XGY v The Chief Constable of Sussex Police & Anor

This appeal concerned the scope and application of immunities from civil suit for words and acts connected with court proceedings: in particular Witness Immunity (at and before court), Advocates' Immunity (at court) and what the judgment calls Legal Proceedings Immunity before court. The claimant (anonymised) alleged that police and a Crown Prosecution Service advocate disclosed her confidential address to an accused, causing psychiatric injury and breaches of Articles 2, 3 and 8 ECHR and contraventions of the Data Protection Act 2018.

The High Court allowed the appeal from an order striking out the claims and granting summary judgment to the defendants. The court held that the judge below had erred by treating the claimed immunities as an absolute threshold without sufficiently analysing whether the function performed and the manner of performance sustained the public‑interest justification for any non‑core extension of immunity. The judge also erred in granting summary judgment on the Human Rights Act 1998 causes of action because the factual picture as to the accused’s risk and state of mind was incomplete and material disclosure was missing, so the "real and immediate" risk question could not safely be decided at summary judgment.

Key legal principles applied were: (1) established core immunities are confined to acts and words pertinent to the administration of justice and to the giving of evidence; (2) extensions of immunity beyond the core categories must be justified by necessity and are to be granted grudgingly; and (3) strike out and summary judgment require different thresholds and a careful factual appraisal where immunities are unsettled or the statutory human rights claims are fact sensitive.

Background and procedural posture.

• The appellant, a victim of domestic abuse, alleged that Sussex Police and the Crown Prosecution Service negligently disclosed a confidential Hampshire address to the accused (K) at a Magistrates' bail hearing on 16 April 2020 and earlier disclosed an Epsom address in November 2019. She brought civil claims for psychiatric injury and consequential loss, alleging breaches of Articles 2, 3 and 8 ECHR (via the Human Rights Act 1998), contraventions of the Data Protection Act 2018 and misuse of private information; damages of about £168,000 were claimed.
• The defendants applied to strike out and for summary judgment. The judge below struck out all claims against the CPS and certain claims against the Police, and granted summary judgment on the statutory and common‑law causes of action concerning the April 2020 (Hampshire) disclosure. The Epsom claims were allowed to continue.
• This appeal is from HHJ Brownhill (Winchester County Court). The hearing in the High Court combined an application for permission to appeal with the substantive appeal.

Issues framed by the court.

1. The scope of Witness Immunity (at and before court) and of any immunity for those preparing material for court (termed Legal Proceedings Immunity before court).
2. The scope of Advocates' Immunity at court and whether that immunity (or any extension) bars statutory claims under the HRA and DPA.
3. Whether the strike out jurisdiction was correctly invoked to determine the scope of immunities on the pleaded facts and limited disclosure.
4. Whether summary judgment on the HRA causes of action was appropriate when disputed factual matters relevant to the Osman "real and immediate risk" test remained in the defendants' possession.

Court's reasoning on the issues.

• The court reviewed the appellate authorities (including Taylor, Darker, Hall, Singh, Daniels, Jones, Smart and CLG) and summarised the modern approach: core immunities are confined to acts and words pertinent to the administration of justice and the giving of evidence; extensions beyond the core categories require demonstration of necessity and are to be cautiously recognised.
• The judge below had treated the Police’s transmission of the Hampshire address and the CPS advocate's oral disclosure at the bail hearing as falling within established, absolute immunities. The Court held that, on the pleaded facts, it was arguable that the Police's role in preparing the file was administrative and procedural rather than evidential and that the transmission had undermined the very public‑interest rationale for the asserted immunity (because the disclosure increased the risk to the witness whom the immunities aim to protect).
• The court held that the CPS advocate’s failure to keep the vulnerable witness’s address confidential could not be summarily insulated by Advocates' Immunity without first weighing the justificatory public‑interest factors; immunity should not automatically protect "muck ups" that endanger vulnerable witnesses.
• On the HRA claims, the court concluded that summary judgment was inappropriate: the judge below lacked sufficient evidence about the accused’s dangerousness, state of mind and the police knowledge then available, and had erred in finding no arguable "real and immediate" risk as a matter of law on the limited material.

Disposition. The appeal was allowed, the order below was quashed and the claims were to be relisted for directions and further procedure.

Appeal allowed. The judge below erred in treating non‑core extensions of court‑related immunities as an absolute bar without adequate analysis of the public‑interest justification and the function performed; and erred in granting summary judgment on factually sensitive HRA claims when key evidence remained in the defendants' control. The strike out and summary judgment orders in respect of the April 2020 (Hampshire) disclosure were quashed and the matter remitted for further directions.

Appeal from HHJ Brownhill, Winchester County Court, Case No. J08YJ076 (judgment below relied on strike out and summary judgment orders of 21.9.2023). Permission to appeal heard together with the full appeal in the High Court (King's Bench Division, Bristol District Registry).