Scottish Court of Session Decisions

Counsel for the pursuers has objected to the line of cross-examination by counsel for the defenders of Father Noel Barry, who has been called as the first witness for the pursuers in the jury trial of the issues in these conjoined actions. There are some matters which I require to recapitulate to put the objection in context. By interlocutor dated 29 April 1998 the proposed issue and proposed counter-issue in the

action at the instance of Father Noel Barry were approved and the issue was appointed to be tried by a jury. By interlocutor dated 30 October 1998 a Minute of Amendment for the defenders was allowed to be received. By interlocutor dated 26 November 1998 the closed record was allowed to be opened up and amended in terms of the Minute of Amendment as adjusted, but under deletion of paragraphs 5 and 6 thereof. I understand that during the hearing of the motion for leave to amend, counsel for the defenders expressly reserved his position about cross-examination on the line contained in the deleted paragraphs 5 and 6, notwithstanding that as a consequence of that deletion the defenders would be precluded from leading substantive evidence on that line. By interlocutor dated 1 December 1998 in the action at the instance of Annie Kerr Clinton, that action was conjoined with that at the instance of Father Noel Barry and was appointed to be the leading action. When the two actions called before me on 8 December 1998, counsel for the defenders sought leave to lodge an inventory of productions, which he informed me were written communications by Father Noel Barry to Caroline Keegans or Brown (the woman named in paragraph 5 of the Minute of Amendment). I refused leave for the late lodging of these productions on the grounds, as I stated, that, firstly, the reasons advanced for seeking to lodge them, on which I heard full argument, appeared to me to be in substance the same as the reasons advanced for allowing amendment in terms of paragraphs 5 and 6 of the Minute of Amendment, on which a decision had already been taken by the court; and, secondly, that to lodge them at this stage would be prejudicial to Father Noel Barry. I might have added to these reasons that I was not satisfied that cause had been shown for the late lodging of the productions.

The first paragraphs of the issues for the pursuers in each action are in mutatis mutandis the same terms, and it is sufficient for present purposes to quote from that for Father Noel Barry. It is in these terms:

The counter-issue for the defenders (which, by agreement of parties, was amended when the case called before me) is in these terms:

There is accordingly an issue about the truth of certain matters of fact. Father Noel Barry has given evidence about these matters and has been challenged about them in cross-examination in a manner which has laid a foundation for the leading of substantive evidence about them in due course. His credibility has thus been put in issue. The second issue for the pursuer is:

The defenders deny that the statements bear the meaning attributed to them by the pursuer, and do not seek to prove that, if the statements do bear that meaning, they are true.

Father Noel Barry gave evidence in chief about inter alia his reputation as a Priest. During the course of cross-examination about his reputation he was asked about his vow of celibacy. In the course of his answers he made a number of statements, which, as noted by me are as follows: firstly, "I have not broken my vow of celibacy"; secondly, "I have never had sexual intercourse with a woman or a man while I have been a Priest" and thirdly, "I have never had sexual relations with any woman". It is accepted by counsel for the pursuers that these statements were volunteered by Father Noel Barry and were not elicited by direct questions designed to secure the making of the statements; otherwise no doubt objection would have been taken to the questions. Counsel for the defenders has now, as noted by me, asked the question "If I were to suggest that you had had sexual relations with another woman, what would your response be?" It is at this point that objection has been taken to the line of cross-examination. Counsel for the defenders has indicated that, if permitted to do so, he would develop in cross-examination the line set out in the deleted paragraphs 5 and 6 of the Minute of Amendment. In short, he would put it to Father Noel Barry that he has had a sexual relationship with Caroline Keegans (as she then was) while he has been a Priest.

