THE HONOURABLE MRS JUSTICE COX
Introduction
1.
This appeal concerns the scope and application of judicial proceedings
immunity.
2.
The issue has arisen in the course of proceedings before the Reading
Employment Tribunal, currently adjourned part-heard. The Claimant, formerly
the Headteacher at Moorlands Primary School, alleges that she was the victim of
a concerted campaign of racial discrimination, harassment and victimisation,
pursued by parents, staff and governors at the school and encouraged by senior
employees of Reading Borough Council, in order to remove her from her post.
3.
Before the Tribunal hearing began, and while the Claimant was still
employed as Headteacher, the Respondents served a witness statement from the
School Business Manager and Clerk to the Governing Body, Sue Heath, who is to
be called as a witness on their behalf. The Claimant believes that the
statement contains lies, and that this is the result of improper pressure being
put upon Ms Heath to make a statement unhelpful to the Claimant.
4.
Following service of this witness statement the Claimant resigned from
her employment, claiming that this was the ‘final straw’ in terms of her
treatment by the Respondents. Her extant Tribunal claim was subsequently
amended to include claims of constructive dismissal.
5.
In their reasoned judgment, received by the parties on 19 October 2012
after a Pre-Hearing Review, the Employment Tribunal held that the contents of
this witness statement and the conduct connected with its preparation attracted
absolute judicial proceedings immunity; that Ms Heath could not be required to
give any evidence relating to the allegation of improper pressure; and that the
Claimant could not rely upon this allegation in support of her complaint of
constructive dismissal. The Tribunal struck out various paragraphs of her
amended claim which, in accordance with their ruling, they considered they had
no jurisdiction to determine.
6.
In contending that this decision is wrong Heather Williams QC, appearing
for the Claimant, submits that the immunity principle does not apply in the
particular circumstances of this case, given the nature of the wrongdoing
alleged and the fact that the amended claim reflects a continuing course of
conduct by the Respondents, which has ultimately destroyed the employment
relationship. On behalf of the Respondents, Robin Allen QC submits that the
immunity is absolute; that the Claimant cannot get around it; and that the
judgment of the Tribunal is plainly correct.
7.
There was extensive citation of authority by both counsel in this
appeal, in support of their submissions on the rationale for the immunity and
its reach. Helpfully, their detailed written submissions and succinct oral
submissions enabled us to conclude the hearing in the one day allocated, and
reserve judgment to consider the competing arguments.
The relevant background
8.
The Claimant, who describes herself as a non-white British citizen of
Indian origin, was appointed Headteacher of Moorlands Primary School, a
community school maintained by Reading Borough Council (the Council), with
effect from 1 September 2009. This was her first appointment as Headteacher.
She was employed by the Council, but the Governing Body of the school had
statutory responsibility for the Claimant’s appointment and for the management
of her performance and the implementation of policies regulating the employment
relationship, including grievance, capability and disciplinary procedures.
9.
One of the members of the Senior Leadership Team at the school is Sue
Heath, the School Business Manager and Clerk to the Governing Body. In that
capacity Ms Heath worked closely with the Claimant, and it is common ground
that they enjoyed a good working relationship.
10.
During the Claimant’s first year as Headteacher serious difficulties
arose in her relationships with parents, members of staff and governors,
including the Chair of the Governing Body. The Claimant alleges in her ET1
that, right from the start, she was met with hostility and aggression in
response to her attempts to take forward the strategic management of the
school. Specifically, she alleges that the governors “deliberately endorsed
a targeted campaign of discrimination, bullying, harassment and victimisation”
against her as an Asian head teacher; and that her employers, through the Head
of School Improvement and the School Leadership Development Manager at 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.”
11.
The Respondents deny all the allegations. They contend, essentially,
that the serious breakdown in relationships was due to the Claimant’s
autocratic style of leadership and her poor communication skills.
12.
For the purposes of this appeal it is unnecessary to refer to the
factual allegations and responses in any detail. The Claimant’s ET1 runs to
almost 30 pages. There is extensive factual dispute between the parties and
the claim is currently adjourned part-heard.
13.
However, to understand the context for the appeal it is necessary to
refer to events leading up to the Claimant’s decision to issue her ET1 on 14
September 2010, and to summarise the procedural history thereafter, which is
not in dispute. These events are based on the pleaded cases, the skeleton
arguments, the agreed chronology and the reasoned decisions of the Employment
Tribunal following the various Case Management Discussions (CMDs) held since
the proceedings began.
14.
On 14 June 2010, towards the end of the Claimant’s first year as
Headteacher, and after various problems which form the subject of her
allegations, the Respondents received a petition signed by approximately 170
parents, expressed to constitute a vote of no confidence in the Claimant. On
16 June the Council decided to appoint an independent investigator, Ms
Barnes-Vachell, to conduct a review of the school.
15.
In her interim report, sent by email on 2 July, Ms Barnes-Vachell
expressed serious concerns about the school, referring to it as “a school at
risk” and describing an air of chaos. In her opinion, neither the Claimant nor
the Assistant Headteacher was capable of making clear and coherent decisions.
She recommended that the Claimant be removed from her post pending the outcome
of the review.
16.
The Council, as the Claimant’s employers, asked the Claimant to take a
period of voluntary paid leave pending the outcome of the review. The Claimant
sought advice from her union representative and agreed to take leave. She
remained on leave for the rest of the summer term.
17.
Ms Barnes-Vachell presented her final, draft report to the Claimant and
the Respondents on 18 July. In that report she referred to the number of
members of staff who had left since the Claimant joined the school, and she
identified a number of serious problems relating to the Claimant’s management
style and interpersonal skills, her strategic management and performance, and
her behaviour management.
18.
The Claimant alleges that this report was neither informed nor
impartial, and that the integrity of the investigation was undermined by the
investigator’s failure to act fairly, in circumstances where the Claimant was
on leave and was unable to refute the findings until the evidence gathered was
provided to her.
19.
On 21 July, understanding that capability proceedings were to be started
against her, the Claimant lodged a formal grievance complaining of race
discrimination and victimisation, including allegations against the Council
relating to the conduct of the investigator’s review.
20.
Work on the review was halted, pending resolution of the Claimant’s grievance
and, on 3 September, an external consultant, Minna Nathoo, was appointed to
investigate the grievance. Interviews with thirty people, including the
Claimant and Sue Heath, were tape recorded and transcribed during this
investigation, which continued until December 2010.
21.
Meanwhile, after the Claimant returned to school at the start of the autumn
term, the problems persisted and escalated. The Claimant alleges that she
faced continuing harassment, from parents and others who wanted to remove her from
her post. On 6 September, approximately thirty to forty parents contacted the
Governing Body to inform them that they were going to withdraw their children
from the school. On 13 September the Council’s Education Department issued a
Formal Warning Notice to the school under section 60(2) of the Education and
Inspections Act 2006, on the basis that there had been a serious breakdown
in the way that the school was managed or governed.
22.
On 14 September 2010 the Claimant issued her ET1, complaining of race
discrimination, harassment and victimisation against her by both Respondents.
The allegations reflected those already made in her grievance. On 15 October
the Respondents filed a detailed ET3 denying all the allegations.
Events leading up to the Claimant’s resignation
23.
On 1 November 2010 the Claimant commenced a period of sick leave, which
continued until 31 August 2011. In December 2010 Ms Nathoo concluded her
investigation and produced her report. No aspect of the Claimant’s grievance
was upheld. The Claimant did not pursue an appeal against the outcome of her
grievance.
24.
At a CMD before the Tribunal, on 27 April 2011, the Claimant’s claim was
fixed for hearing with a time estimate of five weeks, commencing on 27 February
2012.
25.
On 1 September 2011 the Claimant commenced a period of maternity leave,
which was due to expire on 17 July 2012.
26.
The Claimant states that she telephoned Sue Heath on 22 and 26 November
2011, to ask if she would be a witness for her at the hearing. She received a
text message from Ms Heath on 26 November, which read as follows: “Dear
Sudhana, I have been instructed to have no contact with you and to refer you to
Sonal Khimji at rbc, regards Sue”.
27.
On 31 January 2012 witness statements were exchanged in readiness for
the forthcoming hearing. The statements served by the Respondents included a
witness statement from Sue Heath.
28.
By letter to the Chair of the Governing Body, dated 17 February 2012,
the Claimant resigned from her employment by notice expiring on 17 July 2012.
She referred to having suffered psychiatric injury, as a result of her
treatment by the Respondents. In addition she stated, materially, as follows:
“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.”
Subsequent procedural history
29.
On 17 February 2012 the Claimant applied to the Tribunal to amend her
ET1, to add a complaint of constructive discriminatory dismissal and to allege
that she had suffered psychiatric injury as a result of her treatment. At that
time her proposed, amended particulars of claim made no reference to Sue
Heath’s witness statement, or to the allegation concerning that statement made
in her resignation letter of the same date. In fact, in relation to the claim
of constructive discriminatory dismissal, the Claimant did not rely on any acts
post-dating the lodging of her ET1, some 17 months earlier.
30.
The Respondents’ solicitors objected to the proposed amendment and
queried whether, in relation to constructive dismissal, the Claimant was
intending to rely on any events since September 2010.
31.
