In Sprecher Grier Halberstam LLP v Walsh (Sprecher Grier Halberstam LLP & Anor v Walsh [2008] EWCA Civ 1324) the Court of Appeal reaffirmed the well-established principle that witnesses and those involved in preparing evidence for court proceedings have absolute immunity from suit regarding their written or spoken words, or actions directly related to investigation or or that giving evidence to law enforcement or a court.
Mr Walsh’s claim was for deceit and conspiracy against SGH LLP and Mr Judge, counsel who acted for Paul Staines who severely misrepresented financial information to secure an ex-parte freezing order in breach of their strict legal duty of full and frank disclosure.
The court held the claim had no real prospect of success and was bound to fail, focusing on the claimant’s knowledge of the deceit, and Mr Staines’s privilege of absolute witness immunity from suit.
The judgment reaffirmed that witness immunity also extends not only to witness statements and oral testimony but also to correspondence related to the ongoing litigation, even if the evidence was allegedly fraudulent.
The crucial public interest principle in protecting witnesses so evidence may freely be given
The Court reaffirmed from the House of Lords authorities relied on, that allowing claims of deceit or conspiracy against witnesses or their legal representatives would violate public policy, which requires witnesses to be able to freely give evidence without fear of being sued.
The claim brought by the Managing Director of this Firm in 2008, Martin Walsh was, consequentially barred by the doctrine of witness immunity and public policy.
The crucial passages recited from the House of Lords leading judgments are set out below and we make available a full version of the judgment by PDF:
The law relating to witness immunity
“39. The doctrine is well settled. In Watson v M’Ewan [1905] A.C. 480, 486, the Earl of Halsbury L.C. said:
“By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a court of justice, is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable – it is settled law and cannot be doubted. The remedy against a witness who has given evidence which is false and injurious to another is to indict him for perjury; but for very obvious reasons, the conduct of legal procedure by courts of justice, with the necessity of compelling witnesses to attend, involves as one of the necessities of the administration of justice the immunity of witnesses from actions being brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument.”
40. A more modern exposition of the rationale for the rule is given by Lord Hutton in Darker v Chief Constable of the West Midlands Police [2001] 1 A.C. 435, 464:
“… in order to shield honest witnesses from the vexation of having to defend actions against them and to rebut an allegation that they were actuated by malice the courts have decided that it is necessary to grant absolute immunity to witnesses in respect of their words in court even though this means that the shield covers the malicious and dishonest witness as well as the honest one.”
He added at p. 468:
“Furthermore, the authorities make it clear … that where the immunity exists it is given to those who deliberately and maliciously make false statements; the immunity is not lost because of the wickedness of the person who claims immunity.”
41. In Marrinan v Vibart [1963] 1 Q.B. 234, 238 Salmon J. held:
“It is true that in nearly all the reported cases in which the principles to which I have alluded were laid down, the form of action was for damages for libel or slander, but in my judgment these principles in no way depend upon the form of action. In Hargreaves v Bretherton [1959] 1 Q.B. 45, an unsuccessful attempt was made to evade the immunity to which I have referred by suing for damages for perjury. Counsel for the plaintiff attempted to distinguish that case on the ground that an action for damages for perjury is unknown to the law, whereas an action for damages for conspiracy is of respectable lineage. As far as it goes, the distinction is a sound one. It does not, however, affect the point that Hargreaves v Bretherton demonstrates that the immunity to which I have referred is not only an immunity to be sued for damages in libel or slander. The immunity, in my judgment, is an immunity from any form of civil action.”
