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“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.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

5 responses

  1. Jerry Lonsdale

    One must not forget the widely used term of Qualified Privilege in matter you speak of.

    The defense of qualified privilege permits persons in positions of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else

  2. Edna Fletcher

    There are some issues which those involved in ‘the system’ do not seek to acknowledge.

    1. It is clear that libel / slander do not really impact much on lives of most individuals who are not public figures- who have something to loose. No doubt lawyers dealing in defamation know money is only to be made from these.

    2. People may say things about each other which are deemed part of the democratic system of ‘giving opinions’ (or stating fact) falling under ‘freedom of speech’. This is a mark of democratic society. It is malicious utterings which can be harmful to those they are about. Some vulnerable people could end up harming themselves or comitting suicide if something false and harmful was spread about them. Some things do have consequences- but then who cares?

    3. The lack of public accountability of persons of authority or trust allows them to make statements which can give a false / distorted picture or one that is not factual- to get a desired outcome. It is clear that people need to be free to give statements without fear. But it is also of concern that so many in family / CoP cases are unable to effectively challenge persons of authority or trust for using unbalanced statements and ‘experts’ to back up unfounded decisions.

    The law is on the side of those who have legal immunity or qualified priviledge, even if they present a fabrication- because you cannot sue them or anyone else (even if you by any chance might win a defamation case). The things on ‘official records’ are not infrequently inaccurate, few people seek to look at their records let alone get any corrected.

  3. toni aka stella

    an interesting point given recent developments noted in proceedings of late relating to expert witnesses stating they have being forced to state things in a report under duress from the local authority in writing and refusing to allow the report to be used any longer and partake in any matters regarding to the legal proceedings and would even refuse to attend court under court order……..developments in relation to that will be undoubtedly be hitting the press shortly and the RCJ you can bet ya bottom dollar on that !
    however in regard to the above you could always argue the fact you could do a private prosecution for perjury perverting the course of justice harassment misconduct in a public office and misfeasance in a public office and that would not be covered by the above law and no legal immunity could be used as long as you can persuade the DJ in criminal proceedings that in fact lies false information and misrepresentations of the truth have been done in proceedings …….and funnily enough the cases iv done all the district judges have been rather sympathetic and agreed the prosecution should go ahead the added bonus of this is that once you pass the initial hurdle the matters due to the sentencing guidelines and the fact its a crown court matter and gets treat as such the CPS must take over so aslong as you can achieve the initial hearing (which is easily done as long as ya stand ya ground and do not allow emotions to get in the way and do so confidently and articulate your points correctly and efficiently) you dont need to do much else they have to do all the work for you ….. this is of course if you act like many with issues relating to local authorities and lies told within court documents regarding you and your family as a LIP (litigant in person)
    xx

    • Hi Toni

      Although the private prosecution for perjury is a route open to a person, it of course doesn’t result in any compensation. I suspect, although I would have to sit down with some books on this, that a prosecution for perjury has to be proved to the criminal standard of proof, so even a judicial finding in the family proceedings that X had lied (which is itself a bit unusual, Judges tend to formulate by “the evidence of X is not accepted, or the evidence of Y is preferred” rather than the out and out lie) would not prove perjury, the applicant would have to prove it to the criminal standard. Tough to do.

      Will keep an eye out for the case you discuss, it would certainly raise some very important issues.

      • toni macleod aka stella

        As ever a good point but im disagreeing basing it solely on personal experience during mine and other peoples proceedings iv worked on, the simplest way to do this to a criminal standard is my favorite of taking a social workers statement for example (normally the easiest liar in proceedings to find solely ” in my opinion of course” lol ) and compare them to each other and of course the secret recordings many parents take of them and prove the discrepancies within them then of course …..

        section 1(1) of the Perjury Act 1911. Section 1 of that Act
        (1) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment . . . for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine.

        therefore under criminal law this entitles you to request that the above said ”fine” transfers into compensation such as they do in relation to ”regular” victims of crime seen in courts across the country to a sum of what ever you request which the court finds favour with and the additional victim impact statement always delivers a good result

        this of course works for the aforementioned criminal offences i mentioned in my prior post but the protection from the harassment act 1997 is the easiest out of all offences to achieve as ”you must feel harassed” how the hell does anyone know if you feel harassed or not or could they prove you werent harassed !? you could always do this easily through the police to start with then take it to court as one case of you feeling harassed is punishable via that law ……

        of course when you get the joy of using the lies told about how emotionally damaged you are from having your children taken by a shrink and a psyche that you should never have them returned to you which was paid for by the LA to make sure you dont get your kids back by the LA your taking to court and they then stupidly ask you to prove how it has emotionally damaged you are ! …..it of course has the added satisfaction of irony although rather a Pyrrhic victory if ever there was one … (grrr)

        rather interesting when you get into it and as ever criminal law is much easier than public law and then you have the joy if you feel confident enough or have enough spare time and patience to do a commercial lien via the torts act and common law although i accept many turn their nose up at common law and torts but it is of course still accepted above statute law and many others more widely used than people think housing law is where it is most commonly used for the interference of goods act tort law blah blah blah …

        but any way in a nut shell it is achievable as of course every thing is if you put your mind to it and have enough drive and determination which of course many in care proceedings wrongly accused have and hope you enjoyed the punctuation ! (it killed me ! lol ) xx

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