A REFRESHER COURSE (1): THE STATEMENT OF TRUTH : “NOT AN IRRELEVANT MANTRA OR MERE VERBIAGE”

The previous post on this blog was about the importance of giving the source of information or belief and first hand witness evidence. However whenever a lawyer signs a document with a statement of truth they are taking their career in their hands.  Here is a brief refresher course of the rules and those cases where judges have commented on issues relating to the statement of truth (usually because something has gone wrong).

“The statement of truth is not an irrelevant mantra or mere verbiage.”

PRACTICE DIRECTION 22

The best place to start is the rules.

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.

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.

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 (OR AT LEAST COMMENTS FROM THE COURTS)

 

  • 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”.
  • 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 this shows the importance of using the correct wording.
  • 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.”
“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”
  • 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.”
  •  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”

 

  •  Akram -v- Secretary of State for the Home Department [2015] EWHC 1359 (Admin) Sir Brian Leveson considered a case where a principal of a solicitor’s firm had signed a statement of truth in an application. He personally attested that the grounds of the application were true.  In a later letter of explanation he stated he did not see the application and it was prepared by a caseworker.
“The statement of truth is not an irrelevant mantra or mere verbiage. This Court has now on a number of occasions reiterated the substantial importance attached to qualified lawyers being in a position diligently and carefully to scrutinise applications made to the Court”