If someone lies under oath, committing perjury, and it causes you harm, can you sue them?  Say, for example, you sue a contractor for performing shoddy work.  Your neighbor tells you he will testify that he personally saw the work and it was terrible.  Then your neighbor shows up at court and says the exact opposite, causing you to lose the case.  You should be able to sue your neighbor for lying and recover the money he caused you to lose, right?

It turns out the answer is usually “no.”  “[N]o common law right of action arises out of perjured testimony presented in a prior judicial proceeding.”  Dexter v. Spokane County Health Dist., 76 Wn. App. 372, 375 (1994).  “[A] witness, lay or expert, party or nonparty, is immune from tort damages arising out of his or her testimony.”  Id. at 376 (citing Bruce v. Byrne-Stevens & Assocs. Eng’rs, Inc., 113 Wn.2d 123, 125-27 (1989)).  “All witnesses are immune from all claims arising out of all testimony.”  Id. (citing Bruce, 113 Wn.2d at 131-34).

The first reason for this is that, from the perspective of the law, giving false testimony in open court “is an offense against the public only.”  W. G. Platts, Inc. v. Platts, 78 Wn.2d 434, 440 (1968).  Perjury is a crime, and it can be prosecuted by the authorities.  See Chapter 9A.72 RCW.  This means the perjurer must pay a debt to society in the form of jail time and fines, but it does not help you get your money back.

The second reason for this is because of the impact a civil cause of action for perjury would have on the legal system.  “Were such a theory of recovery available, many cases would be tried at least twice; first on the merits and then to see who lied at trial.  If a party could sue another party for perjury, there is no reason why a party (or anyone else aggrieved by the perjury) could not sue a nonparty.  There would be no finality to litigation, the costs of suit would expand, and witnesses would be reluctant to testify.”  Dexter, 76 Wn. App. at 376.

In extreme cases, you might be able to reopen the case under Civil Rule 60.  See Dexter, 76 Wn. App. at 376-77.  If the adverse party committed perjury, their fraud or misrepresentation can be grounds for vacating the judgment in the prior case.  CR 60(b)(4).  If someone else commits perjury, one could argue this is “[a]ny other reason justifying relief from the operation of the judgment.”  CR 60(b)(11).  The latter rule is “confined to situations involving extraordinary circumstances,” but has been invoked “in unusual situations which typically involve reliance on mistaken information.”  In re Marriage of Tang, 57 Wn. App. 648, 655-56 (1990) (citing In re Henderson, 97 Wn.2d 356, 359-60 (1982)).

In short, if you are harmed by perjured testimony, you might be able to reopen the case (if it was your case), or convince law enforcement to institute criminal proceedings, but you cannot sue the perjurer.

By Peter Hawkins – Associate Attorney

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