Employment Cases Update

Singh v Governing Body of Moorlands Primary School & Anor [2013] EWCA Civ 909

Date published: 26/07/2013

Appeal against ET and EAT rulings 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. Appeal allowed.

As a background to the case read Singh v Reading Borough Council & Governing Body of Moorlands Primary School UKEAT/0540/12/RN

The claimant's principal complaint was that the Council was in breach of the implied term of a contract of employment that the employer may not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The breach complained of was that the Council placed undue pressure on a colleague of the claimant to produce a witness statement containing false or otherwise inaccurate evidence. No complaint was made about the witness's evidence itself. The issue on this appeal was whether an amendment to the claimant's ET1, to include constructive dismissal as well as an existing claim of race discrimination, should be allowed to be made. The allegation has been nick-named "the final straw" allegation. Both the ET and on appeal the EAT held that the final straw allegation should not be permitted, because judicial proceedings immunity covered all the Council's activities (whether proper or improper) in gathering evidence for the purpose of defending the claimant's claim of discrimination. The claimant's argument was that her cause of action relied on the undue pressure applied by the Council to the witness. The Council's argument was that it characterised her claim as being founded upon allegedly false evidence and that it was in substance an action against the Council for the evidence they had adduced or intended to adduce in court.

The Court of Appeal allowed the appeal. They ruled that the claimant's claim was not based on anything that the witness might or might not say to the employment tribunal. She had not yet given her evidence. It was based on what went on outside the tribunal and in particular the means by which the Council procured the witness to give the statement. Evidence relating to the process by which the evidence was procured was simply not relevant to the claimant's existing discrimination claim, and would not form part of that judicial enquiry (although it may form part of the judicial enquiry into the consolidated claims).

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Case No: A3/2013/0614

Neutral Citation Number: [2013] EWCA Civ 909

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

MRS JUSTICE COX, MR A HARRIS & MR S YEBOAH

UKEAT054012RN

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25th July 2013

Before:

LORD JUSTICE MAURICE KAY, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

LORD JUSTICE LEWISON

and

LADY JUSTICE GLOSTER

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Between:

SUDHANA SINGH (Appellant)

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(1) GOVERNING BODY OF MOORLANDS PRIMARY SCHOOL

(2) READING BOROUGH COUNCIL (Respondents)

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Heather Williams QC and Althea Brown (instructed by Bindmans LLP) for the Appellant

Robin Allen QC and Akua Reindorf (instructed by Reading Borough Council Legal Services) for the Respondents

Hearing dates: 2 & 3 July 2013

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Judgment

Lord Justice Lewison:

Introduction

1. This appeal involves the clash of two principles: the principle that a wrong should not be without a remedy, and the principle that those involved in the judicial process should be immune from civil suit for what they do or say in the course of the litigation. The latter principle is known as "judicial proceedings immunity".

2. I take the background from the lucid decision of the EAT (Cox J, Mr A Harris and Mrs S Yeboah) whose judgment is at [2013] UKEAT 0540. Ms Singh is a non-white British citizen of Indian origin. In September 2009 she was appointed Headteacher of Moorlands Primary School, a community school maintained by Reading Borough Council ("the Council"). She was employed by the Council, but the Governing Body of the school had statutory responsibility for Ms Singh's appointment and for the management of her performance and the implementation of policies regulating the employment relationship, including grievance, capability and disciplinary procedures. Unless it is necessary to distinguish between them I will simply refer to the Council.

3. One of the members of the Senior Leadership Team at the school is Sue Heath, the School Business Manager and Clerk to the Governing Body. In that capacity Ms Heath worked closely with Ms Singh, and it is common ground that they enjoyed a good working relationship. During Ms Singh's first year as Headteacher serious difficulties arose in her relationships with parents, members of staff and governors, including the Chair of the Governing Body. She alleges that, right from the start, she was met with hostility and aggression in response to her attempts to take forward the strategic management of the school. Specifically, she alleges that the governors "deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation" against her as an Asian head teacher; and that the Council, "deliberately and unlawfully endorsed a targeted campaign of discrimination, bullying and harassment and victimisation against her to remove her as head of Moorlands Primary School." The Council denies these allegations. It says that the serious breakdown in relationships was due to Ms Singh's autocratic style of leadership and her poor communication skills.

