IS A FALSE AFFIDAVIT WORSE THAN A FALSE WITNESS STATEMENT? THE HIGH COURT CONSIDERS THE POINT
In International Sports Tours -v- Shorey  EWHC 2040 (QB) Mr Justice Green considered some interesting issues relating to committal for contempt, witness statements and affidavits.
The claimant brought an action against a former employee and others claiming breach of restrictive covenants and breach of confidential information. An injunction was obtained. The defendant filed a witness statement and affidavit in response to an application for an injunction. It transpired that the information in those documents was true as was the information in the Defence, which was supported by a statement of truth. These falsehoods were admitted in a later affidavit. The claimant sought summary judgment (which it obtained in part) and committal of the defendant.
- Permission of the Court is not required to bring committal proceedings when an application to commit is based solely upon false statements made in an affidavit.
THE JUDGMENT ON THE COMMITTAL APPLICATION
(c) Whether the application is a nullity?
The second matter raised by Mr Solomon, for the Defendant, was that the application was an abuse because it was predicated upon the mixture of violations of Court Orders, failure to act truthfully or honestly in Witness Statements, and failure to act truthfully or honestly in affidavits. Mr Solomon characterised the application as “hybrid”. He submitted that in such circumstances the Claimant was bound to obtain the consent of the High Court prior to the bringing of the application and in default thereof the application was a nullity. Pursuant to CPR 32.24 proceedings for contempt of Court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a Statement of Truth without an honest belief in its truth. CPR 81, Section 6, contains provisions in relation to committal for making a false Statement of Truth and these include the obligation to obtain the permission of the High Court or the Attorney General before the making of an application for Committal.
CPR 32.15 provides that evidence must be given by affidavit, instead of or in addition to a Witness Statement, if this is required by a Court, or a provision contained in any other rule, a practice direction or in an enactment. There is however no equivalent of CPR 81 in relation to false statements in affidavits. The CPR thus draws a distinction between Witness Statement and affidavit evidence. The notes to the White Book (32.15.1, page 1080 (2015)) state that affidavits must be used “where sworn evidence is required“. CPR 32.15.4 states that an affidavit should, if practicable, be in the deponent’s own words and should be expressed in the first person and should indicate which of the statements within the affidavit are made from the deponent’s own knowledge and which are matters of information and belief and the source for any matters of information or belief.
Pursuant to CPR 81, Section 6, before an application for committal for contempt of Court may be made upon the basis that an alleged contemnor made a false Statement of Truth or disclosure statement, the permission of the Court is required. Indeed this is a necessary pre-condition for the bringing of an application which will be a nullity in the absence thereof. The requirement for permission is set out in CPR 81.17. The obligation to obtain permission is provided for in CPR 81.18. This makes clear, in sub-paragraph , that a committal application in relation to a false statement of truth or disclosure statement may be made only with the permission of a Single Judge of the High Court or by the Attorney General. In KJM Superbikes Limited (ibid.) the Court of Appeal explained that as proceedings for contempt of Court were public law proceedings, when considering whether to grant permission the Court would have regard to the public interest alone. When the Court granted permission to a private party, that person was, in effect, being allowed to act in a public rather than a private capacity to pursue the public interest. It was therefore necessary for the Court when addressing permission to consider whether the pursuit of committal proceedings was in the public interest. The pursuit of contempt proceedings in ordinary cases may serve the public interest by drawing the attention of the legal profession, and through it to potential witnesses, to the dangers of making false statements. The Courts were not to treat serious examples of making false evidence as of little importance, otherwise the Courts encouraged witnesses to regard the Statement of Truth as a mere formality. The Court then went on to consider the sorts of considerations that should govern the exercise of discretion to grant or refuse permission.
“58. In my judgment CPR rule 32.14 has no application to an allegation of contempt by knowingly swearing a false affidavit. The purpose of rule 32.14 is to enable proceedings for contempt to be brought in respect of false statements made in a document verified by a statement of truth, such as a statement of case, a disclosure statement or a witness statement. The requirement for such documents to be verified by a statement of truth was a procedural innovation introduced by the CPR. As Sir Richard Scott VC (as he then was) pointed out in Malgar Ltd v R.E. Leach (Engineering) Ltd  FSR 393 at 395-396, a means for policing statements of truth was necessary and that is what rule 32.14 provides. In doing so, the CPR did not make any substantive change in the law of contempt. Whether the making of a false statement in a document verified by a statement of truth amounts to a contempt depends on the general law. He suggested that it would do if, but only if, the maker of the statement knew that it was false and the false statement was likely to interfere with the course of justice.