The Claimant’s solicitors replied, so far as is relevant,
“…For the avoidance of doubt, in accordance with the judicial
direction set out in Parmar v East Leicester Medical Practice (2011) it
is not alleged that the witness statement of SH provides the basis for a cause
of action. That however does not preclude the fact that the Claimant has
suffered psychiatric harm because of the discrimination alleged and is vulnerable
to that condition being triggered and exacerbated. The Claimant does not rely
on any acts of discrimination in these proceedings which post date 14 September
2010.”
32.
However, the Claimant’s solicitors then served Re-Amended Particulars of
Claim by letter dated 23 February, in which the Claimant stated that she was
also claiming constructive unfair dismissal under section 95(2) of the Employment
Rights Act 1996. She relied in this respect on all the allegations pleaded
in her original ET1 and added the following further paragraph:
“86. 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.”
33.
The application to amend was opposed. The first day of the hearing was
converted into a CMD, with the substantive hearing directed to be held from 8
to 30 March 2012. The Claimant’s application to amend was rejected on various
grounds, including the fact that her claim for constructive discriminatory
dismissal was premature, having been brought before the expiry of the
Claimant’s notice on 27 July.
34.
The Employment Judge observed at paragraph 25 of his reasons,
“I am further persuaded that as it appears that the ‘final
straw’ relied on by the Claimant in resigning is her perception of the
circumstances in which she believes Mrs Sue Heath’s witness statement was
obtained, she is seeking to rely on a cause of action which attracts absolute
judicial proceedings immunity in accordance with the case of Parmar. Indeed
the Claimant’s solicitors themselves appear to accept this point on 20 February
2012 although they subsequently resiled from that position. The Claimant’s
case on this appears to be simply a perception and there is no detail given of
any particulars of any substantiating evidence … ”
35.
On 7 March 2012 the Claimant lodged an appeal to the EAT, challenging
the refusal to allow the amendment of her claim. On 8 March her appeal was
rejected on the sift, pursuant to rule 3(7) of the EAT Rules. On 8 March the
Employment Tribunal refused the Claimant’s application for a postponement of
the re-listed hearing, pending her application for a rule 3(10) hearing, but in
the event, no such application was made.
36.
The substantive hearing of the Claimant’s original ET1 therefore began
on 9 March 2012. The Claimant and her witness and two of the Respondents’
witnesses gave evidence to the Tribunal. The hearing was then adjourned
part-heard on 30 March. It was listed to continue over a further 14 days fixed
in October and November 2012.
37.
At the Tribunal on 30 March the Claimant indicated that she would seek
to renew her application to amend her ET1 to add her constructive dismissal
claims. A further CMD was fixed for 30 July, on the basis that, by then, the
Claimant’s notice period would have expired, and time would have started to run
for her constructive discriminatory dismissal claim.
38.
Curiously, on 15 May 2012, the Claimant lodged two further ET1s
complaining of constructive unfair dismissal and constructive discriminatory
dismissal, at which point the constructive discriminatory dismissal claim was
still premature. Only one of these claims referred to the ‘final straw’
allegation. The Respondents lodged ET3s in response, contending that the fresh
ET1s amounted to an abuse of process. They repeated their contention that the
Tribunal had no jurisdiction to determine the ‘final straw’ allegation because
of absolute judicial proceedings immunity.
39.
It is common ground that the Claimant’s employment terminated on 17 July
2012.
40.
At the CMD on 30 July the Claimant withdrew both fresh ET1s and applied
for permission to amend her original ET1 to add both constructive dismissal
claims, including the ‘final straw’ allegation. That application was granted.
Referring to that allegation, the Tribunal said this at paragraph 15:
“… in the Tribunal’s view, whilst the Claimant is entitled to
make that allegation, the Tribunal will be bound to apply the provisions of Parmar
v East Leicester Medical Practice at the trial of these issues and to act
in accordance with that case when hearing the evidence. There appears to the
Tribunal to be a slight distinction in the facts of this case as opposed to the
facts of Parmar in that the Claimant in this case is not pursing a claim
against Mrs Heath personally, although the Claimant is clearly making
allegations in relation to what is in Mrs Heath’s statement, and that will
cause the provisions of Parmar to come into play when the Tribunal hears
the evidence in this case.”
41.
The Claimant was also ordered to set out
“…fully in the amended pleading what specific facts and matters
the Claimant relies on in coming to the conclusion that it was the Respondent’s
conduct that placed undue pressure on Mrs Sue Heath to produce a witness
statement containing false or otherwise inaccurate evidence for the purposes of
these proceedings.”
42.
The relevant allegation now pleaded in the Claimant’s re-amended
particulars is as follows:
“9. 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. Mrs Heath is employed by the First Respondent as Business Manager
and Clerk to the Governors. Mrs Heath is in a subordinate post to Ms Kate Rex,
Lynda Miller, Kim Bergamasco, Anna Wright. Mrs Heath is directly supervised by
and works with Ms Kate Rex and the First Respondent but her role means that she
would have regular working relationship with all those referred to. Each of
these individuals is identified by the Claimant as bearing responsibility for
the discrimination she has suffered.
10. The Claimant refers to the transcript of Mrs Heath’s
interview [by Minna Nathoo] … and the
various contemporaneous emails and letters produced by Mrs Heath which reveal
material inconsistencies with the witness statement produced for the purpose of
these proceedings.
11. From September 2009 the Claimant looked upon Sue Heath as a
trusted confidant in the workplace. They enjoyed a professional relationship
and the Claimant trusted her implicitly …”
After setting out, at paragraphs 12
to 20, detailed particulars of incidents in which Sue Heath is said to have
shown support for the Claimant, or to have expressed concern about the way the
Claimant was being treated, the Claimant pleads as follows at paragraphs 21 to
23:
“21. The Claimant refers to her resignation letter and further
pleads that she has formed the view that the Respondents have placed undue
pressure on Sue Heath because the Claimant had asked Sue Heath if she would
give evidence in support of the Claimant witness in this tribunal. Mrs Heath
agreed and said that she would give evidence as a witness in support.
22. Mrs Heath sent the Claimant a text message on Saturday 26
November 2011 at 9:32 and read ‘Dear Sudhana, I have been instructed to have no
contact with you and to refer you to Sonal Khimji at rbc, regards Sue’ such an
instruction was unreasonable and placed Sue Heath under undue influence. Mrs
Heath was ordered not to communicate with the Claimant and she felt compelled
to comply. It follows that Mrs Heath was not free to express herself in her
witness statement.
23. The Claimant had always regarded Sue Heath as a person of
integrity and she was distressed and frankly broken to realise that a person of
Sue’s integrity could be coerced under threat of her job to lie for Reading. The Claimant does not believe that Mrs Heath would have made such a statement
but for pressure from her employers. The Claimant believes that the concern
Sue Heath had expressed for the Claimant’s health and wellbeing was entirely
genuine as was her indignation at the Claimant’s treatment by the Respondents
throughout her headship …”
43.
In their written response, the Respondents contend that absolute
judicial proceedings immunity attaches to the witness statement of Sue Heath;
that the Claimant is not entitled to found a cause of action upon it; and that
the complaint is not justiciable.
44.
Although they deny the allegations of impropriety, the Respondents
criticise the amended claim for containing no particulars of her allegations
and for pleading no positive case in support of the charge that the
Respondents, or either of them, placed Sue Heath under pressure or coercion in
relation to her witness statement. Nor does the Claimant identify the person
or persons who are said to be responsible for applying such pressure. No
positive facts are pleaded in support of the serious allegation that Sue Heath
made this statement “under threat of her job”. In our view, there is
some merit in these criticisms, a point to which we shall return later on in
this judgment.
45.
Mr Allen makes a further, general submission as to the difficulties
faced by the Claimant in respect of the claims added by way of amendment in
July 2012. Without the ‘final straw’ allegation now being advanced, the course
of conduct she relies upon as amounting to a repudiatory breach of contract
ended in September 2010. Mr Allen submits that it had therefore lost its
potency as a course of conduct which could be accepted by her resignation 17
months later, in February 2012. The period in which the Claimant could decide
whether to affirm her contract or resign was long past.
46.
In any event, he submits that the Claimant has clearly affirmed her
contract during this period by drawing her salary, claiming sick pay and
availing herself of the contractual provisions for maternity leave. In seeking
to rely on the witness statement as a recent ‘final straw’, in order to pursue
constructive dismissal claims, Mr Allen submits that the Claimant has had to
try and persuade the Employment Tribunal that the judicial proceedings immunity
rule did not apply to her new allegation, when it plainly did.
47.
The Claimant denies that her reliance on Sue Heath’s statement is any
form of tactical device. She contends that what has happened here demonstrates
that improper pressure was applied to Ms Heath, in order to persuade her to
make a false statement adverse to the Claimant; that this was part of a
continuing course of conduct by the Respondents against her, in breach of the
implied term of trust and confidence and arising from the same facts as relied
on in the original claim; and that in these circumstances the immunity rule
does not apply.
48.
At a CMD held on the first day of the resumed hearing, on 8 October, it
was agreed that the Tribunal would reconsider the immunity point with the
benefit of full argument at a Pre-Hearing Review (PHR) on 10 October. The
present appeal is against the Tribunal’s judgment following that hearing. Given
that we heard full argument on the immunity, and that the case is currently
adjourned part-heard, we shall say nothing further in respect of Mr Allen’s
general submission as to the Claimant’s reasons for advancing the final straw
allegation in pursuing her constructive dismissal claims. We shall determine
this appeal on its merits.