4. On 14 June 2010, towards the end of Ms Singh's first year as Headteacher, the Council received a petition signed by approximately 170 parents, expressed to constitute a vote of no confidence in Ms Singh. On 16 June the Council decided to appoint an independent investigator, Ms Barnes-Vachell, to conduct a review of the school. In her interim report, sent by email on 2 July, Ms Barnes-Vachell expressed serious concerns about the school, referring to it as "a school at risk" and describing an air of chaos. She recommended that Ms Singh be removed from her post pending the outcome of the review. In consequence Ms Singh took a period of voluntary paid leave pending the outcome of the review.

5. Ms Barnes-Vachell presented her final, draft report to Ms Singh and the Council on 18 July. In that report she referred to the number of members of staff who had left since Ms Singh joined the school, and she identified a number of serious problems relating to Ms Singh's management style and interpersonal skills, her strategic management and performance, and her behaviour management. Ms Singh complains that this report was neither informed nor impartial, and that the integrity of the investigation was undermined by the investigator's failure to act fairly, in circumstances where she was on leave and was unable to refute the findings until the evidence gathered was provided to her.

6. On 21 July Ms Singh lodged a formal grievance complaining of race discrimination and victimisation, including allegations against the Council relating to the conduct of the investigator's review. On 3 September, an external consultant, Minna Nathoo, was appointed to investigate the grievance. Interviews with thirty people, including Ms Singh and Sue Heath, were tape recorded and transcribed during this investigation, which continued until December 2010.

7. On 14 September 2010 the Claimant issued her ET1, complaining of race discrimination, harassment and victimisation against her by the Council and the governors. The allegations reflected those already made in her grievance. On 15 October the Council filed a detailed ET3 denying all the allegations.

8. In December 2010 Ms Nathoo concluded her investigation and produced her report. No aspect of Ms Singh's grievance was upheld. Ms Singh did not pursue an appeal against the outcome of her grievance.

9. Subsequently progress was made in the employment tribunal towards the resolution of Ms Singh's complaint of discrimination. Ms Singh says that she telephoned Sue Heath on 22 and 26 November 2011, to ask if she would be a witness for her at the hearing. She received a text message from Mrs Heath on 26 November, which read as follows: "Dear Sudhana, I have been instructed to have no contact with you and to refer you to Sonal Khimji at rbc, regards Sue".

10. On 31 January 2012 witness statements were exchanged in readiness for the forthcoming hearing. The statements served by the Council included a witness statement from Sue Heath.

11. On 17 February 2012 Ms Singh wrote to the Chair of the Governing Body and resigned from her employment with effect from 17 July 2012. She referred to having suffered psychiatric injury, as a result of her treatment by the Council. In addition she said:

"By reference to all the complaints of discrimination I have raised previously I have effectively been dismissed from my post and I have no alternative but to resign. We recently exchanged witness statements for the Tribunal and the statement from Mrs Susan Heath is ridden with blatant lies, and I believe that she has been forced to provide such a statement of 'untruths' deliberately and directly to undermine me for the purposes of the tribunal claim. I believe this conduct to be unacceptable and demonstrative of bad faith on the part of my employer and in breach of the duty of trust and confidence and fidelity. When I read Mrs Sue Heath's statement I was shocked and deeply upset and my health very quickly deteriorated. I regard this as the latest in a series of acts whereby I have been discriminated against and victimised for having raised my complaints of discrimination …

…I am deeply devastated that the Governing Body that you Chair and Reading Borough Council has failed to exercise its duty of care for me throughout my tenure and which makes my position now untenable due to a very clear breakdown in the trust and confidence between us."

