CLAIM NO: HQ09X04489
Neutral Citation Number: [2009] EWHC 3304 (QB)

IN THE HIGH COURT OF JUSTICE     

QUEEN’S BENCH DIVISION
Date: 16th DECEMBER 2009
Draft circulated 3rd December 2009

Before:
HIS HONOUR JUDGE MACKIE QC
(Sitting as a Judge of the High Court)

- - - - - - - - - - - - - - -
B E T W E E N:

ACCIDENT EXCHANGE LIMITED
Claimant

-and-

AUTOFOCUS LIMITED
Defendant

- - - - - - - - - - - - - - -
Mr John Benson QC and Ms Olivia Cox (instructed by PCJ Solicitors) appeared for the Claimant.

Mr Michael Lazarus (instructed by Pinsent Masons) appeared for the Defendant.
- - - - - - - - - - - - - - -

 - - - - - - - - - - - - - - -
JUDGMENT

1.	This is an application about the witness immunity rule.  The Defendant applies to strike out, or alternatively for summary judgment, on the ground that the Claimant’s pleaded causes of action are based on allegations that witnesses gave false evidence to a court or made false witness statements and are therefore barred by the immunity rule.  The Claimant responds that the frauds it alleges were carried out by employees of the Defendant who invented conversations and placed these in electronically created records which were in turn exhibited to a witness statement.  The Claimant submits that these actions and the records of them are not covered by witness immunity.
2.	This action was brought on 7th October and the application was issued immediately on 12th October and heard by me on 30th October. So the case is at an early stage. The Claimant’s resistance to the application raised, as is evident from the skeleton argument of their Counsel, several grounds. In the course of the hearing these were reduced to one so it will be necessary for me to refer to only one of the cases in the bundle of authorities.
Background
3.	The Claimant (“Accident Exchange”) is a credit hire company.  It provides hire cars to drivers whose vehicles have been damaged in accidents due to the alleged negligence of another driver.  Accident Exchange recovers its hire charges through legal steps, including proceedings, which it brings in the name of the client against the allegedly negligent driver and thus in effect against that person’s insurers.
4.	The Defendant (“Autofocus”) is a company which, among other things, provides evidence at the request of solicitors acting for the insurers of Defendants to actions brought by customers of Accident Exchange.  Autofocus provides evidence to show the extent to which Accident Exchange’s hire charges are greater than the market rates at which equivalent vehicles can be hired on the same or similar terms.  According to the Particulars of Claim this service involves provision of a standard form witness statement made by a named employee containing evidence of a “rate survey” which he or she has carried out by telephone.  The author of the statement claims to have telephoned a large number of local car hire companies pretending to be a member of the public who wants to hire a particular car on terms designed to replicate that of the hire by the Claimant to the customer who has brought a claim.  The employee then records the responses and identifies in the report the terms of any offers, usually about five, which he or she is able to elicit.  Autofocus is paid for this work. 
5.	Accident Exchange claims that in many cases Autofocus employees dishonestly invented all or part of these conversations.  The Claimant alleges that as a result it has suffered loss in two ways.  First courts have been misled by false evidence into reducing awards of damages.  Secondly, in other cases, the Claimant has been misled by false evidence into accepting lower sums than it would have done if the rate survey evidence had been truthful.  As a result Accident Exchange claims damages which it estimates at some £20 million alleging that Autofocus is liable for the torts of conspiracy to use unlawful means, interference with the Claimant’s trade or business by unlawful means and deceit.
6.	It is common ground that for the purpose of this application the court should proceed on the basis that the primary facts alleged in the Particulars of Claim are true. I do not consider whether the facts if proved would give rise to the causes of action pleaded. It is also agreed that I should decide the witness immunity issue rather than just apply summary judgment or strike out criteria.
Facts
7.	The Particulars of Claim rely on what is said to be a sample of cases falling into three categories.  First there are seventy actions in which allegedly false rate surveys were carried out in 2007, 2008 and 2009.  Secondly, there are twenty actions yet to be heard in which rate surveys were carried out in 2008 and 2009 and thirdly, there are twenty actions in which awards based on rate survey evidence have already been made. For the purposes of this application ten cases have been selected as representative of the conduct complained of.  These are said to show that evidence prepared by employees of the Defendant was incorrect in different ways, examples of which are as follows.  The hire company said to have provided a quotation was not trading at the time of the enquiry or hire.  The alleged enquiries did not take place in the way alleged or, sometimes, at all.  The identified hire company providing the rates did not employ the person said to have been contacted and spoken to.  The hire company did not have a vehicle available for hire as alleged by the employee.
