A and B v Hampshire Constabulary

The core immunity attaching to parties, advocates and witnesses protects things said or done in the ordinary course of court proceedings, including conduct forming part of an integral public interest immunity hearing. It is not confined to evidence given from the witness box. The immunity does not extend to extraneous investigative acts, such as fabricating evidence or planting material, even if the resulting evidence is later used in court. A pleading may be struck out where, taking the claimant’s case at its highest, it cannot possibly succeed. A claimant cannot rely on the failure of an alternative factual case to create a cause of action contrary to the case pleaded. Costs decisions are rarely disturbed on appeal absent clear error.

A and B appealed against Master McCloud’s order of 29 November 2011, which struck out the parts of their negligence claim concerning four alleged disclosures of A’s identity as a police informer. The Master held that disclosures made by or through prosecuting counsel in court and during public interest immunity proceedings were protected by core immunity. She also held that the claims concerning two later alleged disclosures were bound to fail on the evidence and pleaded facts.

The remaining claim, concerning the police’s alleged failure to protect the claimants after disclosure, was not challenged on appeal. The central issues were the scope and continued existence of core immunity, the proper approach to strike-out applications, causation of loss where the recipient already knew the information, and the costs order.

The appeal was dismissed. The Master had correctly struck out the claims based on the alleged disclosures by or through prosecuting counsel, the third alleged disclosure, and the fourth alleged disclosure.

1. Core immunity. The immunity enjoyed by parties, advocates, witnesses, judges and jurors covers things said or done in the ordinary course of proceedings. Its rationale is the need for participants in court proceedings to speak and act freely. It applies to a disclosure made by prosecuting counsel at a preliminary hearing and to disclosure in public interest immunity proceedings, which formed an integral part of the court hearing. The immunity therefore defeated any cause of action based on those disclosures.
2. Limits of the immunity. Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 did not abolish the core immunity. It distinguished between evidence given in court and extraneous acts, such as manufacturing false evidence, which have an independent existence. Autofocus Limited v Accident Exchange Limited [2010] EWCA Civ 788 was distinguishable for the same reason. The present claim was founded on disclosure during the proceedings, not on any prior falsification of information.
3. Strike out on the facts. The third disclosure claim had no reasonable prospect of success because the claimants had no evidence, and could identify no evidence capable of being adduced, proving the alleged disclosure. On the fourth disclosure, the pleaded case accepted that the relative already knew, or believed, that A was an informer. The claimants could not disavow that case and rely on its possible rejection to establish a later first disclosure or resulting loss.
4. Costs. The Master was entitled to order the claimants to pay the costs of the application. Her exercise of discretion was not plainly wrong. The appeal costs were assessed at £6,601, with the order subject to the stated arrangements concerning the Community Legal Services Fund and assessment under section 11 of the Access to Justice Act 1999.

• High Court (Queen’s Bench Division): Master McCloud’s order of 29 November 2011 struck out parts of the particulars of claim under CPR 3.4 and CPR 24.2. The claim concerning the secondary protective duty remained.
• High Court (Queen’s Bench Division): The appeal was dismissed. The costs order below was upheld, and appeal costs were assessed at £6,601.