THE STATEMENT OF TRUTH: WHY YOU AND YOUR CLIENTS NEED REGULAR REMINDERS OF THE RULES & CASES

November 2, 2018 · by gexall · in Civil evidence, Civil Procedure, Witness statements

In Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm) Mrs Justice Cockerill made some important observations that apply to every aspect of litigation. We looked at the case yesterday: a stark reminder was provided of the dangers of complacency when dealing with the statement of truth. The defendants’s approach in that case was of concern to the judge because “it indicates that a sense of the very real importance of statements of truth may have been lost in the years which have passed since they were introduced”.

This gives rise to an opportunity (perhaps a need) to reiterate points that have been made before on this blog in relation to the statement of truth. The judge went on to state “that this situation had been allowed to come about indicates that a clear reminder as to the importance of Statements of Truth and a careful observance of the requirements pertaining to them may not go amiss.” This is worth repeating. I would not be surprised, one day soon, to be writing about a lawyer in serious trouble when a client complains that they had not had the significance of the statement of truth explained to them.

PRACTICE DIRECTION 22

Practice Direction 22 sets out which documents require a Statement of Truth.

Form of the statement of truth

2.1 The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’

2.2 The form of the statement of truth verifying a witness statement should be as follows:

‘I believe that the facts stated in this witness statement are true.’

2.2A The form of the statement of truth verifying a costs budget should be as follows:

‘This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.’

WHO SIGNS THE STATEMENT?

Again this is covered in the Practice Direction. Be very wary here. The judgment in the Recovery Partners case indicates that one party to a case cannot sign on behalf of another.

3.1 In a statement of case, a response or an application notice, the statement of truth must be signed by:

(1) the party or his litigation friend, or

(2) the legal representative of the party or litigation friend.

3.2 A statement of truth verifying a witness statement must be signed by the witness.

3.3 A statement of truth verifying a notice of objections to an account must be signed by the objecting party or his legal representative.

3.4 Where a document is to be verified on behalf of a company or other corporation, subject to paragraph 3.7 below, the statement of truth must be signed by a person holding a senior position⁴ in the company or corporation. That person must state the office or position held.

3.5 Each of the following persons is a person holding a senior position:

(1) in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation, and

(2) in respect of a corporation which is not a registered company, in addition to those persons set out in (1), the mayor, chairman, president or town clerk or other similar officer of the corporation.

3.6 Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are:

(1) any of the partners, or

(2) a person having the control or management of the partnership business.

3.6A An insurer or the Motor Insurers’ Bureau may sign a statement of truth in a statement of case on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings brought wholly or partially by or against that party.

3.6B If insurers are conducting proceedings on behalf of many claimants or defendants a statement of truth in a statement of case may be signed by a senior person responsible for the case at a lead insurer, but–

(1) the person signing must specify the capacity in which he signs;

(2) the statement of truth must be a statement that the lead insurer believes that the facts stated in the document are true; and

(3) the court may order that a statement of truth also be signed by one or more of the parties

WHEN A LEGAL REPRESENTATIVE SIGNS: BE WARY

When a lawyer signs a statement of truth they must be aware of their obligations and duty to inform and consult the client. Any sensible litigator would have their explanation of this to the client documented and recorded in writing. Remember there are many documents in litigation which a party must sign personally.

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).

3.9 The individual who signs a statement of truth must print his full name clearly beneath his signature.

3.10 A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

CASES WHERE SIGNING THE STATEMENT OF TRUTH HAS LED TO PROBLEMS

DDJ Lingard in Brown -v- Haven

“This is a case where whatever costs were wasted must be paid. It is also a case where I express grave reservations of the practice of a practice of solicitors in possibly putting too much pressure on employees or alternatively not supervising employees properly and in this case a solicitor ignoring the grave importance of the consequences of a statement of truth signed by a solicitor when clearly there was no authority to do it and in any event what was being signed was manifestly incorrect.”

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

“The applicant decided that the similar false statements in the particulars of claim (see paragraph 13 above) should not form any basis of the application because Mr Short suggested in his affidavit that the pleading was served without his approval. There is no evidence about that from either of the solicitors then involved at McClure Naismith, one who signed the statement of truth and is still with the firm and another who had control of the case at the time. I pointed out that this may make the entire particulars of claim invalid. 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.”

In Bao Xiang International Garment Centre -v- British Airways PLC [2015] EWC 3071 (Ch) the claim form was signed by a partner in the law firm representing the claimants. The judge referred to paragraph 3.8 of the Practice Direction and struck the action out for want of authority.

“In my judgment, none of the 64,697 claimants on whose behalf this claim was brought by Hausfeld has either authorised the bringing of the claim or ratified Hausfeld’s actions in starting the claim on its behalf. I accept the submission of British Airways and the other airlines that in these circumstances, the only possible course for me to take is to strike the whole of the claim out”

GETTING THE WORDING RIGHT

In Galdikas -v- DJ Houghton Catching Services Ltd [2016] EWHC 1367 (QB) Mr Justice Supperstone considered an application to strike out a defence. when the defendant’s solicitor had used the incorrect wording when signing the statement of truth on behalf of a client. The defendant was given permission to amend, however it serves of a timely reminder that a lawyer signing a statement of truth should be fully aware of the obligations under Practice Direction 22.

THE COUNTY COURT ONLINE PRACTICE DIRECTION

This provides an even starker reminder of the duties of the legal representative.

“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.”

GUIDANCE ONLINE

District Judge Neil Hickman on Statements of Truth and nothing but
Andrew Parker on Beauty is truth..

Tags: Civil evidence, Civil Procedure Rules, Statements of Truth, Witness evidence, Witness statement, Witness statements

One Response

Bernie Brandon · November 2, 2018 at 11:46:47 · →

As a litigant in person I recently had to settle (drop hands) a perfectly good case of breach of the Deposit Protection Code and other heads of claim against a former Landlord after the Defendant’s Solicitor and the Defendant Letting Agent dishonestly told the Court – in a Witness Statement with a Statement of Truth – that the “Code” did not apply to their clients because they were mere agents and that any remedies lay only against the Landlord . ( Housing Act 2004 makes it clear that letting agents are liable in such cases) but what do others here say or think about dishonesty as to the law rather than the facts ?

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