If witnesses were not given immunity from claims, there is a risk that some witnesses would be afraid to talk to lawyer representing those involved in a lawsuit or to give evidence at a trial. A witness might fear that one of the people involved in a lawsuit might sue them. If witnesses are discouraged from cooperating with lawyers or giving evidence, then the result will be that judges making decisions will not have the benefit of crucial evidence. The search for the truth will be hampered.
The witness (or potential witness) does not have to come forward with evidence from the purest of motives. The immunity still applies.
The British Columbia Court of Appeal recently considered witness immunity in McDaniel v. McDaniel, 2009 BCCA 53.
Brian McDaniel was suing his disability insurer in British Columbia relating to his disability benefits. He was also in a lawsuit in Washington State against his brother Jack McDaniel concerning a trust.
In McDaniel v. McDaniel, Brian McDaniel alleged that his brother Jack McDaniel spoke with the disability insurance company’s lawyer, Jo Ann Carmichael, at lease six times. According to Brian McDaniel’s allegations, Jack McDaniel told Ms. Carmichael that Brian McDaniel had been dishonest in his disability claim, and that he, Brian, continued to work as a real estate agent.
Brian McDaniel sued his brother Jack as well as the lawyer, and her law firm. He alleged that Jack McDaniel had defamed him, interfered with his contractual relations with the disability insurer, and that Jack McDaniel and the insurance company’s lawyer unlawfully conspired against him and intentionally inflicted emotional distress.
Jack McDaniel, Ms. Carmichael and her law firm brought motions under Rules 19(24) and 18(6) early in the suit, seeking to have the claims struck on the basis that Brian McDaniel did not have valid claims.
In the Supreme Court of British Columbia, at 2008 BCSC 653, Mr. Justice Groberman stuck the claims against Ms. Carmichael and her law firm, but declined to dismiss the claim against Jack McDaniel. He found that there was no valid claim against the lawyer who was acting within the scope of her duties as the insurance company’s lawyer in respect of the disability claim. The claim against her and her firm had no chance of success at a trial. But Mr. Justice Groberman said he was unable to determine based on the material before him whether the information given by Jack McDaniel to Ms. Carmichael was connected to the possibility that he would be a witness in court. This means that Brian McDaniel would have the chance to prove his claim at trial against his brother, but not against the insurance company’s lawyers.
Brian McDaniel appealed the decision to strike his claim against the lawyer, and Jack McDaniel appealed Mr. Justice Groberman’s decision to allow Brian McDaniel’s claim against him to proceed.
Mr. Justice Bauman for the Court of Appeal upheld the decision dismissing Brian McDaniel’s claim against Ms. Carmichael and her firm. The Court of Appeal also allowed Jack McDaniel’s appeal, and dismissed his brother’s claim against him.
He held that the witness immunity includes in-court statements, and out-of-court statements made to professionals preparing the evidence for court. It protects witnesses irrespective of their motives in making the statement.
Mr. Justice Bauman also held that it was appropriate to strike out a claim where witness immunity applies early in the process. He wrote at paragraph 43:
But for the privilege of witness immunity to function properly, it is critical that one be able to invoke it early in the proceedings before significant irrecoverable costs are incurred. Such actions, if the immunity is properly available, should be "throttled at the birth" in the words of the editors of George Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed. (London: Butterworth, 1923) at p. 346. In the case before us, the evils of proceeding against the insurer's lawyer and a potential witness are quite evident. The proceeding seriously compromises the lawyer's ability to act in the insurance litigation and she is hamstrung as well by solicitor/client privilege in defending herself in this proceeding.