8.	The application is illustrated by a witness statement of Mr George-Broom of Autofocus and its exhibit prepared for use in the Sheffield County Court.  The witness states that he is a rates surveyor for Autofocus and that an important part of his role entails surveying rates available in the UK self drive hire market and preparation of analyses.  He refers to the fact that Autofocus produces a generic market research report on the rates charged for hire of many types of vehicle and that these are commonly bought by major hire companies to help them assess market rates.  He states that Autofocus also conducts specific surveys of rates for particular types of vehicle in a particular area when commissioned to do so.  He refers to being instructed by solicitors to ascertain the hire rate for a Mercedes convertible in the Sheffield area for particular numbers of days.  He says that in order to conduct the survey he prepared a “checklist/response sheet” to replicate the conditions of the hire in question and exhibits this.  He records that he conducted a spot hire survey on 28 April 2009 identifying seven companies from a directory and from Google.  He exhibits his search and the list of companies which provided him with information.  He exhibits the completed checklist from the exercise.  He then exhibits a completed spreadsheet showing the rates surveyed compared to Accident Exchange rates.  He also exhibits that information in graphical form before producing further material from the Autofocus database, a comparison of the rates and finally an insurance quote.
9.	The process thus involves two stages. First the witness investigates the facts (or purports to do so) recording the results in the checklist/response sheets and the spreadsheet.  Secondly, a witness statement is prepared setting out the results of the investigation and exhibiting the relevant documents.  Although the stages are distinct one takes place soon after the other and sometimes they are almost simultaneous.
The Issues
10.	It is common ground that nothing turns on the question of whether the Defendants are giving factual or expert evidence.  It is also common ground that the witness immunity rule covers both evidence given by a witness in court and that given in a witness statement, whether or not that statement is put in evidence.  Before the hearing it appeared that the parties might differ on the question of whether the witness immunity rule extends to cover all causes of action including those pleaded in this case but it transpired that that was common ground also.
11.	The central question is whether the materials exhibited to the witness statements produced by Autofocus employees are also subject to the witness indemnity rule.  The answer to that question turns, in effect, on the application to the assumed facts in this case of the principles considered by the House of Lords in Darker -v- Chief Constable of the West Midlands Police [2001] 1 AC 435.
12.	In that case the House of Lords reversed decisions of the Court of Appeal and of the judge upholding witness immunity and decided, as the headnote records;  
“ that public policy required in principle that those who suffered a wrong should have a right to a remedy; that, although the absolute immunity from action given in the interests of the administration of justice to a party or witness, including a police witness, in respect of what he said or did in court extended to statements made for the purpose of court proceedings and to prevent him being sued for conspiracy to give false evidence, public policy did not require it to be extended to things done by the police during the investigative process which could not fairly be said to form part of their participation in the judicial process as witnesses; that, in particular, the immunity did not extend to cover the fabrication of false evidence; and that, accordingly, the plaintiffs’ statement of claim should not have been struck out and the action should be allowed to proceed to trial.”
13.	The case must of course be read as a whole and in its entirety but Counsel emphasise particular passages. Mr Lazarus for the Defendant submits that the critical distinction is drawn in the following passage from the speech of Lord Hutton at 469:-
“The underlying rationale of the immunity given to a witness is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court.  This immunity has been extended, as I have described, to proofs of evidence and to prevent witnesses being sued for conspiracy to give false evidence.  But the immunity in essence relates to the giving of evidence.  There is, in my opinion, a distinction in principle between what a witness says in court (or what in a proof of evidence a prospective witness states he will say in court) and the fabrication of evidence, such as the forging of a suspect’s signature to a confession or a police officer writing down in his notebook words which a suspect did not say or a police officer planting a brick or drugs on a suspect.  In practice the distinction may appear to be a fine one, as, for example, between the police officer who does not claim to have made a note, but falsely says in the witness box that the suspect made a verbal confession to him (for which statement the police officer has immunity), and a police officer who, to support the evidence he will give in court, fabricates a note containing an admission which the suspect never made.  But I consider that the distinction is a real one and that the first example comes within the proper ambit of the immunity and the other does not.”
