MATTERS LEADING UP TO THE MAKING OF A WITNESS STATEMENT MAY NOT NECESSARILY HAVE JUDICIAL PROCEEDINGS IMMUNITY: COULD YOU BE CROSS-EXAMINED ON THE WAY YOU TOOK A WITNESS STATEMENT?
Statements made in the course of proceedings are usually subject to judicial proceedings immunity. The scope and extent of this immunity was considered in detail by the Court of Appeal in Singh -v- Governing Body of Moorlands Primary School  EWCA Civ 909. This is a case that shows the importance of having a clear documentary record as to the method by which a witness statement was taken. There are other cases where the methods by which a witness statement is taken can be subjected to close scrutiny, with the person who took the statement being cross-examined in court.
THE FACTS OF SINGH
Mrs Singh brought an action for race discrimination, harassment and victimisation. She asked a colleague to be a witness on her behalf. That colleague replied that she had been instructed to have no contact with Mrs Singh.
When witness statements were exchanged that colleague produced a witness statement which Mrs Singh found objectionable. She resigned on the grounds that the statement was a series of untruths deliberately designed to undermine her for the purposes of the tribunal claim.
She then sought to amend the ET1 to add claims of constructive dismissal. Among other things she wished to allege matters based “… on the Respondent’s conduct in placing undue pressure on Sue Heath to produce a witness statement containing false or otherwise inaccurate evidence for the purpose of these proceedings.”
THE ISSUE BEFORE THE COURT OF APPEAL: DID THE MATTER FALL WITHIN THE SCOPE OF JUDICIAL PROCEEDINGS IMMUNITY?
The ET and Employment Appeal Tribunal had refused permission to amend on the grounds that the complaint fell within the scope of judicial proceedings immunity. The Court of Appeal held that this was wrong and the matters complained of did not fall within the immunity.
THE PRECISE NATURE OF THE ALLEGATION
“The nature of the complaint
- Before embarking on a review of the many cases to which we have been referred it is important to identify the exact nature of the complaint that Ms Singh wishes to make. It is trite law that it is an implied term of a contract of employment that the employer may not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Ms Singh’s principal complaint is that the Council is in breach of that term in the contract. The breach complained of is that the Council placed undue pressure on Mrs Sue Heath to produce a witness statement containing false or otherwise inaccurate evidence. No complaint is made about Mrs Heath’s evidence itself. The complaint is that the Council placed undue pressure on her; and that it was the placing of that pressure that amounted to conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. It is that alleged breach of contract which is the foundation for Mrs Singh’s claim that she has been constructively dismissed, and hence her entitlement to statutory compensation. It is also important to point out that a claim for breach of contract is actionable without proof of damage; whereas (subject to some limited exceptions) a claim in tort is not actionable in the absence of damage. Thus in a tort claim no damage will have been suffered unless the impugned evidence at least sees the light of day. But in a claim for breach of contract, that is not necessary.”
THE NATURE OF JUDICIAL PROCEEDINGS IMMUNITY
The case contains a very detailed consideration of the principles relating to judicial proceedings immunity.
The starting point
- The starting point is that any wrong should not be without a remedy; and that any exception to that basic principle of any system of justice must be necessary, strict and cogent: Arthur JS Hall & Co v Simons  1 AC 615, 727 (Lord Hutton); Jones v Kaney  UKSC 13  2 AC 398 at  (Lord Dyson); Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd  UKPC 17at  (Lord Wilson).
The basic rule
- It was established in early times that no action in defamation could be brought against a witness for anything he said in evidence before a court or tribunal. The same applied to what was said by the parties, the advocates or, indeed, the judge. The earliest case we were shown was Cutler v Dixon (1585) 4 Co Rep 14b in which the Court of King’s Bench held that no action on the case would lie in relation to articles of the peace exhibited to justices. An “action on the case” was, of course, an action in tort. As Kelly CB put it in Dawkins v Lord Rokeby (1873) LR 8 QB 255, 263:
“The authorities are clear, uniform and conclusive, that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for words written or spoken in the ordinary course of any proceeding before any court or tribunal recognized by law.”
- In his speech in Arthur JS Hall & Co v Simons  1 AC 615 Lord Hoffmann (with whom Lords Browne-Wilkinson and Millett agreed) said at 697 that it was “illegitimate and dangerous” to generalise the scope of the witness immunity rule. Many of the passages on which Mr Allen relied (including that which Lord Hoffmann criticised in the passage to which I have referred) demonstrated this vice.
The policy behind the rule
- 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.
- In a well-known passage in Munster v Lamb (1883) 11 QBD 588, 607 Fry LJ said:
“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 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”
ATTEMPTS TO OUTFLANK THE RULE
The courts had rigorously prevented attempts to outflank the rule by, for instance, basing a case on what was said to the lawyer ; alleging a conspiracy to give false evidence or what one investigator had written to another.
SUMMARY OF THE RELEVANT PRINCIPLES
i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;
ii) The core immunity also comprises statements of case and other documents placed before the court;
iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;
iv) Whether something is necessary is to be decided by reference to what is practically necessary;
v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity;
vi) In such cases the principle that a wrong should not be without a remedy prevails.
- As Ms Williams submitted judicial proceedings immunity does not retrospectively immunise an antecedent act if that act is not itself within the immunity.”
APPLICATION IN THIS CASE
- Ms Singh’s argument is that her cause of action relies on the undue pressure applied by the Council to Mrs Heath. One fallacy in the Council’s argument is that it characterises the claim as being founded upon allegedly false evidence and that it is in substance an action against the Council for the evidence they have adduced or intend to adduce in court. On the contrary, Ms Singh’s claim is not based on anything that Mrs Heath might or might not say to the employment tribunal. She has not yet given her evidence. It is based on what went on outside the tribunal and in particular the means by which the Council procured Mrs Heath to give the statement. Evidence relating to the process by which the evidence was procured is simply not relevant to Ms Singh’s existing discrimination claim, and will not form part of that judicial enquiry (although it may form part of the judicial enquiry into the consolidated claims).
- The means by which the Council procured the witness statement is a free-standing act. While alleged untruths in Mrs Heath’s witness statement (and discrepancies between that statement and what Mrs Heath had previously said in interview) may help Ms Singh to prove the allegation that undue pressure was applied, the complaint is not about the content of the statement, but the means by which it was procured. The complaint that the Council is in breach of contract would be just as valid if Mrs Heath had told Ms Singh about the alleged pressure but had stoutly resisted it. Thus the second fallacy in the Council’s argument is the proposition that it is Mrs Heath’s witness statement that is alleged to have caused the damage. That is not the allegation. The nub of the complaint is that the Council has done something calculated to destroy or damage the trust and confidence that is inherent in an employment relationship. If an employer, to the knowledge of an employee, is prepared to use underhand and improper means to defeat a claim of discrimination brought against it by the employee that is destructive of the requisite trust and confidence whether or not the employer succeeds.
- Accordingly there is no immunity behind which the Council can shelter.”
THE PRACTICAL CONSEQUENCES OF ALL THIS: ONE DAY A COURT MAY EXAMINE THE METHODS YOU USED TO TAKE A WITNESS STATEMENT
There are circumstances in which a judge may, one day, seek to examine the methods used to obtain a witness statement. It was obviously very germane in the Singh case.
This often happens in contempt of court cases where a claimant is alleged to have made false statements. In MIB -v- Shikhell  EWHC 527 QB two character witnesses (each of whom was charged with contempt of court) the judge considered the circumstances in which the statements were taken.
“I am also mindful of the evidence I have heard from [a trainee solicitor] f Irwin
Mitchell. She was a trainee solicitor in her first seat, a matter of weeks into that seat,
when she was asked by her principal to proof Mrs Glancy and Simon Fennell. She
took their statements over the telephone and she was provided with a list of questions,
drafted by a more senior fee earner, to use when discussing the case with Mrs Glancy
and Simon Fennell. Interestingly the drafting of perhaps the most crucial question is
ambiguous: “Did they play football with James? If so, has he expressed sadness at not
being able to play to the same level and ability as before the accident?” [22/942]. The
question is ambiguous in that it might suggest that James Shikell was in fact playing
football, albeit not at the same level and ability as before the accident, or it might
suggest that he is not playing at all. A straightforward question asking the witness to
confirm whether or not, to his or her knowledge, James Shikell was playing football
might have averted the problems which subsequently arose. A witness who claimed to
have the requisite knowledge should then have been asked the basis for that
knowledge. I make no criticism at all of [the trainee] who was undoubtedly
doing her best and following the list of questions provided to her. However, she was
plainly very inexperienced. The drafting of the statement is extremely poor in that it
fails to tie matters to particular dates and contains significant amounts of opinion
evidence which is inadmissible for a witness of fact. It is undoubtedly the case that the
drafting of the Witness Statement reflects the questions asked in that list.”
Similar problems can be observed in the contempt of court case of Mongomery -v- Brown  EWHC 875 (QB). The claimant was bringing a substantial claim for damages for loss of earnings. The claimant’s solicitors had missed several deadlines and a peremptory order was made. The statement was obtained using an investigator.
solicitors had served no witness statement from the Respondent and no updated
Schedule of Loss. The Applicant’s solicitors applied to the Court and, on 4 June
2008, Roderick Evans J made an ‘unless order’, by consent, that these documents be
served by 18 June, in default of which the Respondent would be debarred from
adducing any lay evidence or pursuing a claim for special damages and future losses.
