Singh v Moorlands Primary School & Anor

Judicial proceedings immunity protects participants from civil liability founded on the evidence they give, and extends to preparatory material only where that extension is practically necessary to prevent a collateral attack on the immunity. It does not protect a free-standing act merely because that act was undertaken in preparation for litigation.

A contractual claim may therefore proceed where its gist is that an employer improperly pressured a witness to provide false or inaccurate evidence. The claim concerns the alleged means of procuring the statement, rather than its content or any evidence given to the tribunal. Such conduct may, if proved, breach the implied term of mutual trust and confidence.

The appellant, a headteacher, had brought Employment Tribunal proceedings alleging race discrimination, harassment and victimisation. After witness statements were exchanged, she resigned and sought to amend her claim to allege that her employer had put undue pressure on a colleague to produce a false or inaccurate witness statement for the tribunal proceedings.

The Employment Tribunal and the Employment Appeal Tribunal held that the proposed allegation was barred by judicial proceedings immunity. The appellant appealed. The central issue was whether immunity extended to an employer's alleged improper conduct in procuring a witness statement, where the proposed claim was for constructive dismissal founded on breach of the implied term of trust and confidence.

1. Appeal allowed. The Employment Tribunal and Employment Appeal Tribunal had construed judicial proceedings immunity too broadly.

2. The core immunity concerns evidence given in judicial proceedings. It also protects statements of case and other material placed before the court. Its extension to matters outside the hearing is justified only where this is practically necessary to prevent the core immunity being circumvented.

3. The authorities, including Taylor v Serious Fraud Office [1999] 2 AC 177, Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 and Roy v Prior [1971] AC 470, establish that the immunity is not engaged where the cause of action is based on a separate act rather than on the content of evidence. The broad proposition that immunity attaches to everything said or done in the course of litigation could not be maintained.

4. The proposed claim was not an attack on what the witness might say to the tribunal. Its alleged foundation was the Council's undue pressure on the witness to make a false or inaccurate statement. That was a free-standing antecedent act. The statement and any discrepancies in it might be evidence of pressure, but they were not the legal wrong alleged.

5. If proved, an employer's use of improper means to defeat an employee's discrimination claim could destroy the trust and confidence inherent in the employment relationship. Properly conducted hostile litigation would provide reasonable and proper cause, but the pleaded allegation was of improper conduct. The merits and factual basis of that allegation remained undecided.

• Court of Appeal (Civil Division): Allowed the appeal and held that judicial proceedings immunity did not bar the proposed amendment.
• Employment Appeal Tribunal: Upheld the Employment Tribunal's refusal of the amendment on the basis of judicial proceedings immunity: [2013] UKEAT 0540.
• Employment Tribunal: Refused permission to add the proposed “final straw” allegation.