Mr D Rogerson v Erhard-Jensen Ontological/Phenomenological Initiative Ltd and W Erhard: 2305524/2021
EMPLOYMENT TRIBUNALS
Case No 2305524/2021
Between
Mr Daniel RogersonClaimantErhard – Jensen Ontological / Phenomenological Initiative Limited (1) Werner Erhard (2) RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge SekhonIn person for claimantMr Edward Kemp (instructed by Counsel) for respondentDate 26 October 2023
JUDGMENT
[1]The Claimant’s complaints against the second respondent are dismissed as the Tribunal has no jurisdiction to hear them.[2]Allegations 16(e),16(f) and 22 are struck out from the Particulars of Claim as they refer to evidence that is inadmissible and cannot be relied on in the Employment Tribunal.
REASONS
[1]The matter was listed before me as a public preliminary hearing to consider further to the respondents’ application dated 19 January 2023 whether to strike out parts of the claimant’s claims. The respondents clarified at the outset of the hearing that having received the claimant’s skeleton argument that they were now pursing only two points at the hearing: -(a) That the claimant’s claims against the second respondent, namely paragraphs 16 (a) and 16(b) of the Particulars of Claim should be struck out on the basis that the allegations had no reasonable prospect of success as they were out of time given that they are alleged to have occurred in March and July 2020, they do not form part of a series of similar acts with paragraph 16 (g) which is alleged to have been carried out by the first respondent, and it was reasonably practicable for the claimant to submit these claims in time. (“Issue 1") PHCM Order (NEW August 2020) 1 of 7 August 2020 (b) Paragraphs 16 (e), 16 (f) and 22 of the Particulars of Claim should be struck out as the paragraphs refer to inadmissible material on which the claimant cannot rely. (“Issue 2”)[2]The respondents’ application of 19 January 2023 set out in the alternative to strike out that that the Tribunal should consider whether to order the claimant to pay a deposit as a condition of proceeding with the allegation/s on the basis that they had little reasonable prospective success pursuant to Rule 39 of the Employment Tribunal Rules. However Mr Kemp did not seek this from the Tribunal and made no representations about this at the hearing.
Background
[3]The claimant brings claims against both respondents by way of a claim form dated 15 November 2021 for suffering post-employment detriment after making protected disclosures under section 47B of the Employment Rights Act 1996.[4]Early conciliation commenced on 14 October 2021. ACAS issued the claimant with an ACAS certificate on 15 October 2021[5]An ET3 was filed on with the Tribunal on 6 January 2022, denying the allegations and stating that several claims are out of time. A case management hearing took place on 26 January 2023 before Employment Judge Martin and a List of Issues has been prepared by the parties and was provided to me part way through the hearing at my request. A final merits hearing has been listed to take place on 3 July 2023 for 5 days.
The Hearing
[6]The respondent provided a bundle totalling 70 pages in advance of the hearing which had not been agreed by the claimant together with a skeleton argument, legal authorities, and witness statements from Barbara Stevenson (who resides in California, USA) and Fong Zhiwei Daryl (of Shook Lin & Bok LLP in Singapore). The claimant did not serve a witness statement but provided a skeleton argument prior to the hearing. He also stated that he wished to rely on a transcript of the first and second day of an arbitration hearing that the first respondent brought against him in Singapore.[7]The respondent confirmed that they had written to the Tribunal on 3 March, 17 March, 24 March and 5 April 2023 in line with the Presidential Guidance on the Taking of Evidence by Video or Telephone from Persons Located Abroad but they had not received a response from the Tribunal confirming that their witnesses could give evidence from abroad.[8]The respondent’s clarified that for the purposes of today’s hearing that they only wished Ms Barbara Stevenson to provide evidence as set out in paragraph 29 of her witness statement that in her role as General Counsel for the respondents in the Dr Grisley Proceedings that they have not consented to waiving privilege in respect of without prejudice communications. The claimant accepted that this was correct and that he did not have any questions for Ms Stevenson on this point. I therefore decided that no witness evidence was required at the hearing and that any issues relating to Ms Stevenson giving evidence from abroad were not relevant for the current hearing.[9]The claimant confirmed that on the basis that the respondent did not intend to proceed with all the issues they had raised in their application dated 19 January 2023 that the arbitration documents were no longer relevant for the current hearing but that they would be relevant PHCM Order (NEW August 2020) 2 of 7 August 2020 for the final hearing. Due to the short timescale until the final hearing, I listed a closed preliminary hearing to hear the claimant’s application on 9 June 2023 and provided directions in advance of this hearing in a separate order.[10]The claimant and the Tribunal did not receive the legal authority of Sheeran -v- Chokri sent by the respondent until shortly before the hearing commenced. After Mr Kemp had made his submissions explaining the relevance of the case and the relevant paragraphs on which the respondents intended to rely, I provided the claimant with time to review the Sheeran Case and respond on the points raised.[11]The claimant attended without representation and Mr Kemp, Counsel, attended upon behalf of the respondents.