The Respondent had still not had any meeting with OMM regarding his claim.
188. OMM appear at this point to have sprung into action. Although further medical
enquiries seem to have led, shortly afterwards, to the case being taken out of the list
for hearing on 23 June 2008, an email from Mr Woolford to counsel dated 11 June
conceded that a “significant amount of fault” for this state of affairs lay with him and
his failure to monitor the timetabled directions.
189. Even then Mr Woolford did not come to see the Respondent himself. Instead he
instructed his brother, Jon Woolford, (a professional draftsman of witnesses
statements working for a different organisation) to contact the Respondent and to
prepare his statement. In an email from Tim Woolford dated 30 May 2008 his brother
was advised that the information in the precognitions could be “recycled and added
to”. Mr Woolford also informed him of the 18 June deadline. The matter was
therefore very urgent. He sent him details of the medical reports he needed to read
“to get a flavour of what happened to him” and suggested that he “check out the
Digby Brown offices”. 190. Apologising for the rush, he instructed his brother, significantly, as follows:
“What I am really interested [in] is his employment history since the
accident. What has he been doing? How much has he been earning?
Can he improve his income? What does he think that he would have
been doing but for the accident? I have also asked him to find any
relevant documentation relating to this e.g. salary slips, contracts etc.
that may support what we are saying.
Bruce is not very good with paperwork so we may just have to end up
doing the best we can with what we have.”
191. With less than a month to go before the trial date it is remarkable, in my view, that a
solicitor conducting personal injury litigation on behalf of a claimant should express
himself in these terms. Even if he was entitled to consider the Respondent as being
“not very good with paperwork”, or perhaps more particularly because he held that
view, the remedy had always lain in his hands by securing the appropriate mandate to
enable him to obtain all the necessary information from the employer, identified as
long ago as April 2006 in the Respondent’s precognition. [The precognition was a witness statement made to Scottish solicitors).
THE CIRCUMSTANCES OF THE MAKING OF THE STATEMENT ARE EXAMINED IN DETAIL
The judge examined the mechanism of the taking of the statement in some detail.
198. On the other hand, as Mr Cousins observes, there are a number of unsatisfactory
features to this aspect of the case. Even as late as June 2008, the Respondent had not
yet met the solicitor retained by him to act on his behalf in respect of this claim, after
the initial handover in Edinburgh, in November 2006. No attempt appears to have
been made to obtain updated information as to his earnings or current employment
situation, from the Respondent himself or from his previous employers, before this
199. His witness statement was being taken late in the day, as the deadline approached, by
someone wholly unfamiliar with his history, and with what had gone before.
200. Further, despite the instructions from Tim Woolford as to what he particularly needed
to know from the Respondent, the notes of interview suggest that this was never
addressed or investigated with him in any detail at all. The first five of the eight
pages of handwritten notes relate not at all to the Respondent’s employment history
since the accident, as Tim Woolford had requested, but rather to general background,
to the circumstances of the accident, the nature of the Respondent’s injuries and their
effects upon him.
201. Significantly, it is clear from these notes that the Respondent was not being proofed
by reference to what had been set out in his earlier precognitions or in the first
Schedule of Loss accompanying the Particulars of Claim, where his employment with
Oceaneering had been expressly referred to. Whilst, clearly, the Respondent had a
duty to be frank and honest when interviewed he was therefore not questioned directly
about matters of undisputed fact, already openly documented and of which the
Applicant’s solicitors were well aware. Indeed, there appears to have been no
reference to Oceaneering at all. Thus, despite a written note to the effect that the
Respondent said he had not really worked since the accident, no further questions
appear to have been asked about this, with reference to what had already been set out
in the Schedule, and to the fact that his incapacity benefit would have ceased upon his
resuming work in mid 2005.
HAVE YOU GOT A SAFE SYSTEM FOR TAKING WITNESS STATEMENTS?
There is no guarantee at all that what was said will remain hidden from scrutiny. What was said and asked of a witness could come under close examination. The person who took the statement could be cross-examined about it. It is essential that a mechanism is in place to protect the person who made the statement and the person who took it. At the very least there should documentary evidence which consists of:-
- A clear statement that the witness statement must be what the witness knows.
- A clear statement that they should not feel pressurised into making a statement and should add/amend it as they wish.
- Evidence that the statement is taken in good time and without undue haste.
- Evidence that steps were taken to ensure the witness was aware of the significance of giving the statement.