WHEN A SOLICITOR IS A WITNESS IN THE CASE FOR HIS CLIENT (AND THEY ARE IN A ROMANTIC RELATIONSHIP): THIS IS UNLIKELY TO END WELL…

The judgment of HHJ Russen KC in Kay v Martineau Johnson (A Firm) [2024] EWHC 2451 (Ch) highlights the profound dangers of a solicitor for a party being a witness in the case that is being brought. Those dangers are compounded, massively, when the solicitor and client  in question are in a romantic relationship.

“The potential hazard in a solicitor acting both in a professional capacity and as witness of fact in the case lies in the risk that the due administration of justice, which a degree of professional detachment and attendant duties as an officer of the court are aimed at supporting, is prejudiced.”

THE CASE

The claimant brought proceedings against the defendant firm of solicitors alleging professional negligence in the settlement of her divorce proceedings in 2008. A “clean break” had been negotiated.  The claimant alleged that the advice that she should have a clean break was negligent.  However the claim was brought outside the primary limitation period. The court directed that the question of limitation be heard as a preliminary issue. To succeed the claimant had to establish an argument under Section 14A of the Limitation Act 1980, that there was a different stating date based upon a later date of knowledge for the claimant.

THE EVIDENCE OF THE CLAIMANT’S SOLICITOR

The various dates of knowledge of the claimant were an important issue in the trial of the preliminary issue. The claimant called her partner, Mr. Morgan.  Mr Morgan was also the claimant’s solicitor. This caused the judge (and the defendant) some concern.

THE JUDGMENT ON THE SOLICITOR’S/PARTNER’S EVIDENCE

The judge considered the unusual situation of the claimant’s solicitor (who was also her partner) giving evidence on her behalf.

“Mr Morgan

108. Until his retirement on 31 March 2023 Mr Morgan was the Head of Commercial
Litigation at what is now Harrison Clark Rickerbys (“HCR”). He held that role from
2006 having been a litigation solicitor since qualifying in 1984. He still acts as
consultant for HCR. For the greater part of his professional career he has specialised
in civil and commercial litigation. He was appointed as a Deputy District Judge in
2001. Mr Morgan’s professional work did not include family law work and he has not
held a family “ticket” as a DDJ.

109. Mr Morgan first met Ms Kay in connection with her parents’ claim to recover the
monies of which they had been defrauded in 2009. He took over the professional
conduct of their claim, through HCR, in 2014.

110. Mr Morgan gave evidence on behalf of Ms Kay. He explained how, after Ms Kay had
told him about the Settlement and what she had learned from her sons in 2017 about
Mr Mahan’s apparent wealth, they had agreed she should look further into the
possibility of seeking to have the Settlement varied so to make it fairer to her. Mr
Morgan had lent Ms Kay money as she was struggling to raise her sons in a small,
rented property with no regular income.

111. It was at Mr Morgan’s suggestion that Ms Kay asked the Firm for her file in April 2018.
Mr Morgan said in cross-examination that he had researched the point as to whether
there was any limitation issue over the re-opening of the Settlement and concluded there
was none. This assistance was given on a pro bono basis and needed to be done in his
spare time, working around a busy professional practice. He explained the reasons why
he did not involve HCR and colleagues within the firm with a better understanding of
family law. They included Ms Kay’s concern that her financial situation should not
become known more widely and his own recognition that those colleagues could not
also be expected to act pro bono.

112. Mr Morgan also referred to the other matters of distraction in Ms Kay’s life, during
2018 and 2019, which she had mentioned in connection with the period which elapsed
before counsel was instructed. He said that he may have had a cursory look at the file
(recovered from the Firm) in 2018 but he had no recollection of studying it in detail
before 2019. Only when he did so did he realised that Mr Mahan’s Form E was not
within it and needed to be obtained from the Firm in January 2019. Mr Morgan was
responsible for instructing Ms Edmonds, again on an informal basis as between himself
and Ms Kay. He paid for counsel’s advice. In cross-examination, he explained that his
relationship with Ms Kay had broken down at Christmas 2019 and it was only after a
reconciliation that he decided he would pay for counsel to advise.

113. Mr Morgan said that, before sending her written advice upon the prospects of reopening the Settlement, Ms Edmonds contacted him to say that (although it would not
be included in her written advice) she considered the Firm’s service had been poor and
may have amounted to negligence. This was in early May 2020. Mr Morgan confirmed
that he was following up this conversation when he sent Ms Edmonds an email on 1
June 2020 asking: “Do you think there is a case in negligence against Martineau for
the failure to pursue any pension claim against [sic] H?”

114. Mr Morgan’s position in this case is not without its complications. He became
romantically involved with Ms Kay in late 2017 or early 2018 and, allowing for what
he described as some volatility in their relationship (including around Christmas 2019
which was shortly before his decision to pay for the specialist advice of Ms Edmonds)
they began living together, in Mr Morgan’s home, in April 2022. In 2018 and 2019,
Mr Morgan provided Ms Kay with informal advice and assistance in relation to a
contemplated application to set aside the Settlement. In that personal capacity he is also
a witness in the case on a substantive issue (namely the preliminary issue).

115. HCR were formally instructed by Ms Kay in October 2021 and they issued the Claim
Form on her behalf on 6 March 2023. The complications arise because Mr Morgan has
since that date been the partner in the firm with the professional conduct of her case.
His witness statement (explaining how, after Ms Edmonds gave her advice in May
2020, there was a need for Ms Kay to refer a dispute with the insurer to the Financial
Ombudsman Service on two separate occasions and the second of which was not
resolved until September 2021) said that it was agreed with Ms Kay’s legal expenses
insurer, NatWest, that Ms Kay could retain HCR, rather than a panel solicitor, on the
basis that the work he had already done on her behalf would achieve an overall cost
saving.