The Law
[12]The legislation is as follows: Strike Out 37(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success.(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious.(c) for non-compliance with any of these Rules or with an order of the Tribunal.(d) that it has not been actively pursued.(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[13]Rule 37 enables a Tribunal to strike out a claim that has "no reasonable prospect of success". This power has rightly been described as a draconian one, and case law cautions Employment Tribunals against striking out a claim in all but the clearest cases, particularly where that claim involves or might involve allegations of discrimination and cases in which a strike out can properly succeed before the full facts have been found are rare. (Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108, EAT and Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL)[14]Tribunals should be slow to strike out a claim brought by a litigant in person on the basis that it has no reasonable prospect of success. In Mbuisa v Cygnet Healthcare Ltd EAT 0119/18 the EAT commented that strike-out is a “draconian step that should be taken only in exceptional cases”. The EAT said in that case that particular caution should be exercised if a case is badly pleaded by a litigant in person, especially one whose first language is not PHCM Order (NEW August 2020) 3 of 7 August 2020 English, or who does not come from a background such that they are familiar with articulating complex arguments in written form.[15]In Ezsias v North Glamorgan NHS Trust 2007 ICR 1126, CA, the Court of Appeal held that the same or a similar approach should be taken in protected disclosure cases, which have much in common with discrimination cases, and stressed that it will only be in an exceptional case that an application will be struck out as having no reasonable prospect of success when the central facts are in dispute.[16]When determining whether a discrimination or whistleblowing claim has no reasonable prospect of success, the Tribunal must take the claimant’s case “at its highest” (Silape v Cambridge University Hospitals NHS Foundation Trust EAT 0285/16).[17]When dealing with strike out applications involving litigants in person, the onus is on the judge to consider the pleadings and other core documents that explain the case. The Tribunal must take reasonable steps to identify the claims and issues; it is not possible to decide whether a claim has reasonable prospects of success if the Tribunal does not know what the claim is (Cox v Adecco and others EAT/0339/19).[18]Mr Kemp referred the Tribunal to the case of HHJ Kalyany Kaul KC v Ministry of Justice and others [2023] EAT 41 per Swift J at [22] [AB/99]) to support that the need for caution when considering a strike-out application does not prohibit realistic assessment where the circumstances of the case permit and Ahir v. British Airways Plc [2017] EWCA Civ 1392, CA, which I have considered.[19]The Court of Appeal’s decision in Aziz v FDA [2010] EWCA Civ 304 dealt with the procedural point of how the Employment Tribunal should approach the question of whether there is a continuing act at a preliminary hearing. The Court approved the approach laid down in Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548 that the test to be applied at the pre-hearing was whether the claimant had established a prima facie case, or, to put it another way, ‘the claimant must have a reasonably arguable basis for the contention that the various complaints are so linked as to be continuing acts or to constitute an ongoing state of affairs’.[20]It is well established that ignorance or mistaken belief as to rights or time limit will not render it “not reasonably practicable” to bring a claim in time unless that ignorance or mistaken belief is itself reasonable. It will not be reasonable if it arises from the fault of the employee in not making inquiries that he or she should have made, or from the fault of the employee’s solicitors or other professional advisers in not giving all the information which they reasonably should have done (Wall’s Meat Co Ltd v Khan 1979 ICR 52).[21]Mr Kemp referred me to paragraphs 30, 31 and 32 of Sheeran -v- Chokri [2022] EWHC 187 (Ch) which sets out the principles relating to without prejudice material in the judgment of Newey J in EMW Law LLP v Halborg [2017] EWHC 1014 (Ch). I have considered this when making my decision set out below. I note paragraph 32 states, “It is worthy of note that the policy to which I referred at point (2) above would prima facie be just as much at risk of being frustrated if without prejudice material could be relied upon by a third party in different legal proceedings, as it would if one of the parties to the negotiations were able so to rely upon it.” Discussion PHCM Order (NEW August 2020) 4 of 7 August 2020 Issue 2
Discussion
