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Court ruling on scope of immunity from liability for steps taken in course of litigation

Posted by TonyBrownEmploymentSolicitor on July 25, 2013

It’s a long-established principle that those involved in the judicial process should be immune from civil action for what they do or say in the course of the litigation. It’s a principle based on policy that those engaged in litigation should be able to speak freely without fear of being sued for anything they do or say in the course of the litigation.

However, in the next case, the Court of Appeal rejected an employer’s argument that its actions in the preparation of a case for trial, including the procurement and preparation of a witness statement, attracted immunity and could not, therefore, constitute the basis for a constructive dismissal claim.

The background to the case was that the Claimant school teacher believed she was the victim of a concerted campaign of race discrimination, harassment and victimisation, pursued by parents, staff and governors at her school in order to remove her from her post. She sued the school for discrimination when she was still in post.

Following service of witness statements in those proceedings, she decided that the school had improperly pressured a fellow employee, who had been supportive of her up to then, to change her account to one that assisted the school in defending the case. She felt that her employer’s act was the “last straw” in terms of the destruction of the parties’ relationship of trust and confidence and she resigned claiming constructive dismissal.

Both the ET and on appeal the EAT held that the final straw allegation should not be permitted, because judicial proceedings immunity covered all the employer’s activities (whether proper or improper) in gathering evidence for the purpose of defending the Claimant's claim of discrimination.

Overturning those decisions and ordering a trial of the Claimant’s claim for constructive dismissal, the Court of Appeal rejected the argument that because the allegation concerned the school’s conduct of litigation, it was precluded by judicial proceedings immunity. The Court held that the allegation fell outside the immunity as it was not a claim founded upon evidence given in proceedings, but one that was based on the antecedent act of the employer allegedly suborning a witness.

Comment

For many, the Court of Appeal decision is surprising and may leave parties and their advisers unsure whether there is a genuine risk of repercussion about the way in which litigation is conducted.

It was not as if the earlier rulings of the ET and EAT could be seen as a green light for inappropriate behaviour because a party that acts in a way to undermine the proper conduct of a trial is potentially liable at least to costs orders and to prosecution for contempt of court and may also be liable to a charge of perjury.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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