Supreme Court dismisses appeal against expert witness immunity in defamation and negligence claims arising from court testimony.

THE SUPREME COURT

38/01

Murphy J

Murray J

Fennelly J

Between:

Eileen O’Keefe

Plaintiff/Appellant

AND

Diarmuid Kilcullen, Martin Nolan, Patricia Casey, Erinville Hospital and the Southern Health Board

Defendants

Judgment of Mr Justice Francis D Murphy delivered the 23rd day of October, 2001

This is a matter with a long and, at times, confused, history.

On the 12th July, 1983, the above named Eileen O’Keefe (then Bohane) married one Denis O’Keefe at Castlehaven, County Cork.

In matrimonial proceedings entitled “The High Court 1986 No 5M between Denis O’Keefe Petitioner and Eileen O’Keefe

Respondent” the Petitioner sought a decree of nullity on the grounds that the Respondent at the date of 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

Petitioner. By order dated the 15th day of October, 1986, the Master of the High Court determined the questions to be tried

and ordered that Dr Patricia Casey, the above named Defendant and the Respondent to this appeal be and was thereby

appointed to carry out a psychiatric examination of Mrs O’Keefe and report in writing to the Court thereon by registered post in

a sealed envelope addressed to the Master of the High Court. Dr Casey reported to the High Court on the 14th of January,

1987, and furnished an addendum to that report under cover of a letter dated the 29th day of January, 1987. The petition was

at hearing in the High Court before Blayney J for six days in June of 1987. In the course of the hearing Dr Casey gave evidence

and she was cross-examined at some length by Ms Mary Robinson, SC, Counsel on behalf of Mrs O’Keefe. Dr Casey was

examined in relation to her opinion and the matters of fact on which it was based. In addition the medical opinions of Drs

Murphy, O’Sullivan, Kellegher and Morgan were all put to her in the course of her cross-examination.

In his judgment Mr Justice Blayney analysed the expert opinions of the various doctors who gave evidence before him. He

accepted the contention that information of circumstances and surrounding facts ascertained by the doctors were material to

the opinions which they expressed. He concluded that the marriage of the Petitioner and the Respondent was null and void by

reason of a personality disorder of Mrs O’Keefe. A significant symptom of the disorder was an aptness to tell lies about matters

of no direct importance. It was, therefore, of importance, as the learned Judge recognised, for the doctors in reaching their

expert opinion to make a judgment as to whether or not the Respondent had that propensity. The learned Judge reviewed the

inquiries which the doctors had made in that respect and in addition went on to express his own view in the following terms:-

“I have had the opportunity of seeing both parties in the witness box and I have no hesitation in saying that where their

evidence diverged I would accept the evidence of the Petitioner rather than that of the Respondent. It seems to me

that in her evidence the Respondent was extremely evasive, that frequently she altered her evidence, maybe in small

details, but within seconds of saying one thing she would say another in regard to the date on which she met the

Respondent at the hotel.”

In the circumstances the learned Judge made the decree of nullity. From that decree Mrs O’Keefe appealed to the Supreme

Court and her appeal was dismissed on the 24th of July, 1990.

The proceedings herein were instituted by plenary summons issued on the 4th day of November, 1992. By notice of motion

dated the 25th day of November, 1996, the thirdly named Defendant, Dr Casey, sought an order dismissing the Plaintiff’s action

as against her for want of prosecution and on the ground that the proceedings did not in any event disclose a cause of action

against her. The matter was adjourned from time to time and ultimately heard by Mr Justice O’Sullivan on the 24th day of June,

1998. In the meantime a statement of claim had been delivered in November, 1997. The first and secondly named defendants in

the proceedings are the solicitor and barrister who were, or had been, instructed to conduct the appeal in the matrimonial

proceedings and against whom negligence in that regard was alleged by the Plaintiff. Against Dr Casey it was contended that

she was negligent in failing to conduct a careful and thorough psychiatric examination: in failing to confirm with the Plaintiff

adequately or at all facts disclosed to her by others in the course of the assessment and by placing reliance in reaching her

conclusions upon inaccurate and incorrect information. The fourthly and fifthly named Defendants were sued as employers of Dr

Casey.