12. On 17 February 2012 Ms Singh applied to the Tribunal to amend her ET1, to add claims of constructive discriminatory dismissal, constructive unfair dismissal and to allege that she had suffered psychiatric injury as a result of her treatment. After a false start Ms Singh wishes to amend her ET1 to allege:

"The Claimant further relies on the Respondent's conduct in placing undue pressure on Mrs Sue Heath to produce a witness statement containing false or otherwise inaccurate evidence for the purpose of these proceedings."

13. The issue on this appeal is whether that amendment should be allowed to be made. The allegation has been nick-named "the final straw" allegation. Both the ET and on appeal the EAT held that the final straw allegation should not be permitted, because judicial proceedings immunity covered all the Council's activities (whether proper or improper) in gathering evidence for the purpose of defending Ms Singh's claim of discrimination.

14. Ms Singh now appeals. Ms Heather Williams QC and Ms Althea Brown presented her case. The Council's case was presented by Mr Robin Allen QC and Ms Akua Reindorf.

15. For the reasons that follow I have concluded that both the ET and the EAT were wrong in holding that Ms Singh's complaint falls within the scope of judicial proceedings immunity. I would allow the appeal.

The nature of the complaint

16. Before embarking on a review of the many cases to which we have been referred it is important to identify the exact nature of the complaint that Ms Singh wishes to make. It is trite law that it is an implied term of a contract of employment that the employer may not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Ms Singh's principal complaint is that the Council is in breach of that term in the contract. The breach complained of is that the Council placed undue pressure on Mrs Sue Heath to produce a witness statement containing false or otherwise inaccurate evidence. No complaint is made about Mrs Heath's evidence itself. The complaint is that the Council placed undue pressure on her; and that it was the placing of that pressure that amounted to conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. It is that alleged breach of contract which is the foundation for Mrs Singh's claim that she has been constructively dismissed, and hence her entitlement to statutory compensation. It is also important to point out that a claim for breach of contract is actionable without proof of damage; whereas (subject to some limited exceptions) a claim in tort is not actionable in the absence of damage. Thus in a tort claim no damage will have been suffered unless the impugned evidence at least sees the light of day. But in a claim for breach of contract, that is not necessary.

Some preliminary matters

17. Mr Allen submitted that the pleading was deficient in the particulars it gave of what, precisely, Ms Singh alleged the Council had done that was improper. If this had been an application to strike out the relevant paragraphs on the ground that there was no reasonable case on the facts, that would have been something that we would have needed to consider. But the Council did not choose to fight on that battleground. It took its stand on the ground of judicial proceedings immunity. That is the only issue that is to be decided on this appeal.

18. It is important to stress that the facts alleged have not been found. This is a common theme in many of the cases to which we were referred; and contradicts Mr Allen's submission that cases of this kind have only been allowed to proceed where wrongdoing has already been established. It also means that we express no view on the underlying merits of Mrs Singh's claim.

19. Mr Allen also submitted that the implied term (viz. that the employer may not without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee) was not engaged where the employer and the employee were engaged in hostile litigation. This point was not one that featured in the written skeleton arguments, and consequently has not been fully argued. But as at present advised I do not consider that it is a good point. Mr Allen argued that there is no common law duty of care owed by one party to litigation to his opponent. That proposition is vouchsafed by high authority: Jain v Trent Strategic Health Authority [2009] UKHL 4 [2009] 1 AC 853. So far, so good. The next step in the argument, as I understood it, is that because there is no duty of care at common law, there is no implied term that is engaged by the conduct of litigation. In my judgment that is a non sequitur. The law of tort (in which duties of care play a crucial role) is concerned with default duties imposed by the law on parties who have no contractual relationship. But where parties are in a contractual relationship their rights and obligations are, at least in the first place, determined by the express or implied terms of the contract. I do not doubt that in many cases hostile litigation between employer and employee can damage if not destroy the trust and confidence that exists between them. But the implied term accommodates that, because it only applies where the trust and confidence is damaged or destroyed without reasonable and proper cause. If litigation is properly conducted there will be no breach of the implied term. Our case is concerned with an allegation that the litigation has been improperly conducted. Moreover, Mr Allen accepted that if the boot had been on the other foot, and it had been Ms Singh who had attempted to suborn witnesses, the Council would have been entitled to dismiss her for breach of contract. What is sauce for the goose…

The starting point

20. The starting point is that any wrong should not be without a remedy; and that any exception to that basic principle of any system of justice must be necessary, strict and cogent: Arthur JS Hall & Co v Simons [2002] 1 AC 615, 727 (Lord Hutton); Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398 at [15] (Lord Dyson); Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17 at [73] (Lord Wilson).

