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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Singh v Moorlands Primary School & Anor [2013] EWCA Civ 909 (25 July 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/909.html Cite as: [2013] ICR 1158, [2013] EWCA Civ 909, [2013] WLR 3052, [2013] 1 WLR 3052, [2013] IRLR 820, [2013] WLR(D) 306, [2013] CP Rep 46 |
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ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE COX, MR A HARRIS & MR S YEBOAH
UKEAT054012RN
Strand, London, WC2A 2LL |
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B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LORD JUSTICE LEWISON
and
LADY JUSTICE GLOSTER
____________________
SUDHANA SINGH |
Appellant |
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- and - |
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GOVERNING BODY OF MOORLANDS PRIMARY SCHOOL READING BOROUGH COUNCIL |
Respondents |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robin Allen QC and Akua Reindorf (instructed by Reading Borough Council Legal Services) for the Respondents
____________________
Crown Copyright ©
Lord Justice Lewison:
Introduction
"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."
"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."
The nature of the complaint
Some preliminary matters
The starting point
The basic rule
"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."
The policy behind the rule
"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"
"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."
"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."
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
"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."
"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."
"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."
"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)
"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."
General statements
"…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."
"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."
"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."
Inroads into the rule
"… 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
"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."
"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."
"… 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."
"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."
"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."
"It cannot be that everything which is said or done in the preparation for judicial proceedings is necessarily immune."
"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."
"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)
"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."
"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."
"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."
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.
Floodgates?
Application to this case
Lady Justice Gloster:
Lord Justice Maurice Kay: