Hersi & Co Solicitors & Anor v The Lord Chancellor

Witness immunity generally bars civil claims based on evidence given in judicial proceedings, including claims framed as misfeasance in public office. It extends to necessary preparatory communications and evidence-related steps, but not to fabrication, destruction, concealment or withholding of evidence where those acts fall outside participation as a witness. A party cannot avoid immunity by recasting an allegation that evidence was false as an allegation about what the witness failed to say.

Serious allegations of fraud, dishonesty or bad faith must be pleaded with clear and specific particulars. A later action may also be an abuse of process where allegations that properly belonged to earlier proceedings were not pursued there. Summary judgment is appropriate where, after proper strike-out, no viable counterclaim remains.

Hersi & Co Solicitors and Ahmed Hersi appealed against Master Yoxall’s order striking out substantial parts of their Defence and Counterclaim and granting summary judgment to the Lord Chancellor. The pleading alleged that employees and others had fabricated, suppressed or misleadingly presented evidence in earlier judicial review proceedings, and had committed misfeasance in public office, deceit and related torts.

The appeal also challenged the refusal to permit further pleading and raised an application to set aside permission to appeal because the appellants had not disclosed the outcome of the judicial review. The central issues were the scope of witness immunity, the adequacy of the particulars, abuse of process and the application of the summary judgment jurisdiction.

1. Permission to appeal. The application to set aside permission was refused. The appellants had failed to disclose material matters, including the dismissal of the judicial review and their failure to challenge the impugned witnesses. However, the court could not be sure that permission would not have been granted had the full picture been disclosed. Under CPR r 52.18, the compelling-reason threshold was not met.
2. Witness immunity. A non-expert witness has absolute immunity from civil suit for things said or done in the ordinary course of judicial proceedings. The immunity extends beyond evidence in the witness box to necessary preparatory work, proofs and communications forming part of the judicial process. It applies irrespective of the pleaded cause of action, including misfeasance in public office.
3. The immunity does not extend to conduct which cannot fairly be regarded as participation in the judicial process as a witness. Fabrication of evidence is outside the immunity, and the same rationale applies to destruction, concealment or withholding of evidence. Nevertheless, allegations that a witness gave false evidence remain within the immunity. The appellants could not avoid that rule by describing their case as concerning what the witnesses failed to tell the court.
4. The allegations concerning false statements, witness statements and litigation evidence were therefore properly struck out. Any allegations concerning conduct outside the immunity were independently defective because they lacked proper particulars and amounted to an abuse of process. The pleaded misfeasance claim did not displace the core immunity.
5. Pleading and summary judgment. Under CPR Practice Direction 16, para 8.2, serious allegations of fraud, dishonesty, recklessness and bad faith require primary facts identifying the alleged wrongdoing and the defendant’s state of mind. The pleading contained bare assertions, without identifying the documents, explaining the alleged falsity or particularising malice or dishonesty. The rule against summary judgment in a factually contested fraud trial did not assist because the counterclaim was struck out for defective pleading rather than determined after a mini-trial.
6. Abuse of process. The allegations concerning the earlier judicial review should have been raised and litigated there. Permitting them to be pursued in later proceedings would improperly reopen matters which properly belonged to the earlier litigation, contrary to the Henderson v Henderson principle and the wider public interest in finality.
7. The appeal was dismissed. The Master’s strike-out and summary judgment orders were upheld.

• High Court (Queen’s Bench Division): Master Yoxall struck out the specified parts of the Defence and Counterclaim and granted summary judgment to the Lord Chancellor: [2017] EWHC 2888 (QB).
• High Court (Queen’s Bench Division): permission to appeal was granted by Walker J. Mr Justice Julian Knowles refused to set aside permission and dismissed the appeal.