“37. … these are appeals from case management decisions made in the exercise of his discretion by a judge who, because of his involvement in the case over time, had an accumulated knowledge of the background and the issues which this Court would be unable to match. The judge was in the best position to reach conclusions as to the future course of the proceedings. An appellate Court should respect the judge's decisions. It should not yield to the temptation to “second guess” the judge in a matter peculiarly within his province. 38. I accept, without reservation, that this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”
“We start by reiterating a point that has been made before, namely that this Court will not lightly interfere with a case management decision. In Mannion v Ginty[2012] EWCA Civ. 1667 at [18] Lewison LJ said: “it has been said more than once in this Court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.”
" … The fact that different judges might have given different weight to the various factors does not make the decision one which can be overturned. There must be something in the nature of an error of principle or something wholly omitted or wrongly taken into account or a balancing of factors which is obviously untenable."
“Striking out In my speech in the Bedfordshire case[1995] 2 AC 633 , 740-741 with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”
“In contrast with the applications underCPR 3.4 (2)(b), the applications underCPR 3.4 (2)(a) andCPR 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call “reasonable arguability”
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) …if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. …. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“is or would be a victim of the unlawful act”
“In this case, the pleaded case and supporting evidence are insufficient to suggest that the Appellant’s life was at real and immediate risk”
“a. It is not appropriate to strike out a claim in a developing area of law, as such decisions should be based on actual findings of fact (Farah v British Airways, The Times,26 January 2000 , CA). b. A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence (Bridgeman v McAlpine -Brown,19 January 2000 , unrep., CA).”
“What Mr. Lucas has said is very just; neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to the case, the Court will take notice of them as a contempt, and examine on information. If any thing of mala mens is found on such enquiry, it will be punished suitably.”
“Likewise, the core of the principle of immunity from suit is not in doubt. By the end of the 19th century it was settled that persons taking part in a trial—the judge, the advocates, the witnesses—could not be sued for anything written or spoken in the course of the proceedings. The immunity was absolute and could not be defeated even by proof of malice. The reason for the immunity was explained by Fry L.J. in a well known passage in Munster…”
“The immunity from suit, on the other hand is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement.”
“In later cases there has been some discussion of the general principle upon which this extension was based. Judges have rightly cautioned against further extension merely by analogy. In Mann v. O'Neill (1997) 71 A.L.J.R. 903, 912 McHugh J. identified two dangers in judicial reasoning—a Scylla and Charybdis through which it was necessary to navigate. The first was: "the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence." On the other hand, there was an opposite peril in: "the temptation too readily to dismiss the defence as applicable in novel circumstances because the case is not within or analogous to an existing category but without determining the matter by reference to the defence's underlying rationale." There is no doubt that the claim for absolute immunity in respect of statements made by one investigator to another (as in the case of the letter from the S.F.O. to the Attorney-General of the Isle of Man) or by an investigator to a person helping with the inquiry (as in the statements of Ms McKenzie recorded in the file note) or to an investigator by a person helping the inquiry who is not intended to be called as a witness (as in the remarks of Mr. Rogerson included in the file note) is a novel one. So far as I know, it is not a category of absolute immunity which has been considered before. But it should not for that reason be rejected. Again, I would imagine that the reason why this question now arises for the first time is that before the broadening of the prosecution's disclosure obligation, such letters and memoranda, internal to the investigation, would never have seen the light of day. At any rate, the question is now whether they fall within the underlying rationale for the existence of immunity from suit. In Mann v. O'Neill, 71 A.L.J.R. 903, 907 the judgment of Brennan C.J., Dawson, Toohey and Gaudron JJ. describes the rationale as one of necessity: "It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is 'viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated.' Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged." Thus the test is a strict one; necessity must be shown, but the decision on whether immunity is necessary for the administration of justice must have regard to the cases in which immunity has been held necessary in the past, so as to form part of a coherent principle. Approaching the matter on this basis, I find it impossible to identify any rational principle which would confine the immunity for out of court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but none the less valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial. When one turns to the position of investigators, it seems to me that the same degree of necessity applies. It would be an incoherent rule which gave a potential witness immunity in respect of the statements which he made to an investigator but offered no similar immunity to the investigator if he passed that information to a colleague engaged in the investigation or put it to another potential witness. In my view it is necessary for the administration of justice that investigators should be able to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings. I therefore agree with the test proposed by Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 192: "the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated." … And at P215B: “This formulation excludes statements which are wholly extraneous to the investigation—irrelevant and gratuitous libels—but applies equally to statements made by persons assisting the inquiry to investigators and by investigators to those persons or to each other. As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action” (My emboldening throughout). This case confirmed that extending immunity from Witness Immunity BC to Legal Proceedings Immunity BC covering not only witnesses, whether called or not, but also investigators, requires an analysis of necessity. The justifications were provided. The immunity was extended but was less absolute and more qualified than Witness Immunity AC. It needed to be grounded in justification by reference to the underlying rationale. Lord Hope agreed but gave no judgment on the immunity issue. Lord Hutton at P221D said that he favoured absolute Legal Proceedings Immunity BC, with a limit that it was tied to actions which were part of the process of the investigation, as follows: “In my opinion the argument should not prevail that the defence of qualified privilege would give adequate protection to investigators and those who spoke to them because I consider that there would be a real risk that an unfounded allegation of malice made by a plaintiff bringing an action for defamation would subject an investigator or informant to harassment to which he should not be subjected. I am in agreement with the statement of Drake J. in Evans v. London Hospital Medical College (University of London) [1981] 1 W.L.R. 184, 192c in respect of witnesses and possible witnesses that: "the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated.”