The Tribunal’s Decision
49.
The Tribunal’s judgment was formally recorded in the following terms:
“1. The contents of the witness statement of Mrs Sue Heath and
the conduct connected with the preparation of the witness statement of Mrs Sue
Heath, attract absolute judicial proceedings immunity.
2. Accordingly, the Respondents’ witness, Mrs Sue Heath, cannot
be required to give any evidence in relation to the allegation that undue
pressure was placed on her to produce a witness statement containing false or
otherwise inaccurate evidence for the purposes of these proceedings.
3. The Claimant cannot rely on the last straw allegation made in
her claims of constructive unfair dismissal and the Tribunal must strike out
those parts of the amended claim, which it has no jurisdiction to consider
because of the application of absolute judicial proceedings immunity.
Accordingly the Tribunal strike out paragraphs 9, 10, 21, 22 and 23 of the
amended claim.”
50.
The Tribunal accepted the Respondents’ submissions. In summary, they
concluded that the pleaded allegation related to conduct in the course of the
existing proceedings, in that the constructive dismissal claims arose because
of words contained in a witness statement prepared and served in the course of
those proceedings; that the rule of absolute judicial proceedings immunity was
therefore engaged; and that the Claimant was seeking to found a cause of action
as a result of the manner in which she alleged evidence in a witness statement
had been obtained for trial, and her reaction to it. That evidence, and the
Claimant’s pleaded allegations concerning it, had to be excluded in accordance
with the immunity rule, and they had no discretion to come to any other
conclusion.
51.
The Tribunal held that the fact that Sue Heath was not herself a party
to the proceedings was irrelevant. Further, the Claimant was wrong to
categorise this allegation as a fresh claim arising out of the same facts. The
pleaded allegation concerned conduct by the Respondents which was subsequent to
the matters pleaded in the original proceedings. The Claimant’s allegation, if
true, could arise only as part of the Respondents’ participation in the
judicial process. Her complaint was not about what witnesses were doing prior
to the beginning of the judicial process, but related directly to conduct in
the course of that process. There was no need for the Tribunal to hear all the
evidence before determining the point, because it was clear on the authorities
that the immunity rule applied.
52.
The Tribunal also held that the allegation was in any event inadequately
particularised and that, where undue influence was pleaded, the alleged
wrongdoers should be identified.
53.
At paragraph 71 of their reasons the Tribunal said this in respect of
their decision:
“Whilst that may on the facts of this case appear to result in a
harsh outcome it is clear from both the Parmar and Dathi cases
that that does not mean that a person who has been discriminated against during
the course of legal proceedings is without remedy. The conduct of a party in
an Employment Tribunal is relevant to the issue of costs which may be awarded
for unreasonable conduct in the proceedings, see rule 40(3) an award for injury
to feelings can be made and it can be increased by an award of aggravated
damages. A claim or a response can be struck out on the grounds that the manner
in which the proceedings have been conducted has been scandalous, vexatious or
unreasonable under the provisions of rule 18(7). A witness, and more
particularly a party, are not protected by the policy behind the judicial
proceedings immunity rule from all adverse consequences of their conduct. They
can be prosecuted for perjury or sued for malicious prosecution.”
54.
Acknowledging that application of the principle may in some
circumstances appear to produce harsh results, the Tribunal described it as the
price to be paid for what was clearly a long-standing principle of public
policy.
55.
Having pronounced their judgment orally, the Tribunal then sought the
parties’ views on the practical impact of their decision and on the striking
out of those paragraphs in which the relevant allegation was pleaded. In
striking out the paragraphs identified at paragraph 3 of their judgment the
Tribunal stated their reasons for doing so at paragraphs 73 to 74, in the
following terms:
“73. …The Tribunal sought the parties’ views on its proposals
to strike out those paragraphs. The Tribunal considered that was necessary
because having determined that judicial proceedings immunity applied it could
not allow to remain pleaded those parts of any claim which it did not have jurisdiction
to consider. The Tribunal gave the parties’ representatives time to consider
the points. For the Claimant Ms Brown understandably said that in the
circumstances she was unable to make any meaningful submissions on the strike
out of pleadings in the absence of the reserved reasons. Ms Reindorf was
content with the Tribunal striking out the paragraphs identified. The
Tribunal’s rationale for deleting the pleaded paragraphs is as follows.
Paragraph 9 relies on the Respondents’ 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. Because the contents
of the witness statement of Mrs Sue Heath and the conduct connected with the
preparation of that witness statement attract absolute judicial proceedings
immunity that paragraph must be struck out. Paragraph 10 is also struck out.
That is because it follows on from paragraph 9 and specifically refers to the
witness statement. Paragraphs 21, 22 and 23 are struck out because they all
refer to the allegation that the Respondent has placed undue pressure on Sue
Heath in relation to the witness statement.
74. That does not prevent the Claimant’s counsel from
cross-examining Mrs Sue Heath and other witnesses for the Respondent as to
their credibility and this can be done with reference to documents in the
agreed bundle … However, what must not be put to Mrs Sue Heath or any of the
Respondents’ witnesses in cross-examination are any questions that engage the
circumstances in which that statement came to be prepared.”
The Tribunal emphasised that they were not striking out the
claims of constructive dismissal, pointing out that the Claimant was entitled
to rely on all those matters already pleaded in her Particulars in support of
those claims.
56.
The Claimant then lodged this appeal. In a telephone CMD on 23 October
the Employment Tribunal refused the Claimant’s application for the resumed
hearing, then due to restart on 5 November, to be adjourned pending the outcome
of this appeal. The Tribunal further ordered that the constructive dismissal
claims were to be stayed, pending determination of the appeal. This resulted
in a further appeal by the Claimant against that order (Appeal no. UKEAT/1762/12/RN),
to which we shall refer again briefly at the end of this judgment.
57.
The Claimant’s substantive appeal on the immunity point was initially
rejected on the sift but, following oral submissions at a rule 3(10) hearing,
permission was given for her grounds of appeal to proceed to a full hearing.
In the event, the Claimant’s substantive appeal has regrettably, but inevitably
resulted in the further dates fixed for the resumed Tribunal hearing in
November being ineffective.
The appeal
58.
For the reasons advanced at paragraphs 18.1 to 18.10 of the grounds of
appeal, which are said to be both cumulative and free-standing, Ms Williams
submits that the Tribunal erred in striking out the relevant paragraphs from
the amended claim on the basis that pursuit of these allegations would infringe
the principle of judicial proceedings immunity.
59.
Her core proposition is that the Tribunal erroneously extended the ambit
of the immunity beyond the proposed evidence of Sue Heath, as contained in her
witness statement, to encompass the actions of those said to have improperly
pressurised her into giving a false account. Ms Williams submits that the
Tribunal failed to identify any rationale, let alone any necessity for such an
extension, in circumstances where the immunity runs counter to another
important principle of public policy, that those who suffer a wrong should have
a right to a remedy. While not disputing the origins and early development of
the immunity rule, Ms Williams submits that the more recent authorities establish
that the application of an immunity which denies a remedy to the victim of a
wrong is an exceptional course requiring strict and cogent justification, and
that no justification was, or could be advanced in the circumstances of this
case.
60.
Mr Allen’s submission is that the Tribunal were correct to hold that
absolute judicial proceedings immunity applied; that the rule cannot be
outflanked by an allegation of the kind being made in this case, or by the
pleading devices the Claimant has sought to deploy in order to avoid its
effect; and that none of the authorities relied on by the Claimant supports her
submission that the immunity rule does not apply, or that the Tribunal
erroneously extended its ambit.
61.
In support of their submissions counsel for both sides cited extensive
authority, often relying on different passages in the same cases. We consider
that we should determine the central dispute as to the current nature and scope
of the immunity and its application in this case, before finally addressing the
individual grounds of appeal, because resolving that dispute will largely
determine the validity of the Claimant’s challenge. We stress that, although
we do not refer in this judgment to all the authorities relied upon in
argument, we have had regard to all of them in determining the dispute and the
issues raised in this appeal.
Judicial proceedings immunity
62.
Recently, this common law rule has featured in two judgments of the EAT,
to which the Employment Tribunal referred, namely South London Maudsley NHS
Trust v Dathi [2008] IRLR 350 and Parmar v East Leicester Medical
Practice [2011] IRLR 641. However, judicial proceedings immunity has a
long pedigree. In what may well be a first for the EAT we were taken to a line
of authority beginning in the 16th century with Cutler v Dixon (1585) 4 Co Rep 14b.
63.
We agree with Ms Williams that the classic description of the rule in
modern case law is that given by Lord Hope in Darker and others v Chief
Constable of the West Midlands Police [2001] 1 AC 435 at 445H:
“This immunity, which is regarded as necessary in the interests
of the administration of justice … 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: Dawkins v Lord Rokeby (1873) LR 8 QB 255,
264, per Kelly CB. 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.”
64.
The public policy grounds underlying this immunity are essentially
twofold. First, per Fry LJ in Munster v Lamb (1883) 11 QBD 588,
explaining why it was that no action lay against judges, counsel, parties or
witnesses for things said and done falsely or maliciously in the course of any
proceeding in a court of justice,
“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 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.”
65.
Second, per Lord Wilberforce in Roy v Prior
[1971] AC 470 at 480,
“The reasons why immunity is traditionally…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 the truth of their evidence would be tried over again.”
66.
