THE PROBLEMS THAT CAN OCCUR WHEN A LAWYER MAKES A STATEMENT ON THEIR CLIENT’S BEHALF: “I ATTACH NO WEIGHT TO WHAT HE SAYS”

This blog has looked, many times, at the pitfalls that can occur when lawyers make statements on behalf of their clients.  An example can be seen in the judge of Mr Justice Edis in Cobussen Principal Investment Holdings Ltd v Akbar & Ors [2020] EWHC 476 (QB).  It is an example of the need to give the source of the information and belief.

 

“The inclusion of these assertions by Mr. Isaacs with the declaration that they are true to the best of his belief surprises me. There is no indication that Mr. Isaacs probed them in any way before deciding that he believed them. I don’t doubt that he does, but since he does not explain why he believes this implausible material to be true, I attach no weight to what he says.”

THE CASE

The judge was hearing an application for disclosure.   The respondent’s solicitor had filed a witness statement shortly before the hearing.

THE JUDGE’S COMMENTS ON THE WITNESS EVIDENCE

The judge commented that the respondent’s solicitor had filed a witness statement. The judge found that the statement give insufficient reasons.
    1. A witness statement of Mr. Jonathan Isaacs, solicitor, of DWF Law LLP, dated 26th July 2019 was served on behalf of Mr. Akbar in support of his opposition to the making final of the Interim Charging Order. Service was effected by email at 1823pm on Friday 26th July 2019, the hearing having been fixed for the following Tuesday, 30th July. This gave Cobussen, and the court, 1 clear working day to deal with it.
    2. In paragraph 5, Mr. Isaacs apologised for the lateness of the statement and its exhibit. He said that his firm had been instructed on 23rd July 2019 and that
“Mr. Akbar did not immediately pick up the papers which had been served upon him given various business travel commitments at the time”.
    1. In paragraph 2, on the previous page, Mr. Isaacs had said
The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, I identify the source of the information. Facts and matters derived from other sources are true to the best of my knowledge, information and belief.”
  1. I assume, but am not told, that the rather opaque explanation given for the lateness of Mr. Akbar’s response in paragraph 5 had come to Mr. Isaacs from Mr. Akbar. Mr. Isaacs gives no reason, if it is the case, why he believes that it is true. Neither does he explain what he believes that it means. Mr. Akbar was apparently served with papers which he did not “pick up” because of business commitments. He must have “picked them up” from somewhere at some point before he instructed DWF on 23rd July, but the statement is silent about how or when that might have come about. Mr. Isaacs then sets out Mr. Akbar’s case, which is that the Property is legally and beneficially owned by Legacy who had been served out of the jurisdiction without leave and that this purported service was therefore defective. Mr. Isaacs sets out the structure under which the legal interest in the Property is held, presumably relying on documents which he has seen, and concludes with a bald assertion of fact: “In short, Mr. Akbar has no beneficial interest in the Property.” This statement, again, seems to be based on documents, but he does not say which documents. He concluded “I believe that the Interim Charging Order should be discharged in its entirety.” Since he has not identified the basis on which he has formed these beliefs, it is not possible to say whether he has seen and considered everything which might be relevant to their truth.

LATER IN THE JUDGMENT

The judge returned to the nature of the witness statement later in the judgment.

“I agree with Mr. Weale that I should reject the submissions based on the scope of Judge Freedman’s order and the List of Issues which it produced. It is true that the timescales were short and that the Judge clearly did not envisage a very long disclosure process, but this does not bind me. He gave liberty to apply to the Master and Cobussen has instead come to me. The way in which the Respondents waited until the last moment to reveal their position before the 30th July 2019 and again before the 28th January 2020 suggests a tactic designed to “bounce” an opponent and cause delay. This is to be deprecated, and in this case it may have resulted in a rather more rushed approach to the directions required in relation to disclosure than is desirable. The Respondents should not be permitted to benefit from that. I have set out above Mr. Isaacs’ apology and explanation for the ambush in July. I am grateful for the apology, but attach no weight at all to the explanation. Mr. Isaacs says that Mr. Akbar did not “pick up” the documents with which he was served until some unspecified time, and I have indicated my concerns about Mr. Akbar’s explanations given in evidence by Mr. Isaacs at [6]-[11] above. The inclusion of these assertions by Mr. Isaacs with the declaration that they are true to the best of his belief surprises me. There is no indication that Mr. Isaacs probed them in any way before deciding that he believed them. I don’t doubt that he does, but since he does not explain why he believes this implausible material to be true, I attach no weight to what he says. The fact that the same approach was taken in January 2020 confirms to me in deciding that I should not allow the Respondents any tactical advantage from any loopholes there may have been in the Order of 30th July or the List of Issues which was agreed in September.”