Erhard-Jensen Ontological/Phenomenological Initiative Limited v Daniel Rogerson

Judicial proceedings immunity applies where the pleaded claim is founded on the content of statements of case or other documents placed before a judicial or quasi-judicial body. It is not confined to oral witness evidence, although broad descriptions of immunity must be read in the light of later authority.

A claim alleging that arbitration was maliciously and groundlessly commenced on false allegations necessarily requires examination of the initiating documents. It is therefore barred where those documents form the substance of the alleged detriment. The immunity applies to a foreign-seated quasi-judicial arbitration. Comity and the strong public interest in international arbitration support that conclusion. A protected-disclosure claim does not fall within the established malicious-prosecution exception.

The claimant brought proceedings under section 47B of the Employment Rights Act 1996, alleging post-employment detriment for protected disclosures. One pleaded detriment was that the respondent had commenced a Singapore-seated ICC arbitration against him on a groundless basis and through false allegations.

The Employment Tribunal held that judicial proceedings immunity did not apply. It accepted that the arbitration was quasi-judicial, but considered that immunity did not cover merely bringing a claim and did not generally extend to overseas bodies. The respondent appealed on a single ground concerning the scope and territorial application of the immunity.

1. Appeal allowed. The Employment Tribunal erred in holding that judicial proceedings immunity did not apply to the third pleaded detriment. Its analysis addressed, at an impermissible level of generality, whether the mere bringing of proceedings attracts immunity. It failed to identify what the pleaded claim was founded upon.
2. The pleaded detriment was not simply the inconvenience or cost of facing arbitration. It alleged that the respondent commenced a groundless arbitration based on deliberately false allegations. Determining that allegation would necessarily require the Tribunal to examine and assess the arbitration notice and potentially later statements in the arbitration. The claim was therefore founded on the content of documents initiating and supporting the earlier proceedings.
3. The core immunity includes statements of case and other documents placed before a court or quasi-judicial tribunal. Later authority qualified overly broad descriptions that immunity covers everything done in proceedings, but did not confine the core immunity to oral evidence. An initiating claim, application or arbitration notice falls within the immunity when the subsequent claim is founded on its content.
4. The claimant's reliance on malicious commencement did not engage the recognised exception for malicious prosecution and analogous abuse-of-process claims. Malicious abuse of process is integral to those causes of action, whereas it is not inherent in a claim under section 47B of the Employment Rights Act 1996. Where immunity applies, it protects malicious as well as good-faith actors.
5. The Singapore seat made no material difference. The arbitration was accepted to be quasi-judicial. Hasselblad, comity, and the public interest in the effective functioning of foreign arbitration supported application of the established core immunity. No extension of immunity, nor a further case-specific balancing exercise, was required. The established immunity was compatible with article 6(1) of the ECHR.

The EAT set aside the contrary finding, substituted a finding that immunity applied, struck out the third detriment, and remitted the remaining issues to the Employment Tribunal.

• Employment Appeal Tribunal: Allowed the respondent's appeal in [2024] EAT 135. It set aside the Employment Tribunal's ruling on judicial proceedings immunity, struck out the third pleaded detriment, and remitted the outstanding issues.
• Employment Tribunal: London South Employment Tribunal, Employment Judge Fowell, judgment promulgated 21 November 2023. It held that judicial proceedings immunity did not apply to the third alleged detriment.