SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE

There are particular dangers for solicitors giving evidence.  This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law.  In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686 (Ch) a solicitor who had given evidence at trial filed a statement (subsequent to judgment) correcting evidence given at the trial.   Although the judge did not find dishonesty he did categorise the initial evidence as “slapdash”.

“A solicitor in giving evidence to the Court is under a duty to be not only completely honest but also scrupulously accurate; see generally Wingate v Solicitors Regulation Authority [2018] EWCA Civ 366 at [97] to [101] and Brett v Solicitors Regulation Authority [2014] EWHC 2974 at [111] to [113]. Otherwise there is a particular risk of the Court being misled because of the trust which the Court places in solicitors as officers of the court to give their evidence reliably. I note that misleading the court, even inadvertently, is potentially a breach of paragraph 1.4 of the Solicitors Code of Conduct (2019)”

THE CASE

The claimant obtained judgment after a trial.   A solicitor gave evidence on the claimant’s behalf at the trial.  Andrew Lenon Q.C. considered an application, after judgment, for that solicitor to file a third witness statement correcting matters that had been said at trial.

THE APPLICATION AFTER JUDGMENT

  1. On 22 May 2020 I handed down judgment (“the Judgment”) [2020] EWHC 1327 (Ch) following the trial in these proceedings, which took place on dates between 22 January and 14 February 2020, and gave directions for an exchange of submissions on costs and interest. On 29 May 2020, before making a final order to give effect to the Judgment, I received a letter from Enyo Law LLP (“Enyo Law”) acting on behalf of Mr Neil Gerrard stating that Mr Gerrard wished to file a corrective witness statement. As noted in the Judgment (paragraph 62), Mr Gerrard is a partner in the firm of Dechert LLP (“Dechert”) who has been retained by RAKIA to work on various matters from 2014 onwards. He was directly involved in certain of the events in issue in the proceedings. He provided two witness statements, was called as a witness by RAKIA at the trial and cross-examined by Counsel for Mr Azima for slightly over one day.
  2. One of the matters about which Mr Gerrard was cross-examined was his dealings with Mr Karam Al Sadeq who has been held prisoner in Ras al Khaimah (“RAK”) since 2014. Those dealings were material to these proceedings: one of RAKIA’s claims in the proceedings was that Mr Azima had orchestrated a malicious campaign to damage the reputation, standing and internal stability of the Government of RAK by procuring the publication in the media of false stories that individuals were being unlawfully detained in a dungeon operated by the Ruler of RAK and Dechert and that the Ruler of RAK had improperly abdicated judicial, prosecutorial and governmental functions to unlicensed UK lawyers, who were overseeing the operation of a secret prison in RAK. In the Judgment (paragraph 202) I held that RAKIA failed to establish that the stories intended to be published about human rights violations in RAK were untrue and so this claim failed. A 2014 Amnesty International Report indicated that there were real grounds for concern about detention procedures in RAK and none of RAKIA’s witnesses were in a position to refute the findings in that report.
  3. Mr Gerrard is now the second defendant to proceedings commenced by Mr Al Sadeq in the English High Court (“the Al Sadeq Proceedings”). Mr Al Sadeq alleges that Mr Gerrard together with one current partner of Dechert (Caroline Black) and one former partner (David Hughes) violated Mr Al Sadeq’s rights by using threats and/or mistreatment and/or unlawful methods to force Mr Al Sadeq to give evidence and/or false evidence in an attempt to build a case, at the behest of the Ruler of RAK, against Dr Khater Massaad, a former senior government official. As noted in paragraphs 13 – 15 of the Judgment, RAKIA alleges that Dr Massaad was guilty of large-scale embezzlement. Whilst the defendants have yet to file a defence in the Al Sadeq Proceedings, Mr Gerrard confirms that they strongly deny all of the claims.
  4. The letter from Enyo Law stated that it had recently become apparent during the course of investigations for the purposes of the Al Sadeq Proceedings that Mr Gerrard’s memory regarding the investigation relating to Mr Al Sadeq was “not right” and that Mr Gerrard wished to correct the position by filing a corrective third witness statement.
  5. Following receipt of the letter, I revoked the directions I had made and directed an exchange of submissions concerning the issues raised by the new evidence. Following an exchange of submissions and the filing of Mr Gerrard’s third witness statement on 5 June 2020, I notified the parties that I intended to issue an addendum to the Judgment and invited the parties, if so advised, to file any responsive submissions which they did. On 23 June 2020 I received a further memorandum from Mr Azima’s Counsel concerning evidence given in yet other proceedings by Mr Hughes, the former Dechert partner and defendant in the Al Sadeq Proceedings. This additional material was of no assistance in resolving the issues raised by Mr Gerrard’s third witness statement.

 

THE ERRORS IN THE EVIDENCE

The judge considered the admissions of errors made in the original evidence given and the impact that this had upon the findings at trial.

