Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 100
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The immunity also did not apply in Daniels,
where a claim for misfeasance in public o昀케ce
arising from to the concealment/withholding
of evidence was held not to be founded on the
content of any statement, but rather the way in
which the disclosure exercise was performed.
The claimant brought claims for damages against
the Chief Constable and CPS pursuant to the
Human Rights Act 1988 (by reference to Articles 2,
3 and 8 of the Convention), for breach of the Data
Protection Act 2018, and for breach of con昀椀dence
and misuse of and/or unjusti昀椀ed disclosure of
private information.
There are also some types of claims to which, even
inside the courtroom, the core immunity does not
apply at all:
•
Both defendants applied to strike out the claims
against them.[ii] The CPS contended they were
immune from suit since the claims related to
something said by an advocate in court, and the
police argued, amongst other things, that the core
immunity extended to their provision of the address
to the CPS.
In Arthur JS Hall & Co v Simons [2002] 1 AC 615,
the House of Lords held that the public interest
in the administration of justice no longer
required that advocates enjoy immunity from
suit for negligence alleged by former clients in
the conduct of civil proceedings. The principles
of res judicata, issue estoppel and abuse of process
were held to provide adequate protection against
re-litigation, and the Court’s power under CPR
r.24.2 would restrict the ability of clients to
bring unmeritorious or vexatious claims against
advocates absent the immunity.
•
Jones v Kaney [2011] 2 AC 398 built upon Hall,
abolishing the expert witness’s immunity for
claims in negligence brought by their clients.
•
Suits of malicious prosecution, malicious
initiation of criminal proceedings, prosecution
for perjury and proceedings for contempt of
court have also long been held not to be covered
by the immunity (Daniels v Chief Constable of
South Wales [2015] EWCA Civ 680).
Judgment of HHJ Brownhill
HHJ Brownhill struck out the claims against
both defendants, holding that (1) although any
new extension to an immunity required detailed
examination, the law did not require cases falling
within an already established immunity to be
subjected to a trial into the relevant public policy
considerations; and (2) Hall had only removed an
advocate’s immunity in relation to negligence claims
brought by the advocate’s own client, not any other
immunity.
HHJ Brownhill concluded that since the disclosure
of the claimant’s address fell squarely within the
established advocate immunity (statements made in
court by an advocate) that action must fail, and that
police’s inclusion of the address in the CPS 昀椀le was
similar to the 昀椀le note in Taylor v DSFO, such that
it fell within an established extended immunity.[iii]
Accordingly, while the starting point remains that
the immunity covers any cause of action brought
against the relevant party for written or spoken
statements made in court, it is a point from which
very substantial departures have already been made.
Judgment of Ritchie J
Ritchie J allowed the claimant’s appeal.
Chief Constable v XGY
Ritchie J considered that outside of certain ‘core’
categories of immunity (which he labelled “Witness
Immunity at Court “Judges Immunity at Court” and “parts
of Advocates Immunity at Court relating to the evidence
in the case”), “the appellate Courts have arguably stated
the correct approach to claimed immunities… is to grant
or permit them “grudgingly”, because they undermine the
key principle that every wrong should have an appropriate
redress in law”. Accordingly, where there were relevant
factual issues potentially making the claimed immunity
“unsettled” in scope or justi昀椀cation, “the justi昀椀cation
should be analysed on the necessary evidence to see if it
makes immunity necessary in the public interest”.
The claimant had been in a relationship with her
former partner, DYP, who was the accused in the
underlying criminal proceedings. Following the end
of that relationship, the claimant moved addresses
two times, relocating to an address in Hampshire,
which she told the police about and asked to be kept
con昀椀dential. Having initially accused the defendant
of various forms of assault and threats to kill, at the
same time as providing the address, she also told the
police that during their relationship, DYP had raped
her.
The police arrested DYP, and in preparing a 昀椀le for
DYP’s bail hearing, passed the claimant’s address to
the CPS without marking it as con昀椀dential. During
the bail hearing, the advocate for the CPS sought
to include a condition of bail preventing DYP from
going to the address and in doing so informed DYP
of the address.
EXPERT WITNESS JOURNAL
Ritchie J’s rationale was that in the last 25 years there
had been a move away from “absolutism” towards
a “justi昀椀cation approach”: a “careful consideration
of whether the facts of each case actually do 昀椀t with the
claimed “immunity” by reference to whether the longestablished justi昀椀cations for the immunity apply”.
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DECEMBER/JANUARY 2025-2026
