Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 102
So, Ritchie J held, where a defendant relied on the
immunity but the claimant asserted it was unjusti昀椀ed
or the claim fell outside of its scope on the facts,
the court should conduct a “balancing exercise to be
carried out to determine whether the way the function was
performed so undermined the justi昀椀cations for the claimed
immunity” that it should not be granted.
challenge to an existing immunity based on
policy (namely that counsel should be immune
from suit by their own clients in negligence), and
Jones focussed exclusively on whether an expert
witness’ immunity should continue to extend to
claims in negligence brought by their own client.
4. Contrary to Ritchie J’s interpretation of Darker,
“The core immunity is not limited to evidential matters.
It is far wider in scope. The immunity attaches to
statements (said or written) made in court. Whether
or not a statement is related to evidence, is a limiting
factor only in the extension of the core immunity to
statements made by potential witnesses outside of
court – such statements are only within the scope of
the extension if they are made with a view to giving
evidence.” Accordingly, the claimant’s address
did not need to be related to the alleged o昀昀ences
for its disclosure to be covered by the immunity.
Adopting this approach, Ritchie J held that:
•
•
The police were not covered by the scope of
‘Witness Immunity at Court’, because the address
was not evidence in relation to the criminal case
being investigated. And while they may have
been covered by ‘Legal Proceedings Immunity
before Court’, this was not a ‘core immunity’
and so the Court should have considered the
justi昀椀cations for granting the immunity, and it
was also arguable that the function performed
was “administrative” and so fell outside the
scope of the immunity altogether.
5. The core immunity and its extensions apply to
bail hearings, such hearings being “an integral
part of proceedings in the criminal court”.
As to the CPS, it was arguable that the core part
of the ‘Advocates’ Immunity at Court’ related
to “witness evidence in the case, not to extraneous or
peripheral or administrative matters”, so that again,
a balancing exercise between public policy
concerns should have been carried out by HHJ
Brownhill.
The Court of Appeal further held that the police
were covered by the extended immunity identi昀椀ed
in Watson, Taylor, and CLG. The police’s preparation
of the bail hearing 昀椀le fell within the process of
criminal investigation and administration of justice.
Accordingly, Ritchie J was wrong to impose the
‘evidential’ requirement that he did.
The Court of Appeal’s decision
On appeal by the Chief Constable and CPS, the
Court of Appeal held that HHJ Brownhill was right
to conclude that the claims against the CPS had to
fail. Although the claimant’s address should not
have been disclosed, “the words of the CPS advocate were
spoken indubitably “in the course of court proceedings” and
so covered by the core immunity”.
The Court of Appeal also addressed the question of
what type of claims the immunity covers, reiterating
that save for narrow exceptions – including claims
for negligence by the party’s own client – the
immunity “cannot be out昀氀anked by other claims, no
matter how they are formulated.”
In doing so, the Court of Appeal rejected Ritchie J’s
“justi昀椀cationism” approach. Instead, the Court held:
Attacks on proceedings: does Chief
Constable v XGY redraw the lines of
defence?
1.
“
Where the facts fall within an existing immunity
(rather than requiring a new extension), the
application of the immunity does not need to be
justi昀椀ed on a ‘case-by-case basis’.
The Court of Appeal’s decision makes two things
clear:
1.
It is wrong to elide the requirement to justify categories
of immunity with the requirement to justify the actions
of a person on the facts of every case. If a claim falls
within the scope of the core immunity or its established
extensions, the claim must be struck out. To be
e昀昀ective, foreseeability is essential if those involved
in the administration of justice are to speak freely.
The approach of “justi昀椀cationism” fundamentally
undermines the public policy underlying the existence
of the immunity.”
2. The Court will not distinguish between
‘administrative’ or ‘evidential’ statements made
in court; the test is simply whether the words
were written or “spoken “in the ordinary course of
court proceedings”.
But other doors remain ajar:
2. It is only when a new extension is sought that the
necessity of the immunity has to be justi昀椀ed.
•
3. The decisions in Hall and Jones did not
exemplify a move “away from absolutism” towards
“justi昀椀cationism”. Instead, Hall involved a speci昀椀c
EXPERT WITNESS JOURNAL
Where a claim falls within an established
immunity category, it is not open to the claimant
to simply invite the Court to consider whether
the immunity is justi昀椀ed on the facts of the case.
99
The Court noted that “Public policy can change
over time and be re-evaluated”. Hall is a paradigm
example; thirty years earlier, in Rondel v Worsley
[1969] 1 AC 191, the House of Lords considered
the very same question concerning negligence
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