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Witness Immunity

Most witnesses are compellable, that is, they will be obliged to attend and give evidence in court. The method of doing this is to serve a subpoena on the witness.

Reasonably enough, the witness is and should be protected from litigious attack for giving evidence. Absolute privilege attaches to statements that are made in the course of the administration of justice. This has been stated as “…anything said, or published in writing, in the court and as part of legal proceedings cannot be made the subject of an action for defamation…â€? This refers to the judge as much as the witness. Under the common law a judge is absolutely privileged in respect of what he or she does while acting in the performance of his or her office.

A party or a witness also has absolute privilege in respect of statements that are made in the course of the administration of justice. The statement may be in oral evidence or on affidavit or in instructions to lawyers or in pleadings. An advocate has absolute privilege in respect of statements that are made in the course of the administration of justice. However the statement must be relevant, but the burden of proof will probably lie on the plaintiff to prove that it was not relevant.

The law on this point is generally the same in Australia and the USA as in Britain or Ireland.

In Meadow v GMC the court said;

It is common ground that at common law a witness, whether he is giving evidence of fact or opinion, and whether or not he is an expert witness, has immunity from civil suit in respect of evidence which he gives in court. It is also common ground that the immunity extends to any statement the witness makes for the purpose of giving evidence. Where it exists the witness has immunity even in a case where he gave his evidence dishonestly or in bad faith.

In its judgment the court quoted Kelly CB in Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 264. as follows;

no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice.

This may need review in Ireland in the light of the passing of the European Convention on Human Rights Act 2003. Under this act, rules of law or procedure are to be interpreted to safeguard the human rights of persons. It is a right under the convention to have the protection of one’s good name and to the vindication of that right when it is attacked. In addition, no wrong is to be left without a remedy. If the judge is not acting in the course of his/her office there is no absolute privilege. This would cover a situation extending to perversions of the course of justice or conspiracy to that end.