SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION

I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client.  These issues are shown in stark terms in the Practice Direction 51S – The County Court Online Pilot. This makes it mandatory for the legal representative to sign the statement of truth on issue, with a stark reminder that the signatory can be committed to prison if they do not hold an honest belief.

“If the legal representative signs a statement of truth in a document without an honest belief in the truth of what is contained in the document, proceedings for contempt of court may be brought against that person.”

THE RULES

The Practice Direction deals with the issue of proceedings online.

SECTION 4 – CONFIRMING THAT THE CONTENTS OF ONLINE CLAIM FORMS ARE TRUE

13. When the legal representative submits an online claim form, the form must include the following statement of truth signed by the legal representative:
“The claimant believes that the facts stated in this claim form are true.”.

14. A statement of truth is signed by the legal representative entering their name in the required field in the online claim form.

15. If the legal representative signs a statement of truth in a document without an honest belief in the truth of what is contained in the document, proceedings for contempt of court may be brought against that person.

(Section 6 of Part 81 contains rules about committing someone to prison for contempt of court.)

 

WORDS THAT SHOULD BE ON THE WALL OF EVERY LITIGATION SOLICITOR’S OFFICE

That is this section from Practice Direction 22 – Statements of Truth.

“3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).”

A DANGEROUS STEP

In signing a statement of truth on behalf of a client, therefore, the solicitor is making expressly, a statement that

  • They are authorised to sign the document.
  • That the solicitor has told the client that they would be confirming on the client’s behalf that the document was true.
  • That the client had been told of the consequences if the statement is untrue (which include the fact that the client could go to jail).

Added to that the Online Pilot Practice direction imposes a specific duty that the person signing the statement should have an honest belief that the statement is true.

AN “HONEST BELIEF”

How a solicitor proves an “honest belief” is far from clear.  There is no guidance as to what steps the solicitor must take in order to come to that belief.

  • A failure to comply with Practice Direction 22 could support an assertion that there was a lack of honest belief.
  • A failure to obtain proper authority to issue could well amount to a lack of an honest belief, see  Bao Xiang International Garment Centre -v- British Airways PLC [2015] EWC 3071 (Ch).

There are examples of statements being signed in circumstances where judges have held that the solicitors could not have had the requisite knowledge.

In GB Holdings -v- Short [2015] EWHC 1378 (TCC) where Mr Justice Coulson observed

“I find it surprising that, in modern litigation, a firm of solicitors can still take a statement of truth so lightly”

Similarly in YXB -v- TNO [2015] EWHC 826 (QB) Mr Justice Warby observed that a solicitor had signed a witness statement in support of an injunction application

The first paragraph of the statement said that its contents were within her own knowledge unless otherwise stated. Very little of it could however have been within her own knowledge.”

 

HEADING FOR TROUBLE

If there is a dispute about the truth of a document a solicitor/client relationship is fraught with problems.

  • If the solicitor states that these steps were complied with then the client could be in serious trouble.
  • If the client states that these steps were not complied with then the solicitor (and potentially the client) could be in serious trouble.
  • If there is dispute about what information and advice the solicitor gave to the client then there could be a whole lot of trouble.

At the very least the advice and information given should be recorded in writing.

GUIDANCE ONLINE

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