On the motion to strike out, Mr Justice O’Sullivan had the benefit of written submissions and argument by Counsel on behalf of

both Mrs O’Keefe and Dr Casey. The learned Judge acceded to the application on behalf of Dr Casey and made an order striking

out such parts of the statement of claim as asserted a cause of action against her. He did so, as he explained, on the basis of

the inherent jurisdiction of the Court to dismiss proceedings which disclosed no reasonable cause of action.

Mrs O’Keefe then sought to appeal the judgment and order of Mr Justice O’Sullivan. At that stage she did not retain a solicitor

or counsel. This may explain why the notice of appeal and other documentation relating to it is very confusing in its terms and

perhaps misconceived in its purpose. Mrs O’Keefe herself made numerous applications to the Supreme Court. One of her

concerns was to obtain liberty to introduce new evidence for the purpose of the appeal. She appears to have been convinced

that it was essential to adduce evidence which would support her contention that Dr Casey was incorrect or mistaken in the

evidence of fact which formed the basis of her medical opinion. Mrs O’Keefe believed that she would advance her cause if she

could produce evidence showing that Dr Casey had not made adequate inquiries on which to base her conclusions. In the result

Mrs O’Keefe appears to have spent a great deal of time conducting inquiries and investigations with persons who did or could

have provided evidence in relation to her personality or character. This was done notwithstanding the fact that it was clearly

explained by Mr Justice O’Sullivan in his judgment that (applying the decision of Kelly J in Ennis .v. Butterly [1996] 1 IR 426), in

dealing with the motion, he was bound to assume

“(a) That every fact pleaded by the plaintiff in her statement is correct and can be proved at trial and,

(b) that every fact attested by her on affidavit is likewise correct and can be proved at trial.”

Accordingly as the facts were assumed in favour of Mrs O’Keefe there was no need for the purposes of the hearing in the High

Court, or any appeal from it, to adduce evidence in support of her contention.

Judges presiding in the Supreme Court to which applications were made by Mrs O’Keefe encouraged her to obtain professional

assistance. In particular it was pointed out that difficult questions of law could arise on the question whether an expert or other

witness was immune from proceedings in relation to evidence given by him or her in the course, or for the purposes, of legal

proceedings. Subsequently Counsel appeared in the Supreme Court and, after some discussions had taken place, informed the

Court that he had received irrevocable instructions from his solicitor to argue the issue of witness immunity. This was confirmed

by Mrs O’Keefe in open Court. That issue was then remitted by consent to Mr Justice O’Sullivan for determination by him. He

resolved the issue in favour of Dr Casey and from that decision Mrs O’Keefe has once again sought to initiate an appeal to this

Court in the terms of a very informal document received by the Office of the Supreme Court on the 15th February, 2001. Her

first ground of appeal was that, apparently notwithstanding the irrevocable instructions which she had given to them, she had,

she maintained, dismissed her solicitor and counsel prior to the renewed hearing of the application by Mr Justice O’Sullivan.

Whether or not she had done so it is not possible for this Court to resolve. What can be said is that the issue of law remitted to

Mr Justice O’Sullivan was dealt with fully by him: that he had the benefit of written submissions on behalf of Mrs O’Keefe and

Counsel did in fact appear before him purporting to act on behalf of Mrs O’Keefe, presumably with the understanding - which

would appear to this Court to be entirely reasonable - that the instructions given to him were irrevocable.

When the matter came for hearing before this Court Mrs O’Keefe sought an adjournment to instruct a new solicitor. As there

had been numerous adjournments granted in the proceedings concerning the wrong alleged to have been perpetrated by Dr

Casey some fourteen years earlier, the Court allowed only a brief adjournment to enable the solicitor whom Mrs O’Keefe wished

to instruct to review the submissions which he proposed to make to the Court and which he then did with commendable clarity.