“In this case, whilst the immunity may on occasions benefit a malicious investigator or informant, I consider that the balance of public advantage lies in allowing it to the defendants.”
“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 and consequently the action cannot be struck out.”
“Absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P's proposition 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 . . ." Many other authorities contain language to similar effect.”
“It is then not enough that there be an investigation; the investigation must also be with a view to an action or to a prosecution which is already under consideration. Before that stage is reached it would be very difficult to justify the grant of an immunity.Even after that stage, if proceedings are commenced, it does not necessarily follow that all that is said or done in connection with the proceedings will be immune. A helpful distinction has been drawn in the American jurisprudence between matters of advocacy and matters of detection.”
“That the police may mount prosecutions or that prosecutors may engage in detective work should not obscure the critical consideration of the function which is being performed. It is to the function that the immunity attaches rather than to the individual who performs it.”
“18. The witness analogy This argument starts from the well-established rule that a witness is absolutely immune from liability for anything which he says in court. So is the judge, counsel and the parties. They cannot be sued for libel, malicious falsehood or conspiring to give false evidence: Marrinan v Vibart[1963] 1 QB 528 . The policy of this rule is to encourage persons who take part in court proceedings to express themselves freely. The interests of justice require that they should not feel inhibited by the thought that they might be sued for something they say. And, as Fry LJ explained in the passage which I have already cited from Munster v Lamb 11 QBD 588, 607 this policy is regarded as so important that it requires not merely qualified privilege but absolute immunity. The application of the analogy to the negligence of lawyers involves generalising the policy of the witness immunity and expressing it, as Lord Diplock did in Saif Ali v Sydney Mitchell & Co[1980] AC 198 , 222A, as a "general immunity from civil liability which attaches to all persons in respect of their participation in proceedings before a court of justice". Stated at this level of generality, it includes immunity for advocates from liability for anything that they may do. The rationale is said to be to "ensure that trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them". My Lords, with all respect to Lord Diplock, it seems to me that to generalise the witness immunity in this way is illegitimate and dangerous. In the High Court of Australia in Mann v O'Neill(1997) 191 CLR 204 , 221, 912 McHugh J spoke of the perils of extending the witness immunity by analogy. There is, he said, a temptation: "to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within an existing category) without examining the case for recognition in light of the underlying rationale for the defence." (My emboldening). As for the stress of collateral attack from later civil litigation Lord Hoffman ruled at para. 18 that: “It is not sufficient, therefore, to explain any immunity relating to court proceedings by saying that the people involved should be free from "avoidable stress and tensions". That merely suggests that everyone would find litigation more agreeable if no awkward consequences could follow from anything which the participants did. It is another version of the vexation argument, which I have already rejected. It is necessary to go further and explain why the public interest requires that a particular participant should be free from the stress created by the possibility that he might be sued. How would he otherwise behave differently in a way which was contrary to the public interest?” … “Nor is there in my opinion any analogy with the position of the judge. The judge owes no duty of care to either of the parties. He has only a public duty to administer justice in accordance with his oath. The fact that the advocate is the only person involved in the trial process who is liable to be sued for negligence is because he is the only person who has undertaken a duty of care to his client.” 88. Lord Hope at P710D (dissenting on criminal cases Advocates Liability), ruled thus: “The basic principle any immunity from suit is a derogation from a person's fundamental right of access to the court which has to be justified. This principle is found both in the common law and in the jurisprudence of the European Court of Human Rights.”
