Bar Council welcomes Court of Appeal ruling on advocate immunity

The Bar Council has welcomed the Court of Appeal judgment in the case of XGY v Chief Constable of Sussex Police & Crown Prosecution Service (CPS) which restates the principle of core immunity for advocates.

The Bar Council intervened in the case because the High Court ruling by Ritchie J significantly limited the scope of advocate immunity. The background to our intervention is set out in ‘Will I be liable for what I have said and done in court? Bar Council intervention in XGY’. While recognising the deeply distressing experiences of XGY, we were concerned with the practical implications for the Bar if the findings of the High Court were upheld.

Today’s judgment, handed down by the Lady Chief Justice (Baroness Carr of Walton-on-the-Hill), the President of the King’s Bench Division (Dame Victoria Sharp DBE), and Lord Justice Coulson, states at 30(i):

“[I]t is necessary for the proper administration of justice that advocates, parties, witnesses, judges, and jurors are immune from suit for statements made in court whatever the cause of action, regardless of whether the statement was made maliciously or was irrelevant to the court proceedings. This is known as the core immunity. It is founded on public policy and is intended to encourage freedom of expression and communication in court proceedings in order to protect the proper administration of justice and the interests of justice.”

The judgment is open to appeal.

Welcoming the judgment, the Chair of the Bar Council Barbara Mills KC said:

“We’re grateful to the Court of Appeal for the careful consideration of the issues in this case. In our intervention we sought to protect the core principle of immunity from liability for advocates and argued that those who participate in court proceedings should be able to speak freely, without fear of being sued.

“This principle is critical for access to justice and the administration of justice. The uncertainty resulting from the High Court ruling could create a chilling effect on fearless advocacy, so we welcome today’s ruling which settles the position for the time being.

“We are also extremely grateful to our legal team, counsel Adrian Waterman KC and Beatrice Collier, and Emily Carter and Sameera Abdulrehman of Kingsley Napley LLP, all of whom acted pro bono.”