High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neutral Citation no. [1999] 1930	Ref:	NICE2785
Judgment: approved by the Court for handing down	Delivered:	23/04/99
(subject to editorial corrections)


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

QUEEN'S BENCH DIVISION

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BETWEEN:

THOMAS CHRISTOPHER WARD

Plaintiff/Respondent

and

STEPHEN ANTHONY DICKSON

and

CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

Defendants/Applicants

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This is an appeal by the defendants/appellants against that part of the Order made by Master Wilson on 26 October 1998 whereby he refused the appellants' application that all allegations of negligence be struck out from the Writ of Summons and Statement of Claim on the grounds that they disclose no reasonable cause of action against the appellants or are otherwise an abuse of the process of the court.

The Writ of Summons claimed that the appellants were liable to pay damages to the plaintiff/respondent by reason of malicious prosecution and false imprisonment and by reason of the negligence of the appellants, their servants and agents in and about the prosecution of the plaintiff on criminal charges and in and about the conduct of a bail application on 31 December 1993.

The Statement of Claim alleged by paragraph 3 that on or about 21 December 1993 the respondent was arrested by the appellants, their servants or agents and charged with the offences of rape of G and assaulting her, occasioning actual bodily harm on or about 31 October 1993. Particulars of malicious prosecution were set out and the appellants have not sought to challenge the right of the respondent to pursue a claim for malicious prosecution against them.

By paragraph 8 the respondent claimed that he was falsely imprisoned. The Master ordered that all allegations of false imprisonment be struck out as disclosing no reasonable cause of action. The Respondent has not cross-appealed against that part of his Order although in his skeleton argument he resurrected it. It will be necessary to hear the parties as to whether I should deal with this issue by way of cross-appeal.

By paragraph 6 it was alleged that the appellants, their servants and agents were guilty of negligence in and about the presentation of a bail application by the respondent on 31 December 1993. The particulars of negligence were set out as follows:-

"(a) Failing to take any or adequate care in presenting fair, balanced and accurate information to the Court on the bail application.

(b) Misleading the Court by indicating that the Plaintiff had not a permanent residence.

(c) Failing to inform the Court that the Plaintiff was a permanent resident and a native of Coalisland.

(d) In the alternative, failing to carry out any or adequate inquiries into the Plaintiff's residential status in Coalisland.

(e) Failing to ascertain that the Plaintiff had been born and educated in Coalisland and that he had permanently resided there from birth.

(f) Misleading the Court by falsely stating that the Complainant had been found to be entirely sober at the time of the alleged offences.

(g) Failing to reveal that the Complainant's blood sample had been taken more than 24 hours after the alleged offences.

(h) Failing to reveal the existence of and evidence of a vital independent witness.

(i) Failing to reveal that the said independent witness had been interviewed by the first named Defendant and other Police Officers.

(j) Failing to reveal the contents of other Police statements which substantially contradicted the account given by the Complainant.

(k) Failing to bring to the attention of the Court and the prosecutor the aforesaid matters subsequent to the bail application and prior to the trial of the Plaintiff in June 1994".

The Master refused the appellants' application for an order striking out the respondent's allegation of negligence.

This application to strike out was brought under the provisions of Order 18, Rule 19.

The Rule provides:-

"(1) The court may at any stage of the proceedings order to be struck out ... any pleading of the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that -

(a) it discloses no reasonable cause of action or defence, as the case may be ...

(2) No evidence shall be admissible on an application under paragraph (1)(a).

The principles are well-established and are set out in the White Book vol 1 at pp348, 349. I respectfully adopt what Carswell LCJ said in O'Dwyer and others v Chief Constable of the RUC [1997] NI 403 at p406:-