[22]Paragraphs 16 (e) and 16 (f) of the Particulars of claim (page 25 of the bundle) refers to the contents of without prejudice letters that Dr Grisley received on 25 June 2021 from the law firm representing the respondents in that case and to a without prejudice letter from Mr Giles to Dr Grisley on 16 July 2021. The claimant was acting as Dr Grisley’s representative in her Employment Tribunal case. I find that the claimant had sight of these letters as a result of his position as Dr Grisley’s representative. I have not had sight of these letters but the claimant states that the without prejudice letters set out that settlement with Dr Grisley was conditional upon the claimant agreeing “to confidentiality and non-disparagement provisions”.[23]Paragraph 22 of the of the Particulars of claim (page 27 of the bundle) sets out that, “It is upsetting to the Claimant that the Second Respondent has threatened Dr Grisley and put enormous pressure on her as a way to retaliate against the Claimant. It was stressful for the Claimant to believe that Dr Grisley may not get the settlement she deserves without the Claimant signing an agreement with the Second Respondent (who is not a party to Dr Grisley’s employment claim) which agreement would attempt to prevent the Claimant from speaking out about the Second Respondent’s criminal and unethical acts. It felt to the Claimant like he was having to choose between helping a friend or allowing these acts to continue.”[24]I find that paragraph 22 is referring to the without prejudice letters dated 25 June 2021 and 16 July 2021 referred to by the claimant at paragraphs 16 (e) and 16 (f) of the Particulars of Claim.[25]The claimant conceded that the respondents in Dr Grisley’s case had not waived privilege for the without prejudice letters dated 25 June 2021 and 16 July 2021 (as set out in paragraph 29 of Ms Barbara Stevenson’s statement). I find that therefore that this correspondence remains without prejudice as privilege cannot be waived unilaterally and requires the consent of both parties, which is lacking here.[26]Mr Kemp submitted that the respondent relies on the principles set out by Newey J at paragraphs 30,31 and 32 of the Sheeran -v- Chokri case. The claimant, having considered the case, submitted that the respondents in Dr Grisley’s case were not genuinely trying to settle the case by suggesting settlement had to include confidentiality and nondisparagement provisions by the claimant. The real tactics behind the offers in the without prejudice correspondence was to essentially “silence the claimant”.[27]The claimant referred to what he had stated at paragraph 22 of the Particulars of Claim (set out above) and that as result there was a “special reason” in this case not to follow the without prejudice rule as referred to by Robert Walker LJ in the Unilever case and set out in paragraph 30, subsection 36 of the Sheeran case. The claimant also submitted that this case involves different subject matter to Dr Grisley’s case which involved a breach of contract whereas this case relates to whistleblowing.[28]Having considered all the evidence before me and having considered the legal principles set out in Sheeran -v- Chokri, I find that paragraph 16 (e), 16 (f) and 22 refer to without prejudice letters which are inadmissible and therefore cannot be used as evidence for the purposes of these Employment Tribunal proceedings.[29]I am not persuaded by the claimant’s submissions. I do not find that this case falls within one of the established exceptions of the without prejudice rule or that it is just and equitable PHCM Order (NEW August 2020) 5 of 7 August 2020 to create a further exception or there is a special reason as the claimant submits to circumvent the without prejudice rule. I am persuaded by paragraph 32 of the judgment in Sheeran -v- Chokri (set out above) and find this to be relevant to this case. The fact that this case relates to different subject matter to Dr Grisley’s case is therefore not relevant.[30]I find to allow the without prejudice letters on 25 June 2021 and 6 July 2021 in evidence in this case would be wholly inconsistent with the rationale for the without prejudice rule which is to encourage litigants to settle rather than litigate and that the policy would be negated if statements made in the course of settlement negotiations could later be relied upon in any legal proceedings.[31]Accordingly paragraphs 16 (e), 16 (f), and 22 are struck out and cannot be referred to in the Particulars of Claim as they rely on evidence that is inadmissible. Issue 1[32]It is not in dispute that the claimant’s allegations that any allegations of detriment prior to 15 July 2021 are prima facie out of time since the claimant sought early conciliation on 14 October 2021.