Accident Exchange Ltd v Autofocus Ltd

Witness immunity protects evidence given in court and statements prepared for that purpose, including protection against claims based on giving false evidence. It does not extend to the prior creation or fabrication of material intended to generate false evidence. The relevant distinction is between the content of evidence and acts which independently create, procure or destroy evidence. Materials collected during an investigation, on which a witness may later rely, are not protected merely because they are later exhibited to a witness statement. The immunity therefore does not prevent a claim based on fabricated survey records, although the subsequent witness statement itself may fall within the immunity.

Accident Exchange, a credit hire company, claimed that employees of Autofocus dishonestly fabricated rate surveys used in litigation concerning vehicle hire charges. It alleged conspiracy to use unlawful means, interference with trade or business by unlawful means and deceit, claiming substantial losses caused both by adverse court awards and by settlements made in reliance on the surveys.

Autofocus applied to strike out the claim or obtain summary judgment, contending that the alleged conduct was protected by witness immunity because the surveys were exhibited to witness statements. The parties agreed that the immunity covered evidence in court and witness statements, and that the court should decide the immunity issue on the assumed truth of the pleaded facts.

1. Application dismissed. The court proceeded on the basis that the pleaded primary facts were true and determined the witness-immunity issue directly.
2. The immunity protects a party or witness in respect of evidence given in court and statements made for the purpose of giving evidence. It also prevents claims, including conspiracy claims, based on the giving of false evidence.
3. The governing distinction, applied from Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435, is between the content of evidence and an act which independently creates or fabricates evidence. The latter is not protected.
4. The distinction applies even though the defendant’s employees had no separate investigative function and undertook the enquiries with a view to giving evidence. The fact that the employees’ records were prepared for litigation, or were prepared at the same time as the witness statements, did not determine the issue.
5. The rate-survey records were material collected during enquiries on which the employees might later be called to give evidence. They were not themselves the protected content of that evidence. Exhibiting them to a witness statement did not confer immunity.
6. The application was accordingly dismissed. The court noted that amendments might be required to reflect the parts of the pleaded case which were conceded to be immune, and that further interlocutory issues remained.