The basic rule

21. It was established in early times that no action in defamation could be brought against a witness for anything he said in evidence before a court or tribunal. The same applied to what was said by the parties, the advocates or, indeed, the judge. The earliest case we were shown was Cutler v Dixon (1585) 4 Co Rep 14b in which the Court of King's Bench held that no action on the case would lie in relation to articles of the peace exhibited to justices. An "action on the case" was, of course, an action in tort. As Kelly CB put it in Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263:

"The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law."

22. In his speech in Arthur JS Hall & Co v Simons [2002] 1 AC 615 Lord Hoffmann (with whom Lords Browne-Wilkinson and Millett agreed) said at 697 that it was "illegitimate and dangerous" to generalise the scope of the witness immunity rule. Many of the passages on which Mr Allen relied (including that which Lord Hoffmann criticised in the passage to which I have referred) demonstrated this vice.

The policy behind the rule

23. Before coming to the limits of the rule, it is important to understand its rationale. There are two strands of policy underlying the rule. The first is that those engaged in litigation should be able to speak freely without fear of civil liability. The second is a wish to avoid a multiplicity of actions where one court would have to examine whether evidence given before another court was true or not.

24. In a well-known passage in Munster v Lamb (1883) 11 QBD 588, 607 Fry LJ said:

"The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions"

25. Similarly in Roy v Prior [1971] AC 470, 480 Lord Wilberforce summarised the policy thus:

"The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence."

26. In Taylor v Serious Fraud Office [1999] 2 AC 177, 208 Lord Hoffmann described the first strand of the policy underlying the rule as follows:

"The immunity from suit, on the other hand is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement."

27. This description of the purpose of the rule was approved in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (447 Lord Hope; 450 Lord Mackay). As all the cases recognise, a rule designed to protect the innocent will, on occasion, protect the guilty. A witness does not lose his immunity simply because he has been dishonest or malicious in giving his evidence.

28. There have been two principal ways in which litigants have tried to outflank the rule:

i) By bringing an action based on a cause of action other than defamation; or

ii) By bringing an action based not on what happened in court, but on what happened out of court.

Unsuccessful attempts to outflank the rule

29. In Watson v M'Ewan [1905] AC 480 the pursuer attempted to outflank the rule by basing his action not on the evidence that the witness gave, but on what he had told the lawyer who took his proof of evidence. The House of Lords held that the rule that protected a witness against being sued for defamation arising out of the evidence he gave applied equally to statements he made out of court for the purpose of making his proof of evidence. In his dissenting judgment in Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398 Lord Hope explained the details of this litigation at [137] to [141]. He pointed out that Mrs M'Ewan's claim was based not merely on defamation but also on breach of confidence, since the defender in that case had revealed in his proof of evidence material that he had discovered when he had treated the pursuer as a medical practitioner before the litigation had begun. The House of Lords treated both issues in the same way.

30. The next attempt to outflank the rule was the framing of the cause of action in conspiracy to give false evidence. This attempt failed in the High Court of Australia in Cabassi v Vila (1940) 64 CLR 130, in which having referred to a large number of English cases Starke J said:

"But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another: the rule of law is that no action lies against witnesses in respect of evidence prepared…, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice."

