IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited -v- Grangeglen Ltd  EWHC 1318 (Ch). The judgment also contains some observations about (very) late disclosure.
“It remains hard to fathom why he was tendered as a witness instead of someone with relevant knowledge”
“It is clearly unsatisfactory for documents to be produced in the course of a short trial without the other party having an opportunity to consider them and at a moment of the trial when the witness who relies on such documents has already been cross-examined and has said in clear terms that additional documents are not relied upon. I can see no good reason why these additional documents should be admitted”
- The Defendant called their solicitor to give evidence. On most of the matters he had no first-hand knowledge at all.
- The solicitor could not give any direct evidence about many of the issues in the case.
- The defendant also disclosed documents late (part way through cross-examination of the defendant’s witness) and had no real explanation for this .
- The defendant was refused permission to rely on those documents that were served late.
(It is right to record that the claimant also required relief from sanctions in relation to late service of witness statements. I will deal with this in a later post on this blog).
The claimant company was seeking relief from forfeiture in relation to an underlease.
THE DEFENDANT’S EVIDENCE
The Master commented on the unusual decision by the defendant to call their own solicitor to give evidence.
The Defendant called only Mr Thompson to give evidence. To my mind that was a surprising decision because Mr Thompson, as the Defendant’s solicitor, has only limited first-hand knowledge about a number of key matters. Entirely understandably, Mr Thompson was unable to provide helpful answers to many of the questions put to him in cross-examination because he had no relevant knowledge. His statement includes a number of paragraphs which are mere argument rather than evidence, including his opinion that the court should not exercise its equitable jurisdiction in favour of the Claimant. His evidence is based upon what he has been told by Mr Andrew Butler. In particular, Mr Thompson was not able to provide any real help about the schedule of expenditure the Defendant claims to have incurred as a result of the forfeiture amounting to £66,717.02, save for those items relating to his firm’s legal costs. I accept Mr Thompson’s evidence about his conversation with Tulsi Shah of Makwanas Solicitors on 8 August 2014 which is recorded in his attendance note. Mr Thompson has no recollection of being contacted by Shorab following the forfeiture.
The correspondence and emails passing between Colliers and the Claimant were not illuminated by Mr Thompson’s evidence but they largely speak for themselves. It is not seriously in doubt that the Defendant, through its managing agent and solicitors made real efforts to recover, without taking enforcement action, the arrears which were due and the Claimant cannot maintain the suggestion that it was taken by surprise. There is, however, a most curious aspect of the Defendant’s case concerning the schedule of expenditure the Defendant now seeks if the court were to be inclined to grant relief. Mr Thompson says baldly in his statement that “the Defendant has suffered prejudice following the forfeiture of the Lease”. He then refers to the schedule of expenditure after which he says:
“… the Defendant has suffered prejudice as it has been unable to re-let the Forfeited Property for in excess of 18 months since forfeiture took place.”
However, when cross-examined, Mr Thompson was unable to explain further the assertion that prejudice had been suffered and he was unaware of anything the Defendant had been unable to do as a consequence of the sum due not having been paid.
The most surprising aspect of the Defendant’s case is that although Mr Thompson, entirely in good faith, said he thought that the documents supporting the schedule of expenditure had been disclosed pursuant to the order for disclosure, it has transpired that they were not provided to the Claimant during the course of preparation for the trial. This is despite Mr Thompson’s firm having made observations about the trial bundles and added documents to them. It was only after the cross-examination of Mr Thompson was almost complete during the short adjournment on the second day of the trial that copies of the invoices were handed to Mr Bowker. He completed his cross-examination without having had a chance to refer to them and I ruled that they could not be relied upon for the purposes of re-examination. The trial concluded without the invoices being part of the evidence before the court. I directed that the Defendant could make submissions about the admission of those documents in writing with the Claimant having an opportunity to respond. Submissions were duly received form both parties. The Defendant requests the court to take the invoices into account. The Claimant objects. I will approach this issue by first summarising Mr Thompson’s evidence about the schedule of expenditure and then considering whether the invoices should be considered in order to supplement his evidence.
“25. Amongst other things, the Defendant has carried out work to secure the Forfeited Property and ensure that the Forfeited Property is in a suitable condition to be let to prospective tenants. The Defendant has attempted to remove vehicles from the Forfeited Property, installed concrete barriers to ensure the Forfeited Property remains secure.
26. As a result of the improvements to the Forfeited Property, if the Claimant is granted relief from forfeiture in this claim, the Claimant will have a better Property with a substantially increased value of the Leasehold as a result of their numerous breaches of the Forfeited Lease.”
