THE SUPREME COURT
Appeal No: 266/2014
Clarke C.J.
MacMenamin J.
Finlay Geoghegan J.
Damien Jeffrey
Plaintiff/Appellant
and
The Minister for Justice, Equality and Defence, The Commissioner of An
Garda Síochana, Ireland and the Attorney General
Defendants
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 8th May, 2019
1. Introduction
1.1 In one sense, the sole issue which arises on this appeal concerns the legal status of a senior member of An Garda Síochana who presents or conducts a criminal prosecution in the District Court on behalf of the Director of Public Prosecutions. The underlying facts of this case are not in dispute, although it will be necessary to outline them in slightly more detail at a subsequent stage of this judgment. The plaintiff/appellant, Mr. Jeffrey, was convicted in the District Court of drunk driving. In the context of the sentencing process, the presenting garda indicated to the District Judge that Mr. Jeffrey had a very significant criminal record including convictions for serious criminal offences. This was contested strongly by Mr. Jeffrey's solicitor. It would appear that, in view of the fact that none of the offences related to road traffic matters, the District Judge did not consider that the alleged but contested criminal record was particularly relevant when imposing sentence. However, it would also appear that the fact that Mr. Jeffrey was alleged to have a significant criminal record was reported in the local newspapers and, it is said, had significant adverse consequences for him.
1.2 It transpired that the statement made by the presenting garda was completely wrong, for Mr. Jeffrey had no previous convictions of any sort and there would appear to have been some confusion between him and someone else of the same name. It does have to be said that some aspects of the manner in which An Garda Síochana handled their mistake in this case do not reflect particularly well on the force. There was a belated acceptance that the statement made in court was wrong, coupled with a written statement of regret. However, An Garda Síochana declined to go into court and, as it were, correct the record. Whatever may be the legal consequences, if any, of that sequence of events, it does not seem to me to be reasonable to fail to make a public correction of what was accepted to have been a damaging but erroneous statement made by a senior member of An Garda Síochana in open court. While appreciating that the correspondence had become litigious by the relevant time, it seems to me that, if Mr. Jeffrey was damaged by the garda mistake in the first place, it would not seem to be too much to ask that a correction should be made in the same forum, in the hope that the damage thereby caused might be negatived.
1.3 However, in reality, all of that is but background to the relatively net and narrow legal issues which arise on this appeal. Mr. Jeffrey commenced proceedings in the High Court. The defendants/respondents ("the State") brought an application before the High Court seeking to have those proceedings dismissed either on the basis that the claim as pleaded disclosed no cause of action or that the proceedings were bound to fail. For reasons set out in a judgment of Barrett J. ( Jeffrey v. Minister for Justice and Equality & ors . [2014] IEHC 99, [2014] 3 IR 508), the High Court acceded to the State's application and the proceedings were dismissed.
1.4 Mr. Jeffrey then appealed to this Court. For completeness, it should be noted that this appeal was one of those cases which were initially transferred from this Court to the Court of Appeal but have, in recent times, been returned to this Court.
1.5 In order to understand the precise legal issues which arise, it is appropriate to start by setting out the facts in a little more detail.
2. The Facts
2.1 On the 9th December 2010, Mr. Jeffrey appeared at Sligo District Court to answer charges brought by the Director of Public Prosecutions arising out of certain road traffic offences. Mr. Jeffrey pleaded guilty to the offences. During the course of the hearing on that date, a member of An Garda Síochana, Inspector Connolly, in the course of presenting the case on behalf of the Director of Public Prosecutions, described what were said to be Mr. Jeffrey's previous convictions to the Court. Inspector Connolly was not sworn at the time. In fact, Inspector Connolly erroneously described the previous convictions of a different person with the same name as Mr. Jeffrey.
2.2 Prior to sentencing, Mr. Jeffrey's solicitor strongly suggested to the Court that an error had been made, that the convictions described by Inspector Connolly did not relate to Mr. Jeffrey and that Mr. Jeffrey did not, in fact, have any previous convictions. Following this submission, the District Court proceeded to sentence Mr. Jeffrey without, it would appear, taking those alleged previous convictions into account. However, despite this, the erroneous account of the previous convictions was reported in local media.
