LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE

This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners -v- Gutteridge [2001] EWHC 568 (Ch).

“The affidavit sworn by the Defendants’ solicitor in this case is, in my judgment, the paradigm of an affidavit that should have been sworn by a party personally. It is largely an affidavit of facts deposed to on the instructions of Mr Gutteridge, setting out his case and his recollection. Much of it is highly contentious.”

THE CASE

The judge was considering an application to vary a freezing injunction.  Many of the facts were contentious. The judge made only minor amendments to the original injunction.

THE JUDGE’S COMMENTS ON THE WITNESS EVIDENCE

Affidavits by solicitors

  1. In this case both parties’ evidence has been in the form of affidavits sworn by their solicitors, setting out facts on the basis of information provided by others. Where affidavit evidence is required urgently the provision of evidence in this way may be necessary for practical reasons.
  2. Where the evidence given by affidavit takes the form of the exhibiting of documents and comment on them, or where the facts are uncontentious, there is no possible objection to a solicitor’s affidavit. Where, however, on an application for the grant or continuation or the discharge of a freezing injunction the facts are contentious, and evidence is to be given on the matters that are within the personal knowledge of a party to the proceedings, he or she should swear the affidavit.
  3. The affidavit sworn by the Defendants’ solicitor in this case is, in my judgment, the paradigm of an affidavit that should have been sworn by a party personally. It is largely an affidavit of facts deposed to on the instructions of Mr Gutteridge, setting out his case and his recollection. Much of it is highly contentious.
  4. I do not make these comments by way of criticism of the Defendants’ solicitors or counsel. I am aware that it is common practice for solicitors to make the affidavits in cases such as the present. My decision in this case is unaffected by the fact that Mr Gutteridge did not swear the affidavit personally. However, in circumstances such as those of the present case, the correct practice is for the affidavit to be sworn by the defendant personally and not by his solicitor. In other cases the Court may take into account the unexplained reluctance of a party to swear such an affidavit.