The question for me is whether the proposed line of cross-examination is admissible. Counsel for the defenders submits that it is, for two reasons, which I discuss in turn. I find it convenient to discuss them in the reverse of the order in which they were placed by counsel in his submissions. Firstly, both counsel referred to a line of authority, a summary of which I take, for convenience, from Macphail on Evidence, para. 16.05:

The present case may be distinguished from those three cases because the line in question has never been the subject of averment in the pleadings, as opposed to the Minute of Amendment from which the paragraphs in question were deleted. More importantly, the present case may be distinguished because the defenders do not offer to prove that Father Noel Barry and Annie Kerr Clinton had a sexual relationship at any time, so there is no issue as to Father Noel Barry's credibility in that context. The dicta in the cases relied upon by the defenders, which appear to me to be properly speaking obiter dicta, because the ratio in each case was to do with the relevancy of averments about the matters in question, are difficult to interpret, and I have considerable reservations about them.

As counsel for the pursuers pointed out, in an action of defamation a pursuer necessarily puts his character in issue. That does not, however, as I see it enable defenders in cross-examination to declare open season on his past life. It should be noted that in C v M, which was the authority principally relied upon by counsel for the defenders, the defenders were allowed to add an amendment to the effect that,

I think that it is in this context that the dictum I have quoted should be understood. Having considered the matter in the light of these authorities, the pleadings as they now stand, the past procedural history and the issues before the jury, I would not be disposed on this ground to allow the line of cross-examination to proceed.

I turn now to consider, secondly, the other ground upon which counsel for the defenders relied in support of his submission that I should repel the objection and allow the line of cross-examination to proceed. This was simply that, given that Father Noel Barry had volunteered the statements in question, counsel was entitled to challenge them by way of an attack on his credibility, and to that end was entitled to put to him the line I have mentioned. Counsel for the pursuers submits that he is not entitled to do this, and in consequence the statements must be allowed to stand unchallenged. Counsel for the defenders has referred to King v King (1841) 4 D. 124 per Lord Justice Clerk Hope at p. 134. No other authority was referred to. My understanding of the matter, which is consistent with what was said in King v King, is that where the credibility of a witness is in issue, he is open to challenge during the course of cross-examination on the truth of any statement made by him during his evidence. It is necessary to distinguish here the character (in the sense of reputation) of a pursuer in an action of defamation and the credibility of a witness who, in the course of his evidence, makes a statement of fact. If his credibility is in issue in other respects, it may in my view properly be regarded as relevant to his credibility to explore with him whether a statement of fact which he has chosen to make is true or not. I am not impressed by the reasons advanced by counsel for the pursuers in support of the objection, particularly that there is no record for the proposed line of cross-examination. I think that I must assume that Father Noel Barry is aware of the terms of the pleadings and of the issues before the jury. In that situation, he need not have made the statements which he did unless obliged to do so by admissible questions. I have difficulty with the suggestion that a witness who volunteers a statement which he need not have made, having regard to the terms of the pleadings and the issues before the jury, should be immune from cross-examination in a context in which his credibility is otherwise in issue. Nor am I impressed by the submission that it will cause great inconvenience if this matter is opened up. It was opened up by the making of the statements. Any witness who makes a statement on oath exposes himself to challenge as to its truthfulness. It seems to me that elementary fairness requires that if a witness, whose credibility in other respects is in issue, makes a statement of fact, he should be open to challenge on that statement; otherwise the statement would go unchallenged and would presumably have to be accepted by the jury as true. Moreover, an effective challenge must amount to more than putting it to the witness that the statement is untrue. The cross-examiner must be permitted to challenge the statement by putting specific respects or specific instances in which it is said to be untrue; indeed, if that was not done, it could be said that the cross-examiner had failed properly to challenge the statement. In my opinion therefore, on this ground, the line of cross-examination must be allowed to proceed and the objection accordingly repelled. I must make it clear that in making this decision on the admissibility of the line of cross-examination I am not expressing any view as to the admissibility of any document or of any substantive evidence which might subsequently be led. I shall, if necessary, have to take decisions about the admissibility of such matters in the future. At this stage, my decision is confined to the admissibility of the proposed line of cross-examination of this witness who has made these statements. For this reason therefore, I shall repel the objection and allow the line of cross-examination to proceed.