Mr Gerrard’s evidence
    1. Before addressing the central issue, it is necessary to make certain observations about Mr Gerrard’s third witness statement and his evidence generally.
    2. First, I consider that RAKIA’s characterisation of the admitted errors in Mr Gerrard’s evidence in cross-examination as “minor inaccuracies” understates the seriousness of the errors. Although a number of the inaccuracies, such as the location of the interviews and whether or not Mr Al Sadeq had been formally charged, taken in themselves, are of no great consequence, others are clearly more important, such as the number of interviews conducted by Mr Gerrard, whether PACE was complied with and whether a lawyer was present during Mr Gerrard’s interviews. I agree with Mr Azima’s submission that the corrected evidence cumulatively creates a materially different impression of the extent and nature of Mr Gerrard’s dealings with Mr Al Sadeq.
    3. Second, I do not accept RAKIA’s submission that the erroneous evidence goes to peripheral matters which were of no relevance to the substantive issues. There was a pleaded issue on RAKIA’s own case in the proceedings as to whether the stories about human rights abuses and Dechert’s involvement in those abuses were false (see paragraphs 197 – 198 of the Judgment). The comment at paragraph 62 of the Judgment about “allegations of misconduct extraneous to the events in issue in these proceedings” was a reference to allegations of misconduct by Mr Gerrard made in pending proceedings brought by Eurasian Natural Resources Corporation against the Serious Fraud Office, which were put to Mr Gerrard in cross-examination, not to the allegations about involvement in human rights abuses in RAK in these proceedings.
    4. Third, I do not consider that Mr Gerrard has given an entirely satisfactory explanation for either the inaccuracies in his evidence in cross-examination or for the delay in providing corrective evidence. There was in this case, as noted above, a substantive issue of the utmost seriousness as to whether Dechert and Mr Gerrard personally had been involved in human rights abuses involving detainees in RAK (see paragraphs 197 and 198 of the Judgment). That issue was flagged in Mr Azima’s witness statement and in his skeleton argument before the trial. It was predictable that Mr Gerrard would be cross-examined about his dealings with Mr Al Sadeq. Mr Gerrard should have refreshed his memory about the details of those dealings before his cross-examination by reviewing his and Dechert’s contemporaneous records. If he had not done so, or was for any reason unable to recollect the events about which he was being cross-examined, he should have made that clear to the Court.
    5. Instead, in cross-examination Mr Gerrard gave evidence about these matters with bluster, volunteering additional details about his dealings with Mr Al Sadeq – which now turn out to be wrong – often in unambiguous terms and emphatic tone, with no suggestion that his memory could be faulty or that he had not prepared himself to answer such questions. For example, on the subject of Mr Al Sadeq’s lawyer consenting and being present (emphasis added):
Day 5, p.36: “Q. So you interviewed detainees who had been detained at the hands of RAK, did you?
A. Yes, with their agreement and the agreement of their lawyers
Day 5, p.45: “He had his own lawyers present who were perfectly happy with the situation.”
On the involvement of Al Tamimi (emphasis added):
Day 5, p.37: “Q. And you went there to interview prisoners?
A. I went there with Al Tamimi, the local law firm, to meet prisoners at their agreement and the agreement of their lawyers
On PACE (emphasis added):
Day 5, p.39: Q. And that material hasn’t been disclosed, has it, Mr Gerrard?
A. I have no idea whether it’s been disclosed or not. My – the lawyers have had complete access to all our material. I don’t know what was relevant or what was not. Frankly, I cannot see how an interview following PACE, which we insisted on, whereby the detainee had agreed to be interviewed…”
  1. Given the extent of the discrepancies between his original, somewhat slapdash evidence on these matters and the corrected evidence, it ought to have occurred to Mr Gerrard once he was able to reflect calmly after leaving the witness box, and at the latest when he read the Claim Form or the Particulars of Claim in the Al Sadeq Proceedings, that he had given, or might have given, inaccurate evidence about his dealings with Mr Al Sadeq at which point he should have checked the available records and not waited until much later on when material was made available for the purposes of the Al Sadeq Proceedings.
  2. A solicitor in giving evidence to the Court is under a duty to be not only completely honest but also scrupulously accurate; see generally Wingate v Solicitors Regulation Authority [2018] EWCA Civ 366 at [97] to [101] and Brett v Solicitors Regulation Authority [2014] EWHC 2974 at [111] to [113]. Otherwise there is a particular risk of the Court being misled because of the trust which the Court places in solicitors as officers of the court to give their evidence reliably. I note that misleading the court, even inadvertently, is potentially a breach of paragraph 1.4 of the Solicitors Code of Conduct (2019) quoted at paragraph 10.9 above.
  3. I am not prepared to decide, on the basis of Mr Gerrard’s third statement, that his evidence either at the trial or in the third statement was deliberately untrue. For reasons set out below, I do not consider that it is necessary for me to do so. I accept that, as submitted by Mr Azima, Mr Gerrard had an obvious interest in minimising and sanitising his involvement in the questioning of Mr Al Sadeq, given the pleaded issue and the serious nature of the allegations, but I accept that, as noted by Leggatt J, human memory is fallible and honest witnesses often make errors when recollecting past events. It is possible that Mr Gerrard was confused during cross-examination as to, amongst other things, whether the meetings in 2014 were in the nature of interviews and that this and other errors were made in the heat of the moment and were inadvertent. It is likewise possible that, as submitted by Mr Azima, Mr Gerrard’s corrective evidence has been prompted by the realisation that the true facts will emerge in the course of the Al Sadeq Proceedings. That said, Mr Azima’s submission that Mr Gerrard deliberately delayed giving corrective evidence long enough for the Judgment to be given, so that the court would be disinclined to revise its findings, but not long enough for the final order to be made, at which point the court could no longer revise its findings, does not make sense.

THE RESULT

The judge found that the new evidence did not change the key issues in the judgment already given. He declined to re-open the case.

  1. In these circumstances, it would not, in my view, be conducive to the overriding objective of dealing with the case justly to permit the further cross-examination of Mr Gerrard with a view to possibly revisiting the Judgment. Moreover, it would not be conducive to the overriding objective of dealing with the case justly and at proportionate cost, and it would be contrary to the public interest in the finality of litigation, to further delay the conclusion of these proceedings.
  2. I therefore propose to admit Mr Gerrard’s third witness statement and to make a final order based on my findings in the Judgment as it stands.