Michael McDowell (Dublin South East, Progressive Democrats)

All that is required is that the plaintiff or the defendant swear a verifying affidavit, which does not mean that they prove these matters are true from their own knowledge but that they are true to the best of their knowledge and belief. If somebody knew it was false and it was later proven that he or she knew it was false, the affidavit would amount to perjury.

Subsection (3) refers to infants or persons of unsound mind who can do it. Subsection (4) deals with bodies corporate but if, for instance, a newspaper were pleading qualified privilege or whatever, the editor of the newspaper or whoever will swear the affidavit on behalf of the body corporate stating that to the best of his or her knowledge and belief, what they say in the affidavit is true. They do not have to produce the man who saw the murder and make him swear an affidavit stating the plaintiff did the murder or whatever. Otherwise, it would require the whole case to be deposed in writing. If the editor says he believes that Senator Walsh killed his granny or whatever and if he is pleading justification based on that, he believes that it happened. He will not then outline all the reasons he believes it happened. It is simply that it happened that way.

Regarding cross-examination, if someone calls a witness in cross-examination, he or she is their witness and they are normally not permitted by the court to query the truth of what that witness said to them. That is the difference between examination in chief and cross-examination. They are not entitled to query or challenge that witness's evidence. To take a case like the Driberg case, if the newspaper decided to call Mr. Driberg, since he was not giving evidence in this case, and put him in the witness box, and if they asked him if he did A, B and C and he said "No", that would be the end of it. That barrister would have to sit down. He could not say that the witness did X and Y and suggest to the jury that he was lying. The judge would tell him to sit down because he had got his answer from his own witness. That is the difference.