Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

Since at least the sixteenth century it has been recognised by the common law that it is necessary for the administration of justice for certain participants in the administration of justice - advocates, parties, witnesses, judges, and jurors - to be immune from suit i.e. that legal claims against them arising from almost anything done or omitted to be done in the course of conducting a case in court are barred (see Darker v Chief Constable of the West Midlands [2001] 1 AC 435 per Lord Hutton at 463). This has been described as the core immunity. (Footnote: ²)

The core immunity “is limited to actions in which the alleged statement constitutes the cause of action”: see Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 per Lord Hoffmann at p 215C.

The early cases concerned actions for defamation against advocates and witnesses, as such claims were the obvious way in which to attack what an advocate (or witness) did or said in court: see for example, Cutler v Dixon 76 ER 886; (1585) 4 Co Rep 14, and Munster v Lamb (1883) 11 QBD 588; (1882) 5 LJ QB 46. In order to prevent the immunity being circumvented or outflanked, however, for many years the immunity has been held to apply to whatever claim was being made against the advocate or witness for things done or spoken in court and however ingeniously such a claim was framed. It has for example, barred a claim for conspiracy to give false evidence (Marrinan v Vibart [1963] 1 QB 528); a claim for breach of confidence (Watson v. M'Ewan [1905] AC 480; (1905) 7 F (HL) 109) and a claim under the Protection from Harassment Act 1997 (Crawford v Jenkins [2014] EWCA Civ 1035; [2016] QB 231).

Two more recent first instance examples are King v Stiefel [2021] EWHC 1045 (Comm), where an allegation that the conduct in court of a Queen’s Counsel was part of a conspiracy to present false information was struck out in reliance on the core immunity (see [156] and [335]); and El Haddad v Al Rostamani [2024] EWHC 448 (Ch), where it was held that the core immunity was a threshold bar to a claim that lawyers had dishonestly conspired to mislead the court, even if they had misled the court (see [109]-[113]).

An explanation of the rationale for the core immunity was given by Brett CJ in Munster where he stated (at 604) that advocates must be able to speak freely in order to properly perform their duty to the court and their client:

“What [the advocate] has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform.”

The immunity therefore attached to statements, spoken or written in court, regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. (Footnote: ³) As Fry LJ also explained in Munster (at 607):

“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 malice, in which they had not spoken with falsehood. It is not a desire to prevent actions 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.''

More recently, the House of Lords and the Supreme Court have emphasised that the scope of the immunity involves a balance between different public interests. The first is that every wrong should have a remedy. The second is the encouragement of freedom of speech and communication in court proceedings, which is necessary to protect the proper administration of justice and the interests of justice: see Taylor at 208; Arthur JS Hall & Co v Simons [2002] 1 AC 615 at 679 and Jones v Kaney [2011] UKSC 13; [2011] 2 AC 398 at [55]-[57], [67], [85]-[86], [87] and [108]-[114].

It would be contrary to the interests of justice, for example, if a witness’s willingness to give frank evidence was affected or inhibited by the fear of being sued for what they said in court: see Darker per Lord Hoffmann at 469E. By the same token, the protection afforded to a witness would lack coherence if, for example, the witness could speak freely but their advocate was constrained from putting their client’s case, including what the witness had said, either to opposing witnesses, or in submissions to the court.

The effectiveness of the immunity would be undermined if the scope of the protection afforded had to be tested after the event in each case. As Lord Hoffmann explained in Taylor at 214E-G, if the core immunity is to be effective in enabling those involved in the administration of justice to “speak freely without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach” (see also Lord Dyson in Jones at [105] where he said there should be a degree of certainty as to the existence of an immunity if it is to be fair and effective).

As has also been recognised, immunity must extend beyond the narrow limits of what is said or done in court if the core immunity is to be effective, but only “where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing. The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice.” This formulation by McCarthy P in the New Zealand Court of Appeal in Rees v Sinclair [1974] 1 NZLR 180, 187 was adopted and relied on by the majority of the House of Lords in Saif Ali and Anor vSydney Mitchell & Co [1980] AC 198 at 215B-D.