2.3 Following the District Court proceedings, solicitors acting for Mr. Jeffrey engaged in correspondence with the gardaí requesting an admission of liability, a published written apology and compensation for the injury and distress arising from the actions of the State. Mr. Jeffrey's solicitors also requested that the Garda Superintendent appear before the District Court to outline the inaccuracy of the information provided to the Court by Inspector Connolly, to formally correct the public record, apologise to Mr. Jeffrey and allow the media the opportunity to report on the matter. The gardaí did not accede to any of these requests.
2.4 It should be noted at this stage that, during the course of the oral hearing of this appeal, counsel on behalf of the State made clear that the statement made by Inspector Connolly in the District Court was incorrect and that Mr. Jeffrey, prior to his conviction in the District Court, had no previous convictions of any sort.
2.5 These proceedings were commenced in the High Court on behalf of Mr. Jeffrey by plenary summons issued on the 20th October 2011. A statement of claim was delivered on the 17th January 2012.
2.6 It is next necessary to set out the case as pleaded by Mr. Jeffrey. This is particularly relevant because one of the core contentions made on behalf of the State on this appeal was that the substance of Mr. Jeffrey's claim was one in defamation, even though it was technically pleaded as a claim in negligence or negligent misrepresentation.
3 The Claim as Pleaded
3.1 Mr. Jeffrey's claim in the High Court was one for damages for negligence, breach of duty and negligent misrepresentation.
3.2 In his statement of claim, Mr. Jeffrey claimed that the State were negligent and in breach of duty in failing to take any reasonable care to ensure that the information given by Inspector Connolly in the District Court was accurate, by failing to carry out any investigations into Mr. Jeffrey's past criminal history (if any), by causing, allowing or permitting information concerning Mr. Jeffrey to be placed in the public domain in circumstances where same was inaccurate and untrue, by failing to take any adequate measure to ensure that the relevant information was accurate in circumstances where the State knew or ought to have known that it would be reported in the local press, and by thereby exposing Mr. Jeffrey to a risk of damage, injury or loss of which they knew or ought reasonably to have known. All of this is claimed to be against a background where Mr. Jeffrey did not have, as stated by Inspector Connolly, 19 previous criminal convictions or, indeed, any such convictions.
3.3 It will be seen that each of the contentions made on behalf of Mr. Jeffrey in those pleadings amount in substance to an allegation that inaccurate information concerning Mr. Jeffrey was placed in the public domain, thus exposing Mr. Jeffrey to what was described as a risk of damage, injury or loss. It is true that the pleadings assert that there was negligence involved in the manner in which the relevant misleading information was placed in the public domain by a senior member of An Garda Síochana. However, there is little doubt but that the substance of the complaint was that Mr. Jeffrey suffered damage (which can only have been damage to his reputation or consequential matters) arising out of such inaccurate information becoming public.
3.4 It is in the context of the case thus pleaded that the State brought an application before the High Court seeking the dismissal of the proceedings. It is next appropriate to turn to the High Court judgment.
4. The High Court Judgment
4.1 Barrett J. began his judgment by stating the case before him centred on whether the immunity from defamation that arises in court proceedings also extends to other forms of action and later asked whether it was possible for an action for negligence and breach of duty to succeed where an action in defamation would have failed.
4.2 Barrett J. then had regard to a number of cases addressing the rationale for and the ambit of the privilege that arises within court proceedings. Having done so, he summarised at para. 12 the principles arising from those authorities as follows:-
"- [F]irst, any perceived damage that appears to arise for an individual as a result of what transpires at or before court proceedings must be balanced against the obligation of the courts to administer justice in cases coming before them, an obligation which requires that witnesses be free to give evidence without fear of consequences;
- second, in instances of ‘ flagrant abuse' , to borrow from the judgment of Barrington J. in Looney , there may be some bounds to the privilege; however, this requires malicious and wanton behaviour of a type that was not present in the Looney case and also does not arise in the present case;
- third, whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings is generally barred by the long standing rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given."
4.3 At para. 13, Barrett J. concluded as follows:- "The courts are temples of truth. That, at least, is the ideal. Within their confines there should be a minimum of circumspection on what can be said so that the truth can be determined and justice done. 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. For this, and for the reasons identified above, the plaintiff's action in this case must fail."
4.4 In the light of both the judgment of the High Court and the arguments made on this appeal, it may be useful next to identify the issues which arise.
