Young v Hones

The appeal in *Young v Hones* concerned a dispute where the trial judge had determined separate questions of law prior to the close of pleadings, a course of action to which the parties had agreed. The central issue was whether the trial judge erred in proceeding with this determination without reference to a proposed statement of claim, and whether the judge had correctly articulated and applied the tests for advocate's and witness immunity. Specifically, the court considered whether the scope of these immunities extended to acts or omissions in bad faith, or to statutory causes of action, and whether an expert witness's participation in an expert conclave and evidence at a costs hearing meant they were retained solely for the purpose of giving evidence.

The Court of Appeal was required to determine whether the trial judge's decision to hear and determine separate questions of law before the close of pleadings was an error, notwithstanding the parties' agreement to that procedure. Further, the court had to consider whether the defence of advocate's and witness immunity was properly pleaded and applied, particularly in circumstances where the statement of claim did not allege fraud, but the defence invoked these immunities. The court also examined the extent to which advocate's and witness immunity could be defeated by allegations of bad faith or by statutory causes of action, and whether an expert witness's involvement in an expert conclave and evidence at a costs hearing was sufficient to establish they were retained for the purpose of giving evidence.

The Court of Appeal dismissed the appeal. The judges applied established principles regarding advocate's and witness immunity, finding that these immunities were applicable in the circumstances. The court reasoned that the scope of advocate's immunity was not defeated by allegations of bad faith, nor did it necessarily yield to statutory causes of action in the manner contended by the appellant. Similarly, witness immunity was found to extend to the expert's conduct in the conclave and at the costs hearing. The court upheld the trial judge's determination of the separate questions of law, concluding that no error had been demonstrated. The appeal was dismissed with costs.