Lord Wilberforce in that case also pointed out (at 215F) that the formulation takes proper account of the fact that many trials, civil and criminal, take place only after interlocutory or pre-trial hearings. At these proceedings, decisions may often fall to be made of the same nature as decisions at the trial itself; and, he stated, it would be illogical and unfair if they were protected in one case but not in the other.

The test for extensions to the core immunity, however, is a strict one. Extensions can be made if necessary for the administration of justice, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held to apply in the past, so as to form part of a “coherent principle” (see Lord Hoffmann in Taylor at 214D).

In Watson the House of Lords extended immunity to statements made by witnesses outside of court where those statements were made with a view to giving evidence. People must not be reluctant to give evidence for fear of being sued. The immunity existed to ensure that this important public policy was not undermined and to ensure that witnesses would be able freely to give evidence (see Lord Halsbury at 487). The extension was necessary for the administration of justice, and in order to prevent the core immunity from being outflanked. In Taylor, the House of Lords ruled that the extension also covers statements made out of court by potential witnesses. Potential witnesses would not be able to speak freely if their immunity depended upon whether they were actually to be called as a witness (see Lord Hoffmann at 214E-G).

The same principles were applied in CLG v Chief Constable of Merseyside Police [2015] EWCA Civ 836. The appellants had received threats after giving witness statements in relation to a shooting incident and had moved house accordingly. They then failed to comply with a witness summons. The police officer who had served the summons made a statement in support of an application for arrest warrants, and in so doing revealed the appellants’ new address. The police passed the statement to the CPS, who served it on the defendants. When the appellants and the police realised that the new address had been disclosed, the police arranged temporary accommodation for the appellants, until they could find a new home. The appellants brought proceedings against the police for negligence, breach of the Convention and breach of the DPA.

The negligence claim failed because it was held that the police did not owe the appellants a duty of care. However, the Convention and DPA claims failed because the provision of the appellants’ new address by the police to the CPS fell squarely within the witness extension established in Watson and reaffirmed in Taylor: “[the claims were] based on the transmission by the police to the CPS of a statement required for the purposes of enabling D.C. Gaffney to give evidence in court, as he subsequently did… To hold the police liable for communicating its contents to the CPS would outflank the immunity to which they were entitled in relation to the evidence once given in court” (see Moore-Bick LJ at [32]).

Taylor established a further extension to the core immunity, applicable to investigators. The appellant, a solicitor, brought a defamation claim alleging that a letter and file note created by the Serious Fraud Office in the course of an investigation suggested libellously that the appellant was suspected of fraud. These documents were disclosed to the appellant in subsequent criminal proceedings to which he was neither a party (never having been charged) nor called as a witness. The House of Lords dismissed the appeal against a strike out order, ruling that investigators have immunity for statements which can fairly be said to be part of the process of investigating a crime or a possible crime. Lord Hoffmann explained that “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” (see 214H-215A). Investigators are not, however, immune for statements which are “wholly extraneous” to the investigation (see 215B).

In Darker, the House of Lords considered the limits of these two extensions to the core immunity. It was held that neither extension barred claims against the police for conspiracy to fabricate false evidence. The act of fabricating evidence was not the same as preparing to give evidence. Lord Hope explained that there was a distinction “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” (see 449B). Similarly, procuring false evidence is not “exchang[ing] information, theories and hypotheses” (see Lord Cooke at 454F).

In Singh v Reading Borough Council [2013] EWCA Civ 909; [2013] 1 WLR 3052 a similar line was drawn. The respondent council was held not to be immune from claims that it had pressurised a witness to include inaccurate information in her witness statement because “the complaint is not about the content of the statement, but the means by which it was procured” (see Lewison LJ at [71]). Likewise in Daniels, it was held that a claim for misfeasance of public office was not within the scope of the extensions of core immunity because the substance of the claim was not founded on a statement made, but on the way in which the disclosure exercise was performed (see Lloyd Jones LJ at [46]).