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Cite as: [1999] 3 IR 306, [1998] IEHC 52

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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."

6. At page 161 he says:-

"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.