31. But as Ms Williams pointed out the cause of action in that case was based on the damage caused by the giving of the allegedly false evidence in the earlier proceedings. Starke J's statement of principle was approved by this court in Marrinan v Vibert [1963] 1 QB 528 in which Sellers LJ said at 535:

"It has been sought in this case to draw a difference between the action of libel and slander, the action of defamation, and that which is set up in this case, one of conspiracy. I can see no difference in the principles of the matter at all. Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given."

32. I will return to the question whether the rule protects anything that "is done" in the course of judicial proceedings. As Diplock LJ pointed out in the same case the overt act causing the damage (which was a necessary ingredient in the tort of conspiracy) was the making of the allegedly false statements.

33. The next attempt to outflank the rule was an action in defamation based not on anything that a witness or potential witness had said, whether in or out of court, but on a letter that one investigator had written to another. That attempt failed in Taylor v Serious Fraud Office [1999] 2 AC 177. Lord Hoffmann said at 214:

"Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings."

34. In Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 [2005] ICR 329 the complaint was one of discrimination. The claimant was a female civilian employed by the Metropolitan police. She made a complaint of sexual harassment against a male police officer. Her complaint was heard at an internal disciplinary hearing. The panel convened to hear the complaint were all male; a male advocate prosecuted the charge and a male advocate defended the officer. She then made a complaint of discrimination. That complaint was that she felt intimidated by the male atmosphere of the procedure and that the panel had failed to control the proceedings. In other words her complaint related exclusively to what had happened in the disciplinary hearing itself, and not to anything that had happened outside it. This court held that her complaint of discrimination was barred by the rule. Auld LJ said at [17]:

"As the employment tribunal well described in paras 9(o)-(q) of its extended reasons, and as the Employment Appeal Tribunal also found, it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution and prosecution for perjury and proceedings for contempt of court. That is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest. Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its application." (Emphasis added)

35. This echoes precisely what Sellers LJ had said in Marrinan v Vibert. Auld LJ added at [52]:

"The absolute immunity from suit is a core immunity in our system, critical to the integrity and effectiveness of our judicial system, which, save for a few well defined exceptions identified in para 17 above, applies to all forms of collateral action however worthy the claim and however much it may be in the public interest to ventilate it. Claims of unlawful discrimination are clearly of that importance, but no more than many others, such as the citizen's right to protect his own good name or good character or to claim for conspiracy to injure or for misfeasance in public office, say, in giving evidence in a criminal trial resulting in the claimant's loss of liberty."

36. A claim alleging victimisation in consequence of evidence contained in witness statements served in proceedings in the employment tribunal met a similar fate: Parmar v East Leicester Medical Practice [2011] IRLR 641.

37. However, we have not been shown any case in which a claim for breach of contract has been held to fall within the rule.

General statements

38. Mr Allen also relied on general statements made by highly distinguished judges. I have already referred to Lord Hoffmann's warning that it is illegitimate and dangerous to generalise the scope of the judicial proceedings immunity rule.

39. I have quoted part of the judgment of Kelly CB in Dawkins v Lord Rokeby: see [21] above. Mr Allen relied on the immediately following passage in which Kelly CB said:

"…that no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."

40. But (a) this statement must be read in context and (b) the cases to which Kelly CB referred in making that observation were cases in which the foundation of the cause of action was evidence itself. The context was the demonstration of Kelly CB's concluding proposition that:

"Upon all these authorities it may now be taken to be settled law, that no action lies against a witness upon evidence given before any court or tribunal constituted according to law."

41. That is a narrower conclusion than the observation on which Mr Allen relies. Mr Allen also relied on the general statement made by Sir Balliol Brett MR in Munster v Lamb at 601:

"It was at one time suggested that although witnesses could not be held liable to actions upon the case for defamation, that is, for actions for libel and slander, nevertheless they might be held liable in another and different form of action on the case, namely, an action analogous to an action for malicious prosecution, in which it would be alleged that the statement complained of was false to the knowledge of the witness, and was made maliciously and without reasonable or probable cause. This view has been supported by high authority; but it seems to me wholly untenable. If an action for libel or slander cannot be maintained, how can such an action as I have mentioned be maintained, it being in truth an action for defamation in an altered form? Every objection and every reason, which can be urged against an action for libel or slander, will equally apply against the suggested form of action. Therefore, to my mind, the best way to deal with the suggested form of action is to dispose of it in the words of Crompton J in Henderson v Broomhead, where he said: "The attempts to obtain redress for defamation having failed, an effort was made in Revis v Smith to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair." Nothing could be more strong, nothing could shew more clearly his entire disbelief in the possibility of supporting that new form of action."