I do not find the logic behind these two paragraphs easy to follow. It is stretching a point to say that a property is improved by attempting the removal of vehicles and it is not at all clear upon what basis the value of the Unit 4 has been substantially increased or why that increase in value should flow from the Claimant’s breaches of covenant.
Mr Thompson said in evidence that the only document the Defendant was relying upon was the schedule he exhibits and no other documents were relied upon. He was under the impression that the underlying invoices had been provided to the Claimant’s solicitors but he now accepts that his belief was false. In any event, his firm had the opportunity to include the invoices in the trial bundles but failed to take it up. As to remaining items:
i. Mr Thompson was not able to provide any help with the basis upon which the loss of rent is calculated. The schedule of loss refers to an email from Mr Butler but it has not been disclosed.
ii. He was able to provide a limited amount of help about the claim for legal expenses. He said much of the work which has been invoiced was carried out by him at a charging rate between £200 and £225 per hour. However, he said the Defendant was not relying on any of the invoices.
iii. He was unable to provide any help about the calculation of service charges after the forfeiture and has not seen the annual certificate which the underlease requires to correct payments on account.
iv. His understanding, without having first-hand knowledge, is that the concrete barriers installed in the parking area were there to maintain the security of the unit by stopping anyone parking close to the shutters of Unit 4.
I have been provided with submissions by both parties together with the invoices and other documents the Defendant wishes to rely on but failed to disclose. The court is asked to admit them. The Claimant’s response is qualified. Some of the items are accepted as proper items to be included in the tally of sums payable as a condition of the grant of relief, without accepting that such sums are due as a debt. In those instances the presence or otherwise of the invoices makes no difference. As to the remaining items, the Claimant says the court should decline to admit the invoices.
It is clearly unsatisfactory for documents to be produced in the course of a short trial without the other party having an opportunity to consider them and at a moment of the trial when the witness who relies on such documents has already been cross-examined and has said in clear terms that additional documents are not relied upon. I can see no good reason why these additional documents should be admitted. The Defendant had an ample opportunity to prepare its case. The basis upon which disclosure was ordered was that each party was required to disclose the documents relied upon. The Defendant has proceeded on the basis that it did not rely upon the invoices and this was confirmed by Mr Thompson. As the only witness called by the Defendant he was not in a position to speak to any of the invoices other than those rendered by his firm and in many instances the invoices do not speak for themselves. Furthermore, not only were they were produced at a very late stage of the trial but without there being any adequate excuse for their omission. Indeed, I have a strong sense that they were only produced in an attempt to bolster Mr Thompson’s evidence when it must have been clear before the trial that he would be unable to help the court about most of the expenses claimed. It remains hard to fathom why he was tendered as a witness instead of someone with relevant knowledge. For all those reasons I decline to exercise my discretion to admit the invoices which were provided to me after the trial.”
ARE YOU A SOLICITOR THAT WANTS TO GIVE EVIDENCE?
If you are a solicitor considering giving evidence in place of your client I recommend you read Richard Moorhead’s post Getting too close to the action: how to blind yourself to ethical rules which details a case where a solicitor gave “evidence” in place of their clients. The extracts from the case of Afia -v- Mellor  EW Misc 23 (CC) include:
…Neither of the Defendants gave evidence. I heard evidence in support of their defence of this claim from Mr Philip Cohen. Mr Cohen is the senior partner of Jeffrey Green Russell (“JGR”), a firm of solicitors which acted for the Defendants throughout the relevant period and has acted for the Defendants in this litigation. ..
…I was extremely troubled by Mr Cohen’s evidence from the outset. After some prevarication, which in my view was not fitting for a solicitor of Mr Cohen’s experience, he accepted that he had not considered the SRA’s Code of Conduct at any stage when acting for the Defendants, providing his several witness statements, and giving oral evidence at trial.
In Chapter 5 of the Code, entitled “Your client and the court”, the Outcomes include, “you do not place yourself in contempt of court”, “you comply with your duties to the Court” and “where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client”. The Indicative Behaviours include
“not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice.”
…Mr Cohen had not considered whether it was appropriate for him to act for the Defendants and to be a witness for them (indeed, to be the sole witness) but maintained that he was satisfied that there was no prejudice to his independence or to his clients or to the interests of justice.”
- An example of a court commenting that the solicitor should not be giving evidence can be found in Football, Sex, Injunctions and Material Non-Disclosure.
- Why a solicitor should not make statements on contentious matters.
- Witness statements and the lawyer as witness: knowing the difference between evidence and submissions (and why it matters).
- Drafting witness statements and the lawyer as witness
- Proving matters by evidence: a lesson from the family court