Further, since the immunity would be worthless if it were confined to
the actual giving of evidence in court, (per Lord Clyde in Darker
at 458D), the House of Lords decided, in Watson v M‘Ewan [1905] AC 480, that the immunity also protected a witness against the consequences of
statements he has made to a party, or to the legal representatives, in
preparing his proof of evidence for trial. The Earl of Halsbury LC explained
why this was an important element of the immunity (at 487),
“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.
My Lords, the hardship to which I refer is
this: that although when a
witness does give evidence which is wilfully false you can indict him for
perjury, on the other hand, if he makes the same statement not upon oath to a
person taking down the evidence he is prepared to give, it seems to be very
difficult to devise anything that would bring him to justice for that false
statement. The answer, of course, dealing with it as a matter of convenience
and indeed of necessity for the administration of justice, I suppose, is this:
unless he does give evidence in a Court of justice, in which case he can be
indicted for perjury if his evidence is wilfully false, nobody knows anything
about it - it slumbers, I suppose, in the office of the solicitor, and nobody
hears or cares anything about it. Practically, I think that would be the
answer. But whether that be a good answer or not, what seems to me to be an
overwhelming consideration in the determination of this case is that a witness
must be protected for his preliminary statement or he has no protection at all,
and that there is that protection established is, as I have already said,
beyond all possibility of doubt.”
The immunity therefore gives protection even if, eventually, the
trial does not take place.
67.
In Taylor v Serious Fraud Office [1999] 2 AC 177 the House
of Lords held that the immunity extended also to statements made out of court
by persons not called as witnesses (in that case fraud investigators), if they
could fairly be said to be part of the process of investigating a crime or a
possible crime with a view to a prosecution, even where those being
investigated were never charged with any offence.
68.
The potential hardship, if this were not the rule, has been acknowledged
in many of the authorities. Notwithstanding the public interest in the
finality of litigation, the observation is often made that malicious and
untruthful persons are liable to prosecution for perjury, to an action for
malicious prosecution, or to proceedings for contempt of court, which will
provide some deterrent against abuse of the litigation process. However, the recognised
risk that dishonest and malicious people may, on occasion, benefit from the
immunity, has long been held to be outweighed by the paramount public interest
in protecting the integrity of the judicial process,
“The law protects witnesses and others, not for their benefit,
but for a higher interest, namely, the advancement of public justice” (per Starke J in Cabassi v Vila (1940) 64 CLR 130, a decision of the High Court of
Australia, cited with approval by the Court of Appeal in Marrinan v
Vibert [1963] 1 QB 528 at 536.)
69.
Much of the case law has concerned the rule as it applies to witnesses,
not infrequently police witnesses. However, there has never been any doubt
that the immunity does not operate solely to protect witnesses in relation to
their evidence given at, or prepared for trial. It has been held to apply to
all the “essential ingredients of the judicial process” (per Lord Pearce in Rondel
v Worsley [1969] 1 AC 470), namely the parties, witnesses, advocates,
judges and jurors. The reference (in Munster) to the need to
protect “persons” from being sued and having to defend themselves appears in
numerous passages in the cases cited to us. Lord Hope referred expressly to
parties in his description of the rule in Darker, (set out
above), emphasising that the ‘same immunity’, giving protection from any action
which may be brought against them, applies just as much to parties as to others
involved in judicial proceedings.
70.
It is the application of the rule to the Respondents, as parties to this
litigation, in deciding to obtain and serve a witness statement from Sue Heath
in support of their defence to the claim, that arises in this case. In this
respect, in relation to the first element of the rationale underpinning the
immunity explained by Fry LJ in Munster, Mr Allen also relies on
the observations of Brett MR in the same case, when referring to the reason for
the rule given by Pigott CB in Kennedy v Hilliard (1859) 10 ICLR
195 at 209,
“I take this to be a rule of law, not founded (as is the
protection in other cases of privileged statements) on the absence of malice in
the party sued, but founded on public policy, which requires that a judge, in
dealing with the matter before him, a party in preferring or resisting a legal
proceeding, and a witness in giving evidence, oral or written, in a court of
justice, shall do so with his mind uninfluenced by the fear of an action for
defamation or a prosecution for libel.”
71.
Further, in Marrinan v Vibert [1963] 1 QB 528, Sellers LJ
drew attention to the width of the language used by Kelly CB in Dawkins v
Lord Rokeby (1873) LR 8 QB 255 (to which Lord Hope referred in Darker),
in referring to the immunity as a rule that “no action lies against parties or
witnesses for anything said or done, although falsely and maliciously and
without any reasonable and probable cause, in the ordinary course of any
proceedings in a court of justice.”
72.
As Watson and Taylor established, the
immunity is not restricted to statements made in court or to statements made by
witnesses in a case. It includes within its scope things said or done in the
course of preparing evidence for trial. In our judgment, it necessarily
includes the words or deeds of parties to litigation, in connection with the
preparation of a case for hearing in a court or tribunal. Since a complaint in
respect of a witness’s account to a solicitor constitutes an attack on that
witness’s participation in the judicial process, a complaint in respect of the
discussions between a party and one of their witnesses, about the evidence to
be adduced from her for trial, constitutes an attack on the participation of
that party in judicial proceedings. As such it subjects that party to ‘the
vexation of defending an action’ and offends the first element of the rationale
underpinning the immunity.
73.
As we shall see, in focussing on the immunity as it applies to witnesses
the Claimant has, in our view, failed to engage with the protection afforded by
the immunity to the parties to litigation in addition. Contrary to Ms Williams’
submission, the Employment Tribunal did not decide this case as one of witness
immunity. It is clear to us from their reasoned judgment, read as a whole,
that the Tribunal found the immunity to attach to the Respondents in relation
to the testimony adduced by them, as parties, for use at the hearing.
74.
Nor did the Respondents suggest below that the case was one of witness
immunity, as is clear from their written submissions for the PHR. The
Claimant’s allegation is that the Respondents, as parties, acted improperly in
their conduct of the judicial proceedings and in presenting false evidence to
the Tribunal. That was the allegation being addressed by the Respondents and
the Tribunal and we agree with Mr Allen that those are the acts upon which the immunity
bites.
75.
Recently, in Baxendale-Walker v Law Society and others
[2011] EWHC 998 QB, absolute immunity was held to apply in civil proceedings
brought against the Law Society, to protect the statements and conduct of the
Law Society Defendants in the course of an investigation in anticipation of
disciplinary proceedings.
76.
Upholding the Defendants’ submissions on this point, Supperstone J held
(so far as material, at paragraphs 90-95) that
“90. The immunity is not limited to things which are actually said
or done in court or (in the present case) to proceedings before the SDT. It
extends also to statements or conduct connected with the preparation of the
case to be presented in court or before the SDT. Taylor v Director of the
Serious Fraud Office [1999] 2 AC 177 was concerned with criminal
investigations in criminal proceedings however I accept Mr Smith’s submission
that the immunity extends and applies with equal force to disciplinary
investigations and disciplinary proceedings (and indeed to other civil
proceedings). (See Mahon v Rahn and others (No.2) [2000] 1 WLR 2150, per Brooke LJ at para 194).
…
92. In Darker v Chief Constable of West Midlands Police Lord
Clyde at 456 said that the principles governing the immunity of witnesses in
connection with judicial proceedings ‘should be of general application
regardless of the particular form of the action’. The only exception to this
principle of absolute immunity for participants in investigations or
proceedings is the tort of malicious prosecution or malicious arrest. However
the Claimant does not allege that the Defendants have committed this tort.
…
93. Mr Susman referred during the course of the hearing to the
pending appeal to the Supreme Court in Jones v Kaney (on appeal from the
decision of Blake J [2010] EWHC 61) and submitted that I should not strike out
the claims on this ground when the Supreme Court may take a different view to
earlier decisions on absolute privilege and immunity. I agreed to receive
written submissions from Counsel when the outcome of that appeal was known….
94. [On 30 March 2011]
The Supreme Court in Jones v Kaney overruled the decision in Stanton
v Callaghan [2000] QB 75 and held by a majority of 5-2 (Lord Hope and Lady
Hale dissenting) that an expert witness has no immunity from suit in an action
brought by his own client for breach of a contractual or tortious duty of
care. I accept the submission of Mr Smith that the decision in Jones v
Kaney does not touch on the immunity of a witness (whether they be a
witness of fact or expert opinion) or a party to proceedings in respect of
things said or done in the ordinary course of proceedings, in respect of claims
brought against him by an opposing party; nor does the decision affect the law
on judicial immunity …
95. In my judgment the actions of the Law Society Defendants are
protected by absolute privilege and immunity and I would strike out the claims
against them on this ground.”
77.
We do not accept Ms Williams’ submission that these findings were
obiter. While Supperstone J also held that the claims should be struck out on
other grounds, it is clear from these passages that he upheld the Defendants’
submissions on immunity and ruled that the claims should be struck out on that
ground in addition.
78.
It is also clear, as Supperstone J observed in that case, that the
principles regarding the immunity of witnesses, parties and others are of
general application, regardless of the particular form of the action being
brought.
79.
In Marrinan the action was brought in conspiracy. Police
officers were alleged to have conspired together to make false statements about
the plaintiff, a disbarred barrister, in their reports to the DPP, in their
evidence at trial, and in their evidence at an inquiry before the Benchers of
Lincolns Inn. The Court of Appeal upheld the decision of Salmon J that the
plaintiff’s action in conspiracy was barred by the immunity rule.
