Fagan v Burgess

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Higgins
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 52
• Docket Number: [1997 No. 2297P]
• Court: High Court
• Date: 01 January 1999

[1998] IEHC 52

THE HIGH COURT

No. 2297p/1997

FAGAN v. BURGESS

BETWEEN

STEPHEN FAGAN

PLAINTIFF

AND

RORY BURGESS

DEFENDANT

Citations:

RSC O.19 r28

SALMOND & HUESTON LAW OF TORTS 21ED

CLARKE & LINDSELL ON TORTS 17ED

PHIPSON ON EVIDENCE 14ED

HARGREAVES V BRETHERTON 1959 1 QB 45 1958 3 AER 122

SEAMAN V NETHERCLIFT 1876/7 2 CPD 53

MARRINAN V VIBART 1963 1 QB 528

LOONEY V BANK OF IRELAND 1996 1 IR 157

KENNEDY V HILLARD 1859 10 ICLR 195

Synopsis

Practice and Procedure

Strike out; perjury; testimony alleged to constitute perjury; whether civil action lies at suit of injured party; whether testimony privileged; whether proceedings should be struck out as disclosing no cause of action; O. 19 r. 28, Rules of the Superior Courts Held: Absolute privilege attaches to testimony of witnesses; proceedings struck out Fagan v. Burgess - High Court: O'Higgins J. - 25/03/1998 - [1999] 3 IR 306

1 JUDGMENT of Mr. Justice O'Higginsdelivered on the 25th day of March1998.

2 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.

3 I was referred to Halsbury 4th Edition Volume 28 which states asfollows:

"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 theproceedings".

4 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".

5 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 ofIreland 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 ofIreland 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,...