14.	Mr Benson QC emphasised another passage in the same speech at 471:-
“But I consider that the position  is different where, as alleged by the plaintiffs in this case, steps are taken prior to the making of a statement of evidence, not for the purpose of making a statement of evidence which the maker intends to be an accurate and truthful one, but for the wrongful purpose of fabricating false evidence which would be referred to in an untruthful statement of evidence.  In my opinion immunity should be extended to cover the wrongful fabrication of evidence or of a note which will purport to be used to refresh the memory of the witness in the witness box and which will give the impression to the jury that there is support for the witness’s false statement that the suspect made an admission.  This view is not in conflict with the principle that immunity (where it exists) is given to a malicious and dishonest witness as well as to an honest witness, and I think that the honest (though negligent) examination of articles to enable a statement of evidence to be made comes within the concept of the preparation of a statement of evidence, whereas the deliberate fabrication of evidence to be referred to in a statement of evidence does not come within that concept.  It follows that, in my opinion, the Court of Appeal in Silcott v Comr of Police of the Metropolis 8 Admin LR 633 was in error in stating the immunity rule as widely as it did.”
Defendant’s Submissions
15.	Mr Lazarus submits that the exhibit or part of the evidence given in the witness statement has been appended to the statement in tabular form purely for convenience.  The data could have been included in the statement in either narrative or tabular form.  The Autofocus employee does not use the schedules to strengthen the effect of his evidence by pretending to refresh his memory with material said to have been prepared contemporaneously with the events. The exhibits and statements are prepared at the same time or almost so.  He says that the material in the schedules would unquestionably have been within the protection of the witness immunity rule if the data had been included in narrative form in the body of the statements. Nothing can possibly turn on matters of drafting. 
16.	In the course of the hearing Mr Lazarus relied on other passages in Darker.  At 448 Lord Hope identifies a:-
“crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they are related directly to what requires to be done to enable them to give evidence, and the conduct at earlier stages in the case when they are performing their functions as in forces of the law or as investigators.”
Lord Hope goes on, at 449, to draw a distinction between “the act itself” and the evidence that may be given about it or its consequences;  
“the police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused make a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence.  He is entitled to the  immunity because he was speaking as a witness, if he had made the statement when he was giving evidence, or speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.”
	Lord Clyde (at 460) says:-
“But that is not to say that everything said or done by anyone in the investigation or preparation for a judicial process is covered by the immunity.  In drawing the line in any particular case it may be necessary to study precisely what was being done and how closely it was linked with the proceedings in court.  No immunity should attach to things said or done which would not form part of the evidence to be given in the judicial process.”
On the Defendant’s case the exhibits were prepared entirely for the judicial process and so fall within the immunity.
Claimant’s Submissions
17.	Mr Benson QC submits that the conspiracy which his client alleges preceded the adoption of the process of obtaining rates, the employees not being actual or potential witnesses at the time when they agreed to give false evidence. As Darker points out the witness immunity rule is founded on public policy but has to be reconciled with another public policy that those who suffer wrong should have a right to a remedy. 
18.	He submits that there are two stages when a potential witness is paid to investigate matters. First the investigation has to be carried out. Secondly (and sometimes almost simultaneously) the results must be attached to a witness statement supported by a Statement of Truth. After the phone calls are made a decision has to be taken about which calls are to be included in the statement. There is a distinction between the investigation and the statement, only the second stage attracting immunity. In essence he equates the exhibits with the wrongful fabrication of evidence or of a note which will be used to give spurious support for a witness’s memory of what he says in the witness box.