80.
Holding that “those who take part in the administration of justice…must
be free from the fear of civil proceedings”, Sellers LJ rejected as
“misconceived” the attempt to distinguish between actions in defamation and
actions in conspiracy, stating:
“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.”
81.
Citing this passage with approval in Darker, Lord Clyde
said this at 456F,
“Thus, for example, whether the action is one of defamation or
of negligence or, as in the present case, of conspiracy to injure and
misfeasance in a public office, the same principles should apply.”
82.
The immunity cannot therefore be circumvented by pleading a conspiracy
to procure false evidence. In both Munster and Marrinan
the courts unhesitatingly rejected attempts to avoid the immunity by founding a
cause of action upon an alleged conspiracy to procure false evidence, rather
than upon the contents of that evidence itself. Further, the statements of
principle in Marrinan are expressed in broad terms. The
application of the immunity does not appear to us to be limited to cases in
which the action brought, in relation to things said or done in the course of
judicial proceedings, is an action in conspiracy.
83.
Nor is it limited to allegations made against witnesses, rather than
against parties to litigation. We can identify no logical reason, whether by
reference to the rationale for the immunity or otherwise, why the police officers
in Marrinan, in their capacity as witnesses, should be protected
from such an attempt to circumvent the immunity, but the Respondents as parties
in the present case should not be. The central allegation against both
Respondents here, as defending parties, is of undue influence exerted upon a
witness to provide a false statement for their use at the hearing. Such an
allegation clearly relates to the participation of the Respondents in the
judicial process; and in any event it seems to us to be sufficiently analogous
to an allegation of conspiracy to fall within the immunity, as explained in Marrinan.
Discrimination cases
84.
Further, it is common ground that cases involving allegations of
unlawful discrimination are not regarded as requiring special treatment, or as
being exempt from the immunity rule.
85.
In Heath v Commissioner of Police of the Metropolis [2005] ICR 329, where the point was fully argued, the Court of Appeal held that
judicial proceedings immunity applied not only to common law claims, such as
defamation or negligence, but also to statutory claims of discrimination,
because the public interest justifying the immunity was exactly the same. In
particular, the Court ruled that the immunity was not contrary to either the
underlying EU Equality Directives (in that case the Equal Treatment Directive)
or Article 6 of the European Convention on Human Rights.
86.
Auld LJ described the absolute immunity from suit (at paragraph 52) as
“… a core immunity in our system, critical to the integrity and
effectiveness of our judicial system, which, save for a few well defined
exceptions … 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.”
87.
In relation to the exceptions, he said (at paragraph 17) that the
immunity 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, 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.”
88.
The EAT has subsequently adopted the same approach. In Dathi
HH Judge McMullen QC held that the immunity applied to claims for race
discrimination and victimisation arising from two letters written by the
Respondent’s then legal representatives in earlier discrimination proceedings.
These letters, one relating to disclosure and the other to costs, were relied
on as the central acts in the subsequent proceedings, but were both held to be
protected by absolute immunity, as documents brought into existence for the
purpose of the proceedings.
89.
In Parmar the Claimant brought a victimisation claim
against his employers on the basis of witness statements served by them in
earlier race discrimination proceedings. The Claimant alleged that six of the
statements served contained untruths, and that the untrue statements had been
made by those witnesses because he had brought the previous proceedings. The
Employment Tribunal held that the statements were protected by judicial
proceedings immunity. Dismissing the Claimant’s appeal, Underhill J held that
the principles governing the immunity rule applied also to claims of
discrimination by victimisation (a point not argued in Heath).
90.
Ms Williams submits that, in Parmar, Underhill J was not
concerned with, and therefore did not consider the parameters of judicial
proceedings immunity because, if the rule applied to victimisation claims, it
was clear that the allegations in that case fell within its scope. It was the
contents of each witness’s statement that were alleged to constitute the acts
of victimisation. She seeks to distinguish Parmar on the basis
that the EAT was not dealing in that case with an allegation that the
Respondents had improperly pressurised the witnesses into making false
statements adverse to the Claimant’s claim.
91.
Ms Williams submits that the impropriety alleged in this case falls
outside the parameters of the immunity because Mrs Singh’s constructive
dismissal claims were not constituted by the contents of Sue Heath’s witness
statement, but by the acts of senior employees of the Respondents in putting
undue pressure upon her. Far from safeguarding Ms Heath’s ability as a witness
to express herself freely, in accordance with the rationale for the rule, the
immunity was deployed to preclude investigation into her alleged subornation.
92.
However, in suggesting that in this way the Tribunal lost sight of the
rationale behind the immunity and its parameters, Ms Williams has in our view
described the rationale too narrowly (for example at paragraph 10 of her main
skeleton argument), namely that it was (i) to enable witnesses to “feel free to
testify and to express themselves without fear of the consequences,
specifically that of having their evidence challenged in another process; and
(ii) to avoid a multiplicity of actions in which the value or truth of their
evidence would be re-tried”.
93.
Since the immunity also applies to parties, the rationale for the rule
envisages that parties may also rely upon it, so as to be protected from
defending actions brought against them for things said or done when they are
taking part in the administration of justice; and so as to avoid a multiplicity
of actions in which the truth of a witness’s evidence adduced by them would be
tried over again.
94.
The obtaining and serving of witness statements, from witnesses they
intend to call at trial in support of their case, is an important and necessary
aspect of a party’s participation in the administration of justice. The rules
of procedure governing hearings before Employment Tribunals make specific
provision for service of such statements, with appropriate sanctions for
non-compliance.
95.
We agree with Mr Allen that, if parties were unable to rely on the
immunity, in relation both to the witness evidence they have adduced for trial
and the discussions they have had with their witnesses about that evidence,
there would be an inexplicable gap in the protection afforded to parties by the
immunity. The immunity would be deprived of its necessary effect and the
evidence of those witnesses would be directly vulnerable to attack. Further,
we consider that the prospect of a challenge to those discussions, and of
exposure of their contents, would be more likely to discourage parties from
assisting in the administration of justice and, thus, would be wholly contrary
to the public interest.
96.
On the face of it therefore, and subject to the Claimant’s further
submissions as to the effect of Darker and other recent
authorities, the acts complained of by the Claimant in this case seem to us to
fall well within the current parameters of the immunity. We regard her
complaint as relating to both the contents and the preparation of Sue Heath’s
witness statement, obtained by the Respondents for the purpose of defending the
claims brought against them. In particular, the Claimant seeks to rely upon
the discussions that took place between the Respondents and Ms Heath, in
drafting the contents of that witness statement and preparing for her to give
evidence on their behalf at the hearing.
97.
For these reasons we cannot accept Ms Williams’ submission that the
constructive dismissal claims are not constituted by the contents of the
statement; and that what was done to procure the statement is a free-standing
act divisible from its contents. The ‘final straw’ allegation, that the
statement is false and has been procured improperly, depends in large part on
the alleged inconsistencies between the statement and the transcript of Ms
Heath’s grievance interview by Ms Nathoo. The allegation therefore depends
both on the veracity of the statement and on the improper pressure said to have
been put upon her. Indeed, the presence of alleged lies in the statement is
what has led the Claimant to infer that pressure must have been applied to her.
98.
Similarly, in Marrinan, the overt acts complained of in
advancing the unsuccessful claim of conspiracy were the witness statements,
which were relied upon both as giving rise to the inference that there was a
conspiracy and as causing the damage (see Diplock LJ at 537).
99.
It does not matter, in our view, that Sue Heath is not herself a party
to the litigation, or that no allegations of improper conduct are made against
her personally. In our judgment the case law to which we have referred
establishes that, whatever the form of action, the immunity will apply to protect
a party to litigation where the allegation is that the party has improperly
procured false witness testimony for trial. Where such an allegation is made,
the overt act alleged to have caused damage, and from which the impropriety is
to be inferred, is the witness evidence itself. The Claimant’s allegations in
this case mount an attack upon both the truthfulness of a witness statement
adduced by the Respondents for trial, and the manner in which the Respondents
have participated in the judicial process. Both elements of the public policy
rationale underpinning judicial proceedings immunity are therefore engaged in
this case. And it does not matter how the action is framed. The immunity is
absolute. A party to litigation may not be sued for the witness evidence it
has adduced for trial.
100. Further,
we consider that there is no merit in the argument that the immunity does not
apply to the Claimant’s constructive dismissal claims because they were
introduced by way of amendment of her existing claim, and are not therefore
subsequent claims based on witness evidence in earlier proceedings. The
Tribunal were right to reject this argument and to conclude that these were new
claims reliant on events that post-dated the facts relied on in the existing
claim; and that the immunity applied.
101. As Mr
Allen points out, if the immunity did not apply in such circumstances, then in
every piece of litigation in which one litigant sought a remedy on a
free-standing basis for the way in which her opponent had conducted the litigation,
that litigant could seek to avoid the immunity by applying to amend to add the
new claim. We agree that the immunity is not to be avoided by such a pleading
device. It is the substance of the allegation that is important.
The effect of Darker and other recent
authorities
102. However,
it is in relation to the substance of the allegation in this case that Ms
Williams relies on the judgment of the House of Lords in Darker
and other recent authorities, in submitting that the immunity does not apply
and that the Tribunal erroneously extended its ambit.