[33]The claimant also accepted that allegation 16 (g) which related to a detriment he suffered on 21 July 2021 related solely to the first respondent and not the second respondent. The respondent accepts that this allegation has been bought in time and therefore that it is possible that any other allegations against the first respondent could have been bought in time as the Tribunal could find that there were continuing acts up until 21 July 2021. The respondent therefore does not seek to strike out claims against the first respondent at the preliminary hearing.[34]However it is the respondents’ case that the case against the second respondent is clearly out of time. The respondent relies on allegations against the second respondent of 16(a) which allegedly took place in or around March 2020 and on allegation 16(b) which allegedly took place in July 2020 as both being significantly out of time by 12-15 months. This is not in dispute.[35]However upon discussion with the claimant, he informed me that allegations 16 (c) and 16 (d) (pages 24 and 25 of the bundle) also relate to the second respondent. The respondents’ disputes this is correct. The claimant submitted that allegation 16 (c) specifically refers that it could have been the first or the second respondent who disclosed details of his personal circumstances and allegation 16 (d) refers to the second respondent lying to Landmark Worldwide about his behaviour.[36]This is a fact sensitive issue. Without hearing all the evidence, and as I must take the claimant’s case at its highest, I accept this may be the case. Allegation 16 (c) relates to events on 14 July 2020 and has been bought approximately 12 months out of time. Allegation 16 (d) relates to events on 14 January 2021 and approximately 6 months out of time.[37]As set out above, I have struck out allegations 16 (e) and 16 (f) and they are no longer relevant to this discussion. Therefore even if the conduct by the second respondent was an ongoing state of affairs, the last allegation relating to the second respondent’s conduct is on 14 January 2021 and is still 6 months out of time.[38]The question is therefore whether it was reasonably practicable for the claimant to bring his claim in time. The respondent states that the claimant’s skeleton arguments did not explain PHCM Order (NEW August 2020) 6 of 7 August 2020 the reasons for his delay and that whilst the claimant is a litigant in person, he represented Dr Grisley in her Employment Tribunal proceedings, and he cannot claim that he did not understand the legal position.[39]The claimant submitted that the reason he did not bring his claims earlier was because he did not know that he could bring a claim for whistleblowing in the UK. The claimant explained that when the first respondent bought arbitration proceedings against him, he sought advice and support from a whistleblowing charity who told him about his rights. The Particulars of Claim set out at paragraph 34 (d) that, “It was not until June 2021 that the Claimant got confirmation that the First and Second Respondents could be considered his employers under UK law (after decisions made in the case of the Claimant’s former colleague Dr Grisley, case no. 2305699/2019, where the claimant in that case, Dr Grisley, was considered an employee under a similar contract to the Claimant’s). It was at this point that the Claimant understood he may have a viable Employment Tribunal claim.”[40]It is well established that ignorance or mistaken belief as to rights or time limit will not render it “not reasonably practicable” to bring a claim in time unless that ignorance or mistaken belief is itself reasonable. Here however, the claimant has provided the Tribunal with no explanation why if he was aware of his legal position in June 2021, he did not commence early conciliation with ACAS until 14 October 2021, some 4 months later and what the reasons for his delay were. I note that the Particulars of claim state at paragraph 16 (g) that, “After leaving his job the Claimant was still ill and it took him until the spring of 2021 to have his condition effectively managed.”[41]The claimant was therefore well enough to pursue his claim in June 2021 and had been well enough to represent Dr Grisley in her Employment Tribunal proceedings in 2021. I therefore find that the claimant has provided no reasons why he did not bring his claims against the second respondent in time and there is no evidence before me to satisfy me that it was not reasonably practicable for the claimant to present his claims earlier.[42]I therefore strike out the claims against the second respondent as the claims have not been bought in time. The List of Issues for the final hearing will need to be amended accordingly and if they cannot be agreed they can be considered further at the hearing on 9 June 2023.
The facts
Lord Hutton added: ‘The predominant requirement of public policy is that those who suffer a wrong should have a right to a remedy, and the case for granting an immunity which restricts that right must be clearly made out.
