O'Keefe v Kilcullen and Others
| Jurisdiction | Ireland |
| Judge | O'Sullivan J. |
| Judgment Date | 01 February 2001 |
| Neutral Citation | [2001] IEHC 17 |
| Docket Number | No. 7133P/1992 |
| Court | High Court |
| Date | 01 February 2001 |
[2001] IEHC 17
THE HIGH COURT
BETWEEN
AND
Citations
MARRINAN V VIBART 1962 1AER 869
EVANS V LONDON HOSPITAL MEDICAL COLLEGE 1981 1 AKER 715
PALMER V DURNFORD FORD 1992 2 AER 122
SAIF ALI V MITCHELL & CO 1978 3 AER 1033
HALL V SIMONS 2000 3 AER 673
RONDEL V WORSLEY 1967 3 WLR 1666
ROY V PRIOR 1970 2 AER 729
LOONEY V BANK OF IRELAND UNREP SUPREME 9.5.1997
FAGAN V BURGESS 1999 3 IR 306 1998/18/6950
HAUGHEY, IN RE 1971 IR 217
STANTON V CALLAGHAN 1998 4 AER 961
Synopsis:
Evidence
Evidence; witness immunity; plaintiff's marriage had been declared null and void due to personality disorder resulting in incapacity to form and sustain normal marital relationship; third defendant had been appointed to carry out psychiatric assessment of plaintiff and to report to court; plaintiff claimed damages for negligence from third defendant; whether third defendant as a witness enjoyed an absolute immunity from suit in negligence in giving evidence in court.
Held: Evidence of third defendant is protected by absolute privilege; plaintiff's case dismissed.
O'Keeffe v. Kilcullen - High Court: O'Sullivan J. - 01/02/2001 - [2001] 1 IR 636
A decree of nullity had been granted in proceedings involving the plaintiff. The plaintiff issued proceedings seeking to recover damages against the third defendant who had tendered psychiatric evidence in the matrimonial proceedings. O'Sullivan J held that the evidence given was protected by absolute privilege and the case against the third defendant would be dismissed.
O'Sullivan J.on 1st of February 2001.
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 thirdDefendant.
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 byOrder of the 24th of July 1990, dismissed the Plaintiff's appeal and affirmed the High Court Order.
By Plenary Summons dated the 4th of November 1992, the Plaintiff initiated the present proceedings in which she is claiming, interalia, damages from the third Defendant for negligence. I summarise that claim as follows:-
a (A) 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 andevidence;
b (B) 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;
c (C) This diagnosis would be confirmed if other sources confirmed the veracity of the history given by the Plaintiff's husband;
d (D) 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;
e (E) 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 herdiagnosis.
f (F) 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 lossand 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;
g (G) 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.
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.
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.
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 thedetermination 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 suchdetermination.
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.
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).
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 tosuch pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more...
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