5. The Issues
5.1 In essence, there appeared to me to be three contested issues in this case. The backdrop to those issues is, however, the jurisprudence concerning the striking out of proceedings on a motion to dismiss. The law in this regard is now well settled.
5.2 In this context, it is important to make the distinction between an application in which it is sought that the court should exercise its power to strike out proceedings under O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court to strike out proceedings. Order 19, r.28 permits a pleading to be struck out on the grounds that it discloses no reasonable cause of action or is shown by the pleadings to be frivolous or vexatious. As stressed by O'Higgins C.J. in McCabe v Harding [1984] ILRM 105, 108, "in order for r.28 to apply, vexation or frivolity must appear from the pleadings alone". The inherent jurisdiction to strike out or stay proceedings if frivolous or vexatious, or bound to fail, was, of course, first recognised by Costello J. in Barry v. Buckley [1981] I.R. 306, where he stated that its purpose was to ensure that an abuse of the process of the courts does not take place. In hearing an application under O.19, r.28, the Court is confined to considering the pleadings alone. In an application pursuant to the inherent jurisdiction of the Court, it may consider evidence which is normally given on affidavit.
5.3 In my own judgment in Lopes v. Minister for Justice [2014] IESC 21, [2014] 2 IR 301, at para. 2.3, I explained the distinction between those two types of application in the following way:-
"…An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in Barry v. Buckley [1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked."
5.4 However, it is also clear that, if it is apparent that some reasonable amendment to the pleadings could be made to cure any defect, then the court should not dismiss a claim. In this regard, reference should be made to the judgment of McCarthy J. in Sun Fat Chan v. Osseous Ltd . [1992] 1 I.R. 425, where he stated at p. 428:-
"In Barry v. Buckley [1981] I.R. 306 Costello J. held that the High Court has inherent jurisdiction in an appropriate case to dismiss an action on the basis that, on admitted facts, it cannot succeed. Counsel for the plaintiff has not challenged that decision or the ratio underlying it. The jurisdiction is different from that directly arising from Rules of the Superior Courts where a statement of claim discloses no cause of action or the proceedings constitute an abuse of the process of the court, where, pursuant to section 27, sub-s. 5 of the Judicature Act (Ireland) 1877, the court may grant a stay of proceedings so far as maybe necessary for the purpose of justice. In Barry v. Buckley Costello J. referred to the notes on that sub-section as set out in Wylie on the Judicature Acts. Since the matter has not been debated, I express no view upon the decision in Barry v. Buckley save to comment that applying the underlying logic, a defendant may be denied the right to defend an action in a plenary hearing if the facts are clear and it is shown that the defence is unsustainable. This appears to have been the net effect in the decision in the High Court (Dixon J.) in Dolan v. Neligan (1959) reported in its second phase in [1967] I.R. 247. By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed ." (Emphasis added)
5.5 Thus, it is agreed that the question which the Court must ask is as to whether the case as pleaded, or any reasonable amendment of same, is such that it either discloses no cause of action or, perhaps of particular importance in the context of this case, it is clearly bound to fail.
5.6 Against that background, counsel for the State suggested that there were three matters which made these proceedings bound to fail although, in fairness to counsel, he did not, for good reason, emphasise the second.
5.7 The first reason concerns the question of whether a statement of the type made by the presenting garda in this case can give rise to a claim in negligent misstatement. As was appropriate in the context of a motion to dismiss, counsel for the State accepted that the Court must approach its analysis by treating the plaintiff's claim at its height. On that basis, and for the purposes of the application concerned, counsel accepted that it was appropriate for the Court to assume that Mr. Jeffrey would be able to establish at a trial that the relevant member of An Garda Síochana was negligent in the way in which what turned out to be a completely inaccurate account of Mr. Jeffrey's record was spoken in open court. It was also accepted that it must be assumed that the State would be vicariously liable for any such negligence.
