WHEN COUNSEL’S ADVICE WAS ALTERED (WITHOUT COUNSEL’S CONSENT): CAVEATS REMOVED BEFORE BEING SHOWN TO INTERESTED PARTIES

April 6, 2021 · by · in Civil evidence, Civil Procedure, Disclosure

Someone reading counsel’s advice would normally assume that they were reading all of it.  There is a danger (I have not seen before) of advices being altered before being passed on.  In Equitable Law Capital, Re [2021] EWHC 763 (Ch) Mr Justice Meade found that someone had altered leading counsel’s advice before sending it onwards.

THE CASE

The liquidators of a company brought actions for payment and compensation.  One of the defendants had been involved in the setting up of an investment scheme.  Leading Counsel’s opinion was obtained in relation to the scheme.  That advice was passed on to potential investors. However the caveats and warnings that were in the initial advice were removed (without Leading Counsel’s knowledge or consent) before being passed on.

THE JUDGMENT ON THIS ISSUE

The judge found that an advice, couched in cautious terms, had been altered before being shown to

The letter of advice, amended advice of Mr Anderson QC
  1. David Clarkson’s credibility and honesty were attacked in relation to specific documents.  The main ones concerned advice about UCIS in the time frame when both Mr Anderson QC and Belmonte were providing advice.
  2. Mr Anderson QC provided verbal advice to Belmonte prior to giving formal written advice.
  3. Belmonte then gave a letter of advice to ELC on 12 August 2014 summarising the position.  David Clarkson admitted receiving this.
  4. In the text messages, there are two from David Clarkson to Lillie Milner which related to “tony” and the “opinion”.
  5. The first, on 12 August 2014 says “Spoke to tony he wont move until re get written opiniog [sic].  I also need to amend that before is goes to him”.
  6. The second, on 13 August 2014, says “I have amended letter from rich.  Spoken to tony he has 8 people waiting for opinion.  Letter will do.”
  7. An amended letter was sent to Mr Flaton by David Clarkson under cover of an email of 19 August 2014.  Among other things, it said that Mr Flaton would in due course be able to “show” (the quotation marks are in the original) Mr Anderson QC’s written opinion to his clients.
  8. The amended letter was significantly altered to give the impression that the documentation intended to be used had been approved by Mr Anderson QC.
  9. David Clarkson had no explanation for the alteration of the letter of advice.  He denied altering it, but the inference that he did so is overwhelming, and I find that he did.  I also find that the intention was to mislead Mr Flaton about the strength and scope of the advice.  He did it because Mr Flaton was pressing for comfort about the advice and would not start taking money without it.  The desire to start money coming in was an obvious incentive for David Clarkson to make the changes….
  1. Mr Anderson QC’s written advice was given on 19 August 2014.  It was provided by Belmonte to ELC on 26 August 2014 in an email from Mr Arnison to David Clarkson and Lillie Milner.
  2. Belmonte also sent a letter to ELC of the same date entitled “Bond Mis-Selling”
  3.  On 27 August 2014, David Clarkson emailed Mr Flaton.  The email attached a document purporting to be Mr Anderson QC’s advice.
  4. Mr Anderson QC’s advice was generally positive that there was no breach of s. 235 FSMA 2000, but was significantly caveated in relation to the documents he had seen being drafts, in relation to the advice being only for Belmonte, and in relation to his assuming that the facts “on the ground” matched what he had been told.
  5. However, the version sent to Mr Flaton was rather crudely altered in relation to these caveats, with a significant change in tone.
  6. It was put to David Clarkson that he had altered the advice; he denied this.  In re-examination he said that he probably spoke to Lillie Milner in between getting the advice in and sending the altered version to Mr Flaton, the implication that Lillie Milner might have made the changes.  That is totally improbable given the timing and the absence of any explanation as to how Lillie Milner might have substituted the one for the other without David Clarkson noticing.  There is also no sign of the existence of any email to David Clarkson from anyone else providing him with the altered version (I bear in mind that this is an area where it is relevant that Lillie Milner might have provided incomplete documents).
  7. It is obvious, and I find, that he altered the document with the intention of changing its tone and of concealing from Mr Flaton that it had been changed.
Tags: ,