"For the purposes of the applications, all the averments in the statements of claim must be assumed to be true. The statements of claim have been substantially amended and set out the facts of the plaintiffs' case in some detail. In considering the averments contained in them we must bear in mind the well-settled principle that the summary procedure for striking out pleadings is to be used only in plain and obvious cases (see Lonrho plc v Tebbit [1991] 4 All ER 973 at 979 per Browne-Wilkinson V-C). Various formulations of this principle have been used: it has been said that it `ought not to be applied to an action involving serious investigation of ancient law and questions of general importance' (see Dyson v A-G [1911] 1 KB 410 at 414 per Cozens-Hardy MR), that it should be confined to cases where the cause of action was `obviously and almost incontestably bad' (see Dyson (at 419) per Fletcher Moulton LJ), and that an order should not be made unless the case is `unarguable' (see Nagle v Feilden [1966] 2 QB 633 at 651 per Salmon LJ). That said, it is to be recognised that if the claim is bound to fail on the law, the courts should not shrink from striking out. As Sir Thomas Bingham MR expressed it in E (a minor) v Dorset CC [1995] 2 AC 633 at 693-694, in a passage approved by the House of Lords:

`I share the unease many judges have expressed at deciding questions of legal principle without knowing the full facts. But applications of this kind are fought on ground of a plaintiff's choosing, since he may generally be assumed to plead his best case, and there should be no risk of injustice to plaintiffs if orders to strike out are indeed made only in plain and obvious cases. This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or in any way sensitive to the facts, an order to strike out should not be made. But if after argument the court can be properly persuaded that no matter what (within the reasonable bounds of the pleading) the actual facts the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached'".

As appears from the Statement of Claim, the respondent's allegations of negligence relate mainly to the conduct of the first named appellant, a detective constable, in connection with the respondent's unsuccessful application for bail to the High Court on 31 December 1993. He had been charged with rape and assault occasioning actual bodily harm against G. He was refused bail at the Magistrates' Court and applied for bail to a High Court Judge. The relevant bail proceedings were governed by section 3 of the Northern Ireland (Emergency Provisions) Act 1991.

The practice at bail hearings varies but counsel is instructed by the Director of Public Prosecutions on behalf of the Crown, a police officer in charge of the case or, infrequently, standing in for the officer in charge is present and the applicant for bail is legally represented. Whilst the police officer may not give evidence, he is available to do so and, if not called, will be tendered, if required by the applicant or the judge. He may be dependent for the information which he supplies to the Crown on information supplied by others. Other witnesses may give evidence. A bail application before the High Court is ancillary to criminal proceedings; if an application fails, a fresh application can be made to another High Court Judge. Judicial review is not appropriate as a remedy for refusal R v Croydon Crown Court, ex parte Cox [1997] 1 Cr App R20. Strict rules of evidence are inappropriate as the court has to decide whether there are grounds for belief: Re Moles [1981] Crim LR 170, DC; R v Mansfield JJ, ex parte Sharkey [1985] QB 613. A fresh application normally requires to be justified on the grounds of a change of circumstances.

In my view the principles applicable to the immunity of witnesses giving evidence or providing information for the Director of Public Prosecutions or legal representatives of the Director of Public Prosecutions in a criminal trial extend to bail applications for the same reasons as underpin the grant of immunity to witnesses in criminal proceedings. Bail applications, although separate from and governed by different legislation than criminal proceedings, form part of the criminal process.

Section 3 provides:-

"A judge may, in his discretion, admit to bail in pursuance of subsection (2) above a person to whom this section applies except where he is satisfied that there are substantial grounds for believing that that person, if released on bail (whether subject to conditions or not), would -

(a) fail to surrender to custody, or

(b) commit an offence while on bail, or

(c) interfere with any witness, or

(d) otherwise obstruct or attempt to obstruct the course of justice, whether in relation to himself or in relation to any other person,

or, if released subject to conditions, would fail to comply with all or any of those conditions".

The allegations of negligence refer to these matters.

The respondent alleges that the first-named appellant misled the court by a combination of misrepresentation and non-disclosure in relation to the respondent's place of residence, the blood/alcohol level of the victim and alleged inconsistencies in the victim's complaints to the police. Bail was refused and the respondent remained in custody until June 1994, when he was acquitted of the charges at Enniskillen Crown Court.

It was submitted by Mr McCloskey on behalf of the appellants that the respondent's reliance on negligence is misconceived as it founders on a fundamental rule of law - namely, that no action lies against parties or witnesses for anything said or done in the ordinary course of any proceedings in a court of justice and that the protection extends to the preparation of evidence as well as its presentation.

