WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL

The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered  by the entire profession. Particularly those who draft statements, and those who are about to sign statements.  The judgment was not just about expert witnesses, many of the points made related to anyone who signs a document supported by a statement of truth.

THE CASE

The case was about a doctor who had been reckless in amending a witness statement in a relatively minor personal injury claim.  The doctor had not been motivated (directly) by money and the error was not deliberate.

HOWEVER ANYONE MAKING A RECKLESS STATEMENT CAN EXPECT TO GO TO JAIL

“We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth. In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all”

THE FACT THAT THIS IS A SMALL CLAIM DOES NOT MATTER

“Because this form of contempt of court undermines the administration of justice, it is always serious, even if the falsity of the relevant statement is identified at an early stage and does not in the end affect the outcome of the litigation. The fact that only a comparatively modest sum is claimed in the proceedings in which the false statement is made does not remove the seriousness of the contempt. The sum in issue in the proceedings is however relevant, because contempt of court by an expert witness will be even more serious if the relevant false statement supports a claim for a large sum, or a sum which is grossly exaggerated above the true value of any legitimate claim.”

THE FACT THAT THIS IS A “RECKLESS” RATHER THAN DELIBERATELY FALSE STATEMENT MAY MAKE LITTLE DIFFERENCE

“As we have noted in [36] above, the essential feature of this form of contempt of court is the making of a false statement without an honest belief in its truth. In principle, where a false statement is made without an honest belief in its truth, a contemnor who acts recklessly is less culpable than one who acts intentionally. The extent of that difference in culpability will, however, depend on all the circumstances of the case. Without seeking to lay down an inflexible rule, we take the view that an expert witness who recklessly makes a false statement in a report or witness statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally. This is so, because the expert witness knows that the court and the parties are dependent on his or her being truthful, and has made a declaration which asserts that he or she is aware of his or her duties to the court and has complied with them (see [33] above). To abuse the trust placed in an expert witness by putting forward a statement which is in fact false, not caring whether it be true or not, is usually almost as serious a contempt of court as telling a deliberate lie.”

SO TELL THE AUTHOR AND SIGNATORY OF ANY DOCUMENT THAT REQUIRES A STATEMENT OF TRUTH THAT THIS HAS TO BE ACCURATE

I like the matrimonial Form E

“The cover page of the Form E contained the following rubric:

“Please fill in this form fully and accurately.…

You have a duty to the court to give a full, frank and clear disclosure of all your financial and other relevant circumstances.

A failure to give full and accurate disclosure may result in any order the court makes being set aside.

If you are found to have been deliberately untruthful, criminal proceedings for perjury may be taken against you.”

AT THE VERY LEAST

A witness needs to know, at the very least,

• That this is an important document.
• If it is inaccurate they could have criminal (or contempt of court) proceedings brought against them.
• That they should check the document fully and carefully and feel free to make any additions or alterations.
• The statement is, however, one of facts and not opinions.
• If they have any doubts about any matter at all they should raise these with the lawyer involved.