103. That there
are limits to the immunity is not in dispute. Mr Allen accepts that the rule
will not apply if the giving of evidence is merely an incidental or tangential
aspect of the conduct complained of, even if it is a significant part of the
factual matrix. The question for us is whether the effect of Darker
(and other recent authorities) is that the particular impropriety
alleged in this case now falls outside the parameters of the immunity; and that
no justification or necessity for extending the circumstances in which it
applies can be shown.
104. Ms
Williams contends that, while the immunity applies to claims that false
evidence has been given at trial, the effect of Darker is that it
does not extend to the procurement of false evidence, as alleged by this
Claimant. Mr Allen submits that the distinction she seeks to draw between
procuring and giving false evidence is entirely artificial; that in any event Marrinan
makes it clear that no action will lie in respect of evidence procured; that
the Claimant’s ‘final straw’ allegation falls well within the current
parameters of the rule; and that her reliance on Darker is
misconceived.
105. The facts
of Darker were that a police undercover operation led to serious criminal
charges against the plaintiffs. During their trial on indictment the judge
ruled that there had been serious failings in relation to pre-trial disclosure,
for which the police were at fault. The charges were permanently stayed on the
ground of abuse of process. The plaintiffs subsequently brought civil
proceedings against the Chief Constable claiming damages for conspiracy to
injure and misfeasance in public office, alleging amongst other things that
police officers had fabricated evidence against them during the investigation.
The statement of claim was struck out on the basis that the allegations were
covered by absolute immunity.
106. The Court
of Appeal dismissed the plaintiffs’ appeal, but the House of Lords allowed it.
They did so on the basis that, while the immunity given to a party or witness
in respect of what he said or did in court extended to statements made for the
purpose of court proceedings, and to prevent him being sued for conspiracy to
give false evidence, it did not extend to police conduct during the earlier
investigative process. Such conduct, involving for example the deliberate
planting of incriminating material, could not be said to form part of their
participation in the judicial process as witnesses, and the immunity did not
extend to cover the fabrication of false evidence during the investigation.
Public policy required in principle that those who had suffered a wrong should
have a right to a remedy. Accordingly the case should proceed to trial.
107. Ms
Williams’ submission is therefore that the immunity does not extend to the
fabrication of false evidence by the Respondents, as alleged in this case. If
the Claimant’s allegations are correct, there has been serious misconduct by
senior employees of the Respondents in furtherance of the campaign of racial
discrimination and harassment of which the Claimant complains.
108. In support
of this submission Ms Williams relies in particular on those passages in the
speeches in Darker, and in other recent authorities, referring to
the countervailing public policy requirement that a remedy should be afforded
to those who are the victims of wrongdoing. At 456H of Darker
Lord Clyde said this:
“It is temptingly easy to talk of the application of immunities
from civil liability in general terms. But since the immunity may cut across
the rights of others to a legal remedy and so runs counter to the policy that
no wrong should be without a remedy, it should only be allowed with reluctance,
and should not readily be extended. It should only be allowed where it is
necessary to do so. As McCarthy P observed in Rees v Sinclair [1974] 1
NZLR 180, 187:
‘The protection should not be given any wider application
than is absolutely necessary in the interests of the administration of justice
…’
Furthermore the idea of a universal
immunity attaching to a person in the performance of some particular function
requires to be entertained with some caution.”
Lord Cooke and Lord Hutton made similar observations (at 453E and
468H respectively).
109. Further,
Ms Williams points out that in Taylor Lord Hoffman had also
emphasised that any extension of the immunity must be justified by the strict
test of necessity. At 214D, after referring to Mann v O’Neill
(1997) 71 A.J.L.R.903, he said this:
“… 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.”
110. In Jones
v Kaney [2011] 2 AC 398 the Supreme Court, by a majority of 5-2,
overruled earlier decisions establishing that absolute immunity applied in
proceedings brought by the former claimant against an expert witness, in
respect of their evidence given in court, or views expressed in anticipation of
court proceedings. Referring to Lord Clyde’s remarks in Darker
Lord Phillips PSC said at 419E,
“It would not be right to start with a presumption that because
the immunity exists it should be maintained unless it is shown to be
unjustified. The onus lies fairly and squarely on the defendant to justify the
immunity behind which she seeks to shelter.”
111. Lord
Dyson, observing that the long-established immunity cannot survive if the
policy grounds on which it is based no longer justify it, said at 432H-433F:
“The mere fact that the immunity is long established is not a
sufficient reason for blessing it with eternal life. Circumstances
change as do attitudes to the policy reasons which underpin the immunity. The
common law develops in response to these changes. The history of the rise and
fall of the immunity of advocates provides a vivid illustration of the point.
As Lord Reid observed in Rondel v Worsley [1969] 1 AC 191, 227C, public policy is
not immutable and any rule of immunity requires to be considered in the light
of present day conditions.
113. The general rule that where there is a wrong there should be a
remedy is a cornerstone of any system of justice. To deny a remedy to the
victim of a wrong should always be regarded as exceptional. As has been
frequently stated, any justification must be necessary and requires strict and
cogent justification: see, for example, per Lord Hoffmann in Taylor v
Director of the Serious Fraud Office [1999] 2 AC 177, 214D; Darker v
Chief Constable of the West Midlands Police [2001] 1 AC 435, per Lord
Hope of Craighead at p 446D,
per Lord Clyde at p 456H and per Lord Hutton at
p 468F. If the position were otherwise, the law would be irrational and
unfair and public confidence in it would be undermined.
114. Furthermore, the justification for any exception to this general
rule should be kept under review. That is what happened in relation to the
immunity of barristers. Their immunity for all that they did was recognised by
the House of Lords in Rondel v Worsley. It was based on the
public policy grounds that the administration of justice required that a
barrister should be able to carry out his duty to the court fearlessly and
independently, and that actions for negligence against barristers would make
the retrying of the original actions inevitable and so prolong litigation
contrary to the public interest. In Saif Ali v Sydney Mitchell &
Co the
immunity was limited (again on grounds of public policy) to what barristers did
in court and to work that could fairly be said to affect the way that the case
would be conducted if it came to a hearing. Finally, the immunity was swept
away altogether in the Arthur Hall case, when it was decided that the public
policy grounds previously relied on were no longer sufficient to justify a
departure from the general rule that where there was a wrong there should be a
remedy.
115. It follows that the issue that arises on this appeal is whether
there is a compelling need to continue the immunity enjoyed by expert witnesses
from liability to their clients.”
112. Ms
Williams also draws attention to passages in Darker referring to
the limits of the immunity, which per Lord Hope “…is not to be used to shield
the police from action for things done while they are acting as law enforcers
or investigators.” He went on to say (at 448E),
“The rule of law requires that the police must act within the
law when they are enforcing the law or are investigating allegations of
criminal conduct. It also requires that those who complain that the police
have acted outside the law in the performance of those functions, as in cases
alleging unlawful arrest or trespass, should have access to a court for a
remedy.”
113. Lord Hope
drew a distinction between acts by police officers to procure false evidence,
such as planting a drug or fabricating a record of interview, and the evidence
that may be given about the act or its consequences. At 449B he explained the
distinction in the following terms:
“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 the 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.”
114. Lord Clyde
expressed it in this way, at 460B-E and 461C,
“But that is not to say that everything said or done by anyone
in the investigation or preparation for a judicial process is covered by the
immunity. In drawing the line in any particular case it may be necessary to
study precisely what was being done and how closely it was linked with the
proceedings in court. 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 protection is granted to a witness in the interest of
establishing the truth and to secure that justice may be done. But the witness
is not immune from a charge of perjury and that possibility remains as a
deterrent against an abuse of his position. Immunity from that would not serve
the interests of justice in the case. So also before matters have reached the
stage of trial the immunity should not be available to give protection for
matter which is designed to defeat the ends of justice rather than to serve
them.
…
What is alleged here is not the telling of lies about facts
which had occurred but a deliberate fabrication of facts which had not
occurred. What is under attack is not the investigation of possible realities
but the preparation of a fiction. In so far as the immunity granted to a
witness relates to the substance of the evidence which he or she gives or is to
give, the matters of which the plaintiffs complain will almost certainly not be
the intended substance of the evidence of those who were engaged in the
conspiracy. It cannot be that everything which is said or done in the
preparation for judicial proceedings is necessarily immune. Where evidence is
fabricated or statements concocted, protection from attack should not be gained
by a subsequent presentation of false testimony in court.”
115. We have
set out these passages at length because Ms Williams relies upon them, amongst
others, in submitting that the distinction identified by Lord Hope is directly
relevant to the present case. She argues that, on a correct analysis, the
Claimant’s allegations of constructive dismissal are constituted by the
improper conduct of her employers that generated the witness statement. If her
allegations are true, then just as the police officers in Darker would
seek to conceal their misconduct rather than given evidence about it, those
senior employees who put pressure on Ms Heath to give a false account would
seek to conceal, rather than testify as to their misconduct. Such misconduct,
she submits, falls outside the parameters of absolute immunity and an extension
to the rule cannot be justified in such circumstances.
116. More
generally, she argues that, since the arrival of the Human Rights Act 1998,
recent cases demonstrate that the trend has been to review and limit previously
established immunities rather than to extend them. In addition to the
authorities we have referred to above she cites, as a further example of this
trend, the decision of the House of Lords in Arthur JS Hall v Simons
[2002] 1 AC 615, overturning the previous line of authorities concerning the
immunity of barristers in respect of actions in negligence for work intimately
connected with litigation.
