High Court dismisses malicious injury claim against fire investigator citing witness immunity from suit.

Neutral Citation Number: [2007] IEHC 192

THE HIGH COURT

[1992 No. 313 P]

BETWEEN

W.J. PRENDERGAST & SON LIMITED

PLAINTIFF

AND

CARLOW COUNTY COUNCIL

AND

REDVERS SKELTON PRACTISING UNDER THE STYLE AND TITLE OF REDVERS SKELTON AND COMPANY

DEFENDANTS

Judgment of Mr. Brian McGovern delivered on the 15th June, 2007

1. This matter comes before the court by way of a motion brought by the second named defendant to dismiss the proceedings on the

grounds that they disclose no reasonable cause of action against the second named defendant. The basis for the application is that

the matters complained of in the proceedings arise out of evidence given by the applicant (the second named defendant) in Circuit

Court proceedings and subsequently in the High Court on appeal. It is alleged that the applicant gave false and misleading evidence in

the proceedings and in particular in the High Court and that he interfered with the analysis of samples for a wrongful purpose.

2. Background.

The applicant is and was at all material times a Fire Investigator. On the 29th January, 1986 a fire occurred in the plaintiff’s factory

premises at Leighlinbridge, Co. Carlow resulting in the destruction of the premises. A malicious injury application was brought in the

Circuit Court by the plaintiff in these proceedings. The application was successful in the Circuit Court and Carlow County Council, who

were the respondents in that matter, appealed the decision. I have been informed by counsel that expert evidence was called on

behalf of both the applicant and the respondent in both the Circuit Court and the High Court. Dr. McDaid a Fire Consultant was

brought in by the plaintiff to examine the scene of the fire and gave evidence on behalf of the plaintiff in the Circuit Court and High

Court proceedings. The applicant visited the scene of the fire the day after the incident and he gave evidence in both the Circuit

Court and the High Court. While Dr. McDaid’s said he found no traces of accelerants having been used to start the fire the applicant

stated that he found evidence which suggested to him that kerosene vapours were present in at least three locations within the

building, one area being the office at the front of the building where Mr. Christopher Prendergast had been sitting for half an hour or

more awaiting the arrival of his father William. Christopher Prendergast had gone to check out the factory after he was told by his

mother that the alarm had gone off there. His father made contact with him and went to the factory to meet his son and inspect the

premises.

3. Although the plaintiff company (as applicants in the malicious injury proceedings) succeeded in the Circuit Court the County Council

lodged an appeal and were successful in their appeal before O’Hanlon J. who gave his judgment on the 3rd June, 1988. In the course

of his judgement he made reference to a number of facts including the evidence of the applicant on this motion, Mr. Skelton. At page

9 of his judgment he stated:

“Mr. Skelton, the Fire Consultant who gave evidence on behalf of the Respondent, gave as his opinion that a fire set by

an arsonist, or occurring accidentally in the knitting room, would have quickly become a conflagration, or else would have

smouldered and died out completely within a comparatively short time. He further said that if smouldering in a room

stacked with acrylic-type materials, it would have given off pungent fumes which would have percolated rapidly to every

part of the factory and should have been apparent in the office where Christopher Prendergast sat reading for a

considerable time while awaiting the arrival of his father. I find this evidence quite convincing”.

He went on to state that he found the evidence in support of the applicant’s claim so unsatisfactory and so unconvincing that he was

unable to decide as a matter of probability that the fire was caused by the malicious act of a third party in circumstances giving rise

to a claim for compensation under the Malicious Injury Code. He therefore found against the plaintiff who was the applicant in the

Malicious Injury application.

4. In support of the application to dismiss these proceedings affidavits have been filed by the applicant (second named defendant)

and by Mr. Maurice G. Lyons the plaintiff’s solicitor. The applicant claim immunity from suit as an expert witness in the malicious injury

proceedings and on that basis the motion has been brought by him to dismiss the plaintiff’s claim. The affidavit of Mr. Maurice Lyons

refers to a copy of a report obtained by the plaintiff from Dr. Brian G. O’Rourke a Consultant Chemist. The date of this report is the

17th October, 2006. I have been informed by counsel for the plaintiff that the report was commissioned a few months earlier. In

summary the report from Dr. O’Rourke contends that the analysis of the samples by the applicant in the malicious injury application

was fundamentally flawed, that the scientific methodology used by him was incorrect and that samples provided for analysis were

almost certainly contaminated with kerosene. He also alleges that the applicant made erroneous and false statements both in report

form and in direct evidence to the court and that he mislead the court. Counsel for the plaintiff informed the court that this report

was commissioned a few weeks prior to the date on which it was issued that is to say sometime in the autumn of 2006. It seems to

me that the claim being made in these proceedings by the plaintiff against the applicant is largely based on what is in that report yet

the report was only commissioned many years after the proceedings were commenced. This is quite unsatisfactory. These

proceedings make the most serious allegations against the applicant and it would appear that they were commenced some fourteen

and a half years before the report of Dr. O’Rourke was commissioned and obtained.

