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Now here is an odd case heard at the court of appeal [Singh v Reading Borough Council & Governing Body of Moorlands Primary School].

The essence of this appeal was an appeal against an EAT ruling that the claimant could not rely on a witness statement of a former colleague in support of her claim of constructive dismissal because the statement attracted judicial proceedings immunity even thought the council used pressure to secure the evidence from that witness.

The end judgement read well ” …… The nub of the complaint is that the Council has done something calculated to destroy or damage the trust and confidence that is inherent in an employment relationship. If an employer, to the knowledge of an employee, is prepared to use underhand and improper means to defeat a claim of discrimination brought against it by the employee that is destructive of the requisite trust and confidence whether or not the employer succeeds. Accordingly there is no immunity behind which the Council can shelter.”

How did the Council seek to claim that judicial immunity? Simply because the Council used lawyers who allegedly bullied the witness into providing the statement.  But for the Court, the use of the lawyer might have been a smart move by the council.

Broader context

In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 Lord Hope emphasised that the rule applied to evidence. At 445 he described the rule as follows:

“… when a police officer comes to court to give evidence he has the benefit of an absolute immunity. This immunity, which is regarded as necessary in the interests of the administration of justice and is granted to him as a matter of public policy, is shared by all witnesses in regard to the evidence which they give when they are in the witness box. It extends to anything said or done by them in the ordinary course of any proceeding in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely and maliciously and without reasonable and probable cause… The immunity extends also to claims made against witnesses for things said or done by them in the ordinary course of such proceedings on the ground of negligence.”

Complete immunity no longer applies to expert witnesses since Arthur JS Hall & Co v Simons. In Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398 the Supreme Court decided that an expert witness should no longer enjoy immunity from suit for negligence in relation to an expert report prepared for the purpose of litigation or in relation to evidence that he gave in litigation. The court made it clear, however, that absolute privilege in defamation remained.

Interestingly the judgment notes that in Taylor v Serious Fraud Office [1999] 2 AC 177 the House of Lords held that the immunity extended also to statements made out of court by persons not called as witnesses (in that case fraud investigators), if they could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution, even where those being investigated were never charged with any offence.

From reading the obiter of this case, an advocate and an expert witness can be sued in negligence for acts or omissions arising out of their conduct of litigation. In the very recent decision of this court in Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783 allegations of deceit and negligence in the handling and preparation of exhibits for use in a criminal trial, as a result of which the claimant pleaded guilty to an offence that he had not committed, were allowed to go to trial in a subsequent civil action.

Citation UKEAT/0540/12/RN