From the Irish Times, 15 January 1910, this account of an interesting action brought by barrister and politician Tim Healy under the Corrupt and Illegal Practices Prevention Act 1883, which as amended by a subsequent Act of 1895, stated as follows:
“Any person who…before or during any parliamentary election, shall, for the purpose of affecting the return of any candidate at such election, make or publish any false statement of fact in relation to the personal character or conduct of such candidate shall be guilty of an illegal practice [within the meaning of the 1883 Act.”
Mr Healy, parliamentary candidate for North Louth, sought a pre-trial injunction to restrain fellow politician and solicitor James John O’Shee from alleging that Healy had taken fees from a landlord to oppose the restoration of an evicted tenant.
Mr Healy admitted that he had taken fees for acting in the relevant proceedings for the landlord but denied that he had sought to oppose the tenant’s restoration.
The case was heard before Lord Chief Baron Palles and Mr Justice Gibson, with Serjeant Moriarty KC (later Lord Justice Moriarty) appearing for Mr Healy and Mr Matheson KC appearing for Mr O’Shee.
Although civil proceedings in those days were usually heard before juries, there was an exception for pre-trial injunctions such as that sought by Mr Healy, which were heard before judges only.
Opening the case, Serjeant Moriarty KC, leading for Mr Healy, immediately received a smackdown from one of those judges, Lord Chief Baron Palles, for undue grandiloquence of language, when he asserted in his opening that Mr O’Shee had “made an absolutely false, baseless, groundless and absurd claim.”
There followed, as reported by the Irish Times, the following exchange of words between judge and counsel:
“The Lord Chief Baron – We are having enough of adjectives in this case.
Serjeant Moriarty – They are necessary, my lord.
The Lord Chief Baron – You know you are not addressing a common jury.”
Today, with the absence of jury trials, it would likewise be difficult to get away with so many adjectives in a civil case.
Mr Matheson KC, leading counsel for the defendant, likewise ran into trouble when he stated that if Mr Healy’s case was that his professional liberty was restricted by his political creed, then he had no right, according to that political creed, to take a brief for a landlord as against an evicted tenant. Again, as reported in the Irish Times:
“Mr Justice Gibson inquired if a barrister was not bound to accept a brief offered to him.
Mr Matheson replied that he understood that a barrister was bound to accept a brief at a proper fee, but that special circumstances might justify his refusing to accept a particular brief.
The Lord Chief Baron said he had known it to be very seriously considered if a barrister refused to take a brief at a proper fee. He was not aware that it was ever held that the holding of political opinions was a sufficient justification. There was the well-known case of the trial of Smith O’Brien when Baron Fitzgerald was advised that he must take the brief. He took it strongly against his will, and it was one of the most interesting studies, knowing Baron Fitzgerald’s political opinions, to read the speech which he made in which not a point was omitted that he ought to have made…”
Having come to this conclusion, the judges in the case were on the horns of a dilemma. If, as they felt, a barrister was not entitled to refuse a brief because of political opinion, could a false allegation that such barrister had acted in a case against his political beliefs be a “false statement as to conduct or character” within the meaning of the 1883 Act as amended.
The case was resolved in favour of Mr Healy by the court finding that a false statement as to personal conduct or character for the purposes of the 1883 Act, did not have to be defamatory; it merely had to be a statement as to personal conduct or character. A statement that a candidate had acted against his political beliefs, even if not defamatory, could potentially suffice if it were such as to prejudice voters against the candidate.
Noting that the only Affidavit filed on behalf of Mr O’Shee in support of his allegation against Mr Healy was his own, which acknowledged that he himself had been present only for part of the hearing, the court found that there was sufficient evidence that the statement was false to justify granting the injunction.
The case was subsequently settled.
Although the 1883 Act is long repealed, Healy v O’Shee stands as an example of judicial affirmation of the cab rank rule, which requires barristers to accept all briefs offered if they have the expertise and time to attend to them and were not conflicted – and also of the dangers of using too many adjectives in a case not before a jury!
Image Credit: Wikipedia.
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