Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 103
claims against advocates by their own clients, but
gave the opposite answer. Does this mean that
a claimant who raises a ‘policy argument’ will
avoid having their claim struck out? Or are 昀椀rst
instance judges tasked with deciding whether
such arguments stand a real prospect of success?
And how often will the higher Courts be willing
to reevaluate previous policy decisions?
•
•
Professional negligence claims by clients against
advocates and experts are here to stay. But what
if, in Chief Constable v XYG, the claimant had
informed the CPS advocate at the hearing that
she was considering not giving evidence at trial,
but the advocate had promised not to reveal her
address? This might arguably be a voluntary
assumption of responsibility, i.e. a relationship
‘akin to contract’; would an arguable claim
therefore lie?
•
The Court of Appeal also made clear their decision
did not concern the well-established exceptions to
the immunity, nor does it impact claims in respect of
actions outside of (and not su昀케ciently connected to)
the courtroom. And in recent years there has been
no shortage of litigants making use of them:
•
•
•
Conclusion
The Court of Appeal’s rejection of “justi昀椀cationism”
whenever the immunity defence is raised enhances
foreseeability, and will be welcomed by those
who practice in the courtrooms of England and
Wales. The decision also provides helpful clarity
that the statement complained of need not relate
to the substance of the index claim in order for
the immunity to apply. But potential exposure for
lawyers and expert witnesses to claims by opponents
in litigation (and other dispute resolution
mechanisms) remains; the Court may have closed
two doors, but others have been carefully left ajar
– and some wide open – leaving plenty of room for
future litigation.
Committal proceedings for contempt of court:
Committal proceedings continue to represent
a degree of risk to witnesses in proceedings,
including expert witnesses. However, some of
that risk is mitigated by the permission 昀椀lter at
CPR r.81.3. In Frain v Reeves [2023] EWHC 73
(Ch), the Court emphasised the need to exercise
great caution before granting permission to
bring committal proceedings, to assess the
public interest in bringing such proceedings
on a case-by-case basis, and to “guard against the
risk of allowing vindictive litigants to use committal
proceedings to harass persons against whom they have
a grievance”.
Malicious prosecution: In Willers v Joyce [2018]
AC 799, the Supreme Court held that the tort of
malicious prosecution included the prosecution
of civil proceedings, and that witness immunity
did not bar malicious prosecution claims,
because they were not brought in respect of the
evidence given in court, but rather in respect of
the malicious abuse of process.
Unlawful means conspiracy claims: This tort has
proved a popular means by which litigants have
sought to attack proceedings notwithstanding
the immunity. Unlike the 昀椀rst two examples, it
is fallible to the immunity. However, litigants
can still argue that their claims do not arise
from the content of statements made in court,
but the manner in which it was procured, as the
successful claimants did in Darker, Singh and
Daniels.
EXPERT WITNESS JOURNAL
Causing loss by unlawful means: This tort is
similarly fallible to the immunity, but that
does not assist a defendant who never issued
proceedings at all. In Vanquis Bank Ltd v TMS Legal
Ltd [2025] EWHC 1599 (KB), the Court declined
to strike out or grant summary judgment against
a bank’s claim that the defendant solicitors had
caused it loss by unlawful means by making
unmeritorious 昀椀nancial mis-selling complaints
against it to the Financial Ombudsman Service.
Claims for misuse of private information:
Following Chief Constable v XGY there is no doubt
that such claims fall within the core immunity,
but as with unlawful means conspiracy claims,
this will not assist a defendant who has misused
such information in the process of producing
their evidence; one example may be Kul v
DWF LLP [2025] EWHC 1284 (KB), where the
defendant did not seek to rely on the immunity,
but in any event succeeded on other grounds.
© Chris Greenwood and Faye Metcalfe, 4 New
Square Chambers, 14th October 2025
This article is not intended as a substitute for legal advice.
Advice about a given set of facts should always be taken.
References
[i] Munster v Lamb (1883) 11 QBD 588, 604, which the Court of
Appeal cited with approval.
[ii] More particularly, the claims against them based on the
disclosure of the address. The claimant’s claim against the
police contained a further strand, concerning other conduct,
which was held to be arguable.
[iii] HHJ Brownhill also concluded that the claimant did not
ful昀椀l the section 7 criterion for bringing an HRA claim, however,
this article will not consider this aspect of the decision nor its
treatment in the subsequent appeals.
100
DECEMBER/JANUARY 2025-2026