Mr Finton Quinn on behalf of the respondent argued that the acts and omissions of the detective constable at the bail court amount to a breach of the duty of care owed to the respondent as envisaged in Lord Atkin's formulation in Donoghue v Stevenson [1932] AC 562, that this is not a plain and obvious case for striking out and that the issues should be resolved at a full hearing.

In Marrinan v Vibart and another [1963] 1 QB it was held that the plaintiff's action for conspiracy was barred by the rule of public policy which protected witnesses in a civil action in respect of their evidence before a court, and in the preparation of evidence to be so given. That rule was not confined to actions of defamation but applied whatever cause of action was sought to be derived from what was said or done in the course of judicial proceedings. Accordingly the statement of claim disclosed no cause of action and the appeal must be dismissed.

Sellers LJ said at p533:

"Those who take part in the administration of justice (and it is one of the most important functions of police officers to obtain and bring evidence before the court) must be free from the fear of civil proceedings. ... It is quite clear, on authority which counsel for the defendants, the respondents to this appeal, cited briefly to us going back well into history, that no court would entertain an action of this character. ... The principles can be found in the cases already referred to in the judgment [of Salmon J: [1963] 1 QB 234] going back to Revis v Smith (1856) 18 CB 126 through Henderson v Broomhead (1859) 4 H & N 569, and down to Dawkins v Lord Rokeby (1873) LR 8 QB 255 in which one finds some of the earlier authorities conveniently summarised by Kelly CB".

He referred to Munster v Lamb (1883) 11 QBD 588 wherein Fry LJ said at p607:-

"This 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 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. ..."

Sellers LJ went on to say:-

"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".

He cited with approval from a judgment of Starke J in the High Court of Australia - Cabassi v Vila (1940) 64 CLR 136:-

"... the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v McEwan: [1905] AC 480), 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".

In Roy v Prior [1971] AC 470 at p477 Lord Morris said:-

"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 mean 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 process of the court involves or necessitates 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. 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 (see Elsee v Smith (1822) 2 Chit 304)".

In the present case the appellants have rightly conceded that the respondent is entitled to bring a claim for malicious prosecution against the appellants. So I return to the cases concerning negligence.

In Evans v London Hospital Medical College and others [1981] 1 All ER 715 it was held that the defendants were entitled to have both the claim in negligence and the claim for malicious prosecution dismissed because they were covered by the absolute immunity from any form of civil action conferred on a witness in criminal proceedings in respect of his evidence, since that immunity extended to cover conduct or statements made prior to the commencement of proceedings if it could fairly be said to be part of the investigation of a crime or possible crime for the purpose of a prosecution or possible prosecution.

In the course of his judgment Drake J said at p719:-

"The cases show clearly that a witness in criminal proceedings enjoys absolute immunity from any form of civil action in respect of evidence given by him during those proceedings, and, further, that such immunity extends to cover statements made by him in preparing a proof for trial or in a report to the DPP. But how far does this absolute immunity extend to cover the acts or omissions of a witness or potential witness during the stage when they are collecting or considering material with a view to its possible use in criminal proceedings"?

He went on to state that the decision of the Court of Appeal in Marrinan v Vibart made the position clear.

He said:

"I think it is essential to keep in mind the reason for the immunity. Counsel suggests that the main reason is to prevent disgruntled convicted prisoners from seeking to have their eases retried in a civil suit. I think that that is undoubtedly one of the reasons for the existence of the immunity; but I think that the reason is in fact more broadly based than this. It was stated by Salmon J at first instance in Marrinan v Vibart [1962] 1 All ER 869 at 871:-

`This immunity exists for the benefit of the public since the administration of justice would be greatly impeded if witnesses were to be in fear that any disgruntled or possibly impecunious persons against whom they gave evidence might subsequently involve them in costly litigation'".

Drake J referred to the decision of the House of Lords in Saif Ali v Sydney Mitchell (a firm) [1980] AC 198 in which the headnote reads:-

"... protection [for barristers] should not be given any wider application than was absolutely necessary in the interests of the administration of justice and each piece of pre-trial work had to be tested against the one rule, namely that the protection existed only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that cause was to be conducted when it came to a hearing."

and went on to say:-

"... I think it is essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered ... If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outplanned and rendered of little use ..."

