexatious pursuant to Order 19 Rule 28. The net
issue arises to be decided is as to whether or not a witness in a civil action
can be sued for perjury.
2. I
was referred to Halsbury 4th Edition Volume 28 which states as follows:
"98
Absolute Privilege
.
No Action lies, whether against judges', counsel, jury, witnesses or parties,
for words spoken in the ordinary course of any proceedings before any Court or
tribunal recognised by law. The evidence of all witnesses or parties speaking
with reference to the matter before the Court is privileged, oral or written,
relevant or irrelevant, malicious or not. The privilege extends to documents
properly used and regularly prepared for use in the proceedings".
3.
I was referred also to Salmon and Hueston on the Law of Torts 21st Edition,
Clarke and Lindsell on Torts 17th Edition Phibson on Evidence 14th Edition, as
well as to
Hargreaves
-v-Bretherton
1 QB 1956;
Seaman
-v- Netherclift
1876/7 Law Reports Vol. 2 CPD p53 as well as
Marrinan
-v- Vibart & Anor
1963 1 QB at page 528. In
Hargreaves
-v- Bretherton
Lord Goddard C. J at page 51 stated:-
"The
simple point that I have to decide is whether or not an action lies at the suit
of the person who says that he has been demnified by false evidence given
against him. In my opinion it is perfectly clear and beyond peradventure
nowadays that such an action will not lie".
4.
It is noteworthy that perjury was alleged in that case. Dr. Forde for the
Plaintiff/Respondent accepts that the law in England is well settled but
contends that the position is different in Ireland. He concedes that the Irish
decision of
Looney
-v- Bank of Ireland
1996 1 I.R. 157 is against him but argues that different criteria should apply
to perjury cases than for defamation cases because firstly, perjury is a graver
matter than defamation and, secondly,
perjury,
unlike defamation is always intentional. Furthermore he argues that the public
policy considerations for granting privilege do not stand up to scrutiny.
Indeed, it is argued that if an action for perjury were to be allowed, it would
be likely to aid, rather than hinder, the administration of justice by being a
disincentive to people to commit perjury. In the case of
Looney
-v- Bank of Ireland
1996 1I.R. 156 at page 159, 160, Murphy J. said as follows:-
"
The basis of the present motion is that such an action can not be sustained
because a statement made by the second named defendant in an affidavit whether
true or false, enjoys absolute privilege.
That
is the contention on behalf of the applicant, the defendants in the present
case. There is no doubt, that this has always been regarded as the law in this
country. One may take one brief sentence confirming that proposition from
Kennedy
-v- Hillard
1859 10 I.R. Com. Law Rep. 195 from the judgment of Pigot C.B. at the end of
page 200 where he says:-
'I
take the following propositions, as to the points with which they deal, to
state correctly the Law in reference to immunity, on the one hand, and
liability on the other, of a party making a false and defamatory imputation,
written or spoken, to the injury of another. First; for what is stated by a
party on his own behalf, or a witness giving evidence in the ordinary course of
a judicial proceeding, there is absolute immunity from liability to an action
for libel and/or slander.'
If
that is good law then indeed the plaintiff's claim in the present case must
fail and I would have really no option but to strike out this claim in fairness
to both the defendants and to the plaintiff because there could be no purpose
in proceeding further with it."
5. Further
and in the same page the learned Judge continues:-
"At
no stage, as far as I am aware, has it ever been doubted or questioned in any
jurisdiction that there is absolute privilege in relation to matters in issue
in legal proceedings. Such debate as has arisen has concerned matters or the
extension of privilege to matters, which are not directly in issue."
"That
privilege derives from the necessity of affording to witnesses the opportunity
of giving their evidence freely and fearlessly. It does not derive from the
Royal prerogative. It derives from the very nature of the judicial process and
the independent judiciary created by our Constitution."
7. On
appeal to the Supreme Court the judgment of the High Court in
Looney
-v- Bank of Ireland
was affirmed. In his extempore judgment delivered on the 9th May, 1997
O'Flaherty J. said:-
"However,
there is at issue a far more fundamental point which is the need to give
witnesses (and also indeed, the Judge) in Court, a privilege in respect of oral
testimony and also with regard to Affidavits and documents produced in the
course of a hearing. Such persons, either witnesses or those swearing
Affidavits, are given an immunity from suit. Otherwise, no Judge could go out
on the bench and feel that he or she could render a judgment or say anything
without risk of suit. Similarly, witnesses would be inhibited in the way they
could give evidence. The price that has to be paid is that civil actions
cannot be brought against witnesses even in a very blatant case, which of
course this case is not, but even in a case of perjury - which would be such a
case - the law says that an action cannot lie."
8. And
further in the same judgment he says:-
"The
necessity to give immunity in respect of oral testimony and documentary
evidence in Courts was so well established at the time the Constitution came
into force that it was not thought necessary to provide expressly for it in the
way that an absolute privilege is given in respect of utterances in the
Chamber to all members of Dail Eireann and Seanad Eireann; cf. Article 15.12"
9. The
law, therefore is very well settled. Even if the reference to perjury in the
judgment of Mr. Justice O' Flaherty was obiter, it is still of persuasive
authority. I do not accept that different principles should apply in respect
of privilege where perjury is involved than where defamation is involved. I
would therefore allow the Plaintiff's Motion and strike out the proceedings.
© 1998 Irish High Court
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