117. We have
considered these submissions and the authorities carefully, but in our judgment
the speeches in Darker and the passages in the other cases relied
upon by Ms Williams do not assist the Claimant’s arguments in the present
appeal.
118. The
relevant allegation in Darker was that police officers had
fabricated primary evidence against the plaintiffs at the stage when their
crimes were being investigated. The fact that those officers subsequently gave
evidence at trial did not operate retrospectively to immunise their earlier
misconduct.
119. Lord Clyde
emphasised that it is the function to which the immunity attaches, and the fact
that police may mount prosecutions should not obscure the critical
consideration of the function which is being performed. An absolute immunity
is however appropriate to the conduct of prosecutors which is intimately
associated with the judicial phase of the criminal process. He cited with
approval (at 459D) the helpful distinction drawn in the American jurisprudence
between matters of advocacy and matters of detection. Per Justice Stevens in Buckley
v Fitzsimmons 113 SCt 2606,
“There is a difference between the advocate’s role in evaluating
evidence and interviewing witnesses as he prepares for trial, on the one hand,
and the detective’s role in searching for the clues and corroboration that
might give him probable cause to recommend that a suspect be arrested, on the
other hand.”
120. The facts
of Roy v Prior [1971] AC 470 provide a further
example of the distinction being drawn. The Defendant, a solicitor acting for
a client on trial for larceny, applied ex parte for a bench warrant, to compel
the Plaintiff, a doctor, to give evidence at the trial. He gave evidence in
support of that application, which the Plaintiff had no opportunity to
challenge, and the Plaintiff was duly arrested and compelled to give evidence.
121. The
Plaintiff brought proceedings against the solicitor, which included an
allegation of malicious arrest. On the Plaintiff’s appeal from the decision of
the Court of Appeal to strike out the claim, the House of Lords held that the
action should not be dismissed as disclosing no cause of action. Although the
immunity rule meant that no action lay against a witness for words spoken in
giving evidence, an action in respect of an alleged abuse of the process of the
court was not to be defeated, even though one step in the abuse involved the
giving of evidence. The essence of the claim was that process was instituted,
as a result of which the court was induced to order the Plaintiff’s arrest.
The solicitor’s wrongdoing was not the evidence he gave in court, which was
merely a step taken to bring about the alleged abuse, but the actual abuse of
the court’s process in unlawfully and maliciously securing the plaintiff’s
arrest.
122. In Darker
Lord Mackay of Clashfern, referring to the nature of the Claimants’ allegations,
stated at 451B,
“In my view there are materials in these allegations which do
not depend as a cause of action on alleged statements relating to the
preparation of evidence for proceedings and go beyond matters of freedom of
speech either at, or in the course of preparation for, a criminal trial. It
follows that in my opinion the immunity claimed cannot apply to these
allegations…”
123. This
passage, in our judgment, demonstrates succinctly why it is that the Claimant’s
reliance upon Darker cannot assist her. The alleged misconduct
of the police officers in that case related to the way in which they carried
out their functions as investigators of crime, not as participators in the
judicial process. Their alleged creation of false primary evidence, upon which
witness evidence may subsequently have been based, was not part of their
participation in the justice process. The overt act from which the damage
flowed was not the witness evidence but the false primary evidence which they
had improperly created. The immunity rule was therefore not engaged.
124. In
contrast, in the present case, the Claimant’s constructive dismissal claims
depend entirely on the alleged discussions between the Respondents and Sue
Heath, as their witness, about her evidence for trial and upon the allegedly
false evidence contained in her witness statement. In contrast with the case
of Roy, the essence of the Respondents’ alleged wrongdoing in the
present case relates directly to their function as parties to litigation
preparing evidence for trial. The allegation is that they improperly procured
false witness evidence, not that they coerced Ms Heath into producing false
primary evidence. There is no suggestion that they were involved in any
investigative or other activity, separate from their preparation of witness
testimony for the hearing, when the alleged impropriety occurred.
125. That, in
our view, is the material difference. In our judgment Darker and
the other authorities relied upon by the Claimant do not affect the established
position that judicial proceedings immunity attaches to a party’s preparation
for trial, whether or not it is actuated by malice or amounts to impropriety.
An allegation that a party procured false evidence by improper means is
therefore within the current scope of the immunity.
126. The
observations in the case law upon which Ms Williams relies must be read in the
context in which they were made. We see nothing in Darker, or in
the other authorities relied on, to cast doubt on what remains a clear and long-standing
principle of public policy, protecting parties and others from having to defend
themselves against allegations of the kind made by the Claimant in this case.
127. In Jones v
Kaney the Supreme Court were
focussing on the immunity as it applies to expert witnesses, on the particular
duties that such witnesses owe to the court and the availability of protection
against actions brought against them, for example by way of professional
indemnity insurance. The issue to be determined was that identified by Lord
Dyson at paragraph 115, namely
whether there is a compelling need to continue the immunity enjoyed by expert
witnesses from liability to their clients.
128. We agree
with Supperstone J in Baxendale-Walker that this decision does
not touch on the immunity of a witness or a party to proceedings in respect of
things said or done in the ordinary course of proceedings. Nor does the
decision affect the law on judicial immunity.
129. We also
considered L (A Child) v Reading Borough Council [2001] 1 WLR 1575 CA, to which Ms Williams referred us, but in our view it does not assist
her. While, on the particular facts, the Court of Appeal considered it
arguable that the immunity did not apply, the particular allegations related to
the conduct of the police as investigators, rather than as witnesses or
parties. The case therefore goes no further than Darker.
130. Nor does Autofocus
Ltd v Accident Exchange Ltd [2010] EWCA Civ 788 take the Claimant’s
case any further. The Court of Appeal considered it arguable that the immunity
did not apply to the preparation of material contained in spreadsheets
exhibited to witness statements prepared by rates surveyors, which the Claimant
alleged were fraudulently prepared. However, the principal objective of the
alleged fraud in that case was to secure a business advantage and not to
present false evidence in court. The Court noted the distinction in Darker
between the fabrication of evidence at the investigative stage and
fabrication of evidence for trial. The question whether the immunity applied
on the facts was left to be determined at trial. In any event, it does not
appear to have been argued by anyone in that case that a party is not protected
by the immunity in respect of evidence procured for trial. None of these cases
seems to us to advance the Claimant’s submissions in this appeal.
131. We wish to
add these general observations. Like the Employment Tribunal, we too are
cognizant of the potential hardship that application of the immunity may cause
in some cases. Ms Williams submits that, for the purposes of argument on this
issue, given that the relevant parts of the claim were struck out, we should
assume that the Claimant’s allegations are true. She therefore draws attention
to the hardship which would be caused in this case if the Tribunal’s ruling
stands. She submits that it would be wholly unacceptable if employers could
suborn witnesses in this way, and yet not be answerable for such a serious
breach of the implied term of trust and confidence.
132. We accept
that, in considering the arguments, we should take the Claimant’s case at its
highest. However, there are other, relevant considerations in this case. It
is, first, an interesting but by no means straightforward argument that, by
defending themselves against allegations of discrimination and serving a
witness statement which the Claimant believes to contain lies, the Respondents
have acted in repudiatory breach of the Claimant’s contract of employment. We
heard no argument on the point and say no more about it here, but the extent of
an employer’s duty to defend litigation brought by an employee in such a way as
not to breach the implied term of trust and confidence in the contract of
employment raises some interesting legal issues.
133. Secondly,
Ms Williams’ submission as to the hardship that would result in this case
effectively amounts to an argument that the Claimant is entitled to a remedy
for the wrong she has in fact suffered. It is, thus, an argument advanced from
a conclusion. The immunity should also be considered from the point of view
that, notwithstanding her strong belief to the contrary, the Claimant has not
in fact suffered any such wrong.
134. In order
to set the context for her submissions on appeal and explain the reasons for
the Claimant’s belief, Ms Williams took us to some passages in the transcript
of Ms Nathoo’s lengthy interview with Sue Heath and some paragraphs of Ms
Heath’s witness statement, served by the Respondents. She did this in order to
demonstrate what she submitted were clear inconsistencies and contrary
statements in the two documents, such as to provide support for the Claimant’s
allegations.
135. Having
read both documents with some care, however, we consider that read as a whole,
the contrasts are not as stark as suggested. The considerable experience of
all the members of this EAT teaches that cases involving allegations of
discrimination, where working relationships, behavioural styles, attitudes and
perceptions are under the microscope, not infrequently involve allegations on
both sides that witness statements contain lies, or that witnesses have
conspired together to re-write each side’s view of history.
136. An
important element of the rationale for witness immunity is to ensure that
witnesses are able to give their evidence freely and fearlessly, without being
deterred by the threat of subsequent litigation concerning their evidence. The
immunity exists to protect truthful witnesses, not those who give false
evidence.
137. The
central dispute between the parties in this case concerns the reasons for the
breakdown in the working relationships that the Claimant had with parents,
staff and governors at the school. It will inevitably involve a close
examination, amongst other things, of her style of leadership and her
management and communication skills, through the evidence given by those who
worked with her, as well as by the Claimant herself.