42. There are three points I wish to make about this passage. First, the issue before the court concerned words spoken by an advocate in the course of a trial. So the subject matter of the action plainly fell within the scope of the core immunity. Second, Brett MR was dealing only with actions on the case; i.e. actions in tort. Third, as we will see, the very form of action that Brett MR thought evidenced despair has now been sanctioned by a majority of the Privy Council.

Inroads into the rule

43. I do not consider that the broad statement of principle stated by Auld LJ at [17] in Heath can be taken literally. For example, the immunity from liability in negligence given to advocates conducting and preparing for court proceedings in Rondel v Worsley [1969] 1 AC 191 was eroded by Saif Ali v Sydney Mitchell & Co [1980] AC 189 and finally abolished by Arthur JS Hall & Co v Simons [2002] 1 AC 615.

44. Further developments have taken place since Arthur JS Hall & Co v Simons. In Jones v Kaney [2011] UKSC 13 [2011] 2 AC 398 the Supreme Court decided (by a majority) 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.

45. The result of these cases is that (a) an advocate and (b) 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.

46. In those circumstances it can no longer, in my judgment, be said that immunity from civil suit:

"… attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement."

Limits to the rule

47. In Lincoln v Daniels [1961] 1 QB 237 the question was whether the immunity attached to a letter written to the Bar Council making a complaint of professional misconduct against a QC. It was held that complete immunity did not apply. Devlin LJ said that there were three categories that needed to be considered: (a) all matters that are done in the face of the court, which included anything said in the course of the proceedings and the content of documents put in as evidence; (b) everything done from the inception of proceedings onwards, including pleadings and other documents brought into existence for the purpose of the proceedings and (c) a third category that was difficult to define. As I read his judgment (contrary to Mr Allen's reading of it) Devlin LJ considered that Watson v M'Ewan fell into the third category; and the question was how far it was to be taken. Mr Allen submitted that Devlin LJ's second category embraced everything that was necessary to bring a case to court. But if that were so, then the third category would have been redundant; and Devlin LJ would not have begun his discussion of the third category with an examination of Watson v M'Ewan. Devlin LJ concluded at 263:

"I have come to the conclusion that the privilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it is strictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is not absolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for a litigant to engage a solicitor. The sense of Lord Halsbury's speech is that the extension of the privilege to proofs and precognition is practically necessary for the administration of justice; without it, in his view, no witness could be called. I do not think that the same degree of necessity can be said to attach to the functions of the Bar Council in relation to the Inns of Court. It is a convenience to the public to have a central body to deal with, but that is as high as it can be put. In my judgment the defence of absolute privilege fails."

48. In Taylor v Serious Fraud Office Lord Hoffmann said at 215:

"As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action."

49. This description of the limits of the rule cannot stand with the broad proposition for which Mr Allen contends. Lord Hoffmann repeated this limitation on the rule in Arthur JS Hall & Co v Simons and, as mentioned, Lords Browne-Wilkinson and Millett agreed with him. In Taylor v Serious Fraud Office Lord Hope recognised the continuing availability of a remedy in malicious prosecution (in relation to criminal cases) because "it is the malicious abuse of process, not the making of the statement, which provides the cause of action." Very recently the Privy Council has decided by a majority that the tort of malicious prosecution applies also to civil proceedings: Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17.

50. In Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 Lord Hope again 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."