5.8 However, it was argued that the fact that a statement may be negligently made does not, in and of itself, necessarily lead to successful proceedings. In that context, counsel drew attention to the fact that it is not possible to bypass the rules of one tort by attempting to convert everything into a claim in negligence. Counsel argued that there was no basis for suggesting that a claim in negligence could be brought where the only adverse consequence alleged by the plaintiff involved, directly or indirectly, damage to reputation as a result of words written or spoken. Counsel for Mr. Jeffrey accepted that it would not have been possible to bring a claim in defamation against the State in the circumstances of this case because of the limitations included in defamation law which would have protected the comments made. Counsel fairly accepted that it was for that reason that Mr. Jeffrey's claim had been framed as a claim in negligence or negligent misstatement. However, counsel for the State argued that it was not possible to get around the limitations of a defamation action by characterising a claim for damaged reputation arising from published materials as being one in negligence rather than in defamation. The first issue was, therefore, as to whether the law in this area is sufficiently clear for it to be possible for a court safely to hold that Mr. Jeffrey's claim was bound to fail on that basis.
5.9 The second issue concerned the question of whether it could be said that the presenting garda, for whose actions, as previously noted, the State is assumed to be vicariously liable, owed a duty of care to Mr. Jeffrey. The reason why counsel, quite properly, did not press this point particularly strongly was that it was accepted that there are difficult legal questions about the extent of the duty of care which may be owed by a participant in court proceedings. The law in this jurisdiction, unlike that in the United Kingdom (see, Arthur JS Hall & Co. v. Simons [2002] 1 AC 615), still recognises an immunity, based on public policy, in respect of the conduct of legal proceedings by an advocate in court. Among the reasons why such a principle has been upheld is the undesirability of attempts to reopen the result of a case which has been lost without the successful party being present. In order to successfully maintain a claim in negligence against an advocate, it would be necessary, in addition to showing that the advocate acted negligently, to establish that there was some detrimental consequence as a result of the negligent acts of the advocate concerned. But that would call into question the result of the original proceedings in circumstances where the successful party would not have a right to be heard. Courts in this jurisdiction and in the United Kingdom have taken a somewhat different view as to the weight to be attached to that factor. It should be noted that, while reference has been made by the Irish courts to the decision of the House of Lords in Arthur JS Hall (see, for example, Behan v. McGinley [2008] IEHC 18, [2011] 1 IR 47), that decision has not been followed in this jurisdiction.
5.10 Be that as it may, there are also questions about the extent to which an expert witness might be open to being sued for negligence concerning the manner in which expert evidence was tendered in court. Again, the courts in this jurisdiction differ in approach from those in the United Kingdom in this regard. In Jones v. Kaney [2011] UKSC 13, [2011] 2 AC 398, the Supreme Court of the United Kingdom determined that the immunity of expert witnesses in that jurisdiction should no longer be recognised. With regard to the position in this jurisdiction, reference might be made to the decision of this Court in E O'K v. DK (Witness: Immunity ) [2001] IESC 84, [2001] 3 I.R. 568. That case concerned, amongst other things, a negligence action brought against an expert witness, being a psychiatrist appointed by the High Court in relation to the conduct of a psychiatric examination of the plaintiff. In his judgment in that case, Murphy J. stated as follows at p. 576:-
"…Even if, however, it could be established that the third defendant was guilty of negligence and that her negligence brought about the judgment and order of which the plaintiff complains, I am satisfied that O'Sullivan J. 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 the third defendant erred and, the plaintiff alleges, acted negligently, it was not and could not be suggested, that she attempted to abuse the position of expert witness to which she had been appointed by the High Court."
5.11 Against that backdrop, counsel argued that the boundaries of the duty of care owed by someone acting in a position such as that of the presenting garda in this case could not be said to extend to a duty to the "other side". However, counsel did acknowledge that this was a difficult area of the law and that it might well be the case that the law in this regard was not sufficiently clear that it would warrant, in and of itself, providing a basis for a dismissal on a motion to dismiss.
5.12 The third issue concerns the potential immunity of the presenting garda arising from the fact that what was said occurred in the course of the conduct of court proceedings. It is clear from s. 17 of the Defamation Act 2009 that a wide range of immunities are granted, in the context of defamation proceedings, to the participants in court proceedings. Section 17, as it was at the relevant time, provided, in relevant part:-
It should be noted that that the amendment brought about by s.132 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act, 2013 is not material to the issues in this case.
