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

Fecha: 08-Oct-2025

The Judgment of Ritchie J: A Summary

The Judgment of Ritchie J: A Summary

46.

It is not necessary for us to set out the full detail of Ritchie J’s reasoning in allowing XGY’s appeal, rather, only the headlines. An important element of his analysis was that he considered, as a matter of law, that both the advocate’s immunity and any immunity claimed by the police in consequence, had to be justified on the individual facts of each case. He called this “justificationism”.

47.

He divided immunity into six separate categories: “1) Judges’ Immunity at court [AC]; 2) Witness Immunity at court [AC]; 3) Witness Immunity before court [BC]; 4) Advocates Immunity at court [AC]; 5) Advocates Immunity before court [BC]; and 6) Legal Proceedings Immunity before court [BC]”.

48.

In summarising the law, he concluded that the courts had arguably stated that the correct approach to claimed immunities beyond the core immunities (which he identified as Witness Immunity AC, Judges’ Immunity AC and parts of Advocates’ Immunity AC) was to grant them “grudgingly”. It was clear to him, he stated, that on a strike-out application, if there were “relevant issues in relation to the facts which might make the claimed immunity “unsettled” concerning the scope of or the justification for the claimed immunity, the justification should be analysed on the necessary evidence to see if it makes immunity necessary in the public interest”. He reached that view because of what he described as “the movement in the last 25 years…away from absolutism towards careful consideration of whether the facts of each case actually do fit within the claimed “immunity” by reference to whether the long-established justifications for the immunity apply…partly due to the implementation of Art. 6 of the ECHR but also modernity in society”.

49.

At [107] he set out “the better questions” now to be asked: “does the behaviour of the Defendant and the function being performed by the Defendant put the behaviour by the Defendant: (a) prima facie inside or outside the scope of the immunity? If inside, does it (b) support or undermine the justifications for the claimed immunity?”. He stated that the court would look at the facts and determine further specific questions. Then, if “the Defendant has passed through these gateways there is a balancing exercise to be carried out to determine whether the way the function was performed so undermined the justifications for the claimed immunity that the swings and roundabouts argument should be rejected and the immunity should not be granted”.

50.

Against this background, he concluded that:

The police were being sued as “errant administrators”. The only relevant immunity would be Legal Proceedings Immunity BC, which was not a core immunity. HHJ Brownhill had wrongly ignored “the justification requirement” and failed to carry out the necessary balancing exercise. It was also arguable that Legal Proceedings Immunity BC did not apply at all. There was an arguable case against the police.

ii)

HHJ Brownhill was right to determine that Advocates’ Immunity AC was long established. However, the core part of that immunity related to “the witness evidence in the case, not to extraneous or peripheral or administrative matters”. HHJ Brownhill should have asked whether the function performed by the CPS advocate fulfilled the policy justifications for the claimed immunity. The clear answer was that it did not. Permitting liability would not undermine the advocate’s freedom of speech. HHJ Brownhill had been wrong to conclude that Advocates Immunity AC was so well established in relation to the facts of this case that there was no arguable claim.

51.

Ritchie J went on to conclude that the issues on immunity could not be considered safely on a strike-out application and that HHJ Brownhill had been wrong to conclude, at the summary judgment stage, that there was no real prospect of XGY establishing that she met the section 7 test.