DEFENDANT’S PART 20 CLAIM AGAINST CLAIMANT’S WITNESSES STRUCK OUT: WITNESSES HAVE IMMUNITY (AND THIS HAS CONSEQUENCES…)
I am grateful to barrister David Green for supplying me with a note* of the judgment of HHJ Saggerson in Holley -v- Woodburn. HHJ Saggerson, Central London County Court). A copy of the judgment is available here C65YX969 Holley v Woodburn consolidated note of judgment of HHJ Saggerson 21.ii.20 (* I make it clear that this is not an approved transcript, it is David’s note prepared with the help of his pupil Samuel Cuthbert).
THE CASE IN A NUTSHELL
David emailed me a helpful summary.
- The Claimant (Charlie Holley) suffered an RTA as a front seat passenger on 27 January 2012 and started proceedings against the Defendant (Jessica Woodburn).
- In 2018 the Defendant:
- Served surveillance evidence;
- Amended its defence to plead fundamental dishonesty;
- Made a Part 20 claim against the Claimant and his parents (the First, Second and Third Part 20 Defendants respectively) alleging an unlawful act conspiracy.
- The following were pleaded as acts in furtherance of the conspiracy:
- That the parents had made witness statements in support of their son’ claim; and
- That the parents had “attended medical and/or medicolegal appointments where false accounts were given”.
- The Part 20 Defendants applied successfully to strike out the Part 20 claim
- In respect of making statements as witnesses, the parents enjoy an absolute immunity from suit.
- In respect of attendance at appointments: this was a fraud pleading, and so should be construed strictly; and construed in that way, “attendance” is not unlawful and is therefore incapable of founding an unlawful act conspiracy
THE ISSUE OF WITNESS IMMUNITY
The judge dealt with the argument that the Part 20 claim against the witnesses was misconceived because witnesses have immunity.
“15. This case as pleaded at the moment is a case against the Part 20 Defendants that is anchored firmly and only in an unlawful act conspiracy allegation: a conspiracy alleged against these Part 20 Defendants to defraud the Defendant in the main action as a result of actions of dishonesty, fraud, or deceit in fabricating or exaggerating the Claimant’s claim. It is in other words a Part 20 claim where the cause of action is of unlawful act conspiracy: the necessary ingredients of such a tort are helpfully and suitably summarised by Judge Rossman QC in Palmer Birch (a partnership) v Lloyd and another  4 WLR 164, . I do not need to say any more about that: the ingredients or elements of the tort of conspiracy on which the defendant relies are not themselves in dispute in the course of this hearing
16. The submission made by Mr Green in support of the strike out application is that witnesses are immune, in two important respects: first, in respect of any evidence they give in court. I accept that submission and regard it as uncontroversial. The second limb, clear from the authorities, as submitted by Mr Green, is that they are also immune from suit in respect of witness statements made in preparation for, or as a necessary preparatory step for, the giving of such evidence. Not least because in modern civil proceedings, those statements stand as evidence in chief. As a general rule I accept that also, and regard it as uncontroversial.
17. The witness does not enjoy immunity beyond the giving of evidence and those necessary preparatory steps in anticipation of such evidence: that is where the immunity ends. Accordingly: a witness may be susceptible to civil proceedings in those circumstances where his conduct or actions (as opposed the fact that he has given a statement about that conduct or those actions) have in some way entailed activities that display or disclose grounds on which they might be open to criticism for committing a tort or some tortious conduct of any type: whether misfeasance, or conspiracy, or the tort of deceit. And therefore the lines are more than tolerably clearly drawn; and these are the plain principles I draw from the large volume of cases to which I am referred.
18. It is submitted on the other hand that this is more nuanced than Mr Green says: Mr Higgins says it is vital to bear in mind the distinction between the run of the mill cases, and situations in which witnesses have themselves participated in dishonest and deceitful and fabricated evidence to exaggerate or fabricate a claim such as a personal injury claim like this. In pursuit of the distinction he draws between what I have loosely called other cases on one hand, and fraudulent personal injury actions on the other, he has drawn my attention to a number of authorities – not least of all Zurich v Hayward  AC 142; AXA insurance UK plc v Financial Claims Solutions, Aurangzaib and Abdul  EWCA Civ 1330, and Smart v The Forensic Science Service Ltd  EWCA Civ 783 being among them. His submissions culminate in Darker v Chief Constable of the West Midlands Police  1 AC 435.