138. Such
cases, as Mr Allen rightly observed, call for a high degree of insight by the
Tribunal. The witnesses called must be able to express themselves frankly,
without fear of subsequent litigation as to the evidence they give, or the
circumstances in which their witness statements were made. For the same reasons,
both parties must be able to adduce witness evidence without fear that they may
have to defend themselves against a subsequent challenge to the circumstances
in which that evidence was adduced.
139. While Ms
Williams understandably draws attention to the hardship which will be caused in
this case, if the Claimant’s allegations are correct and the Tribunal’s
judgment is upheld, Mr Allen draws attention in turn to the deeply unattractive
consequences, if the Claimant’s allegations are unfounded, of the Respondents
being subjected to further litigation as a result of witness evidence they have
adduced in defending the claim, and to exposure of the circumstances in which
that evidence was prepared.
140. For all
these reasons, we conclude that the submissions of Mr Allen as to the scope of
the immunity, and the protection it affords to parties to litigation as well as
to witnesses, are correct. In our judgment the Employment Tribunal’s analysis
as to the extent and application of the immunity was not in error and their
conclusion was correct.
141. We
therefore turn, finally, to address the individual grounds of appeal advanced
at paragraphs 18.1 – 18.10 of the Claimant’s Notice. For the reasons we have
already given, and which we expand upon as necessary below, the Claimant’s
grounds of appeal must fail.
142. The first
ground, that the Employment Tribunal erroneously distinguished Darker
and held that the immunity applied to the Respondents’ alleged conduct in
pressurising a witness to make a false statement, we reject for the reasons we
have given above, in our analysis of the immunity and its scope.
143. The
Tribunal’s conclusions, at paragraphs 58 and 68 of their reasons, are in our
view consistent with long-standing authority, in particular Marrinan,
and are entirely correct. The rule as to judicial proceedings immunity cannot
be circumvented by an attempt to complain of antecedent impropriety by the
Respondents, as parties to this litigation, committed in order to cause false
evidence to be given at the hearing.
144. The
contention in ground 2 that the Tribunal erred, at paragraph 65 of their
reasons, because no authority establishes that immunity “extends to the
improper conduct of third parties” in applying pressure to a witness to give a
false account, is similarly misconceived.
145. The
Tribunal’s reasoning at paragraphs 60, 62 and 65 seems to us to be correct.
The Claimant’s description of the rule as one of “witness immunity” ignores the
established application of the immunity to parties to litigation. The
Respondents are not “third parties”, but are participating in the judicial
process, as Respondents to the claims brought against them, by preparing and
serving statements from the witnesses they propose to call at the hearing. The
Claimant may not bring an action against them in respect of the evidence they
have procured, or the discussions they have had with their witnesses in
preparing for that hearing.
146. In ground
3 it is contended that it is perfectly normal and proper in civil
litigation for a witness to be cross-examined as to pressure put upon her to
change her account; that the immunity rule is not infringed by an investigation
into the circumstances in which that witness’ evidence came to be given; and
that the Tribunal were in error in ruling, at paragraph 74, that no such
questions could be asked.
147. However,
whether such cross-examination is normal, which the Respondents dispute, is not
to the point. It is normal that witnesses are cross-examined as to the
truthfulness of their evidence. However, any attempt to bring a claim on the
basis of the preparation of a witness statement for trial, or to question a
witness as to discussions concerning the preparation of that statement will be
prohibited by judicial proceedings immunity.
148. There are,
as we observed earlier in this judgment, no particulars and no positive case
pleaded by the Claimant as to the alleged subornation of Ms Heath; and she does
not identify the alleged wrongdoers. Any attempt to put a generalised
allegation of wrongdoing to the Respondents’ witnesses, going purely to credit,
would not fall within the normal parameters of legitimate cross-examination.
In our view the Tribunal were correct to rule at paragraph 74 that there could
be no cross-examination of Ms Heath as to the circumstances in which her
statement was prepared.
149. In ground
4 the Claimant seeks to distinguish her case from that of Parmar
in the EAT, and criticises as erroneous the Tribunal’s rejection of her
submission (see paragraphs 59-60) that her claims are not subsequent claims
based on witness evidence within earlier proceedings. In our view, however,
the Tribunal’s reasoning is entirely correct. For the reasons we have given
earlier, application of the immunity does not depend on whether the Claimant is
able, by way of amendment, to combine the two claims. The Tribunal were right
to conclude that these were new claims reliant, in part, on events that
post-dated the factual matrix relied on in the existing proceedings.
150. Ground
5, alleging that the Tribunal erred in holding (at paragraphs 56-58 and
61-62) that Ms Heath’s witness statement was the “trigger” for the claims they
struck out, must fail. The Tribunal’s conclusion was entirely consistent with
the case law; and we reject the submission that “actions taken to procure false
evidence fall outside of the immunity” for the reasons we have already set out
above.
151. Ground
6, alleging that the Tribunal erred (paragraph 65) in holding that this
case was analogous to that of Dathi, also fails. We do not
understand the Tribunal to be drawing a precise analogy between this case and Dathi,
which we accept was not dealing with “witness immunity”. In paragraph 65 the
Tribunal are addressing the course of conduct being relied on by the Claimant
and explaining why the Claimant cannot rely upon a witness statement obtained
in the course of proceedings. Their reasoning is not in error for the reasons
we have already explained.
152. We have
already addressed the contention, in ground 7, that the immunity
represents a derogation from the Claimant’s normal right of access to a court;
that it should only be applied when strictly necessary; and that the Tribunal
failed to identify any compelling rationale for applying it. For the reasons
given we find that the Tribunal were correct in deciding that the Claimant’s
allegations were within the current parameters of judicial proceedings
immunity. It was therefore unnecessary for them to identify any necessity for
extending the rule.
153. While
acknowledging that application of the rule may well produce harsh results in
some circumstances, the Tribunal recognised that this may be the price to be
paid for a long established rule of public policy and, further, that as the
case law makes clear, a party will not necessarily be protected from all
adverse consequences of their misconduct. In this they were entirely correct.
154. In ground
8 the Claimant contends that the Tribunal erred in reasoning (at paragraph
71) that the apparent harshness of the rule could be offset by the potential
for an increased award for injury to feelings, an award of aggravated damages
or an order for costs. Ms Williams submits that in this case, since the
Tribunal struck out the relevant paragraphs of the amended claim and ruled
against any questioning of the Respondents’ witnesses concerning the
preparation of Ms Heath’s statement, the Claimant is simply unable to ventilate
these allegations at all. There is therefore no prospect of this misconduct
being reflected in either an award of aggravated damages or costs.
155. We do not
accept this submission. The Tribunal found that no proper evidential basis had
been identified by the Claimant so as to permit cross-examination of any
witness as to pressure having been put upon Ms Heath at any stage, and there is
in our view no error in their reasoning on this issue.
156. In ground
9 the Claimant criticises the Tribunal’s decision to strike out paragraphs
21 and 22 of the Re-Amended Claim. Even on the Tribunal’s interpretation of
the law, it is submitted that these paragraphs do not relate to Ms Heath’s
witness statement but to a separate allegation, not caught by the immunity
rule, that she was put under pressure not to act as a witness for the Claimant
and to have no contact with her.
157. In ground
10 it is said further that the Tribunal erred in failing to allow the
parties’ representatives an opportunity to consider the Tribunal’s Extended
Reasons and then to make submissions upon their effect, before deciding which
aspects of the Re-Amended Claim should be struck out.
158. In
relation to ground 9, we consider that the Tribunal were entitled to strike out
these paragraphs, given their conclusions as to the application of the
immunity. The allegation made in those paragraphs, that Ms Heath was put under
pressure not to act as a witness for the Claimant, is not separate from the
allegation of undue influence. The Claimant makes no separate complaint to
that effect, and was not granted permission to amend her claim to make such a
complaint.
159. It is
important to recall how these paragraphs came about. Paragraphs 9 to 23 of the
Re-Amended Claim were pleaded as a result of the Tribunal’s order of 23 August
2012, that the Claimant set out fully the facts and matters relied upon in
coming to the conclusion that it was the Respondents’ conduct that placed undue
pressure on Sue Heath to produce a false or otherwise inaccurate statement.
The Claimant therefore supplied these particulars in support of that complaint
and in our view the Tribunal were entitled to strike the paragraphs out for the
reasons they gave.
160. As to
ground 10, after their oral judgment the Tribunal informed the parties as to
those paragraphs of the Re-Amended Claim they were proposing to strike out.
The parties were given an opportunity to make submissions on that proposal and,
as we understand it, the Claimant’s counsel made a number of submissions at
that stage and then reserved her position generally. It is not usual practice,
as Mr Allen submits, for Tribunals to allow parties to comment further on
receipt of the Extended Reasons for a judgment and prior to their
promulgation. The Claimant did not apply for a review of the Extended Reasons
upon receiving them. In our view the Tribunal did not err in proceeding to
strike the relevant paragraphs out in the circumstances.
161. For all
these reasons therefore the Claimant’s appeal must be dismissed.
162. So far as
the Claimant’s other appeal (Appeal Number 1762/12) is concerned, it was agreed
at the conclusion of the hearing before us on the main appeal that, following
judgment, we should do no more than invite submissions from both sides as to
the appropriate directions to be given in respect of that appeal, which is
against the Tribunal’s decision that the constructive dismissal claims should
be stayed. We therefore direct that submissions from both sides should be
filed with the EAT within 28 days of the date on which this judgment is handed
down.