[44]He then quoted an Australian case to the effect that: “the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted unless its necessity is demonstrated’.”[45]Repeated reference was also made to the case of Roy v Prior [1971] AC 470 which was cited with approval. That was another decision of the House of Lords, this time involving a solicitor. In the course of a criminal case Mr Prior issued a witness summons against the plaintiff, a doctor, but did not serve it. He then told the court that the witness was evading service and instructed counsel to apply for a bench warrant to secure his arrest. After his arrest, Mr Roy brought a claim against Mr Prior for damages and this was allowed to proceed. The headnote provides: ‘Held, that the action should not be dismissed as disclosing no cause of action; that although no action would lie against the witness for words spoken in giving evidence, an action in respect of the alleged abuse of the process of the court was not to be defeated even though one step in the abuse involve the giving of evidence.’[46]The principal, in short, was that judicial proceedings immunity should not be used as a cloak for steps against a person which were an abuse of the process of the court, and that approach had been followed in Singh.[47]Mr Polak’s submissions with regard to article 6(1) were not to the effect that it was a trump card or that it had not been considered in any of the previous cases relied on, but that it essentially reflected the same common law balancing exercise between the public and private interests involved. The combination of the territorial issue, the motives behind the claim and the fact 10 of 16 that it was not part of the core protection meant that judicial proceedings immunity did not apply.
Conclusions
[48]I will start with the question of whether the present situation falls within the scope of the core immunity. This is a daunting task for any court or tribunal at first instance since it involves attempting to reconcile decisions of the highest authority which the parties say are inconsistent, or from which they draw different aspects.[49]There is in fact, as might be expected, a considerable degree of consistency in the various formulations expressed in these cases over what is now a period of over 60 years since Lincoln v Daniels and the cases show an evolving position. During that period there have been extensive changes in the legal landscape, including the introduction of European law and the European Convention on Human Rights. Understandably that has resulted in a subtle but noticeable change in emphasis over that time. Very broadly, earlier cases emphasised the scope and extent of judicial proceedings immunity whereas later cases have emphasised the need to balance competing rights and to avoid it being used for improper purposes.[50]Particular weight was placed by Mr Kemp on the wording of Lord Devlin in Lincoln v Daniels, i.e. (to repeat) that the immunity covered ‘everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings.’[51]The interpretation is that it prevents someone bringing proceedings on the basis that some other legal proceedings have already been begun. But it is not clear to me that that is the correct interpretation of those words. In the context of the previous type of situation, which is essentially everything said or done in court, ‘including the contents of documents put in as evidence’ it suggests that a person may not bring proceedings in response to the facts set out in a claim form or similar document. There is a distinction therefore between the act of putting in a claim and the contents of the claim form. And as noted by Lewison LJ in Singh, if it applied to everything necessary to bring a case then it would not have been necessary to add a third category.[52]Lincoln was a case which concerned a claim for damages from a QC who said that he had been defamed in a letter sent to the Bar Council alleging professional misconduct on his part. It was not the fact of sending that letter which gave rise to judicial proceedings immunity but the contents and so there is no reason to apply a broader interpretation to the second category of cases described. In fact, the words quoted are perfectly apt to describe the position 11 of 16 in that case. The immunity applies not just to the evidence before the Bar Council but to the contents of the initial letter sent to them.[53]Hence, I conclude that Lincoln is not authority for the proposition that merely bringing proceedings elsewhere will give rise to judicial proceedings immunity. All that is prevented is any further claim arising out of what is said or written from the outset of those proceedings.[54]I will illustrate the point further with a simple example. If A sues B for theft, and B is subsequently prosecuted for the theft in a criminal case, B cannot say that this is contrary to public policy and that he has immunity as a party to the civil case. In a more mundane example, commonly encountered, a person may bring a claim in the county court and an employment tribunal at the same time alleging a breach of contract. No arguments about judicial proceedings immunity will arise. Either the court or tribunal will usually stay its own proceedings until the outcome of the other case or one case will be struck out as an abuse of process if they are entirely overlapping. That is part of the court or tribunal’s delegated powers of case management rather than the application of a common law principle.