19. I note that there is not a single dictum in any of these authorities to which I have been referred by Mr Higgins that says in terms that claims against witnesses for fabricating evidence in a personal injury action brought fraudulently, or including fraudulent claims, is a distinctive class of proceedings to which the ordinary rules of immunity do not apply. I can find no dictum in these authorities , and none has been brought to my attention, that indicates that a case such as the present case falls into a separate and distinct category. Mr Higgins says that this is not surprising because it is so obvious to derive that principle from the thrust of authorities, and because there have been many cases (such as Zurich) where the courts have entertained civil action against litigants – Claimants, in particular – who would naturally have been witnesses; and in Smart, the court has entertained actions in deceit against such parties, where it is demonstrated that the claim is fabricated or based on deliberately false premises.
20. Thirdly, Mr Higgins submits rhetorically: what a mess would we be in if there were no mechanism by which fraud cases could not be challenged, where it was evidenced? He submits that where deceit is alleged, in the civil proceedings based on the allegation of deceit, provided the allegations are made on justifiable grounds, the immunity to which the authorities refer do not apply, and there is no reason why this Part 20 Claim should not proceed.
21. I reject those submissions. I accept those submissions by Mr Green in this instance: it is clear in my judgment that there is no particularly special category into which this action might fall that takes the witnesses outside the general rules of immunity, or applies different. The witnesses in this action are immune from suit to the extent, but only to the extent, that any action that is brought or configured against them is based on any evidence they might come to give in civil proceedings, or the necessary preparatory steps to give that evidence, such as their witness statements. They will not be immune in respect of any other actions or conduct that might be alleged that forms the foundation of a dishonest conspiracy to extract exaggerated damage from D and the insurers. No doubt there are occasions where the line between a statement, or an action or piece of conduct, is difficult to discover, but that does not mean to say that it is not a tolerably straightforward distinction to draw: it is, and where the line lies in a particular case must be discerned.
22. Where does that leave us? Mr Higgins makes the not unreasonable submission that it’s a fine kettle of fish when Part 20 claims can continue for such a prolonged period without anybody, before Mr Green’s intervention, seeming to have thought of the proposition that the Part 20 Defendants may be immune from suit; and that this omission is some indication of the distinctive nature of these actions that Mr Higgins seems to identify. That is not unjustified, and in debating terms it carries weight. I have no reason to suppose that Mr Green possesses some special insight into this or other areas of law which is not shared by other counsel. Tempting as it is as a debating point, however, I cannot accept that it has any real force. It may be late in the day, indeed it is late in the day, but that notwithstanding, it does arise out of issues of law and as such I am able to deal with it in the interests of justice and of disposing of this in as efficient and proportionate a way as is feasible. I accept that Mr Higgins’s submissions might be deployed in the context of the discretion I have under CPR r3.4, but it is not a discretionary bar to me making the inevitable order.
23. As I indicated in my earlier brisk description of the Part 20 Particulars of Claim: the first part of the document, up to the end of paragraph 5, is based entirely on allegations against the Second and Third Part 20 Defendants derived from what they say in their statements, which are impugned by cross reference to surveillance. The second part comes from their attendance at medical appointments. And the claim could not be put any clearer than it is put in paragraph 10 of the Part 20 Particulars of Claim: by making their false statements, which they knew would be served in support, and attending medical appointments (at which materially false accounts were given), the Second and Third Part 20 Defendants dishonestly conspired together to defraud the Defendant. All aspects of this claim that derive from the making of the false statements must be struck out under CPR r3.4(2)(a), and I offer CPR r3.4(2)(b) as well, as obstructing the proper disposal of the main action.”
ATTENDANCE AT MEDICAL APPOINTMENTS
The judge then went on to consider the defendant’s pleaded case in relation to the witnesses’ attendance at appointments.