The troubled history of this matter reflects the intense concern of Mrs O’Keefe for the injustice which she feels has been

perpetrated on her. In the circumstances it was always difficult for her to identify the particular issue with which the Courts

were concerned. Less still could she see the possible injustice to Dr Casey of the innumerable changes in legal representation

made by her, and the lengthy delays to which such changes contributed. It was clear, however, to the lawyers that an

important question of law was involved in the appeal, namely, the nature and extent of the immunity (if any) enjoyed by a

witness in Court proceedings.

The immunity from suit to which this appeal relates does not derive from any right or privilege enjoyed by a potential defendant.

It is merely the by-product of conflicting constitutional rights and the impact of public policy on the administration of justice.

The Constitution implicitly recognises that every citizen should have a right of access to the Courts to determine the existence

or breach of a legal obligation owed to him by any potential defendant. On the other hand the Constitution expressly recognises

the need for finality in the judicial process. Moreover it is recognised that justice is more likely to be achieved where persons

participating in litigation whether as parties, witnesses, judges, jurors or lawyers can discharge their function without the fear

of being held to account , at the suit of, perhaps, a disgruntled litigant for the manner in which he performs his role. That these

factors should result in a witness being protected from proceedings in respect of evidence given in Court has been long

recognised and was reiterated in the United Kingdom by Salmon J (as he then was) in Marrinan .v. Vibart [1962] 1 AER 869. In

Rondel .v. Worsley [1967] 3 WLR 1666 the House of Lords held that, as a matter of public policy, a barrister was immune from a

suit to ensure that he carried on his duty to the Court fearlessly and independently and also for the reason that an action for

negligence against a barrister would involve retrying the original action and prolonging litigation contrary to the public interest.

The decision of the House of Lords in Saif Ali .v. Sydney Mitchell & Co [1978] 3 AER 1033 was significant in that it limited the

immunity of a barrister to such pre-trial work undertaken by him as was intimately connected with the conduct of the case in

Court. Similarly in Evans .v. London Hospital Medical College [1981] 1 AER 715 the immunity of an expert witness was extended

to work done by the expert in the preparation of the evidence given in Court but the immunity did not extend to advice given to

the client as to the merits of the claim. In Hall .v. Simons [2000] 3 AER 673 the House of Lords determined that it was no longer

appropriate that barristers or solicitors should enjoy immunity from proceedings for negligence against them in respect of the

manner in which they conducted proceedings in Court. To that extent they reversed the earlier decision in Rondel .v. Worsley

(above). I will return later to the decision in Hall .v. Simons.

In re Haughey [1971] IR 217 O’Dalaigh CJ recognised that witnesses in the High Court did enjoy immunity and explained the

reasons for it (at page 264) in the following terms:-

“The immunity of witnesses in the High Court does not exist for the benefit of witnesses, but for that of the public and

the advancement of the administration of justice and to prevent witnesses from being deterred, by fear of having

actions brought against them, from coming forward and testifying to the truth. The interest of the individual is

subordinated by the law to the higher interest, viz, that of public justice, for the administration of which it is necessary

that witnesses should be free to give their evidence without fear of consequences.”

In Looney .v. The Bank of Ireland & Anor [1996] 1 IR 157 Mr Looney claimed damages arising from a libel allegedly published by

the secondly named defendant in an affidavit sworn by her in her capacity as a servant of the Bank of Ireland in other

proceedings. The matter came before me, as a Judge of the High Court, on foot of an application by the Bank to dismiss the

plaintiff’s action on the grounds that there was no reasonable cause of action. I concluded that the defendant was privileged in

respect of the evidence given by her in the earlier proceedings and that, accordingly, the action could not proceed. I granted

the order sought and from that order an appeal was taken to this Court (unreported: 9th May, 1997). In his judgment Mr

Justice O’Flaherty dealt with the immunity of witnesses in the following terms:-

“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 a 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.”

