Autofocus Ltd v Accident Exchange Ltd

Witness immunity is broad but not absolute. It protects evidence given in court and witness statements prepared for an anticipated trial, even where the trial never occurs. It does not protect independent investigative acts or dishonest fabrication of evidence that cannot fairly be treated as participation in the judicial process as a witness. Whether alleged conduct falls within the immunity is fact-sensitive. The court must examine the actor’s precise conduct, state of mind and the chronology by which the evidence was created. An interlocutory refusal to strike out or grant summary judgment ordinarily decides only arguability. An appellate court should not convert that appeal into a final declaration on an issue not determined below, particularly where the evidence is incomplete.

Accident Exchange Ltd brought claims against Autofocus Ltd alleging conspiracy to use unlawful means, interference with business by unlawful means and deceit. The claims concerned allegedly inaccurate or fabricated spot hire rates supplied by Autofocus’s rates surveyors for use in motor insurance claims.

Autofocus applied to strike out the claim or obtain summary judgment on the basis of witness immunity. HHJ Mackie QC dismissed the application and granted permission to appeal. Following amendments to the claim, Autofocus no longer sought to overturn the operative order. Instead, it sought a declaration that evidence in spot hire rate surveys exhibited to witness statements and expert reports was protected by witness immunity. The central issue was whether the Court of Appeal should finally determine that question despite the interlocutory nature of the decision and the incomplete factual evidence.

Maurice Kay LJ delivered the judgment of the court. Sullivan and Patten LJJ agreed. The court declined to make the declaration sought and dismissed the appeal.

1. The High Court’s refusal of strike-out or summary judgment should have been expressed, and was intended to be expressed, in terms of arguability. The judge was not determining a preliminary point of law. No application or order had been made under CPR 3.1(2), so the witness-immunity issue remained at large.
2. Autofocus’s new declaration would convert an interlocutory appeal into a final determination of the disputed issue. That was procedurally inappropriate because the declaration had not been sought below and the Court of Appeal did not have the full facts.
3. The established rule, explained in Darker v Chief Constable of the West Midlands [2001] 1 AC 435, protects things said or done in court and the contents of witness statements prepared in advance. Its purpose does not justify immunity for acts performed as investigators or for independent fabrication of false evidence.
4. Application of the rule required a detailed factual examination of what each rates surveyor and superior did or omitted, their state of mind, and the chronology from any telephone enquiries through the spreadsheets to the witness statements. If a surveyor dishonestly fabricated evidence, he would be unlikely to claim immunity. If fabrication first occurred in the spreadsheet, it might not matter whether the formal evidence appeared in the statement or an exhibit. Those observations were provisional; the merits were left for trial.

Appeal dismissed.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 788, declined to make the requested declaration and dismissed the appeal.
2. High Court (Queen’s Bench Division): HHJ Mackie QC dismissed Autofocus Ltd’s application to strike out the claim or obtain summary judgment by reference to witness immunity, and granted permission to appeal.