Decision of the Court
19.	If the facts alleged by the Claimant are true, as I must assume for the purpose of this application, it has sustained financial loss as a result of disgraceful and dishonest conduct by the employees or agents of the Defendant.  As Darker and the earlier cases explain public policy requires in principle that the Claimant should have a right to a remedy.  Another aspect of public policy requires the Defendant to have the absolute immunity of action given in the interests of the administration of justice to a party or a witness in respect of evidence in court or statements made for that purpose. 
20.	This application relates not to evidence or statements but to what for brevity I have called exhibits.  The House of Lords in Darker concluded that the witness immunity rule was somewhat less extensive than previous authority had suggested.  Thus at 448 and 449 Lord Hope holds that in the earlier case of Silcott Simon Brown LJ went too far in saying that immunity extended to acts to procure false evidence such as the planting of a brick or drug or the fabrication of the record of interview. Lord Hope said that this overlooks the distinction between the act itself and the evidence that may be given about the act or its consequences.  He draws a distinction on the basis that:-
“acts which are calculated to create or procure false evidence or to destroy evidence have an independent existence from, and are extraneous to, the evidence that may be given as to the consequences of those acts.”
“It is unlikely that those who have fabricated or destroyed evidence would wish to enter the witness box for the purpose of admitting to their acts of fabrication or destruction.  Their acts were done with a view to the giving of evidence not about the acts themselves but about their consequences.  The position is different where the allegation relates to the content of the evidence or the content of statements made with a view to giving evidence, and not to the doing of an act such as the creation or the fabrication of evidence.  The police officer who is alleged to have given false evidence that he found a brick or drug in the possession of the accused or that he heard an accused make a statement or a remark which was incriminating is protected because the allegation relates to the content of his evidence.  He is entitled to the immunity because he was speaking as a witness, or if he made the statement when he was giving evidence, or was speaking as a potential witness, if he made it during his preliminary examination with a view to his giving evidence.”
21.	Elsewhere in the speeches there are passages which support the cases put forward by each party.  This is because the facts in this case are different from Darker, most obviously in that the role of the Defendant’s employees differs from that of the police who have a function to investigate distinct from their potential participation in the judicial process as witnesses.  The Defendant’s employees have no investigative role independent of making enquiries with a view to giving evidence. That does not mean that everything they create is subject to the immunity. The distinction which Lord Hutton describes as appearing to be a fine one may be even finer in this case but it is real nonetheless. There is a difference  between the material created when making inquiries and the witness statement then prepared for the judicial process as is illustrated by the passages from the speech of Lord Hutton at 469 E to H referred to above.  It does not seem to me that the distinction between a statement and an exhibit is any more fine or invidious than that drawn between writing down a false confession in advance on the one hand and falsely claiming this later in the witness box, on the other. As Lord Hope puts it at 449 G “The purpose of the immunity rule is to protect the witness in respect of statements made or things done when giving or preparing to give evidence. The acts of the witness in collecting material on which he may later be called to give evidence are not protected by the immunity.  The immunity extends only to the content of the evidence which the witness gives or is preparing to give based on that material.”
22.	The exhibits are material collected on which the potential witness may be called to given evidence and are not, as I see it, subject to the immunity.  
Conclusion
23.	As I have concluded that the exhibits do not attract immunity this application is dismissed.  However the Claimant’s position  has moved on in the course of its  resistance  to the application and amendments to the Particulars of Claim may be required to reflect what is now conceded to be the subject of immunity. There are also, as I understand it, further interlocutory issues to be resolved.  If these cannot be agreed I will decide them when handing down judgment.  I shall be grateful if the parties will let me have corrections of the usual kind and a draft order, preferably agreed, not less than 48 hours before this judgment is handed down.

GH014458/MVF