He suggested that the principle should be:-

"The protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated".

I do not propose to discuss the immunity conferred specifically on police officers as such - for example, in Hill v Chief Constable of West Yorkshire [1989] 53 - although inevitably most of the cases concern police officers. A somewhat different approach to the principle was adopted in Welsh v Chief Constable of Merseyside and Crown Prosecution Service [1993] 1 All ER 692. It was held that although the Crown Prosecution Service was immune from any action based on the failure of its advocate to inform the bench that the plaintiff's offences had been taken into consideration by the Crown Court, that immunity did not extend to any failure by the Crown Prosecution Service to carry out its general administrative responsibility or practice as prosecutor to keep the court informed as to the state of an adjourned criminal case or its particular responsibility to do so in the plaintiff's case by virtue of having undertaken to do so. An action in respect of acts or omissions which preceded a court process could be framed in negligence ... Accordingly, since on the assumed facts the Crown Prosecution Service had a general administrative responsibility as prosecutor to keep a court informed as to the state of an adjourned criminal case or had in practice assumed such a responsibility and had done so in the plaintiff's case, the relationship between the plaintiff and the Crown Prosecution Service was sufficiently proximate for the Crown Prosecution Service to owe a duty of care to the plaintiff to see that the Magistrates' court was informed that the offences committed by the plaintiff had already been taken into consideration by the Crown Court. Furthermore, it was fair, just and reasonable for such a duty to exist and there were no public policy grounds to exclude the existence of such a duty.

The registrar had struck out the plaintiff's claim. Tudor Evans J ordered that the appeal from the registrar should be allowed and the plaintiff's claim re-instated. In the course of his judgment he stated at p698:-

"Counsel formulated the following proposition as containing the criteria by which it is necessary to decide whether a duty of care is owed to a particular plaintiff: first, it is necessary to consider the principle of reasonable foreseeability of loss and damage, and, in so far as different factors may be involved, the question of proximity. It is then necessary to consider whether it would be fair, just and reasonable to hold such a duty to exist and finally the question has to be answered whether there is any ground of public policy for excluding a duty.

He went on to say at p702:

"I think that it is highly arguable that the Crown Prosecution Service, responsible for the preparation and presentation of criminal charges of many types and of varying gravity is not in the same position as a solicitor acting at arms' length in adversarial civil litigation".

He cited a passage from the judgment of Lloyd LJ in Kircham v Chief Constable of the Greater Manchester Police [1980] 2QB 283 in which he said:

"The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility".

Tudor Evans J found as a fact that the CPS solicitor assumed responsibility towards the plaintiff and held that there was no ground of public policy for excluding a duty.

In Elguzouli-Daf v Commissioner of Police of the Metropolis and another and McBrearty v Ministry of Defence and others [1995] 1 All ER 833 it was held by the English Court of Appeal that the Crown Prosecution Service was a public law enforcement agency which was autonomous and independent and acted in the public interest by reviewing police decisions to prosecute and conducting prosecutions on behalf of the Crown and, as such, there were compelling policy considerations rooted in the welfare of the community as a whole which outweighed the dictates of individualized justice and precluded the recognition of a duty of care to private individuals and others aggrieved by careless decisions of Crown Prosecution lawyers ... if the Crown Prosecution Service were to be constantly enmeshed in ... civil trials that would have a deleterious effect on its efficiency and the quality of the criminal justice system. It followed that a defendant in criminal proceedings did not have a private law remedy in damages for negligence against lawyers engaged by the Crown Prosecution Service in his prosecution since, save in those cases where it assumed by conduct a responsibility to a particular defendant, the Crown Prosecution Service owed no duty of care to those it was prosecuting.

In his judgment Sleyn LJ said at p839:

"The authority of a series of decisions in the House of Lords, and notably Caparo Industries plc v Dickman [1990] 2 AC 606 requires us to consider the critical question not from the view of high principle but pragmatically and by analogy with established categories of liability. And in so approaching the question we must consider the ultimate question from three perspectives, namely (a) the foreseeability of the harm that ensues; (b) the value of the relationship between the parties, usually called the element of proximity; and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.

