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O'Keeffe v. Kilcullen [2001] IEHC 17 (1st February, 2001)

THE HIGH COURT

1992 No. 7133P

BETWEEN

EILEEN O’KEEFFE

PLAINTIFF

AND

DIARMUID KILCULLEN, MARTIN NOLAN, PATRICIA CASEY, ERINVILLE HOSPITAL AND SOUTHERN HEALTH BOARD

DEFENDANTS

JUDGMENT delivered by O’Sullivan J. on 1st of February 2001.

INTRODUCTION.

On the 12th of July 1983, the Plaintiff married one Denis O’Keeffe.

In 1986 the said Denis O’Keeffe petitioned the High Court for a Decree of Nullity of his marriage with the Plaintiff. By Order of the Master of the High Court, the third named Defendant was appointed to carry out a psychiatric examination of the Plaintiff and to report in writing to the Court thereon, the said report to be transmitted by the third Defendant by registered post in a sealed envelope addressed to the Master of the High Court, Four Courts, Dublin 7. The Plaintiff was ordered to attend at an appointed place for the purpose of examination by the third Defendant.

1. By Order of the High Court (Blayney J.) of the 26th of June 1987, the Plaintiff’s marriage with the said Denis O’Keeffe was declared null and void for the reason that the Plaintiff at the date of the marriage suffered from a personality disorder of such a degree that she lacked the capacity to form and sustain a normal marital relationship with the said Denis O’Keeffe. That decree of nullity was appealed to the Supreme Court which by Order of the 24th of July 1990, dismissed the Plaintiff’s appeal and affirmed the High Court Order.

2. By Plenary Summons dated the 4th of November 1992, the Plaintiff initiated the present proceedings in which she is claiming, inter alia , damages from the third Defendant for negligence. I summarise that claim as follows:-

Having being appointed by the Master of the High Court in the Matrimonial Proceedings, the third Defendant owed a duty of reasonable skill and care to the Plaintiff in her examination report and evidence;
The third Defendant examined the Plaintiff and in an initial report referred to conflicting histories given by the Plaintiff and her husband and to the fact that it was not possible to ascertain which was correct although she was inclined to the view that the Plaintiff was suffering from a personality disorder;
This diagnosis would be confirmed if other sources confirmed the veracity of the history given by the Plaintiff’s husband;
The third Defendant furnished an addendum to her initial report concluding that the Plaintiff’s behaviour therein outlined lent further weight to her view that the Plaintiff was suffering from a severe personality disorder;
In her evidence to the Court in the Matrimonial proceedings, the third Defendant advised the Court, that the Plaintiff told lies constantly and was suffering from a severe personality disorder. She further said that without leave of the Plaintiff, she had contacted a number of medical and other witnesses and obtained information from them which she did not check with the Plaintiff and upon which she based her diagnosis.
The Plaintiff’s marriage with the said Denis O’Keeffe was declared null and void by the High Court, in consequence of which the Plaintiff has suffered loss and damage, in that she is not entitled to seek maintenance payments or statutory benefits, and has suffered an infringement of her rights under Articles 41 and 42 of the Constitution;
The third named Defendant was negligent and in breach of her said duty to the Plaintiff in failing to perform the examination and prepare her reports and give her evidence with reasonable care and skill; her diagnosis was incorrect and the Plaintiff avers that she did not at any material time suffer from the said personality disorder.

3. By Motion dated the 25th of November 1996, the third Defendant sought an Order dismissing the Plaintiff’s said action, inter alia , on the grounds that the proceedings did not disclose any cause of action and by Order of the 24th of June 1998, I ordered that the Plaintiff’s claim as against the third Defendant be dismissed on the said grounds and that certain paragraphs of the Statement of Claim including particulars of negligence be struck out.

4. I delivered a reserved Judgment on the 24th of June 1998, from which it is clear that the reason why I concluded that the third Defendant was entitled to the Order was because the evidence complained of by the Plaintiff did not cause the loss and harm of which the Plaintiff complained.

5. The Order of the 24th of June 1998 was appealed and at the hearing before the Supreme Court on the 17th of November 2000, an argument was advanced to the effect that the third Defendant, as a witness, enjoyed an immunity from suit in negligence in and about the giving of evidence in Court. This argument had not being made before me and the Supreme Court, accordingly, ordered that it was proper that the issue as to whether the third Defendant enjoys such an immunity should be so argued before being dealt with by the Supreme Court and accordingly made an Order remitting the matter to the High Court for the determination of that issue, staying the Order of the High Court of the 24th of June 1998 pending the determination of that issue and directing the appeal to be re-entered by either party following on such determination.

THE SUBMISSIONS .

6. At the hearing before me of the said issue, the third Defendant was represented by Mr. Fitzgerald S.C. and Mr. Gleeson B.L.. Mr. Fitzgerald submitted that there was a long- standing absolute immunity from suit which protected witnesses in respect of evidence given in Court.

7. This immunity exists for the benefit of the public

“...since the administration of justice would be greatly impeded if a witness were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation” (per Salmon J. In Marrinan -v- Vibart: 1962: 1: AER 869 ).

