LAWYERS GIVING EVIDENCE 3: THE SOLICITOR (GIVING EVIDENCE WHILST REPRESENTING HIS CLIENTS) HAD BECOME FAR TOO CLOSE TO THE CASE TO BE OBJECTIVE
In the third post on the dangers of lawyers giving evidence we are looking at the judgment of Recorder Monty QC in Afia v Mellor & Anor  EW Misc 23 (CC). The only witness called for the defendants was their solicitor. Once again things did not go well..
“It is impossible to gauge the attitude of the Defendants to the enormous sums which have been expended in this litigation, because to all intents and purposes they have remained invisible. It is a great pity that a more sensible and proportionate view of what was actually at stake was not taken by Mr Cohen on behalf of the Defendants, and I rather suspect that had Mr Cohen not become so personally involved matters might well have proceeded rather differently”.
The claimant brought an action based on a guarantee. The claimant gave evidence and was found to be wholly credible. The defendants did not give evidence. However their solicitor did.
THE JUDGMENT ON THE EVIDENCE CALLED ON BEHALF OF THE DEFENDANTS
Neither of the Defendants gave evidence. I heard evidence in support of their defence of this claim from Mr Philip Cohen. Mr Cohen is the senior partner of Jeffrey Green Russell (“JGR”), a firm of solicitors which acted for the Defendants throughout the relevant period and has acted for the Defendants in this litigation.
I was extremely troubled by Mr Cohen’s evidence from the outset. After some prevarication, which in my view was not fitting for a solicitor of Mr Cohen’s experience, he accepted that he had not considered the SRA’s Code of Conduct at any stage when acting for the Defendants, providing his several witness statements, and giving oral evidence at trial.
The Code is based on a number of Principles which define the fundamental ethical and professional standards expected of a solicitor when providing legal services. The Principles include upholding the rule of law and the proper administration of justice; acting with integrity; not allowing the solicitor’s independence to be compromised; and behaving in a way that maintains the trust placed in the solicitor and in the provision of legal services. The Code sets out certain Outcomes, which are mandatory, supplemented by Indicative Behaviours, which specify, but do not constitute an exhaustive list of, the kind of behaviour which may establish compliance with, or contravention of the Principles. These Indicative Behaviours are not mandatory but (in the words of the SRA’s Code) “they may help us to decide whether an outcome has been achieved in compliance with the Principles.” In Chapter 5 of the Code, entitled “Your client and the court”, the Outcomes include, “you do not place yourself in contempt of court”, “you comply with your duties to the Court” and “where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client”. The Indicative Behaviours include
“not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice.”
Mr Cohen had not considered whether it was appropriate for him to act for the Defendants and to be a witness for them (indeed, to be the sole witness) but maintained that he was satisfied that there was no prejudice to his independence or to his clients or to the interests of justice. However, as became clear in cross-examination, Mr Cohen had on two occasions deliberately been untruthful in emails he had written, and there were a number of other ways (which I shall highlight in my findings of fact) in which his oral evidence conflicted with what he had said in his witness statements and in the documents. Mr Blaker, for Mr Afia, said that Mr Cohen’s failure to consider the SRA’s Code set the tone for Mr Cohen’s approach to giving evidence generally. I agree. In my view, Mr Cohen was far too close to the events which have given rise to this litigation, and took those events far too personally, to have properly been in a position to act for and give evidence on behalf of the Defendants in this case. Mr Cohen’s lack of objectivity has meant that I have had to test his oral and written evidence very carefully against the contemporaneous documents.wh
A CODA: THE SOLICITOR WAS TOO CLOSE TO THE CASE AND DID NOT TAKE A SENSIBLE AND PROPORTIONATE VIEW
Mr Afia was asked in cross-examination whether he agreed that this claim had escalated out of all proportion to its value. He agreed, and for what it is worth so do I. But Mr Afia strikingly said that this was a matter of principle and it was a question of whether principles are worth something or not. It is impossible to gauge the attitude of the Defendants to the enormous sums which have been expended in this litigation, because to all intents and purposes they have remained invisible. It is a great pity that a more sensible and proportionate view of what was actually at stake was not taken by Mr Cohen on behalf of the Defendants, and I rather suspect that had Mr Cohen not become so personally involved matters might well have proceeded rather differently.