[55]Adopting that view, the apparent inconsistencies between this case and later ones fall away. Lincoln was followed by Trapp v Mackie in 1979, where Lord Diplock emphasised the scope of the immunity, but this was confined (378 H) to: ‘…words spoken or written in the course of giving evidence proceedings in a court of justice… ’[56]I can see nothing is that case to extend the scope of immunity to the mere bringing of a claim, or in any authority. On that short ground therefore, the application should be dismissed. For completeness however I will address the remaining arguments. The territorial issue[57]As noted by Mr Polak, there are very few cases in which it has been applied to bodies outside the UK. Putting to one side the Canada case (O’Connor v Waldron) as a decision of the highest court of Canada, it rests on the involvement of the European commission (Hasslebad) and the criminal case involving a Russian customs investigation (R v Beech).[58]There was certainly no consideration in either these two cases of the territorial issue one way or the other. In R v Beech we have only a summary of a criminal case. It may well be on the facts of that case that the issue was fairly clear-cut and no quasi-judicial process had been followed. If it had been, the territorial question might then have been raised. Similarly in Hasslebad, the court started with an enquiry into whether the EU commission was a quasi-judicial body and did not need to go any further. It does not follow that the operation 12 of 16 of judicial proceedings immunity automatically applies to proceedings worldwide and that this worldwide application was too obvious to have been raised in either case. I conclude that I am essentially without any authority on this point, or at least none has been located, and so I will have to start from first principles.[59]In a typical or core case involving an attempt to bring a claim based on something which a witness has written or said in the course of proceedings in the UK, the public interest is in ensuring that the witness is not menaced by the prospect of being sued for what they say. If they are giving evidence in the UK it will also be important to ensure that they are not at risk of being sued overseas. Ordinarily that would be a remote possibility. Cross-border disputes are relatively few. But it they were apprehensive about what they could and could not say in evidence, because they may be sued abroad, that would also affect the integrity of the judicial system in the UK, to use the phrase employed by Auld LJ in Heath. But that is not something over which courts in the UK have any control. They cannot ban or prevent claims being brought against that witness overseas if that is permitted in the other jurisdiction.[60]What is being suggested in this case by the respondent is that on public policy grounds the arbitration in Singapore should attract judicial proceedings immunity under UK law. That must be on the basis that witnesses in that arbitration would otherwise be inhibited in the evidence they might give and so the integrity of the Singaporean system would be undermined. That appears to be a remote concern viewed from the UK and they may take a different view of the competing public interest considerations in such cases. There is therefore certainly nothing automatic, even in a ‘core’ case of that sort, about immunity applying.[61]The integrity of the process is not of course the only public interest involved. There is also an interest in avoiding a multiplicity of proceedings, but again the UK interest is largely in avoiding a multiplicity of proceedings in the UK. This is a case in which there is only one set of proceedings in the UK so that interest has no real application. A further consideration is the undesirability of one court pronouncing judgment on the decisions of another, such as might arise in the police cases where a claimant brings a tribunal claim following misconduct but the exercise to be carried out in Singapore is fundamentally different and this Tribunal is not concerned with any breach of confidentiality by Mr Rogerson.[62]I appreciate that there is a shared and multi-national interest in arbitrations being conducted, and in awards being enforceable elsewhere. I was not addressed about any such considerations but it is hard to see how they could amount to a strong countervailing factor. Overall, I am unable to find any clear legal authority for the proposition that judicial proceedings immunity applies to overseas bodies, and approaching the matter from first principles I cannot 13 of 16 discern any clear public interest in such an approach. And given the repeated injunctions in Darker to the effect that the protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice, that it should be only allowed with reluctance and resisted unless absolutely necessary, I do not accept that it does apply generally to overseas bodies.[63]That conclusion is also sufficient to dispose of the issue in this claim but I will say a little more about the relevant authorities and the extent to which they are said to diverge. The remaining scope of immunity[64]Having found that there is no immunity simply for bringing other proceedings and no automatic immunity in respect of proceedings in other jurisdictions, how far does it apply?[65]In Heath, Auld LJ made clear that the scope of the existing core immunity was unaffected by Article 6, but all of the descriptions of core immunity are limited to the position of witnesses and other participants, and to things said by them. He also explained at para 53 that the basis of the rule was necessity.[66]Similarly, in Darker, Lord Hope made a number of references to a core case as one involving a claim based on what a witness said in the course of proceedings. I can only conclude from these passages that their Lordships did not choose to adopt that earlier description in Lincoln of what amounts to a core case, and nowhere is there a statement to the effect that immunity attaches to everything that is done from the inception of the proceedings onwards, including the bringing of proceedings.[67]Mr Polak drew a distinction between these core cases and other situations, describing them as JPI 1 and JPI 2, but Mr Kemp maintained that there was no such division. My own view is that the test in Lincoln cannot continue to be relied on as a reliable statement of the extent of immunity, since it has been followed in a series of cases at House of Lords level, none of which has specifically endorsed the full extent of that definition, at least as it is being interpreted in this case.