“The current state of the law 11. The immunity of expert witnesses, as propounded by the Court of Appeal in Stanton v Callaghan[1998] QB 75 , has a long history. This dates back over 400 years: see Cutler v Dixon (1585) Co Rep 14b. Thus the immunity was established long before the development of the modern law of negligence and, in particular, the recognition of the possibility of liability for negligent misstatement. It also dates back to an era long before it became common for forensic experts to offer their services under contracts for reward. The immunity has its origin in a reaction to an actual or perceived tendency on the part of disgruntled litigants, or defendants in criminal proceedings, to bring proceedings for libel or slander against those who had given evidence against them. Thus the immunity originally took the form of absolute privilege against a claim for defamation and it extended to all who took part in legal proceedings.” … “13 The typical situation where the immunity was invoked was where a witness or party had given evidence hostile to the plaintiff. A similar protection was afforded to counsel in relation to defamatory allegations made against a party, or indeed anyone else, in the course of his conduct of legal proceedings. This immunity overlapped with a wider immunity enjoyed by a barrister from a claim by his own client for failure to exercise reasonable skill and care in the conduct of litigation on behalf of the client. That immunity was unsuccessfully challenged in Rondel v Worsley[1969] 1 AC 191 . In Arthur JS Hall & Co v Simons[2002] 1 AC 615 the House of Lords abolished it on the ground that it could no longer be justified. The barrister is, however, still protected by absolute privilege from a claim in defamation in relation to statements made in the course of the conduct of legal proceedings: see Medcalf v Mardell[2003] 1 AC 120 , 142, per Lord Hobhouse of Woodborough.” (My emboldening). Then having referred to the legal principle that every wrong deserves a remedy he said: “51. … With this principle in mind, I would adopt the approach advocated by Lord Reid in Rondel v Worsley[1969] AC 191 , 228, when considering the immunity from suit enjoyed by advocates: “the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable.”
“57 There is here, I believe, a lesson to be learnt from the position of barristers. It was always believed that it was necessary that barristers should be immune from suit in order to ensure that they were not inhibited from performing their duty to the court. Yet removal of their immunity has not in my experience resulted in any diminution of the advocate’s readiness to perform that duty. It would be quite wrong to perpetuate the immunity of expert witnesses out of mere conjecture that they will be reluctant to perform their duty to the court if they are not immune from suit for breach of duty.”
“Introduction 1. This appeal involves the clash of two principles: the principle that a wrong should not be without a remedy and the principle that those involved in the judicial process should be immune from civil suit for what they do or say in the course of the litigation. The latter principle is known as “judicial proceedings immunity”.” “The policy behind the rule 23. Before coming to the limits of the rule, it is important to understand its rationale. There are two strands of policy underlying the rule. The first is that those engaged in litigation should be able to speak freely without fear of civil liability. The second is a wish to avoid a multiplicity of actions where one court would have to examine whether evidence given before another court was true or not.”
“27. … As all the cases recognise, a rule designed to protect the innocent will, on occasion, protect the guilty. A witness does not lose his immunity simply because he has been dishonest or malicious in giving his evidence. 28 There have been two principal ways in which litigants have tried to outflank the rule: (i) by bringing an action based on a cause of action other than defamation; or (ii) by bringing an action based, not on what happened in court, but on what happened out of court.”
“46 … it can no longer, in my judgment, be said that immunity from civil suit “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:”
“33. It is well established that the immunity or privilege, where it applies, bars a claim whatever the cause of action, with the exception of suits for malicious prosecution (and analogous claims involving malicious initiation of criminal proceedings) and prosecution for perjury and proceedings for contempt of court. It is to be contrasted with the qualified privilege which protects all those who participate in a criminal investigation in good faith. However, as Lord Hope pointed out in Taylor v Director of the Serious Fraud Office[1999] 2 AC 177 (at p219E) this is an imperfect protection because qualified privilege has to be pleaded and established as a defence and no action can be struck out on grounds of qualified privilege. Accordingly, unlike the absolute immunity, it does not prevent a collateral investigation in subsequent proceedings.” “34. … However, it must be emphasised that the effect of a successful plea of immunity is to deny access to the courts and, in many cases, to leave a wrong without a remedy. As Lord Cooke observed in Darker (at p. 453 D-E) absolute immunity is in principle inconsistent with the rule of law but in a few, strictly limited, categories of cases it has to be granted for practical reasons. Accordingly, the immunity must be limited to cases where it is necessary to achieve the objectives identified above.” (My emboldening). (My emboldening). Having considered Taylor he ruled: “38. I do not understand Lord Cooke or Lord Clyde to have been suggesting that the absolute immunity should apply to the prosecutorial function generally,even where the conduct challenged is unconnected with the giving of evidence or the making of statements.” (My emboldening). Having considered Heath, and Darker he ruled thus: “40. In Heath v Commissioner of Police of the Metropolis[2004] EWCA Civ 943 ;[2005] ICR 329 Auld LJ rejected the submission that the absolute immunity attaches only to defamatory statements. In doing so he said: “… it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except pursuits for malicious prosecution and prosecution for perjury and proceedings for contempt of court.”