He then discussed the impact of the CPS role, stressing that it acts for the public as a whole, acts in the public interest, has a role independent of the interests of the government of the day".

He stated:-

"The need for, or desirability of, a duty of care owed by the CPS to those it is prosecuting, must be considered in the context of their protections and remedies offered by the principles on which our democracy is founded ... By way of summary, one can say that as the law stands a citizen who is aggrieved by a prosecutor's decision has in our system potentially extensive private law remedies for a deliberate abuse of power".

He referred to Hill's case and the analogy of the position of the police and said:

"Putting the decision in Hill in perspective I would only add that it does not follow that the police may not be held liable in a case where there is some form of assumption of responsibility by the police".

He referred to lawyers engaged in hostile civil litigation who were not liable in negligence to the opposing party. But, he added:-

"I do not wish to take this analogy too far, since a prosecutor in criminal proceedings is also a minister of justice. Nevertheless, the reality is that a defendant in criminal proceedings must rely on the magistrates or the judge and his own lawyers to protect his interests. No doubt there is a public law duty on prosecutors to treat him fairly. But it does not follow that he should have a private law remedy in damages for the negligence of lawyers engaged by the CPS to prosecute him for and on behalf of the whole community".

He referred to Welsh's case and stressed that the judge repeatedly emphasised the fact that the CPS assumed by conduct a responsibility to keep the Magistrates' Court informed as to the fact that the offence had been taken into consideration ... it turned on its own facts, and in particular on the issue of assumption of responsibility by the CPS.

He then turned to the policy factors, concluding that the recognition of a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central function of prosecuting crime, would in some cases lead to a defensive approach by prosecutors of their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence. The CPS would have to spend valuable time and use scarce resources in order to prevent law suits in negligence against the CPS. He instanced other points which, he said, would bode ill for the efficiency of the CPS and the quality of our criminal justice system.

In ruling that there is no duty of care owed by the CPS to those it prosecutes he aid at p842:-

"In so ruling I have considered whether a distinction between operational and discretionary lapses ... should be made."

The only distinction which he made was in respect of cases where the CPS assumed by conduct a responsibility to a particular defendant. He ruled also that the CPS is immune from liability in negligence. He stated that as one was dealing with a pure question of law, he was ultimately satisfied that it was right to strike out the statements of claim in both cases.

In Silcott v Commissioner of Police for Metropolis (The Times 9 July 1996: 8 ALR 633) the England Court of Appeal summarized some of the decisions to which I have referred as follows:-

"(1) There exists a fundamental rule of law that:

no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without reasonable or probable cause, in the ordinary course of any proceeding in a court of justice ... or in the preparation of the evidence which is to be so given.

(2) The public policy purpose underlying the rule is 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 and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again or in other words to avoid the impeachment of evidence given and conclusions reached in one trial by subsequent collateral challenge.

(3) The immunity rule applies in the context of a criminal trial only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated or part of the preparatory process.

(4) The immunity rule does not apply to proceedings in respect of malicious abuse of process.

(5) The immunity rule is not to be circumvented by alleging a conspiracy between witnesses to make false statements.

(6) The immunity rule should extend only so far as is strictly necessary in order to protect those who are to participate in the proceedings from a flank attack".

In Taylor v Serious Fraud Office [1998] 4 All ER 801 the headnote reads in part:-

"(2) ... It was necessary in the interests of the administration of justice that potential witnesses in criminal proceedings and those investigating a crime or possible crime or assisting a criminal inquiry were protected by absolute immunity from suit, since the public interest required that all persons involved in a criminal investigation should be able to communicate freely without being inhibited by the threat of defamation proceedings. The test was whether the statement or conduct in respect of which immunity was sought could fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated. The immunity from suit extended to information and documents in a criminal investigation which were disclosed to the defence by the prosecution under the duty to make available all unused material, and required that such material was not used for collateral purposes; but statements which were wholly extraneous to the investigation and irrelevant and gratuitous libels were excluded from immunity. It followed that the Court of Appeal had been right to hold that the statements relied on by the plaintiffs to found the action were protected by absolute immunity"; dictum of Drake J in Evans v London Hospital Medical College [1981] 1 All ER 715 at 721 approved.