[68]It seems to me that the scope of the doctrine has been restricted by degrees, slowly but perceptibly, in these later decisions. That results from the repeated emphasis on the need to protect witnesses, the limited public interests in play and encroachment by different factual scenarios. Although earlier cases such as Lake (concerning the solicitor) involved clear and separable misconduct, the same distinction was less obvious in Singh with the pressure applied to a witness, and subsequent comments were then made in that case about the immunity only being applied when necessary, and protect persons who are acting bona fide. Hence, the scope of the core immunity now appears to apply 14 of 16 to cases against participants in legal proceedings and on the basis of what they have said and done in the course of those proceedings in their capacity as witnesses etc.[69]The arguments raised in P v Commissioner of Police for the Metropolis do not affect this position and it is not necessary to consider that aspect to any great extent. Mr Kemp’s analysis of this issue was not disputed, and although there have been a number of authorities putting detriment claims on a par with discrimination claims, such as by permitting post-employment cases, allowing compensation for injury to feelings and even for the award of notional interest on those injuries to match those in discrimination cases, whistleblowing protection is ultimately a domestic measure and cannot be upheld on the basis of the need to ensure effectiveness in the UK of EU rights. That case firmly established that the immunity does apply to police misconduct panels generally, subject to that limited exception. But that is not in issue in this case. The position of such panels is not affected by the territorial issue, there is no doubt that they meet the requirements for a qualifying body, and the type of claim brought there is akin to an appeal against the decision of the panel. It is an example of a type of case that fits within the core. This is not such a case.[70]There were references to qualified privilege in Trapp, but that does not appear to have been elaborated since then. It suggests that one type of case is absolute and another subject to competing considerations but it has been repeatedly emphasised since then, and in that case, that all such cases involve the striking of a balance. I have no examples to draw on for any such case outside the core immunity, but if seems clear on the facts of this case that if it does, or might, fall into that category, then the overwhelming interest here is in providing a remedy.[71]If this was a core-type case in which the respondent had brought a claim for breach of contract in the UK courts against Mr Rogerson for breach of confidentiality, and in the course of that case evidence emerged to show that Mr Rogerson has been making protected disclosures and that the company has been ignoring them, he would then be well-placed to bring a claim of whistle blowing. But the respondent would argue that judicial immunity applied. Even in that situation, given the purposes for which the arbitration appears to have been brought, it is not clear to me that even core immunity would apply. It might arguably involve an abuse of process or the use of proceedings as a cloak for some sort of misconduct. That is similar to the position regarding ‘without prejudice’ discussions. That is another type of situation in which there is a public interest in ensuring that things said in one context are not revealed publicly, but even there the rule cannot be used as a cloak for discrimination: BNP Paribas v Mezzotero 2004 IRLR 508, EAT.[72]That may be overstating the position, and there may still need to be some additional element of actionable misconduct of the type identified in Singh for 15 of 16 separate proceedings to be brought. Nevertheless, none of these decided cases involve the suggestion that the original claim was a calculated move, or was being used as a cloak to prevent an otherwise valid claim. One distinguishing feature in this case is that the whistleblowing allegations relied on by Mr Rogerson had been made prior to the inception of the arbitration proceedings and there can be little doubt that those proceedings were raised in response. In all the previous cases, the second case was in response to the first, and that does not seem to be the case here.[73]Then there is the applicability of section 43J of the 1996 Act. This seems to be a point of some force and one which was absent in any of the previous cases considered. It is clear that if the respondent’s claim for breach of confidentiality had been brought in the UK it would not have been effective to prevent any protected disclosure. The clause does not say that the confidentiality agreement is void for all purposes and it may be that, as in cases involving restrictive covenants, it can be applied in other respects, so that for example if Mr Rogerson had revealed commercially confidential information about the company he could be liable in damages. But it would not be effective to prevent qualifying whistleblowing allegations and so the subject matter of that claim would not trespass at all on the subject matter of this one. It would be very difficult to distinguish between an argument that Mr Rogerson could not pursue his claim because of the confidentiality agreement (which would be impermissible under s.43J) and an argument that he could not pursue his claim because the respondent had commenced proceedings to enforce that confidentiality agreement (the basis of the claimed immunity).[74]From all the above reasons therefore I conclude that no judicial immunity applies to the detriment in question.