51. The final sentence must now be qualified in relation to expert witnesses. He went on to discuss the limits of the rule. He said at 449:

"I would hold, with respect, that Simon Brown LJ went too far when he said that the protection of the immunity must extend to such acts to procure false evidence as the planting of a brick or drug or the fabrication of a record of interview. He overlooked the distinction which I would draw between the act itself and the evidence that may be given about the act or its consequences. This distinction rests upon the fact that acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts. It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction. Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences. The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence. The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused made a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence. He is entitled to the immunity because he was speaking as a witness, if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence."

52. In the same case Lord Clyde said at 460:

"No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process. The reason for admitting to the benefit of the immunity things said or done without the walls of the court is to prevent any collateral attack on the witness and circumvention of the immunity he or she may enjoy within the court."

53. At 261 he said:

"It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune."

54. This observation contradicts what Auld LJ said at [17] in Heath.

55. Lord Hutton said at 465:

"Whilst it is clear that immunity applies to a statement which is prepared before the trial setting out what the witness intends to say in court, more difficult questions arise as to whether every act which could be regarded as the preparation of evidence comes within the ambit of the immunity."

56. This observation also contradicts what Auld LJ said at [17] in Heath. Lord Hutton added at 469:

"The underlying rationale of the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court. This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence. But the immunity in essence relates to the giving of evidence. There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect's signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect." (Emphasis in original)

57. At 471 he said:

"But I consider that the position is different where, as alleged by the plaintiffs in this case, steps are taken prior to the making of a statement of evidence, not for the purpose of making a statement of evidence which the maker intends to be an accurate and truthful one, but for the wrongful purpose of fabricating false evidence which would be referred to in an untruthful statement of evidence. In my opinion immunity should not be extended to cover the wrongful fabrication of evidence or of a note which will purport to be used to refresh the memory of the witness in the witness box and which will give the impression to the jury that there is support for the witness's false statement that the suspect made an admission. This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept."

58. In the result the House of Lords held that the lower courts were wrong to strike out an action for conspiracy to injure and misfeasance in public office based on allegations that the police had fabricated evidence against the claimant.

59. In fact it had already been decided that the mere fact that evidence is involved somewhere along the line is not determinative. In Roy v Prior [1971] AC 470 the plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest. The House of Lords allowed his claim to proceed. Lord Morris said at 477:

"It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given…. If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie…. Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements….

This, however, does not involve that an action which is not brought in respect of evidence given in court but is brought in respect of an alleged abuse of process of court must be defeated if one step in the course of the abuse of the process of the court involved or necessitated the giving of evidence.

It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process."

60. The key point is that an action will be allowed to proceed if it is not "brought on or in respect of any evidence given".

61. In Surzur Overseas Ltd v Koros [1999] CLC 801 Waller LJ said of this passage:

"In my view the statement of Lord Morris is capable of two interpretations, on either of which the plaintiffs, on the pleaded facts, will not be defeated by the witness immunity rule. On the first interpretation his statement should not be read simply as saying that malicious arrest or malicious prosecution alone are exceptions to the witness immunity rule. His statement, in my view, supports a broader proposition that if the action is not brought simply in respect of evidence given or supplied but is brought in relation to some broader objective during the currency of which it may well be that evidence was given witness immunity should not apply."

62. Hirst and Aldous LJJ agreed.

63. In Tchenguiz v Imerman [2010] EWCA Civ 908 [2011] Fam 116 this court held that a litigant whose confidential documents had been obtained for the purpose of litigation was entitled to an injunction requiring their return. The obtaining of the documents was part of the gathering of evidence for the purposes of matrimonial proceedings. It is true that the court did not consider the scope of judicial proceedings immunity; but this case is, in my judgment, also inconsistent with the broad proposition that no civil liability lies for "anything said or done" in the course of litigation. In principle if a person misuses what he knows to be confidential information and thereby causes loss, the person whose confidential information has been misused is entitled to recover compensation.

