SOMETIMES YOU DON’T HAVE TO SIGN STATEMENTS OF CASE WITH A STATEMENT OF TRUTH: HIGH COURT DECISION ON AMENDING PARTICULARS OF CLAIM
The case of Kimathi v Foreign and Commonwealth Office  EWHC 2145 (QB) promises to be a legal epic. As I understand it the trial is not even half way through. It was opened in April 2017. It is unlikely to finish before the long vacation in 2018. It has already given rise to several judgments on interlocutory matters, there have been five posts on this blog so far in relation to some (but not all) of the interlocutory judgments. The latest judgment of Mr Justice Stewart deals in detail with the principles governing late amendments. However I want to extract the passages that deal with signature of the statement of truth in relation to the Particulars of Claim. The judge exercised his discretion to permit amendments to be made which were not signed with a statement of truth. The case also serves as a reminder of the matters that are being verified when a solicitor signs a statement of truth on behalf of a client.
“(2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise.”
(CPR 22.1 (2)).
The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants. The claimants have given evidence. An application was made to amend the Particulars of Claim. Some of the amendments were allowed, others were not. An issue arose as to how the statement of truth could be signed in cases where the Particulars were inconsistent with the evidence given.
“The 10 Draft Amended IPOCs – served 16 June 2017
A matter arose from the Defendant’s Speaking Note which was served at 7.11pm the day before the hearing. It was said that CPR 22 PD 3.7 and 3.8 make it clear that a statement of truth signed by a solicitor refers to the belief of the client not that of the solicitor and that the signature of a statement of truth by a solicitor means that:
(a) The Claimant has authorised the particular pleading.
(b) The solicitor has explained to the client that the solicitor is confirming the truth of the pleading.
(c) The solicitor has explained to the client the possible consequences of the pleading not being true.
Therefore, on that basis, each Test Claimant must be taken to be saying that since the date of the previous IPOC, he or she has changed his or her belief as to the events, places and timings in question.
This gave rise to a witness statement by Tracey Ann Greatorex which was served over the short adjournment on the day of the hearing. In her statement she says that in relation to the 10 IPOCs she is the solicitor who signed the statement of truth. She then continues:
“3. I know from my own knowledge and from enquiries made that the amendments therein are based on the documentary record and not based on instructions from the Test Claimant.”
In other words these are solicitors’ amendments which do not have instructions from the Test Claimants themselves.
In Binks v Securicor Omega Express Limited  EWCA Civ 993 the Court of Appeal considered this point. In the particular circumstances the Claimant did not seek to amend because of the provisions of CPR 22.1 which require a statement of case to be verified by a statement of truth (including amendments) and the statement that the facts stated in the documents are true. The Claimant’s own evidence was wholly inconsistent with the evidence and therefore no amendment was sought. The Court said that an unduly narrow view should not be taken of Part 22. In this regard it relied upon what Sedley LJ said at paragraph 21 in Kelly v Chief Constable of South Yorkshire Police  EWCA Civ 1632, namely:
“It is not uncommon for a version of the facts to emerge as a possible deduction from the evidence which has so far been neither side’s pleaded case but which one side wants now to plead as an alternative basis, either of liability or of defence. In my experience it is normal and proper practice in the County Courts, and in the High Court too, to allow an amendment to such effect at the conclusion of the evidence if, on any terms which are appropriate as to costs or recall of the witnesses, this can be done without injustice to the other party or parties.”
In Binks, attention was drawn to the fact that rule 22.1(2) enables the Court to dispense with verification by a statement of truth when a statement of case is amended, and (on the facts of that case) Mr Justice Maurice Kay said:
“It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent’s documents, pleadings or evidence is capable of being such a case.”
Mr Myerson QC made an application that I should allow all the amendments and dispense with the statement of truth based on those two cases. Mr Mansfield QC said that there was a problem in that the individual Test Claimant may stand by the old evidence and there is a danger that, had the amendment been made in respect of an individual Test Claimant prior to him or her giving evidence, they may have adopted the amendment or may have disavowed it, for example on the basis that whatever the documents say they were confident of the originally pleaded dates. In my judgment this is a matter which goes to consideration of the alleged prejudice arising from the amendments. This I will deal with subsequently in this judgment. I accede to the Claimants’ application that, in respect of the amendments which I do allow, they be allowed dispensing with a statement of truth as to those amendments.”
CONSIDERATION OF THE STATEMENTS OF TRUTH LATER IN THE JUDGMENT
The judge went on to cover 11 draft amended Particulars.