“32. One of the features of the present case, which it shares with Swinney v Chief Constable of Northumbria, is that the claim is based not on anything that D.C. Gaffney said in his statement, but on what the police and CPS subsequently did with it. It is accepted that the CPS should have been alerted to the fact that the statement contained sensitive information and that on this occasion the system for ensuring that it was examined by the Disclosure Officer broke down. The question for decision, however, is whether the transmission of the statement by the police to the CPS was part and parcel of preparing for D.C. Gaffney to give evidence in support of the application by the prosecution for a warrant of arrest. In my view it was, because it falls squarely within Lord Hoffmann’s statement in Taylor v Director of the Serious Fraud Office, to which I referred earlier. It is true that the action in the present case is not based on the nature of the statement itself, as it would be if the claim were for defamation, but it is based on the transmission by the police to the CPS of a statement required for the purposes of enabling D.C. Gaffney to give evidence in court, as he subsequently did. In substance, the position is essentially the same as if D.C. Gaffney had made his statement orally to a representative of the CPS. To hold the police liable for communicating its contents to the CPS would outflank the immunity to which they were entitled in relation to the evidence once given in court. In my view, therefore, the police are immune from action in respect of the transmission of his statement to the CPS, despite the fact that it was carried out negligently.” (My emboldening). Further, in relation to the HRA claim he ruled thus: “35. Mr. Johnson submitted that the case advanced before the judge had been one of a breach of the state’s positive obligation and that the claim could not succeed on any other basis. The judge found that the disclosure resulted from an isolated incident and not from the absence of an adequate system for ensuring that sensitive personal information was not released without good reason. As to the negative obligation, the claimants’ address was identified in D.C. Gaffney’s statement in order to support an application for a witness summons. It therefore fell within the scope of article 8.2 and if there was an interference with their rights it was justified.”
“yes if they are a judge, witness or advocate and may also be if they are a lawyer or police officer gathering evidence BC”
“yes if they arose at Court or before Court but concern the production of evidence”
“yes if the case comes within it, but not if the case lies outside it”
“(v) where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial inquiry, there is no necessity to extend the immunity; (vi) in such cases the principle that a wrong should not be without a remedy prevails.”
“… this privilege extends to the parties, counsel, and witnesses in a cause, provided the allegations be pertinent to the matter in issue.”
“If the words spoken are opprobrious or irrelevant to the case, the Court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such enquiry, it will be punished suitably”
“did the way the function was performed fulfil the policy justifications for the claimed immunity?”
“would permitting liability undermine the advocate’s freedom of speech in Court or freedom to represent their instructing party?”
“In this case, the pleaded case and supporting evidence are insufficient to suggest that the Claimant’s life was at real and immediate risk”, and at para. 16: “Further, or in the alternative, if there was a real and immediate risk as of6 November 2019 , that was no longer present and continuing by19 November 2019 , when the Appellant reported having had no contact from Mr ‘K’ or, at the latest27 November 2019 , when the claimant provided a statement that (a) did not disclose any threats to kill made by Mr ‘K’ at any point and (b) did not disclose any direct or indirect contact from him since his arrest on7 November 2019 . Further, the crime report shows no contact with the claimant from Mr ‘K’, let alone any direct or indirect threats made by him, subsequent to early November 2019.”
“(ii) Second, absent a person being tortured by the third party (as is the case here in respect of the potential consequences of the disclosures) the Claimant will again need to show there was a “real and immediate risk” of such an event occurring (X v Bulgaria (22457/16); DSD at [111]). 19. Accordingly, and for the same reasons as set out above in respect ofart.2 ECHR , the is not a victim by reference to art.3 so as to have standing to bring a claim.”