5. In the malicious injury application both in the Circuit Court and High Court each party had an expert fire investigation witness and

both witnesses were available for cross-examination. I have been informed by counsel that each party to the malicious injury

application was represented by experienced senior counsel. I have also been informed that the applicant’s conclusions were fully

canvassed by him before the Circuit Court Judge and the High Court Judge. If his evidence or credibility was to be challenged that

was the time to do so. The plaintiff had, at the time, the benefit of its own expert and of solicitor and counsel.

6. The Law.

The law on immunity of witnesses has been set out in Looney v. the Governor and the Company of Bank of Ireland and Morey

(Unreported, Supreme Court, 9th May, 1997). In the judgment of the court O’Flaherty J. referred to:

“…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 that 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”.

7. He went on to compare the law in England with that in America. He said that the rule in England is that immunity is absolute

whereas in America immunity will extend as long as the particular statement is in some way relevant or pertinent to the issue to be

determined. In Re Haughey [1971] I.R. 217 at 264 O’Dalaigh C.J. said:

“It is salutary to bear in mind that even in the High Court, if a witness were to take advantage of his position to offer

something defamatory having no reference to the cause of matter of inquiry but introduced maliciously for his own

purpose, no privilege or immunity will attach and he might find himself sued in an action for defamation”.

8. O’Flaherty J. in the Looney case said that he would concur in setting that kind of boundary to the immunity so that if somebody for

a malicious purpose or in order to abuse a position of immunity which he enjoyed in court simply used the situation to make

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

witness would probably be answerable in an action for deformation or malicious falsehood.

9. In Ennis v. Butterly [1996] I.R. 426 Kelly J. held that in an application of this nature the Judge must assume that every fact

pleaded by the plaintiff in the statement of claim is correct and can be proved at the trial and that every fact asserted by the

plaintiff on affidavit is likewise correct and can be proved at trial.

10. Application of the Law to this case.

This is not a case involving new evidence in the sense that evidence is now available which could not have been available at the trial

of the malicious injury application in either the Circuit Court or the High Court. It is true that the report of Dr. O’Rourke has only been

furnished in 2006. But at the malicious injury application and appeal the plaintiff (who was the applicant in that matter) had an expert

witness for the purpose of dealing with the cause of the fire. There is nothing to show that the “new evidence” of Dr. O’Rourke would

be admitted at this stage under the rules relating to the admission of fresh evidence. But if one accepts the assertion made by the

plaintiff that the applicant’s evidence was false or misleading or seriously flawed this is a matter which was capable of being tested in

the malicious injury proceedings. Applying the principles in the Looney case there is no doubt that the evidence given by the applicant

was “…relevant or pertinent to the issue to be determined”. But even if I assume that the evidence was seriously flawed or false or

misleading for the purpose of disposing of this application this is something which should have been dealt with in the malicious injury

proceedings. As O’Flaherty J. stated in the Looney case:

“The price that has to be paid is that civil actions cannot be brought against witnesses even in a very blatant case…even

in a case of perjury”.

He says that quite simply even in such a case the law says an action cannot lie against a witness. When one looks at the boundary

to the immunity it is clear that the evidence of the applicant which is complained of was given in a manner which was pertinent to the

malicious injury proceedings. If there was some new evidence which could not have been used at the malicious injury hearing then it

might be permissible for the court to allow that evidence to be introduced subject to the argument of inordinate and inexcusable

delay. But in this case all the matters complained of in the statement of claim could have been put to the applicant in the malicious

injury application including the fact that he “interfered with the analysis of the said samples for the wrongful purpose of showing

where he alleged that the fire had started”, as alleged in the Statement of Claim in this Action.

11. The parties have agreed that the issue of inexcusable or inordinate delay should be left aside until I determine the issue of the

applicant’s immunity from suit as a witness in the malicious injury application. It has been agreed that the delay point will only arise if

the application fails on the immunity issue.

12. I am quite satisfied that in the circumstances of this case the applicant is entitled to an order dismissing these proceedings on

the grounds that they disclose no reasonable cause of action against him on the basis that he has immunity from suit in respect of his

evidence given in the malicious injury application.

13. In the circumstances I will make an order dismissing the proceedings against the applicant who is the second named defendant in

these proceedings.