Court of Appeal finds undue pressure on witness to produce statement does not come within witness immunity rule

Witness evidence and witness statements have long been given immunity from civil proceedings. The rationale is twofold: firstly so that witnesses in future cases will not be deterred from giving evidence for fear of being sued for what they say in court; and secondly to prevent satellite litigation. The immunity cannot be outflanked by alleging for example a conspiracy to give false evidence. The Court of Appeal in this case has however made clear that if the cause of action isn't the allegedly false statement itself, there is no need to extend the immunity and the principle that a wrong should not be without a remedy prevails: Singh v Governing Body of Moorlands Primary School and Reading Borough Council [2013] EWCA Civ 909.

The decision continues the trend in recent years of restricting immunity: advocates and experts no longer enjoy immunity for negligence (Hall v Simons [2002] 1 AC 615, Jones v Kaney [2011] 2 WLR 823, see post); malicious prosecution may be available for civil as well as criminal proceedings (Crawford Adjusters and others v Sagicor General Insurance (Cayman) Ltd and another [2013] UKPC 17, see post);  the handling and preparation of exhibits for a criminal trial may not be protected by immunity (Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783).

Background

The Moorlands case concerned whether Ms Singh, who was claiming constructive discriminatory dismissal and constructive unfair dismissal from her position as head teacher at a primary school, could amend her claim to allege that undue pressure had been placed on a witness to produce a witness statement containing allegedly false or otherwise inaccurate evidence for the purpose of the proceedings. This claim was made in support of the allegation that the defendants had breached the implied duty of trust and confidence between an employer and employee.

The council objected to the amendment on the grounds that it was bound to fail because of judicial proceedings (witness) immunity. No alternative application to strike out on the facts or for lack of particularisation was made so judicial proceedings immunity was the only issue to be decided on the appeal.

Decision

The decision of the court was given by Lewison LJ. After reviewing the authorities he summarised the position as follows:

• The core immunity relates to the giving of evidence and also comprises statements of case and other documents placed before the court.
• That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked.
• Where the gist of the action is not the allegedly false statement itself but is based on things that would not form part of the evidence in a judicial enquiry there is no necessity to extend the immunity.
• In such cases the principle that a wrong should not be without a remedy prevails.
• Procedural safeguards such as strike out and summary judgment counter the floodgates argument.

On the facts he considered the complaint to be not about the content of the statement (although any discrepancies between the statement and what the witness had previously said might help prove the allegation of undue influence) but to be about the means by which it was procured. As he observed, the complaint of breach of contract would be just as valid if pressure was applied to a witness but resisted.