5.13 It is also clear from cases such as Looney v. Governor and Company of the Bank of Ireland and Morey [1996] 1 I.R. 157 that witnesses enjoy an absolute privilege in all circumstances. Likewise, the position in this jurisdiction, as has been pointed out, is that advocates enjoy a similar immunity from suit. It is in that context that the proper characterisation of the role of the presenting garda, when speaking the words complained of, will have to be assessed. As noted earlier, the garda concerned had not been sworn to give evidence. Likewise, the relevant garda was not a professional advocate, but rather enjoys the right to conduct proceedings in the District Court on behalf of the D.P.P. as a result of O. 6, r. 1(e) of the District Court Rules. On that basis, counsel for Mr. Jeffrey argued that the presenting garda was neither a witness nor an advocate on the occasion in question or at least could not be described as an advocate for the purposes of any immunity from suit which advocates enjoy. Thus, the key issue which arises under this third heading is as to whether it is clear that the garda concerned had an immunity such as would make any suit arising out of what he said in court bound to fail.
5.14 In my view, the first two issues can be disposed of relatively quickly and I turn to those questions.
6. The First Two Issues
6.1 Counsel for the State quite properly drew the Court's attention to the decision of the House of Lords in the United Kingdom in Spring v. Guardian Assurance Plc [1995] 2 AC 296. It is clear from the decision in that case that it remains the position of the common law in the United Kingdom that a party cannot bring an action for damage to reputation other than through an action in defamation. In a similar vein, in the Irish context, it is clear that an action for defamation is considered the appropriate means by which a plaintiff should seek to vindicate their constitutional right to their good name where it is alleged same has been breached (see, for example, Hunter v. Gerald Duckworth & Co. Ltd [2000] 1 IR 510 and Murray v. Sheridan & Ors . [2013] IEHC 303). However, while the law in that regard may well be considered clear, it is also apparent from the decision in Spring that economic loss (as opposed to damage to reputation) flowing from a negligent statement may, at least in the United Kingdom, form the basis for a successful suit. It was clear from the hearing before this Court that it was at least contended on behalf of Mr. Jeffrey that his business as a gardener and odd job man had suffered because of what was said in court. It, therefore, remains arguable that the persuasive authority of Spring will find favour in this jurisdiction and that it will be ultimately found to be possible to maintain a claim for negligent misstatement giving rise to economic loss. On that basis, it seems clear that it would be possible to re-cast Mr. Jeffrey's claim in a way which confined the scope of the damages which he sought to one in respect of economic loss rather than damage to reputation. It is at least arguable that such a claim can be maintained in this jurisdiction and it follows that it would be possible for Mr. Jeffrey to recast his claim in a way which made it clear that it was not bound to fail but rather would be dependent on the facts as to whether the statements made in court were negligently made and whether he suffered economic loss as a result of them.
6.2 Likewise, for the reasons already touched on, it is clear that there may be difficult legal issues surrounding the question of whether it can be said that a person, such as the presenting garda in this case, owes a duty of care to persons about whom a statement may be made. In my view, counsel for the State was correct not to press this point in the context of this application. It is important to emphasise that counsel did not concede that the point was a bad one. Rather, counsel accepted that the issues raised by the point were sufficiently complex that the Court might not be persuaded that it was appropriate to deal with them within the limited confines of a motion to dismiss. In my view, counsel was correct in that regard. It cannot be said that the law concerning duty of care relating to statements of the type at issue in this case is sufficiently clear that it could be said at this stage that Mr. Jeffrey's claim is bound to fail on the basis of the absence of a duty of care. That is not to say that if these proceedings or other similar proceedings ever come to trial, there may not be difficult issues which need to be determined under this heading.
6.3 It follows that, if those two matters were the only issues raised by the State, then I would have little hesitation in allowing the appeal and permitting a recast claim to go ahead. However, it is also necessary to consider the more fundamental point made on behalf of the State which was to the effect that the presenting garda enjoyed immunity.
