SURZUR OVERSEAS LTD. v. KOROS AND OTHERS

Witness immunity bars civil liability arising from evidence given in judicial proceedings, including the preparation of that evidence. It cannot be avoided merely by pleading a conspiracy to give false evidence.

The immunity does not, however, defeat a claim directed at a wider conspiracy to conceal assets, manufacture false documents and defeat a court order merely because false evidence was used as one step in achieving that objective. Nor should the evidential steps be excised from the pleaded conspiracy and considered separately.

For jurisdictional purposes, it is sufficiently arguable that unlawful means supporting a conspiracy need not themselves be independently actionable by the claimant.

The claimant appealed from Longmore J’s decision setting aside service of proceedings upon three defendants domiciled in Greece. Under article 2 of the Brussels Convention, they were prima facie to be sued in Greece. The claimant sought jurisdiction under articles 5(3) and 6(1).

The claim alleged a conspiracy to conceal a debtor’s interests in three vessels, manufacture false sale documents and procure the vessels’ release from a worldwide Mareva injunction. Longmore J held that the claim disclosed no serious issue for trial because it was barred by witness immunity.

The Court of Appeal granted leave to rely on amended points of claim. The central issue was whether the amended conspiracy claim had a good arguable basis notwithstanding that the alleged scheme included the presentation of false evidence to the court.

1. Appeal allowed unanimously. Waller LJ delivered the judgment, with which Aldous and Hirst LJJ agreed. The amended points of claim amply demonstrated a serious issue to be tried. The remaining questions under articles 5(3) and 6(1) of the Brussels Convention were therefore to return to the Commercial Court.

2. The pleaded conspiracy was properly characterised as a scheme to conceal assets, deceive the claimant through false documents and, if necessary, deceive the court so that the vessels could be sold. The court application was an important causal step, but giving false evidence was not the conspiracy’s sole or necessary objective.

3. Witness immunity protects parties and witnesses from civil actions concerning things said or done in the ordinary course of judicial proceedings, even where the conduct is alleged to be false and malicious. It extends to affidavit evidence and to the preparation of evidence. A claimant cannot evade that rule merely by alleging a conspiracy to give false evidence.

4. The immunity does not bar every claim which includes an allegation that false evidence was given. On the broader reading of Roy v Prior, it does not apply where the claim concerns a wider unlawful objective and the giving of evidence is only a step in its execution. It was also impermissible to divide the conspiracy into immunised evidential acts and surviving non-evidential acts.

5. Alternatively, the alleged conspiracy to defeat the Mareva injunction and obtain the release of assets was closely analogous to the abuse of process exception recognised for malicious arrest and malicious prosecution. Deliberately assisting the debtor to defeat the injunction through false documents was at least arguably an unlawful means, whether or not the foreign defendants themselves committed contempt.

6. The court did not finally decide whether unlawful means in the tort of conspiracy must be actionable at the claimant’s suit. The authorities were not conclusive and the issue had been raised late. It was nevertheless eminently arguable that independent actionability was unnecessary, which was sufficient at the jurisdictional stage.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. Leave was given to amend the points of claim, and the unresolved jurisdictional questions were left for determination in the Commercial Court.
2. Commercial Court: Longmore J, on 20 February 1998, set aside service upon the Greek defendants after holding that witness immunity left no serious issue to be tried. The questions under articles 5(3) and 6(1) of the Brussels Convention were not decided.