Lord Hoffman said at pp812-815:

"I have already described the evolution of the principle of immunity from suit in respect of statements made in the course of litigation and its extension in Watson v McEwan, Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1 to statements made before the proceedings. In that case, a wife who had brought matrimonial proceedings in Scotland claimed that a doctor (who had examined her) had made defamatory statements in the course of giving evidence for her husband. This was held to be subject to absolute immunity, but she relied also upon the publication of the same statements before trial to her husband and his lawyers. In the House of Lords, Lord Halsbury LC said that the earlier statements were subject to the same immunity. He said ([1905] AC 480 at 487, [1904-7] All ER Rep 1 at 4):

`It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony'.

In later cases there has been some discussion of the general principle upon which this extension was based. Judges have rightly cautioned against further extension merely by analogy. In Mann v O'Neill (1997) 71 ALJR 903 at 912 McHugh J identified two dangers in judicial reasoning - a Scylla and Charybdis through which it was necessary to navigate. The first was:

`... the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence'.

On the other hand, there was an opposite peril in:

`... the temptation too readily to dismiss the defence as applicable in novel circumstances because the case is not within or analogous to an existing category but without determining the matter by reference to the defence's underlying rationale'.

There is no doubt that the claim for absolute immunity in respect of statements made by one investigator to another (as in the case of the letter from the SFO to the Attorney General of the Isle of Man), or by an investigator to a person helping with the inquiry (as in the statements of Ms McKenzie recorded in the file note), or to an investigator by a person helping the inquiry who is not intended to be called as a witness (as in the remarks of Mr Rogerson included in the file note), is a novel one. So far as I know, it is not a category of absolute immunity which has been considered before. But it should not for that reason be rejected. Again, I would imagine that the reason why this question now arises for the first time is that before the broadening of the prosecution's disclosure obligation, such letters and memoranda, internal to the investigation, would never have seen the light of day. At any rate, the question is now whether they fall within the underlying rationale for the existence of immunity from suit.

In Mann v O'Neill (1997) 71 ALJR 903 at 907 the judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ describes the rationale as one of necessity:

`It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated". Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged'.

Thus the test is a strict one; necessity must be shown, 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 necessary in the past, so as to form part of a coherent principle.

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. I therefore agree with the test proposed by Drake J in Evans v London Hospital Medical College [1981] 1 All ER 715 at 721, [1981] 1 WLR 184 at 192:

`The protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated'.

This formulation excludes statements which are wholly extraneous to the investigation - irrelevant and gratuitous libels - but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other.

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. In Marrinan v Vibart [1962] 3 All ER 380, [1963] 1 QB 528 the Court of Appeal held that the immunity in respect of statements made in court or with a view to a prosecution could not be circumvented by alleging that it formed part of a conspiracy with other witnesses to give false evidence. That seems to me to be right. On the other hand, the immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. It does not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court: see Roy v Prior [1970] 2 All ER 729, [1971] AC 470.

Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v London Hospital Medical College Drake J held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. There is also some dispute over whether it applies to the emergent tort of abuse of public office. In Silcott v Comr of Police of the Metropolis (1996) 6 Admin LR 633 and again in Docker v Chief Constable of West Midlands Police [1998] CA Transcript 472, the Court of Appeal decided that it did, while in Bennett v Comr of Police for the Metropolis (1997) 10 Admin LR 245 Sir Richard Scott V-C decided that it did not. The point has not been argued before your Lordships and I therefore likewise express no view. But I am satisfied that the Court of Appeal was right in holding that the statements relied upon in this case were protected by absolute immunity and for that reason also I would dismiss the appeal".

I have somewhat laboriously set out at length citations from authorities which have not been challenged. The relevant text-books such as Clerk & Lindsell support the views which I have expressed and I need not refer to them other than to indicate that I have read the relevant passages and cases cited therein.

Accordingly I uphold the appeal by the defendants/appellants against that part of the Order of Master Wilson whereby he refused the appellants' application that all allegations of negligence be struck out from the Statement of Claim. I will hear counsel as to the allegations of false imprisonment and his Order striking out that cause of action.