8. This immunity was not to be “outflanked” which could happen unless it extended to the reports and briefs of evidence prepared in advance of a Court hearing. (see per Drake J. in Evans -v- London Hospital Medical College: 1981: 1: AER: 715 ), and accordingly, such preparatory work was also protected. It applied to an expert retained for the purpose of advising in litigation, in respect of the evidence which he gave in Court and the work principally and proximately leading thereto, although an expert was not immune in respect of advice given to his client as to the merits of the claim. (see per Simon Tuckey Q.C. in Palmer -v- Durnford Ford: 1992: 2: AER: 122 ).

In Saif Ali -v- Sydney Mitchell & Co. (a firm ) and others (1978: 3: AER: 1033) the House of Lords concluded that a barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). This position has altered in the United Kingdom since the decision of the House of Lords in Hall & Co. ( a firm) -v- Simons (2000: 3: AER: 673 ) where it was held that advocates no longer enjoyed immunity from suit in respect of their conduct of civil and (with some dissenting opinions) criminal proceedings.

9. It will be recalled that in Rondel -v- Worsley (1967: 3: WLR: 1666 ) the House of Lords had held that a barrister was immune from an action in negligence in respect of his conduct and management of a case in Court and preliminary work connected therewith, including the drafting of pleadings. This was based not on contract but on public policy grounds which require that a barrister should be able to carry out his duty to the Court fearlessly and independently, actions for negligence against barristers would make the retrying of original actions inevitable and prolong litigation which was contrary to the public interest and a barrister was obliged to accept any client however difficult who sought his services.

10. A second limb to the public policy (apart, that is, from relieving witnesses from apprehensions of actions based on their evidence) was the avoidance of a multiplicity of actions in which the value or truth of witnesses’ evidence would be tried over again. (see Roy -v- Prior: 1970: 2: AER: 729 ). It is in the public interest that the Court lists should not be cluttered with vexatious litigation even at the cost of barring bona fide suits based on genuine negligence or even deceit on the part of witnesses.

11. Public policy, therefore, requires that:

Witnesses (including expert witnesses) should be encouraged to present to Court all the evidence that it is desirable that the Court should hear without the worry that afterwards their time, energy and possibly their own money might be devoted to defending post evidential suits (a proportion of which might well be bona fide and otherwise justifiable); and
The Court lists should not be cluttered up with post evidential litigation which would inevitably involve retrying some issues or some aspects of issues which have already been dealt with in Court.

12. Mr. Fitzgerald submitted that where a Court appoints its own witness there was a further dimension to the public policy, namely, that such witnesses might be the less inclined to tender evidence to the Court if their traditional absolute immunity were removed with the result that the Court might not have available to it the best evidence. It is in the public interest that the Court should have available to it such evidence.

13. Finally, and of course most insistently, he submitted that I am bound by the recent decision of the Supreme Court in Looney -v- Bank of Ireland & Anor. (unreported: 9th of May 1997 ), in which the immunity of a witness who had allegedly defamed the Plaintiff was upheld so as to warrant a dismissal of the Plaintiff’s actions against her for defamation.

14. Mr. O’Connor B.L. submitted on behalf of the Plaintiff as follows:-

15. The decision of the Supreme Court in Looney did not deal with expert witnesses and accordingly the present case was distinguishable with the result that I am not bound by that decision.

16. The position of a Court-appointed expert may be stronger as a potential Defendant in an action where it is alleged he gave his evidence negligently because he owes a primary duty to the Court and not to a person in the position of the present Plaintiff, but that primary duty did not exhaust all his duties and such an expert did indeed owe a duty of care to a person likely to be damaged by such negligent evidence.

17. The Supreme Court in Looney itself recognised that there was some limit to immunity for protected witnesses. Accordingly, the immunity was not absolute, and, that being the case, it was open to this Court to suspend it in the case of an expert witness, even an expert appointed by the Court.

18. Furthermore, there has been a shift in the jurisprudence of the United Kingdom which he invited me to follow in this jurisdiction. The Superior Courts in the U.K. have begun to cast a cold eye on the vexatious claims element of the traditional public policy. For example, Lord Hoffman in Hall -v- Simons (2000: 3: AER: 673 at page 691) opines that

one “should not exaggerate the bogey of vexatious claims.” The insurance company will probably handle the claim and recent developments in the (UK) civil justice system reduces the incidence of such claims. These recent developments (in the UK) were a change in the rules regarding summary dismissal which lowered the standard for a Defendant on his (the Defendant’s) application to dismiss and entitled him to give evidence on that motion and, furthermore civil legal aid representation has being arranged so that it will be “ much more difficult than it has been in the past to obtain legal help for negligence actions which have little prospect of success.”

