THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT: A REPEAT

The post earlier this morning about witness evidence in a case where the Particulars of Claim had been signed by a solicitor has raised some interesting observations. Not least commentators have observed that it is, to say the least, profoundly unwise for a lawyer to sign documents on behalf of their clients.  This has led me to repeat a post first written in July 2015 “The profound lack of wisdom in signing statements of truth on behalf of your client”.

THE POST

The post followed the judgment of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin)

A CAVEAT

In reading this part of the judgment it is important to remember that criticisms were made of the solicitors involved at a time when they had no notice of these criticisms and were not represented.

1. “The trial began on 8^th October 2014. The proceedings arose out of a road traffic accident which had occurred on 26^th January 2012. The Claimants were Mohammed Yousaf and Junaid Ahmed. They had been travelling in Mr Yousaf’s car and had been approaching a roundabout when, it was said, the car in front braked unexpectedly. Mr Yousaf braked in time but the car immediately behind his, and which was being driven by Lara Mason, did not. Ms Mason collided with Mr Yousaf’s car. Behind Ms Mason was a taxi being driven by Mohammed Hanif. Mr Hanif was also taken unawares. He collided with Ms Mason’s car in front of him which (again so it was said) shunted her car into a second collision with Mr Yousaf’s. In the County Court proceedings Ms Mason was the 1^st Defendant and Mr Hanif the 2^nd Defendant. MRH were the solicitors for Mr Yousaf (Mr Ahmed was separately represented). Andrew Lawson was counsel for Mr Yousaf. The trial was heard by Mr Recorder Osborne.

2. On the first day of the trial, Mr Lawson, having taken his client’s instructions, substantially amended the amounts which Mr Yousaf sought to recover in special damages. A claim for £898 for some 11 sessions with a physiotherapist was abandoned because no physiotherapy had been provided, despite the pleadings being supported by a statement of truth. The cost of hiring a substitute car from Pennington and Apex had been claimed at £16,308 but were reduced to £5,400. A claim for storage and recovery of Mr Yousaf’s damaged car had been pleaded at £11,277 but was reduced to £3,300. The car being driven by Mr Yousaf was valued at £550.

1. The Recorder considered that he had good reasons for these views. We have already referred to the abandonment of the claim for physiotherapy treatment and the very substantial reduction in the claim for storage (of Mr Yousaf’s damaged car) and for hire of a substitute car. When Mr Yousaf gave evidence he claimed to know nothing about paying for physiotherapy and said he had only ever been to the hospital. Quite how a claim for £898 for an initial assessment and 10 physiotherapy sessions by a company called Premier Motion in Preston had come to be included in the Schedule of Loss was a mystery. As for the car hire charges, Mr Yousaf’s evidence was that he thought he had been provided with a courtesy car. He seemed unaware that he had accumulated liability to the car hire companies, Apex and Pennington, of over £16,000. He had no knowledge of the reduction in the claim for these charges by £11,000. This was despite passages in his witness statement which said that he had been told he would be liable for hire charges and had been chased for them by post and by phone in passages which, as we have noted, the Recorder said had been “patently planted in his statement by MRH Solicitors to explain that it is meant to be a serious credit hire contract, but which he, again, denied having known anything about.” His wrecked £550 car had been stored after the collision at a cost of some £11,000. The claim for recovery of this charge was reduced by £8,000 on the morning of the first day of the trial. The original version of Mr Yousaf’s Schedule of Loss had been signed by him, but the final version was signed with a statement of truth by MRH on his behalf. Mr Junaid Patel, a fleet manager of the car hire company, Apex, had provided the witness statement. He noted that MRH acted for them. They were also the only solicitors who were on their company’s panel. According to Mr Junaid Patel, MRH could also be involved in suing those who did not pay their credit hire bills.”

SIGNING STATEMENTS OF TRUTH ON BEHALF OF A CLIENT

The major point that should be made is the dangers of signing a statement of truth on behalf of a client.  For the reasons given by the Administrative Court it is not possible to draw any further inferences from the MRH case.

We have already looked at the case of GB Holdings -v- Short [2015] EWHC 1378 (TCC) where Mr Justice Coulson observed

“I find it surprising that, in modern litigation, a firm of solicitors can still take a statement of truth so lightly”

Similarly in YXB -v- TNO [2015] EWHC 826 (QB) Mr Justice Warby observed that a solicitor had signed a witness statement in support of an injunction application

“The first paragraph of the statement said that its contents were within her own knowledge unless otherwise stated. Very little of it could however have been within her own knowledge.”

WORDS THAT SHOULD BE ON THE WALL OF EVERY LITIGATION SOLICITOR’S OFFICE

That is this section from Practice Direction 22 – Statements of Truth.

“3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).”

A DANGEROUS STEP

In signing a statement of truth on behalf of a client, therefore, the solicitor is making expressly, a statement that

• They are authorised to sign the document.
• That the solicitor has told the client that they would be confirming on the client’s behalf that the document was true.
• That the client had been told of the consequences if the statement is untrue (which include the fact that the client could go to jail).

HEADING FOR TROUBLE

If there is a dispute about the truth of a document a solicitor/client relationship is fraught with problems.

• If the solicitor states that these steps were complied with then the client could be in serious trouble.
• If the client states that these steps were not complied with then the solicitor (and potentially the client) could be in serious trouble.
• If there is dispute about what information and advice the solicitor gave to the client then there could be a whole lot of trouble.

At the very least the advice and information given should be recorded in writing.

RELATED POSTS

• Taking the statement of truth lightly.
• Signing disclosure statements?
• Pleadings, the statement of truth and contempt of court.
• Witness statements and avoiding jail: are you protecting your clients and protecting yourself?