7. Is it Clear that the Presenting Garda Enjoyed Immunity?
7.1 The starting point of discussion on this topic has to be to consider the basis on which the trial judge considered that it was clear that Inspector Connolly enjoyed immunity, such that any claim based on what he said must be bound to fail. The trial judge took the view that he was a witness. That proposition must be open to real doubt. In a criminal trial in any court in which the D.P.P. is represented by a professional advocate, be it a solicitor employed within the State service or a barrister instructed by such a solicitor, then evidence of any previous convictions of a person who has pleaded or been found guilty will be given by means of calling a garda witness to give evidence of the record of the person concerned. In case of any difficulty or dispute, that witness can be cross-examined in the ordinary way. There can be little doubt but that such a witness would enjoy the same immunity as any other witness giving evidence in court proceedings. But the fact is that Inspector Connolly was not sworn and was not subject to cross-examination. It was true that he was giving information to a court which might normally be given as evidence by a witness, but it does not follow that he can necessarily be taken to enjoy witness immunity just because of that.
7.2 Likewise, there are questions as to the extent to which a person such as Inspector Connolly could enjoy the immunity which attaches to advocates appearing in court. It is true that he is, by virtue of the District Court Rules, entitled to represent the D.P.P., but the precise characterisation of his status as so representing the D.P.P. is, again, a matter which is not absolutely clear.
7.3 There may also be a basis on which it could be said that the position of Inspector Connolly is analogous to that of a party appearing in the proceedings, by virtue of the authorisation which the District Court Rules give for his presentation of the case. Indeed, on one view, it may be said that any person playing a legitimate role in the conduct of court proceedings enjoys a significant immunity. However, it has certainly not yet been established that there could be no exceptions to the proposition that all such persons may enjoy full immunity and, if there be such exceptions, what the parameters of same are.
7.4 It is now well settled that, in the context of a summary judgment motion in which a plaintiff seeks judgment in summary proceedings, a court can resolve straightforward issues of law or the interpretation of documents, where there is no real risk that attempting to resolve those issues within the limited confines of a summary judgment motion might lead to an injustice. By analogy, I would not rule out the possibility, without so deciding, that it may be possible to resolve a simple and straightforward issue of law within the confines of a Barry v. Buckley application. However, even if that should be possible, it could only be appropriate where the issue was very straightforward and where there was no risk of injustice by adopting that course of action. The question of the parameters within which a person, such as Inspector Connolly, may enjoy immunity from suit arising out of what they say in court is, in my judgment, a far from straightforward matter. There are, indeed, strong arguments to suggest that immunity does arise. However, a Barry v. Buckley application cannot be used to dismiss a case simply because it might be said that there is a strong defence. Rather, such applications can only be used in cases where it is clear that the claim is bound to fail. In my view, this case is not such a case. I would not, therefore, hold that it is sufficiently clear that a person in a position such as Inspector Connolly enjoys immunity from suit for it to be appropriate to dismiss Mr. Jeffrey's proceedings as being bound to fail on that ground alone.
8. Conclusions
8.1 For the reasons set out in this judgment, I am satisfied that it is at least arguable that a person may be able successfully to maintain a claim for negligent misstatement where, although the injury claimed relates principally to loss of reputation, it can also be established that economic loss has occurred as well.
8.2 I am also satisfied that there is sufficient doubt about the precise parameters of any duty of care which might be owned by a person, such as Inspector Connolly, to anyone else arising out of the conduct of court proceedings, such that it cannot be said that Mr. Jeffrey's proceedings will be bound to fail on the basis of an absence of a duty of care.
8.3 Finally, while concluding that there may well be grounds for believing that Inspector Connolly may enjoy an immunity from suit having regard to the proper characterisation of his role in the District Court proceedings against Mr. Jeffrey, that question is, in my judgment, complex and not one where it can be said with sufficient clarity that the defence will prevail on the grounds of immunity alone.
8.4 Against the backdrop of those findings, and having regard to the principle that a party should be allowed ordinarily to amend their proceedings if it is necessary to do so in order to permit a sustainable case to go ahead, I would propose that the appeal be allowed and that Mr. Jeffrey should be permitted to pursue a claim, but one which is confined to seeking to establish negligence behind the statements made in court and, importantly, economic loss which can be causally linked to those statements. Insofar as any claim to general damage to reputation is concerned, it does seem to me to be clear that Mr. Jeffrey's claim is bound to fail for to hold otherwise would be to accept that it is possible to use negligent misstatement to get around the carefully crafted boundaries of the law of defamation.
8.5 I would propose that the Court should hear counsel further on what practical steps should be put in place to allow for the appropriate amendment of these proceedings, so as to enable them to progress in accordance with the parameters which I have identified.
