Michael McDowell (Dublin South East, Progressive Democrats)

——for stories which everybody knew to be right. He never even had to testify in the cases. He simply demanded that they prove the case and then walked away from it. This provision simply requires that somebody swears an affidavit saying that what is in his or her pleading is correct. In other words, if the pleading is false and the person knows it to be false, he or she commits perjury or exposes him or herself to being proven to be committing perjury if the person proceeds with the trial.

Senator Norris drew our analogy with the Civil Liability and Courts Act. Since the Personal Injuries Assessment Board and that Act came into operation the level of litigation has plummeted. Furthermore, insurance premia have plummeted. The compensation culture is in full retreat. That happened because it was usual for people who, for instance, had broken their leg in a car crash to announce that they could no longer play golf and that they had to employ nurses and childminders. These particulars were put into pleadings, regardless of their truth, to pad out a case against the insurance company. There was never a requirement for people to say it was true and to put their reputation on the line if it was not true.

The purpose of adversarial justice is that one is asking a court to believe one. If matters are put down in writing without any belief in their truth in the hope of bluffing the other side, and someone profits from that in personal injuries or defamation cases or if someone frightens someone off with an assertion in their pleadings, they might as well go a little further and expose themselves to a criminal liability if they are just cheating the other side.

Senator Walsh asked if the plaintiff can call anybody he or she wants. Yes, but if my newspaper has written an article about somebody and I call that person as a witness, that person is my witness but if he or she gives evidence, I am bound by the answers. If I said he did beat his wife on the occasion and he says he did not, I cannot suggest to him that she had 13 bruises, that she said he did it and so on. One cannot cross-examine one's own witness. That is the crucial difference. A witness who is called by one side is giving evidence in chief and one cannot cross-examine one's own witness, except in rare circumstances if that person gives evidence that is against one's case. Under this section, if somebody swears an affidavit, he or she can be cross-examined.

There is another aspect, going back to the Driberg instance. The idea that people could, fully conscious of the fact that what was said about them was true, go into a court, have their counsel open the case to the jury, not even walk up to the witness box but simply say to the other side that they must prove that whatever was said is true, knowing that it is true, offends justice. We have introduced balance in that regard. We decided not to follow the suggestion of the Law Reform Commission, which was that the onus of proof should always be on the plaintiff. We have said the onus of proof is not on the plaintiff but if the plaintiff claims he has been defamed, he must swear an affidavit saying that he truly believes he has been defamed and outlining the reasons.

He does two things in that regard. First, he renders himself liable to prosecution for perjury if he lies at that point and, second, he exposes himself to cross-examination in the witness box. The idea that somebody could sue for a large sum of money without ever exposing him or herself to cross-examination is unjust. That is the reason for that balance. The Government took the middle course. It ignored the Law Reform Commission's proposals.