“I’ll sue you for every penny you’ve got!”

Has the principle of judicial proceedings immunity been eroded following Singh v Moorlands Primary School 2013?  And if so, how? What CAN you do if someone lies about you in Court?

Ah, the resonant phrase “I’ll sue you for every penny you’ve got”  – it was fairly common place in my school days to hear this as a vehicle for avoiding a fight that the speaker thought they might lose – the retort for a fight invitation that you think you might win is of course “Four o’clock, school gates – no karate”

As an adult, the times I tend to hear it now is when a person takes umbrage to something contained in the court papers – more often than not a grandfather who is appalled that the parent has made allegations about their childhood, and threatens to sue everyone for defamation.

Such threats are of course idle – firstly, because there is no legal aid for defamation and bringing a case is liable to cost you many thousands of pounds with no guarantee of success   [My stock response when I dabbled in that branch of law was “You want to sue someone for defamation – how do you feel about selling your house to pay for that?”], and secondly because of a principle called “judicial proceedings immunity”

This was established way back in 1585 – Cutler v Dixon.

This means that no action for defamation can be brought against a person for something said in evidence in Court or in a witness statement prepared for Court proceedings  – nor for something said in preparation of such evidence (i.e you can’t sue the mother for saying to her solicitor “This is what my dad did to me when I was little, and I want you to put it in my statement”,  or counsel who prepares a document saying  “mother alleges that the maternal grandfather abused her when she was a child”)

Here’s a neat little summary of why the principle exists

“The reasons why immunity is traditionally conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence”

Of course, if you could sue a person who said in Court something defamatory about you, then it would be impossible to conduct any criminal trials; since in all criminal trials the Prosecution have to say to the defendant  in effect “you’re a thief, aren’t you?”   and the Defence have to say to the Prosecution witnesses in effect  “when you say you saw my client steal something, you are lying”   – and after the verdict, if the Defendant is guilty, the prosecution witnesses could sue the Defence barrister, and if not guilty, the defendant could sue the Prosecution barrister who called him a thief (or worse).  So you need to be able to put the case and deal with the allegations without every case descending afterwards into civil claims for defamation against the losing side.

If you were in the UK in 2012, you may well remember that an MP was able to sidestep all the super-injunctions that were in place by naming the person they were protecting, whilst the MP was in Parliament.  Something an MP says in Parliament has the same sort of protection – you can’t sue an MP for defamation in Parliament (although of course if an MP started abusing this to start for example making allegations that x or y was a war criminal or ‘friend of Jimmy Saville’, there would probably be internal disciplinary issues).  Judicial proceedings immunity is a bit like the immunity an MP has when speaking in Parliament – although not so absolute, as we shall see later.

Anyway, Singh v Moorlands Primary School 2013 is a civil case, specifically an employment one, so it may have not appeared on the radar of family lawyers, but might have some significance.

In this case, the claimant, Ms Singh had been a head teacher and had become embroiled against her will in disciplinary proceedings and a key witness against her was a woman named Sue Heath.  Ms Singh had been anticipating that Sue Heath might in fact give evidence on her behalf, supporting her case, and for that reason formed the view that it had been pressure by the Council that had made Sue Heath file a false witness statement.

Ms Singh claimed that the Council had put pressure on Sue Heath to file a damning witness statement, and further that the witness statement was a tissue of lies. She then claimed that the Council acting in this way (pressurising a witness to file a negative and inaccurate statement) was a breach of their duty towards her as an employee and it thus formed part of her case.

(I.e it wasn’t just a question of cross-examining Sue Heath and getting the truth out of her, but an allegation that the very act of the statement having been prepared in the way it was formed a civil claim against the Council, Ms Singh’s employers)

The Council argued that this allegation ought not to be investigated nor form any part of the employment tribunal, because their actions in preparing the case and witness statements all had the shield of judicial proceedings immunity, and the claimant could not try to pierce that shield.

The Court reminded itself that expert witnesses can now be sued for negligence  [Smart v The Forensic Service 2013 and earlier cases] and an advocate can be sued for negligence arising from their preparation and conduct of a case [Arthur JS Hall and Co v Simons 2002]  and that therefore a blanket immunity could no longer be said to be the case.

The position that a witness and those involved in preparing the witness statement and advancing their case is protected from claims of defamation arising from the evidence remains valid, but that judicial proceedings immunity did not necessarily cover all other matters. For example, a claim could potentially be brought for malicious prosecution where those bringing the prosecution knew that it was based on falsehood.

[The tort of malicious prosecution – a pretty obscure one, now can apply to civil proceedings as well as criminal ones  – Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd 2013]

There’s an interesting, if esoteric debate about whether a police officer who gives evidence that he found a brick of cannabis in the defendants possession is entitled to judicial proceedings immunity, or whether he is immune from a defamation claim about what he SAID in evidence, but not immune from a civil claim if it emerges that he planted the brick of cannabis there.  The Court took the view that what is said and done in the assembly of the case is covered by judicial proceedings immunity BUT NOT where what is done is the deliberate fabrication of evidence.

The Court of Appeal thus determined that Ms Singh was permitted to run the argument at Employment Tribunal that the Council had breached their duties as an employer by compelling or pressurising witnesses to give false evidence against her.  (That’s very different, of course, to the Court deciding that this WAS what the Council had done, merely permitting the argument and enquiry to be part of the case)

The distinction isn’t perhaps the easiest to follow, but it seems that a witness or party is protected from defamation claims that might otherwise arise from their evidence or preparation of their evidence, but MIGHT not be protected against claims of negligence, employment duties or malicious prosecution.

I think getting one of those claims off the ground in a family case would be tricky. The claimant would have to have WON the family case and won it pretty overwhelmingly  (not “finely balanced”) and to have got findings that the witnesses were not merely mistaken or inaccurate, or not accepted but had actually lied and made false and malicious claims. And then you have to have the other side actually be people who have money, to make it worth suing them.

And then the amount of compensation you have to be capable of winning be worth the costs of the litigation it would take to go and get it  (this is colloquially termed “is the game worth the candle?”)  as there’s no point spending £25,000 on legal costs to try to win £10,000 compensation.

Malicious prosecution, tempting as it may sound, only allows the successful claimant to recover economic losses in damages; there isn’t a compensation for emotional hardship or suffering, which would really be more applicable in family law cases.

And then, gulp, you read what the Privy Council said about bringing a claim for malicious prosecution in the Crawford Adjusters case – underlining mine :-

Lord Sumption suggests that the fact that few may succeed will not deter the many who will allege malice. I cannot share his confidence in that assertion. True it may be, as he suggests, that litigation sharpens men’s conviction of their own rightness and their suspicion of their opponents’ motives. But those who launch proceedings rarely do so without regard to the possibility of failure. And the possibility of failure in all but the clearest cases of malicious prosecution is very real indeed.

[That’s pretty transparent Judge code for  “you’ve got very little chance of being able to prove malicious prosecution in all but the most blindingly obvious cases”]

So overall, your remedy for someone lying about you in Court is to prove them wrong, and as a result persuade the Court to find in your favour. There isn’t that much the law will do for you beyond that.