In general, what is said in court proceedings is protected by absolute privilege. In Ireland this is placed on a statutory footing by s. 17(2) of the Defamation Act 2009. Privilege is not only attached to oral testimony but also to affidavits and documents produced in the course of a hearing.
The public policy consideration was set out by Pigot C.B. in Kennedy v. Hilliard (1859) 10 Ir. CLR 195 who articulated that “it is of far less importance that occasional mischief should be done by slander…than that the whole course of justice should be enfeebled and impeded.” In other words, if immunity did not arise then this would hinder both witnesses and barristers from speaking without fear of consequences.
In the recent case of Jeffery v. The Minister for Justice and Equality, the Commissioner of An Garda Síochána, Ireland and the Attorney General  IEHC 99, (Unreported, High Court, 28 February, 2014(hereinafter “Jeffrey”), Barrett J said that “the courts are temples of truths”. The case centred on immunity from defamation that arises in court proceedings. In particular, it considered whether the immunity from defamation that arises in court proceedings extends to other forms of action also. Following a consideration, the High Court determined that acts done prior to court proceedings attracted the same privilege.
The plaintiff was convicted of certain road traffic offences in the District Court. During the course of proceedings a member of An Garda Síochána informed the Court incorrectly that the plaintiff had been convicted of a number of serious offences. The offences were in fact attributable to another offender by the same name. The judge made a public correction. Notwithstanding, the matter was picked up by the media and erroneous reports regarding the plaintiff were published.
Accordingly, the plaintiff instituted proceedings for negligence, breach of duty and negligent misrepresentation, as opposed to suing for defamation. Ostensibly this path was chosen due to the absolute privilege attached to statements made during the course of proceedings presided by a judge. The court was therefore required to ascertain whether a plaintiff could succeed in such a claim for negligence where an action in defamation would most certainly have failed.
Barrett J. said that the same principle should be applied to an action which seeks to establish negligence on the basis of what was said or done at or in preparation of court proceedings. The learned judge was bound by the Supreme Court decision in Looney v. The Governor and Company of the Bank of Ireland and Morey (Unreported, ex-tempore, Supreme Court, 9th May, 1997) which is authority for the proposition that absolute privilege generally applies to what is said in court proceedings, including privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. The Supreme Court in Looney agreed that there might be a limit to the privilege where there was a flagrant abuse by a witness who used the privilege for a malicious purpose. However, Barrett J. found that there was no such abuse in the current case – the reference to the convictions was a mistake.
The court was also persuaded by two English decisions, namely Marrinan v. Vibart and Others  1 Q.B. 528and Evans v. London Hospital Medical College and Others  1 All E.R. 715. The court was particularly convinced by the statement expressed by Sellers L.J. in the former case, where he stated that:-
“Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given”.
Accordingly, the learned judge suggested that as the kernel of the case concerned what happened during the course of the proceedings then alternative causes of action must suffer the same fate. In Evans it was held that the immunity extended to the preparation of evidence. Consequently, Barrett J. formed the view that as the alleged negligent act occurred in the preparation of evidence, namely the procuring of criminal records, then the immunity applied. As a result, the plaintiff failed in his action. The judge notably concluded as follows:-
“Were matters to be otherwise, were witnesses to be exposed to the threat of any form of litigation for what they said in court, truth would soon be the victim of unreal expectations and our system of court-administered justice would quickly founder.”
This case highlights the public policy considerations attaching to immunity arising from court proceedings. Any alleged damage that appears to arise as a result of what transpires at or before court proceedings must be balanced against the obligation of the courts to administer justice. The absolute privilege derives from the necessity of affording to witnesses the opportunity of giving their evidence freely and fearlessly.It derives from the very nature of the judicial process and the independent judiciary created by our Constitution. If the immunity did not lie witnesses would be inhibited in the way they could give evidence. The law is therefore well settled, and the judgment in Jeffery affirms that this is also the case in alternative actions.
Yvonne Moynihan is a barrister in Ireland