19. While Mr. O’Connor accepts that the recent developments referred to by Lord Hoffman do not apply in this country, he nevertheless submits that, the superior courts in the United Kingdom are now insisting that the immunity from suit must be clearly justifiable. The world has moved on, it is submitted, from the time in which Rondel -v- Worsley (1967 ) was decided. The world is now more consumer oriented and greater emphasis is placed on the other important public policy principle namely that every wrong should have a remedy. This approach is reflected in the jurisprudence of the Superior Courts in the United Kingdom in the last half decade or so, as, for example, in the following extract from the speech of Lord Hoffman in Hall -v- Simons ( 2000: 3: AER: at page 704) where he says

“My Lords, I have now considered all the arguments relied upon in Rondel -v- Worsley . In the conditions of today, they no longer carry the degree of conviction which would in my opinion be necessary to sustain the immunity. The empirical evidence to support the divided loyalty and cab rank arguments is lacking; the witness analogy is based upon mistaken reasoning and the collateral attack argument deals with a real problem in the wrong way. I do not say that Rondel -v- Worsley was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable and your Lordships must consider the arguments afresh.”

20. This, indeed, is what Mr. O’Connor B.L. invites me to do, given his primary submission that the decision of the Supreme Court in Looney is distinguishable and does not bind me in the instant case.

CONCLUSIONS.

21. Since I consider that I am bound by the Supreme Court decision in Looney and that there is no basis therein for distinguishing the situation of an expert witness appointed by the Court, I have thought it proper, in light of the direction of the Supreme Court that the matter be remitted to me for the determination of the issue in relation to immunity, to set out in some detail the submissions made by Counsel but not to engage in the fundamental reorganisation of Irish jurisprudence as invited to do by Mr. O’Connor B.L. but rather to determine the issue as I am about to do in the light of the precedent binding upon me in Looney.

22. The conclusion that Looney is binding on the High Court was reached also by O’Higgins J. in Fagan -v- Burgess: (unreported: 25th March 1998) in which arguments similar to those in the present case and described above were also made.

In Looney Hamilton C.J. said:-

“In those circumstances, it (i.e. the impugned affidavit) being filed in reply to a request of the learned trial Judge it was obviously a matter in issue in the proceedings before the Court in which the Affidavit was made and in those circumstances the defence of absolute privilege is available.”

Later he said:-

“I am satisfied and I think the Court is satisfied that the Affidavit was relevant to what the trial Judge (Mr. Justice Morris) considered to be an issue in the proceedings and consequently is entitled to absolute privilege and for that reason the appeal brought by Mr. Looney must be dismissed but I would like to state that the allegation made by Ms. Morey was based completely and utterly on hearsay. It has been denied on Affidavit and in open Court by Mr. Looney and insofar as this Court can extend in any way to Mr. Looney vindication of his good name the Court accepts the statement by Mr. Looney that he was not in any way involved in this. That is as far as the Court can go to vindicate his name because it has to protect the rights of absolute privilege which is absolutely necessary to enable the Courts to function in accordance with their constitutional obligations.”

23. O’Flaherty J. in the same case 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 the 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 ....

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 utterences in the chamber to all members of Dail Eireann or Seanad Eireann; cf. Article 15.12.”

24. O’Flaherty J. then went on to refer to the decision of O’Dalaigh C. J. in In Re: Haughey (1971: IR: 217) where reference was made to malicious and irrelevant testimony in Court where O’Dalaigh C.J. said:-

“It is salutary to bear in mind that even in the High Court, if a witness were to take advantage of his position to utter something defamatory having no reference to the cause or matter of enquiry but introduced maliciously for his own purpose, no privilege or immunity would attach and he might find himself sued in an action for deformation.”

25. O’Flaherty J. agreed with the setting of that boundary to the immunity, but it is clear that the limitation on the absolute application of the immunity applies only where evidence is given which is malicious and irrelevant to the issue before the Court.

26. Barrington J. concurred with both the foregoing Judgments and also with the rider:-

“That there is possibly some bound to the so called absolute privilege of the witness in a case of flagrant abuse”.

27. From the foregoing it is clear that the witness in Looney gave evidence at the behest of the Court and the evidence was relevant to an issue in the action. In those circumstances the decision of the Supreme Court is that absolute immunity privilege attached to such evidence. There is no hint that an exception should or could be made in the case of an expert and whilst there are some passages in the more recent jurisprudence of the United Kingdom which might give grounds for distinguishing the evidence of expert witnesses from the evidence of witnesses generally and in particular in the Judgment of Chadwick L.J. in Stanton -v- Callaghan (1998: 4: AER: 961 ) at page 974, this passage, which is clearly obiter, must be seen in the context of the evolved jurisprudence in that country on this general topic and in my view that development in the United Kingdom in no way disturbs the binding nature on me of the decision in Looney of the Supreme Court. It is clear that O’Higgins J. came to the same conclusion in Fagan albeit that the Judgment in Fagan was not concerned with an expert witness.

28. In these circumstances it is neither necessary nor appropriate for me to decide whether a witness directed by the Court owes any duty other than to the Court itself.

29. In light of the Supreme Court ruling in Looney I therefore hold that the evidence of the third Defendant impugned in these proceedings is protected by absolute privilege and that the Plaintiff’s case against the third Defendant should be dismissed also on this ground.

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