59. As Scott VC also pointed out, however, knowingly to swear a false affidavit has always rendered the maker liable to be prosecuted for perjury. This is because the affidavit includes a jurat. It is therefore the equivalent of testimony on oath. Although Scott VC did not say so, it has long been the case that knowingly giving false evidence, including swearing a false affidavit, is also a contempt of court: see Arlidge, Eady and Smith on Contempt (3rd ed) at 10-159 to 10-161. Nowadays it is unusual for false evidence to be the subject of contempt proceedings rather than a prosecution for perjury, but in principle the sanctions for contempt remain available in an appropriate case”.
The distinction is thus one based largely upon procedural history. It is noteworthy that the judgment of the Vice Chancellor in Malgar cited in this context approvingly by Arnold J was also cited with approval by Lord Justice Moore-Bick in KJM Superbikes (ibid.): see paragraph  above. It thus follows that there is a clear distinction to be drawn between the position in relation to an application founded upon an affidavit, and that founded upon a Witness Statement. I am bound to say that I find the distinction drawn hard to sustain. In so far as it is considered that a false affidavit should be treated more seriously than a false witness statement (hence doing away with the need to obtain permission) this seems anachronistic. Further, it assumes that the law attributes less weight and significance to a formal Statement of Truth than to a formal affidavit, which in my view is not a reflection of modern litigation practice: see the observations of the President of the Queen’s Bench Division in Adil Akram & Amir Akram v SSHD  EWHC 1359 (Admin) at paragraphs  – . Nonetheless, a distinction does exist between the two which is inherent in the procedural rules governing contempt proceedings and it is one which in this case advantages the Claimant.
As I have set out above, the Claimant has framed this application for committal upon the basis of false statements made in an affidavit. References to prior Orders, Witness Statements and the like are merely context and are not relied upon to support the application. As such this is not a case where permission is required.
Mr Solomon for the Defendant relied upon the ruling of the House of Lords in Seal v Chief Constable of the South West of the Police  UKHL 31;  1 WLR 1910. This case concerned the scope of Section 139 of the Mental Health Act 1993. It concerned proceedings brought by Mr Seal against the Defendant for false detention. Pursuant to Section 139 proceedings may not be brought by a person subject to the MHA 1993 without the consent of the High Court or the DPP. In the case consent had not been obtained. The Chief Constable applied to strike out the proceedings upon the basis that since they had not been brought with consent they were thereby a nullity. Mr Seal contended that lack of permission, even when required as a precondition, was an irregularity which could be rectified and was not a fatal flaw invalidating the proceedings. The House of Lords, by a majority, held that the precondition was mandatory and the proceedings pursued in breach thereof were a nullity. The majority arrived at this conclusion by reference to a close analysis of the statutory language and history. In my view, this judgment has no impact upon the present proceedings. In so far as it is relevant it is to the effect that I must simply construe the rules for what they are worth and apply then the conclusion arrived at. The present application for committal falls outwith the scope of CPR 81. According to the judgment in Hydropool (ibid.) there is a clear historical and jurisprudential basis for the Courts differentiating between Witness Statements and affidavits. If this may seem to be an anachronism it is nevertheless good law until the rules are changed. This is not a case of a hybrid application in which the Claimant relied upon affidavit and other evidence falling within the scope of CPR 81. In this case the claim rests exclusively upon affidavit evidence. I express no view as to the position that would pertain were this matter to be hybrid with part resting upon the contents of an affidavit and another part resting upon a Witness Statement. I thus conclude that there is no requirement upon the Claimant to seek and obtain leave before bringing these proceedings.”
(The defendant was fined £1,000 for his contempt).
RELATED POSTS ON COMMITTAL PROCEEDINGS
- Civil committal proceedings in the county court: the risk of injustice running rife.
- Pursuing pointless committal proceedings could be costly: for the applicant
- Responding to a committal application: a point to watch.