In the concluding paragraphs of his judgment O’Flaherty J - having referred to the passage already quoted from O’Dalaigh CJ in

In re Haughey (above) - agreed that a boundary must be set to this immunity. He explained the position in the following terms:-

“I would concur with setting that boundary to the immunity. If someone for a malicious purpose, or in order to abuse

what he might have thought was a situation of immunity that he enjoyed in court simply used that situation to make

defamatory or malicious statements against others, in a manner that had nothing to do with the particular proceedings

in which he was engaged, then it might well be that he would have no answer in an action for defamation or malicious

falsehood, or whatever.”

Barrington J in agreeing with the judgment of the Chief Justice and of Mr Justice O’Flaherty expressly agreed with the

qualification that there might be some limit to the “so called” absolute privilege of a witness in the case of flagrant abuse.

However he went on to point out that that was not such a case.

The decision of the House of Lords in Hall .v. Simons (above) has the effect of restricting significantly the range of persons to

whom immunity will be extended in the United Kingdom. It seems clear that lawyers will not be immune from suit if it is

established if they acted negligently on behalf of their client whether in the preparation for, or the conduct of, legal

proceedings. Even if that decision were to be followed in this jurisdiction it would not affect the outcome of these proceedings.

The decision in Hall .v. Simons was confined to the position of lawyers. It did not purport to strip witnesses of the immunity

which had been conferred on them in the public interest. So far from it, the House of Lords appears to have reaffirmed the

immunity of witnesses but rejected the argument that lawyers were entitled to immunity by analogy to that conferred on

witnesses. Dealing with that situation under the heading “The Witness Analogy” at page 688 of the report Lord Hoffman

explained the position as follows:-

“No one can be sued in defamation for anything said in court. The rule confers an absolute immunity which protects

witnesses, lawyers and the judge, the administration of justice requires that participants in Court proceedings should be

able to speak freely without being inhibited by fear of being sued, even unsuccessfully, for what they say. The immunity

has also been extended to statements made out of court in the course of preparing evidence to be given in court. So it

is said that a similar immunity against proceedings for negligence is necessary to enable advocats to conduct the

litigation properly.”

That would seem to me to be a classical restatement of the immunity which of necessity is conferred on witnesses who give

evidence in the Courts in the United Kingdom. Lord Hoffman declined to extend that principle to lawyers.

The right of Dr Casey to be protected from proceedings by Mrs O’Keefe or anybody else in respect of the evidence given by her

in the original matrimonial proceedings is particularly strong. Dr Casey was not retained by either party. She did not advise the

Petitioner or the Respondent. The proceedings were not instituted or defended as a result of what she said or did. Her terms of

reference were dictated by the order of the Master of the High Court and her report was made, as already noted, in a sealed

envelope addressed to him. The evidence she gave was based on her professional expertise and the investigations which she

undertook. All of these matters were open to examination, and were fully examined, in the course of the proceedings. The

learned trial Judge - Mr Justice Blayney - considered the expert evidence afforded to him in the light of the examination and

cross-examination of the witnesses and submissions made to him by Counsel. As Mr Justice O’Sullivan pointed out in his

judgment on the 24th day of June, 1998, it would be difficult, if not impossible, to conclude that any negligence on the part of

the Doctor could be shown to be the cause of the decision ultimately made. Even if, however, it could be established that Dr

Casey was guilty of negligence and that her negligence brought about the judgment and order of which Mrs O’Keefe complains I

am satisfied that Mr Justice O’Sullivan was correct in concluding that the law in this jurisdiction confers upon a witness -

whether expert or otherwise - immunity from proceeding in respect of a wrong committed in such circumstances. That immunity

is subject to the qualification already noted that if a witness - or even a judge - so departed from the duties which he or she

was purporting to perform as to abuse his position that he would forfeit the immunity which he was abusing. In the present

case although it has been urged strenuously over many years that Dr Casey erred and, Mrs O’Keefe alleges, acted negligently, it

was not and could not be suggested, that she attempted to abuse the position of expert witness to which had been appointed

by the High Court.

I would dismiss the appeal. This will bring to an end the claims of Mrs O’Keefe against Dr Casey and I would hear the parties as

to what order should now be made to give effect to that result.