Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 99
The Chief Constable of Sussex
Police v XGY: Two doors shut, but
others stay open
by Chris Greenwood & Faye Metcalfe at 4 New Square Chambers
the courtroom is strict: it must be necessary for the
proper administration of justice:
Introduction
On 8 October 2025, Lady Carr, Dame Victoria Sharp
P and Lord Justice Coulson handed down judgment
in The Chief Constable of Sussex Police and the CPS v XGY
and the Bar Council [2025] EWCA Civ 1230, rejecting
a claimant’s claims against the Crown Prosecution
Service (‘CPS’) and the Chief Constable (‘the
police’). Those claims had involved challenge to the
‘core immunity’ – immunity from suit in respect of
things said and done by advocates in court.
In this article, Chris Greenwood and Faye Metcalfe
recap the background and inroads made into the
core immunity thus far, consider what the decision
in Chief Constable v XGY means for lawyers and expert
witnesses, and explore its potential consequences
on the routes by which litigants might still seek to
attack lawyers and expert witnesses for conduct of
and statements made in court hearings.
•
Of importance to advocates, the immunity has
been extended beyond statements made in court,
but only “where the particular work is so intimately
connected with the conduct of the cause in court that
it can fairly said to be a preliminary decision a昀昀ecting
the way that cause of action is to be conducted when
it comes to a hearing”: Saif Ali and Anor v Sydney
Mitchell & Co [1980] AC 198, 215D.
•
In Watson v M’Ewan [1905] AC 480, the core
immunity a昀昀orded to witnesses giving evidence
in court was extended to include statements
made by witnesses outside of court, but only
where such statements were made with a view to
giving evidence. The same extension was applied
in CLG v Chief Constable of Merseyside Police [2015]
EWCA Civ 836, covering claims arising out of
the disclosure of a victim’s address in a police
o昀케cer’s statement supporting an application for
arrest warrants.
•
In Taylor v Director of the Serious Fraud O昀케ce
[1999] 2 AC 177, the House of Lords further
extended the immunity to include statements
made out of court by potential witnesses (as
well as statements made by investigators), but
again, only where they were made with a view to
potentially giving evidence.
Immunity: a brief history
The core immunity, where it applies, acts as
an absolute bar to persons taking part in legal
proceedings (judge, counsel, witness, juror or other
party) being sued for almost anything done or not
done in the course of conducting a case in court.
The reasons underpinning the immunity are both
policy driven – advocates and witnesses must be able
to speak freely in court without fear of being sued
for what they say, and advocates must also argue
their client’s case as best they permissibly can – but
also practical; as the Court of Appeal held nearly 150
years ago: “it is the fear that if the rule were otherwise,
numerous actions would be brought against persons who
were merely discharging their duty.”[i] In simple terms,
a ‘昀氀oodgates’ argument.
And in some cases, attempts to extend the principle
have strayed too far outside the courtroom:
•
Given that the doctrine of immunity necessarily
con昀氀icts with the principle that every wrong should
have a remedy, the test for extending the immunity
beyond its core applicability to statements made in
EXPERT WITNESS JOURNAL
96
In both Darker v Chief Constable of the West
Midlands [2001] 1 AC 435 and Singh v Reading
Borough Council [2013] EWCA Civ 909, the
immunity was held not to cover claims that
the defendants had conspired to fabricate false
evidence and pressurised a witness to include
inaccurate witness evidence in her statement;
the defendants’ actions in fabricating and
procuring the evidence were held to have been
divorced from the evidence/statements that
resulted.
DECEMBER/JANUARY 2025-2026
