During preparations for trial, it became apparent that H had been untruthful in his witness statement. Honda Australia was aware that L had been supplying motorcycles to dealers in many different countries, including in Europe. H subsequently filed a second witness statement in which he admitted that his first statement contained untruths. He stated that he did not intend to mislead the court and only wanted to protect the reputation of Honda Australia. H faced a “difficult and stressful” cross-examination at trial after which, KJM applied for permission to bring proceedings against H for contempt of court in accordance with CPR r 32.14. The judge accepted that H's behaviour amounted to a contempt, but he considered that it would be disproportionate to take proceedings against him. KJM appealed to the Court of Appeal.

In the appeal, counsel for H submitted that proceedings for contempt are civil in nature and therefore, H was protected by witness immunity.

In contrast, the court held that proceedings for contempt of court are public law proceedings. Therefore, when considering whether to give permission for proceedings to be taken in any particular case, the court must have regard to the public interest alone. The court held that the principle of witness immunity does not extend to immunity from punishment in respect of witnesses who knowingly make false statements under oath. The court considered that its decision was not incompatible with the principles of witness immunity because the essential distinction to be drawn was not between civil and criminal proceedings but between private and public accountability. Witness immunity still applied to the extent that KJM could not take action against H for damages for any injury suffered by it as a result of the false statements. However, by making the false statements, H had behaved in a manner which was liable to interfere with the course of justice and as such, was publicly accountable for his behaviour. The court concluded that the principles of witness immunity did not assist H in this case.

The court held that when considering whether to grant permission to a private person to pursue contempt proceedings, the only question is whether it is in the public interest for such proceedings to be brought. In answering this question, the court will consider the following factors:

The Court of Appeal, while mindful that caution should be exercised when granting permission so as to guard against the risk of vindictive litigants who may use contempt proceedings to harass persons against whom they have a grievance, allowed the appeal.

This ruling emphasises the importance of honesty in making witness statements (and giving evidence in general) and the significance of the statement of truth. Witness immunity offers valuable protection to witnesses, however, those who are untruthful may become publicly accountable for their behaviour and accordingly, cannot simply fall back on the immunity to avoid proceedings for contempt, even if such proceedings are brought by a private person. Practitioners must advise their client of this potential consequence and the penalties for contempt of court including imprisonment for up to two years.

The Court of Appeal identified three issues: did the claim disclose a proper case of deceit or conspiracy; did the claim have any real prospect of success; and did the claim infringe the privilege attaching to the evidence of witnesses. It is the court's consideration of the third issue that is of interest to us.

The court held that it was clear that Mr Walsh was suing in respect of evidence given to the court by Mr Staines. Accordingly the tort of deceit being a civil remedy, Mr Staines was protected by witness immunity (however reprehensible his conduct may have been in failing to disclose the truth). In any event, since Mr Walsh had never been persuaded by the false statement the action would probably fail. Since the deceit could not be proved against Mr Staines, it followed that it could not survive against SGH and Mr Judge.

In relation to the SGH letter which discussed the state of Mr Staines' finances, the court noted that the principle of witness immunity covers steps taken in the course of preparing evidence for proceedings, including the preliminary examination of witnesses to ascertain what they can prove. The court went on to state that the immunity should be extended to cover instructions given to solicitors and repeated by them as their instructions in their correspondence with the opposition. In addition, the court commented that such an extension was necessary because if solicitors were to be sued for any inaccuracy in the party-to-party correspondence, it would circumvent the policy which underpins the immunity.

This ruling extends the scope of witness immunity beyond the protection of evidence given in legal proceedings and things said or done in the course of preparing evidence for proceedings. In fact, it appears that witness immunity could now be claimed in respect of all statements made in correspondence in the context of litigation by the parties or their solicitors. Such an approach would be a significant extension of the immunity principle. Whether witness immunity will indeed be extended in this direction is a question that will no doubt be raised before the courts in the future.

Nevertheless, solicitors and witnesses should bear in mind that there are other remedies available against a dishonest witness or a solicitor accused of misconduct. The Court of Appeal in both of the above cases has emphasised that the courts will not flinch from taking action against those guilty of improper conduct and will utilise remedies such as wasted costs orders, reporting the misconduct to the Law Society/Bar Council and of course, granting permission for the pursuit of contempt proceedings.