The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘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 Employment tribunal rejected her claims of unfair dismissal and race discrimination. She now appealed against being not allowed to complain of what she said had been pressure put on another member of staff to make a statement against her.
Held: There is no immunity behind which the Council could shelter. The allegation in support of the unfair dismissal claim was not excluded by the immunity principle, since the complaint was not made of the words of the statement themselves but of the manner in which the council had acted in order to procure that it be made. There is no common law duty of care owed by one party to litigation to his opponent. Two principles clashed: 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’.
In summary: 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.
Judges:
Maurice Kay VP CA, Lewison, Gloster LJJ
Citations:
[2013] EWCA Civ 909, [2013] IRLR 820, [2013] WLR(D) 306, [2013] 1 WLR 3052, [2013] ICR 1158, [2013] CP Rep 46
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Cutler v Dixon KBD 1585
‘It was adjudged, that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he . .
Appeal from – Singh v Reading Borough Council EAT 12-Feb-2013
EAT UNFAIR DISMISSAL – Constructive unfair and discriminatory dismissal
RACE DISCRIMINATION
PRACTICE AND PROCEDURE – Judicial proceedings immunity
The Claimant headteacher is alleging in . .
Cited – Dawkins v Lord Rokeby 1873
dawkins_rokeby1873
Police officers (among others) are 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 . .
Cited – Munster v Lamb CA 1883
Judges and witness, including police officers are given immunity from suit in defamation in court proceedings.
Fry LJ said: ‘Why should a witness be able to avail himself of his position in the box and to make without fear of civil consequences . .
Cited – Watson v M’Ewan HL 1905
A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .
Cited – Cabassi v Vila 12-Dec-1940
High Court of Australia – The claim sought to sidestep the rule giving immuity to witnesses before a court by alleging a conspiracy to give false evidence.
Held: Starke J said: ‘But it does not matter whether the action is framed as an action . .
Cited – Marrinan v Vibert CA 2-Jan-1963
A tortious conspiracy was alleged in the conduct of a civil action. The plaintiff appealed against rejection of his claim.
Held: The appeal failed as an attempt to circumvent the immunity of a wirness in defamation by framing a claim in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. 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.
Held: . .
Cited – Flower v Lloyd CA 11-Jun-1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Lincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Surzur Overseas Ltd v Koros and others CA 25-Feb-1999
A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Darker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Sir William Jaffray and others v The Society of Lloyds CA 20-Jun-2007
The appellant sought to re-open a decision of the Court of Appeal saying that fresh evidence had emerged which he said demonstrated that Lloyd’s had misled the court at first instance. . .
Cited – Jain and Another v Trent Strategic Health Authority CA 22-Nov-2007
The claimant argued that the defendant owed him a duty of care as proprietor of a registered nursing home in cancelling the registration of the home under the 1984 Act. The authority appealed a finding that it owed such a duty.
Held: The . .
Cited – Cinpres Gas Injection Ltd v Melea Ltd CA 24-Jan-2008
A final judgment may be impugned for fraud. . .
Cited – Tchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Cited – Parmar v East Leicester Medical Practice EAT 5-Nov-2010
EAT JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
Whether the statutory grievance procedure applies to a claim of post-termination victimisation. It does.
A claim alleging victimisation . .
Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Smart v The Forensic Science Service Ltd CA 2-Jul-2013
On a search of his house, the police found a bullet cartridge on the claimant’s property. It was sent for testing but due to a mistake it was reported as a live cartridge. The prosecution was only dropped after some months when the mistake was . .
Cited by:
Cited – Crawford v Jenkins CA 24-Jul-2014
The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 16 September 2022; Ref: scu.513706