Tufano v Vincenti

An expert witness enjoys immunity from suit, or absolute privilege, in respect of statements made for the purpose of giving evidence in judicial proceedings. The protection extends to an expert report prepared for a court-appointed or court-approved purpose. It is not lost because the material is alleged to be inaccurate, irrelevant, malicious or recklessly prepared. Where the relevant facts are undisputed, the issue may be determined summarily as a question of law by a judge. It is unnecessary to investigate truth, malice or alternative defences once immunity or absolute privilege disposes of the claim.

The claimant brought libel proceedings concerning a psychiatric report prepared by the defendant for use in family proceedings concerning the claimant’s children. The defendant had been instructed as the expert by arrangement approved in the family proceedings, and the report was supplied for that purpose.

The defendant applied to strike out the claim and sought summary judgment on the grounds of absolute privilege and immunity from suit. The claimant alleged that the report contained serious inaccuracies and wished to establish recklessness or bad faith. The central issue was whether the report fell within the immunity protecting evidence prepared for judicial proceedings.

1. Application granted. Summary judgment was entered for the defendant on the grounds of absolute privilege and/or immunity from suit.
2. The immunity from suit of a witness extends to an expert witness. It covers statements made for the purpose of giving evidence to a court, including statements contained in an expert report. The protection applies even where the words are alleged to be irrelevant, malicious, inaccurate or unsupported by reasonable cause. The report in question fell squarely within that principle: [2006] EWHC 146 (Admin); [1995] 2 AC 633; [1981] 1 WLR 184.
3. The distinction between absolute privilege and immunity from suit was recognised but did not require determination. The undisputed circumstances of the defendant’s instruction permitted the primary issue to be resolved as a matter of law without investigating the report’s accuracy, the defendant’s state of mind or the need for a jury.
4. The court declined to determine the alternative abuse-of-process argument. It observed that the law may permit a person genuinely believing evidence to be misleading or false to approach a witness or seek to persuade that witness to change the evidence, but the evidence did not permit a definitive conclusion on abuse of process.
5. There was no need to address consent, leave and licence, qualified privilege, good faith or malice. The defendant was permitted to amend the defence, and summary judgment followed on the primary ground.