High Court of Ireland Decisions

1. This matter comes before the Court pursuant to an Order of the 7 July 1997 (Johnson J) whereby it was ordered by consent that the following issue be tried as a preliminary issue namely "whether or not a Coroner enjoys absolute privilege in respect of anything he says in the course of an inquest irrespective of his state of mind"

The issue arises in the following circumstances.

The first named Plaintiff is the Managing Director of the second named Plaintiff and the second named Plaintiff is a limited company engaged in the business of promoting and organising concerts. The second named Plaintiff promoted and organised Feile 1995 which took place over the 1995 August Bank Holiday weekend at Pairc Ui Chaoimh, Cork.

During the course of this event a young man, Mr Bernard Rice, it is said, attempted to gain entrance into Pairc Ui Chaoimh by swimming across the River Lee and it is believed that in so doing he was drowned.

On the 15 September 1995 while conducting an inquest into the death of Mr Rice the Defendant, who is a Solicitor and is the Coroner for the City of Cork, is alleged to have spoken and published words concerning the Plaintiffs and each of them which it is alleged were defamatory. It is alleged that he said:

"An extravaganza of song, music and sleazy excesses that seem to have cast a hypnotic spell over the youth, as testified by this tragedy"

and

"The social and cultural values which inspire GAA Clubs in Cork City and County appear to be in stark contrast to the questionable engagements such as Feile in pursuant of financial funds by the GAA in Cork."

The Defendant in his defence raises the following plea:

"The Defendant will contend that the Plaintiffs are estopped from maintaining these proceedings by virtue of the words alleged as having been used (which said words are denied) being used by the Defendant in the course of his acting as a lawfully appointed Coroner and conducting a Coroner's Court pursuant to the Coroner's Acts."

It accordingly becomes necessary to determine whether or not a Coroner enjoys absolute privilege in respect of anything he says in the Course of an inquest irrespective of his state of mind.

It is, in my view, well settled that the immunity from suit enjoyed by the Judiciary exists not for the benefit of the Judge but for the benefit of the community as a whole. This immunity is perceived to be necessary and desirable so that a Judge may perform his functions the better freed of concern that in the course of performing his duties he may defame a Third Party and be required to be answerable to that Party in damages.

This view has been maintained in a series of cases from early times but in this Jurisdiction in MacAuley and Company Limited v Wyse Power (1943) 77 ILTR 61 Maguire J held "The people were entitled to have the opinion of the Judge without the fear of his words being challenged elsewhere." It was a salutary and beneficial privilege.

No successful challenge has been mounted to this immunity in the case of Judges of the Superior Courts who were acting in that capacity. It is unnecessary, for the purposes of this Judgment, to consider the degree to which a successful challenge has been mounted to the immunity in a case where a Judge of the Superior Courts has been acting in an administrative capacity.

There have however been a series of cases in which Judges of Inferior Courts have been successfully challenged where words spoken and actions done by them fell outside their Jurisdiction and it is in my view well settled that where a Judge of limited and local Jurisdiction acts outside of his Jurisdiction and does so to his knowledge that he forfeits his immunity from suit.

I am satisfied that the views expressed by the Court of Appeal in England in Sirros v Moore and Others 1975 QB 118 reflect the law in this Jurisdiction. I am satisfied that this must be so because the granting of an immunity to the Judiciary of necessity imposes a limitation upon the Constitution of the rights of the citizen to vindicate his good name and so the limitations placed upon the exercise of this right must be strictly limited to the degree to which the granting of the immunity may be necessary to achieve its objectives namely to enable the Judge to administer the law freed of the concern that he will be made answerable for his actions. Once the immunity is extended beyond what is necessary for that purpose a conflict with the Constitutional rights of the citizen exists. In my view the essential ingredient in the consideration of this matter is the state of knowledge of the Judge. Once he is aware of the fact that he is exceeding his Jurisdiction and continues to act then in my view he automatically ceases to be administering the law and the need for the immunity ceases.

In my view it is clear that a Coroner appointed under the Coroner's Act of 1962 can enjoy no more immunity from suit than a Judge of limited and local Jurisdiction. I am of the view that the statement to be found in Jervis on the "Offices and Duties of Coroners" Tenth Edition at page 37 to the effect that "Thus no action will lie against a Coroner who in the course of his duties properly turns the Plaintiff out of a room where an inquest is being held or who defames the Plaintiff during the course of his address to the Jury nor indeed who causes any harm to the Plaintiff by any act within the Jurisdiction of the Coroner" is a correct statement of the law but only so long as the act is done within the Jurisdiction of the Coroner and not otherwise.

A number of authorities (Garnett v Ferrand and Another (1827) and Foxall v Barnett (1853)) are all authorities for the proposition that an act done in the knowledge that it is in excess of Jurisdiction carries no such immunity and this in my view must be in accord with Article 35(2) of the Constitution which provides that all Judges shall be independent in the exercise of their Judicial functions subject only to the Constitution and to law which is perceived to be the origin of the privilege and immunity. It follows in my view that once the Judge ceases to exercise his Judicial functions, which of necessity means that he ceases to be performing them within his Jurisdiction, he ceases to enjoy the immunity.

The position of Coroner is created by the Coroner's Act of 1962 even though it was an Office recognised for many centuries. The qualifications of the Coroner are declared by the Minister for Justice after consultation with the Local Appointments Commission and every person to be recommended for the appointment of Office of Coroner shall be selected by such means and in such manner as the Local Appointments Commissioners shall think proper. The Coroner may be removed from Office by the Minister if he is of opinion that he has been guilty of misconduct or neglect of duty or is unfit to hold office or is incapable of the due discharge of his duties for any reason of physical or mental infirmity. The duties of the Coroner as set out in the 1962 Act are encapsulated in Section 30 of the Act which provides "Questions of Civil or Criminal liability shall not be considered or investigated at any inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how when and where the death occurred."

Accordingly, it appears to me that any statements which may be necessary for the Coroner to make whilst engaged in the carrying out of his duties as defined by Section 30 enjoy absolute privilege. In my view once the Coroner trespasses outside of the duties which he is required to perform by Section 30 and in particular into one of the areas specifically excluded by Section 30 then he no longer enjoys this privilege in respect of any statements made during the holding of an inquest.

Accordingly, I am of the view that the questions set to this Court should be answered in the following way:

A Coroner enjoys absolute privilege in respect of anything that he says while he is performing his duties as a Coroner in the holding of an inquest in accordance with Section 30 of the Coroners Act 1962 irrespective of his state of mind. Once, however, he strays outside of the functions which he is required to perform under the Act which are defined in the Section as being to ascertain the identify of the person in respect of whose death the inquest is being held and how, when and where the death occurred and once he knows that he is no longer performing one of these functions he ceases to enjoy this privilege.