AB v CD, Watson v. McEwan

Factual and Procedural Background

A civil action was brought against Defendant, an eminent medical practitioner, for statements allegedly made during a pre-trial interview (“precognition” in Scottish procedure) with the legal representatives in pending litigation. The lower court allowed issues to proceed against Defendant, treating the pre-trial statements as potentially actionable. Defendant appealed to the House of Lords, contending that the same absolute privilege that protects in-court testimony also applies to preliminary statements made to solicitors engaged in the conduct of litigation.

Legal Issues Presented

1. Whether the absolute privilege that immunises a witness from civil liability for evidence given in court extends to statements made in a pre-trial interview with a solicitor preparing the witness’s testimony.

Arguments of the Parties

Appellant's Arguments

• Absolute witness privilege is indispensable to the administration of justice and must cover all stages of evidence gathering, including pre-trial precognition; otherwise, the privilege would be illusory.
• Public policy demands that potential witnesses freely disclose information to legal advisers without fear of subsequent litigation.
• No precedent exists in which liability has been imposed for such pre-trial statements, underscoring that the claimed liability is unprecedented and unsustainable.

Respondent's Arguments

• While in-court testimony is absolutely privileged, statements made outside the courtroom—such as during precognition—should not enjoy the same immunity.
• Extending privilege to unsworn, pre-trial statements would leave an injured party without civil remedy should those statements prove false and damaging.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The House reasoned that the rationale underlying witness immunity—facilitating the administration of justice by ensuring the free and candid cooperation of witnesses—necessarily extends to preliminary examinations by solicitors. If a witness could be sued for what was said in precognition, the privilege attached to courtroom testimony would be circumvented; litigants could simply re-characterise the cause of action as arising from the pre-trial statement. Such exposure would deter witnesses from disclosing information, thereby obstructing the discovery of relevant evidence and impeding the judicial process.

The Court acknowledged the apparent hardship that false, unsworn pre-trial statements may not be punishable as perjury, but found that concern outweighed by the systemic need for unfettered witness cooperation. All communications at issue occurred solely among participants in the litigation (counsel, solicitor, and witness) and were deemed integral to the judicial proceeding. Accordingly, the Court held that absolute privilege applies equally to pre-trial statements made for the purpose of giving evidence.

Holding and Implications

The appeal was allowed; the judgments below were reversed. Costs of the appeal were awarded to the successful Appellant.

Implications: The decision confirms that absolute witness privilege in the United Kingdom encompasses not only sworn testimony in court but also preliminary statements made to legal advisers in preparation for trial. The ruling reinforces witness cooperation in evidence gathering and clarifies that no civil action may be maintained for defamatory or otherwise injurious statements made during such pre-trial interviews. The judgment does not establish a new legal principle but authoritatively extends existing witness-immunity doctrine to the precognition stage.