XGY v The Chief Constable of Sussex Police & Anor

Immunity from suit is not automatically established merely because conduct is connected with court proceedings. Core immunities may operate absolutely within their settled scope. Extensions, particularly conduct before court, require careful examination of the function performed, its connection with evidence, and the public-interest justification for denying a remedy.

On a strike-out application, pleaded facts must be assumed in the claimant’s favour. Where the scope or justification of an immunity is unsettled and fact-sensitive, the issue should not ordinarily be determined without appropriate evidence. Summary judgment is also inappropriate where disclosure may materially affect whether there was a real and immediate risk to life or physical integrity, or an interference with private and family life.

The claimant, a victim of domestic violence, sued the Chief Constable and the Crown Prosecution Service after her confidential Hampshire address was supplied to the CPS and disclosed by a CPS advocate in a bail hearing involving her former partner.

HHJ Brownhill struck out the claims concerning the Hampshire disclosure on the basis of witness and advocates’ immunity, and granted summary judgment on the Human Rights Act 1998 and Data Protection Act 2018 claims. The claimant appealed. The appeal concerned the scope and justification of immunity, the proper use of strike-out and summary-judgment procedures, and whether the pleaded facts arguably engaged Articles 2, 3 and 8 of the Convention.

1. Appeal allowed. Permission to appeal was granted on all seven grounds. The decision below was quashed and the claims were to be listed for directions.
2. Core witness and advocates’ immunities are established, but their scope is not unlimited. The authorities show a movement away from absolutism towards justification, particularly for extensions before court. The court must consider the function performed, whether it is evidential or merely administrative or investigative, the way in which it was performed, and whether granting immunity would support or undermine the rationale for the immunity.
3. The Police’s transmission of the claimant’s confidential address to the CPS was arguably an administrative or procedural act, not preparation of the claimant’s evidence. The claimant was not sued as a witness, the address was not evidence for the bail hearing or later trial, and the asserted failure to mark it confidential arguably undermined the very purpose of protecting witnesses. Legal Proceedings Immunity BC was therefore not plainly applicable.
4. Advocates Immunity AC remains a separate category from witness immunity. Its core scope is established, but the disclosure of a vulnerable witness’s confidential address to an alleged violent offender was arguably extraneous and unnecessary to the bail hearing. The alleged disclosure arguably undermined, rather than promoted, the public-interest justifications of protecting witnesses and supporting the administration of justice.
5. Immunity may bar claims under statute as well as at common law where it applies. However, whether it applied to these pleaded facts required further analysis and could not safely be resolved on the applications before the court.
6. The summary judgment ruling was also wrong. The available evidence did not safely establish that the claimant had no realistic prospect of proving a real and immediate risk under Articles 2 and 3, or an Article 8 interference. Relevant evidence about the alleged offender’s state of mind, criminal history, conduct and reaction to the rape allegation was unavailable. The effects of forced relocation, homelessness, loss of work and psychiatric injury were not necessarily subsumed within the Articles 2 and 3 issues.
7. The claims were fact-sensitive and the CPS had not pleaded a defence or provided disclosure. Strike out was therefore an inappropriate forum for determining the disputed immunities, and summary judgment was premature.

• High Court (King’s Bench Division): appeal from HHJ Brownhill in the Winchester County Court. The appeal was allowed and the judgment below was quashed.
• Winchester County Court: claims concerning the Hampshire disclosure were struck out on immunity grounds. Summary judgment was granted to the Defendants on the Human Rights Act 1998 and Data Protection Act 2018 claims. The separate Epsom disclosure claims were permitted to continue.