64. Other examples come to mind which are also inconsistent with the broad proposition. If a party alleges that a judgment against him was procured by fraud (e.g. by the bribing of witnesses) he may bring a second collateral action to set aside the judgment. The second action will examine closely the evidence given in the first, and the manner in which that evidence was procured. The precise legal basis on which such an action may be maintained was not explored in argument before us. It appears to have originated in a procedure in Chancery called a "bill of review": Flower v Lloyd (1877) 6 ChD 297. But nowadays it seems to be treated simply as an action based on fraud: see e.g. Jaffray v The Society of Lloyds [2007] EWCA Civ 586 [2008] 1 WLR 75; Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9 [2008] Bus LR 1157. Whether a court could award damages in such a case was, again, not explored in argument but in principle I do not see why not. The ET also has a power to review a decision in the interests of justice. Exercise of this power may also require a re-examination of evidence given in a previous hearing or the circumstances in which it came to be prepared.

65. If a party begins court proceedings in breach of an arbitration agreement, or an exclusive jurisdiction clause, the court may intervene by the grant of a stay or an anti-suit injunction. There is no reason in principle to deny the remedy of damages for breach of contract if loss is established: see Russell on Arbitration (23rd ed) para 7-019; Dicey Morris & Collins on Conflict of Laws (15th ed) para 12-165. The initiation and service of process fall squarely within the second of Devlin LJ's three categories.

66. Summarising this part of the case:

i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;

ii) The core immunity also comprises statements of case and other documents placed before the court;

iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;

iv) Whether something is necessary is to be decided by reference to what is practically necessary;

v) Where the gist of the cause of 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;

vi) In such cases the principle that a wrong should not be without a remedy prevails.

67. As Ms Williams submitted judicial proceedings immunity does not retrospectively immunise an antecedent act if that act is not itself within the immunity.

Floodgates?

68. Mr Allen argued that if we were to allow the appeal we would potentially open the floodgates to a torrent of satellite litigation. This argument received short shrift in Arthur JS Hall & Co v Simons, Jones v Kaney and Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd. As Lord Hoffmann said in the first of these cases "one should not exaggerate the bogey of vexatious claims". Moreover, as Ms Williams pointed out there are a number of procedural safeguards in place. If, as Mr Allen suggested, a claim is brought in the ordinary courts the court has power under the CPR to strike out a claim that has no real prospect of success; or, nowadays, to give summary judgment against a claimant. An employment tribunal also has power to strike out a claim that has no real prospect of success, although this power is sparingly exercised in cases of alleged discrimination.

69. I would not be deterred by the floodgates argument from applying what I conceive to be the law.

Application to this case

70. Ms Singh's argument is that her cause of action relies on the undue pressure applied by the Council to Mrs Heath. One fallacy in the Council's argument is that it characterises the claim as being founded upon allegedly false evidence and that it is in substance an action against the Council for the evidence they have adduced or intend to adduce in court. On the contrary, Ms Singh's claim is not based on anything that Mrs Heath might or might not say to the employment tribunal. She has not yet given her evidence. It is based on what went on outside the tribunal and in particular the means by which the Council procured Mrs Heath to give the statement. Evidence relating to the process by which the evidence was procured is simply not relevant to Ms Singh's existing discrimination claim, and will not form part of that judicial enquiry (although it may form part of the judicial enquiry into the consolidated claims).

71. The means by which the Council procured the witness statement is a free-standing act. While alleged untruths in Mrs Heath's witness statement (and discrepancies between that statement and what Mrs Heath had previously said in interview) may help Ms Singh to prove the allegation that undue pressure was applied, the complaint is not about the content of the statement, but the means by which it was procured. The complaint that the Council is in breach of contract would be just as valid if Mrs Heath had told Ms Singh about the alleged pressure but had stoutly resisted it. Thus the second fallacy in the Council's argument is the proposition that it is Mrs Heath's witness statement that is alleged to have caused the damage. That is not the allegation. 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.

72. Accordingly there is no immunity behind which the Council can shelter.

73. In my judgment Ms Singh's argument is compelling; and I accept it. I would allow the appeal.

Lady Justice Gloster:

74. I agree.

Lord Justice Maurice Kay:

75. I also agree.