MacSweeney & Company Solicitors Galway

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Case shows the importance of independent evidence

Shopping Mall Escalator

The weight of independent testimony carries significant weight, especially in civil cases where the burden of proof (in the main) is that the plaintiff has to prove his/her case on the balance of probabilities.

The importance of independent testimony was again to the fore in a case heard in the High Court, hearing Circuit Court civil appeals, last year. S.C. and M.O. (“the plaintiffs”), took unsuccessful defamation proceedings in the Circuit Court against a retail Store (“retail store 1”).

The main question to be determined by the High Court was which version of events was correct, that of the plaintiffs or that of the security guard employed by retail store 1, Mr. B, and the security guard employed by another retail store (“retail store 2”).

The reason for the involvement of the security guard in retail store 2 was because the alleged defamation by Mr. B took place in retail store 2.

The plaintiffs were shopping in retail store 1 in Cork with S.C’s son, who was 4 years old at the time. It was accepted by the court that they were being monitored by Mr. B as they shopped. It was also accepted by the court that the plaintiffs were aware of this monitoring at the time, since S.C. subsequently asked Mr. B (in retail store 2) why he had been following them around in retail store 1.

It was also not in dispute that the boy wanted to buy an outfit in retail store 1 which he had in his hand as they went around that shop but that his mother (S.C.) had refused to buy it for him. He took the mask off the outfit and put it under his top and left the shop without paying for it. As the plaintiffs and the boy subsequently entered retail store 2, the boy took the mask out from under his top and put it on his head. The mask was a head mask and so covered his head. The security guard in retail store 2 was at the entrance of that store and on spotting what the boy had done, and the fact that the plaintiffs had retail store 1 shopping bags on them, he radioed Mr. B (security guard in retail store 1) to let him know about this activity. Mr. B checked the outfit that had been left by the boy in the store and discovered that the mask was missing. He then made his way to retail store 2 to retrieve the mask.

The plaintiffs gave evidence that they did not witness the mask on S.C.’s son until the second Mr. B arrived to seek the mask back. The High Court found that evidence difficult to believe and expected that two adults, in charge of a boy of that age who was going down the stairs in a busy shop, would have kept a regular and watchful eye on him. The High Court did not accept the plaintiffs’ evidence that they had not noticed the mask until the second Mr. B arrived to take it back.

The High Court in considering which version of events to believe, felt there was inconsistency in the evidence given by the plaintiffs and thus preferred the evidence of the independent witness of what happened. While the plaintiffs alleged that Mr. B grabbed the mask off the boy’s head and called the plaintiffs the “biggest shoplifters” it was the evidence of Mr. B that he asked for the mask back and the child handed it to him and that he did not call the plaintiffs the biggest shoplifters or make any other similar comments which the High Court ultimately found to be the correct version of events.

Significantly, the High Court was swayed by the evidence of the independent witness, who said he followed Mr. B down the stairs of retail store 2 and that he witnessed the child hand back the mask to Mr. B when he asked for it, and that Mr. B did not make the comments alleged by the plaintiffs. he High Court found that the incident as described by the plaintiffs did not occur, and dismissed the plaintiff’s proceedings and affirmed without amendment the decision of the Judge of the Circuit Court.

This case shows the significance of gathering as much objective evidence prior to issuing proceedings and/or proceeding to trial. Potential litigants should be aware of their rights pursuant to Data Protection legislation and their right to make a data access request prior to issuing proceedings and/or proceeding to trial. This can often be a useful way of gathering independent evidence in advance of proceedings.

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