SOLICITORS AND ATTENDANCE NOTES: JUDGES NEARLY ALWAYS PREFER THE CONTEMPORANEOUS NOTES

The judgment of HHK Keyser QC (sitting as a High Court judge) in Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch) serves as a reminder of the importance of contemporary attendance notes as a source of evidence.

“the best evidence is the file note. It is a contemporaneous record made in connection with the provision of professional services

THE CASE

The action concerned the identity of the last valid will of the claimants’ father. An issue arose as to whether the contents of the will were truly known and approved of. This involved the court receiving evidence from the person at the solicitor’s firm who prepared the will. She had worked as a paralegal at the time and subsequently qualified as a solicitor.   She was now being asked to look back at events 7 years previously.  The judge placed great reliance on the attendance note.

THE JUDGMENT ON THIS ISSUE

The judge preferred the attendance note to the lawyer’s attempt at recollection of the events.

1) Miss Campbell had two reasons for making the telephone call to the testator on 18 June 2014. First, some weeks had elapsed before the file had been passed to her and she felt it appropriate to apologise for the delay and to ensure that his instructions still stood after a month had passed since his meeting with Ms Gillard. Second, she had not taken the initial instructions from the testator and considered that it would be professional to speak to him directly before drafting his will.
2) Before the telephone call on 18 June 2014, there had been no intimation from the testator that the instructions he had given to Ms Gillard no longer represented his intentions.
3) The telephone call on 18 June 2014 was made without appointment or prior warning. Miss Campbell asked if it was convenient to speak about the will and told the testator that she could speak to him at another time if he preferred, but he was content to speak then.
4) In her oral evidence, Miss Campbell said that she had gone through the instructions received by Ms Gillard with the testator, though she accepted that the attendance note did not record that she had gone through that exercise; it rather says that she had asked the testator to tell her how he wanted to dispose of his assets.
5) Miss Campbell acknowledged that the instructions she recorded were different from those recorded by Ms Gillard. She confirmed that the testator did not tell her in terms that he was giving different instructions from those he had given to Ms Gillard or that the instructions he had given to Ms Gillard no longer held good. She was uncertain whether she had pointed out to him that the instructions were different: initially she accepted that she had not told him that these were different instructions from those he had given previously; in a subsequent answer she said that she was not sure whether or not she had told him they were different; later again, she said that, although she had not recorded telling the testator that his instructions were different from those previously given, “to the best of [her] belief” she would have raised the point with him. Towards the end of her evidence Miss Campbell said that she would probably have discussed with the testator his change of mind within a matter of weeks, although she could not remember whether she had asked him why he had changed his mind.
6) Miss Campbell’s evidence was that the testator was clear and unequivocal in his instructions to her and that, when she asked him about the instructions, he explained his reasoning in a manner that she subsequently incorporated into the Letter of Wishes. The key point that she focused on in her evidence was the testator’s “overarching concern” to ensure that Richard and Susan were “okay” and his insistence that he wanted to leave the Farm and farmhouse to Richard. When answering questions, she several times referred to the Farm and farmhouse being left “entirely” or “absolutely”, though she acknowledged that she could not say that the testator had used either word; he had said he “wanted it all left to them.”
7) Miss Campbell acknowledged that she had made no record of what assets would fall into the residuary estate, that the effect of the will she drafted was that there was nothing or practically nothing in the residuary estate, and that she had made no record of informing the testator of that fact. She said that the fact that three of the sons would receive practically nothing under the will was something she “would have discussed” with the testator at the time. In answer to a boldly leading question in re-examination, Miss Campbell was happy to accept a somewhat dismissive attitude to clauses dealing with residuary estate as a “mopping up” exercise. In answer to me, she acknowledged that now, as a qualified solicitor, she would be careful to ascertain what would be comprised in the residuary estate; however, she noted that the estate was known to consist mainly of the Farm.
8) Miss Campbell acknowledged that the words in her letter of 19 June 2014, “As you have chosen to leave a larger share of your residuary estate to your son Richard (including the house and farm)”, were misleading and that the letter did not point out that there would be nothing in the residuary estate. But she said that, if a client tells you that he wants to leave his entire property to a particular person, that is clear enough.
9) As for the meeting on 21 July 2014, when the 2014 Will was executed, Miss Campbell said that her file note was correct in recording that Richard was present when the will was executed. She acknowledged that the file note did not record that she had read the will to the testator before he signed it, but she said that she always did so and would have done so on this occasion.
    1. Richard gave evidence concerning the execution of the 2014 Will and his knowledge of its terms, to the following effect. Before the will was executed, the testator told him that the furniture in the farmhouse would be left to him. On the occasion when the will was executed, he was in the room with the testator at the start of the meeting with Miss Campbell, but he was asked to leave and he did so, returning only after the will had been executed. When he came back into the room, the testator was looking at the will, and Richard happened to notice the provision (clause 6) leaving the ISAs to the brothers in equal shares. Richard’s witness statement continued:
“I said that I thought they [the ISAs] were going to be left to me to pay the boys (my brothers) out, but he said not to worry, he could always take the money out (out of the ISAs, I presumed he meant) and that if it wasn’t there they couldn’t have it. I did not know the other contents of the Will …”
  1. As to whether Richard was present throughout the meeting on 21 July 2014 or went out until the 2014 Will had been executed, the best evidence is the file note. It is a contemporaneous record made in connection with the provision of professional services, and it gives a coherent and credible account of the request that Richard leave, the testator’s wish that he remain, Miss Campbell’s reason for acquiescing in the testator’s wish, and the extent of Richard’s involvement in the meeting (involving, I note, a question about one particular provision of the will). The lapse of six and a half years since the meeting (five and a half before Richard made his witness statement) is liable to render his recollection less reliable than a contemporaneous record. And Richard was not by any means a convincing historian. I do not place any independent weight on Miss Campbell’s recollection as to Richard’s presence, as I am not persuaded that she has any genuine recollection on the point and, if she had, it would be less reliable than her own file note.

THE DANGERS OF HINDSIGHT

The judge emphasised the dangers of recollection. Again he preferred to rely on the file notes.

  1. Fourth, I find as a fact that Miss Campbell did not go through the instructions as recorded by Ms Gillard when she spoke to the testator on the telephone. In making this finding, I reject Miss Campbell’s evidence that she did go through those instructions. First, throughout her evidence Miss Campbell showed obvious, though understandable, signs of remembering things in a manner that accorded with what she knows she ought to have done and what, as a qualified solicitor, she now would do. Second, the file note is more reliable as a record than a recollection several years later; when the file notes differ from Miss Campbell’s recollection, I prefer to rely on the file notes. The file note of the conversation on 18 June 2014 does not record that Miss Campbell went through the instructions as recorded by Ms Gillard. Rather, it records that she “asked whether the client could let her know what it is that he wanted to do with his assets when he passed away.”