116. When I came to appreciate Mr Morgan’s dual role during my reading before the trial,
and as I observed during the course of his evidence, my thoughts then immediately
turned to the rule (as I vaguely recalled it to be) that a solicitor should generally avoid
acting professionally in litigation in which he is likely to be a witness of fact. I made
this observation after Mr Wilton KC had suggested as much to Mr Morgan in crossexamination. My own brief research by reference to Cordery on Legal Services before
the hearing had led me to the decision of Fraser J (as he then was) in SRCL v The
National Health Commissioning Board [2018] EWHC 1985 (TCC) where, at [75]-[76],
the judge referred to the potential conflict of interests which arises in such a situation.
Mr Wilton’s closing submissions revealed that he had also identified the same case,
which was in the bundle of authorities. My brief pre-trial research also alerted me to
the point that the concept ‘Indicative Behaviour’ identified in Chapter 5 of the Solicitors
Code of Conduct (v. 19, dated 1 October 2017) quoted by Fraser J in that case – and
stating, at para. 5.6, that a solicitor should not act in litigation if it is clear he (or anyone
within his firm) will be called as a witness unless satisfied it will not prejudice his
independence as a litigator or the interests of the client or the interests of justice – no
longer appears in the “new” 2019 Code of Conduct published by the SRA. It seems the
current Code does not provide guidance or examples as to how the standards set by the
SRA are to be met. Mr Wilton KC confirmed as much in his closing submissions.
117. Nevertheless, despite that change, Mr Morgan’s testimony in this case has highlighted
the reason why it is generally not appropriate for a solicitor to act professionally in a
case in which he will be called as a witness to give evidence as a witness on factual
matters going to the merits of the claim or defence.

118. During the course of his cross-examination Mr Morgan accepted

i) that an untrue statement was made in HCR’s letter dated 12 May 2022 (and of
which he was the author) which said “[T]his firm’s family law department were
consulted by our client in January 2019, to investigate the possibility of an
appeal from our application to set aside the [Settlement] on the basis of further
information then available. That instruction eventually led to the instruction of
counsel to advise on the prospect of the divorce courts setting aside the original
order by consent.” In fact, in 2019, Mr Morgan was assisting Ms Kay informally
and his witness statement explained the nature of what he described as his pro
bono assistance (with him acting rather than any colleague in the firm’s family
department) before HCR were formally instructed in October 2021. The
statement also gave four reasons why this was the position before Ms Edmonds
was instructed, in March 2020, and why he chose not to involve others at his
firm who would have had a better knowledge of family law matters. In crossexamination, Mr Morgan could not explain why HCR’s letter had made those untrue statements;

ii) that a similar untrue statement was made in HCR’s letter dated 22 June 2022 to
the effect that Ms Kay’s file was reconstructed in 2019 and, once that was done,
“the file was considered by HCR’s family law department, who concluded that
there were significant issues with an application to set aside, and that advice
should be sought from specialist family law counsel.” Again, in his testimony,
Mr Morgan could not explain that statement; and
iii) that he had prepared the first draft of Ms Kay’s witness statement addressing the
preliminary issue which, necessarily, involved her speaking about matters
concerning his involvement. As already noted in connection with Mr Wilton’s
point about the “cross-contamination” of her evidence, parts of Ms Kay’s and
Mr Morgan’s witness statements (engaging with points made in identified
paragraphs in the Firm’s Amended Defence) were expressed in materially
identical terms.
119. The potential hazard in a solicitor acting both in a professional capacity and as witness
of fact in the case lies in the risk that the due administration of justice, which a degree
of professional detachment and attendant duties as an officer of the court are aimed at
supporting, is prejudiced. Mr Wilton KC said the untrue statements in the letters were
designed at putting the Firm off the scent in its pursuit of the limitation point even
though they did not succeed in doing so. As I indicated at the hearing, I think it is
inconceivable that the evident cross-contamination of the two witness statements would
have occurred if they had been separately prepared with the involvement of independent
solicitors (such as an insurer’s panel solicitor) in accordance with the Statement of Best
Practice embodied in Practice Direction 57AC.
120. Mr Hall submitted that, although Mr Morgan’s decision to represent Ms Kay in her
claim might be viewed in hindsight as a mistake, this was an after-the-event
development which did not and should not impact upon the merits of her case on the
limitation issue by reference to events prior to its commencement in March 2023. The
difficulty with that submission is that the three (or two) matters highlighted above have
an impact upon the court’s assessment of the evidence on that issue.
121. In addressing Mr Morgan’s credibility as a witness, Mr Wilton KC described Mr
Morgan’s position as absolutely extraordinary. He extended that observation beyond
the matters mentioned above so as to include what he said was Mr Morgan’s financial
interest in the outcome of Ms Kay’s claim. This was a reference to the fact that Mr
Morgan had said he had lent money to Ms Kay (he also paid for Ms Edmond’s advice
and some £5,000 for a 50th birthday party for Ms Kay) and paid the outgoings in the
home which she and her sons shared with him.
122. Mr Morgan said he did not stand to make any direct financial gain if Ms Kay’s claim
against the Firm succeeds. I accept that his support of Ms Kay in this litigation is not
motivated by his own financial considerations. It instead springs from his support for
her as his partner which, materially for present purposes, was of a personal rather than
financial nature before the decision to fund Ms Edmond’s advice was made. However,
it is their personal relationship and Mr Morgan’s resulting involvement in the period
prior to the instruction of counsel which underpins his seriously mistaken approach to
his own role in the claim.
123. In my analysis of the evidence below I address the reasons given by Ms Kay and Mr
Morgan for not instructing Ms Edmonds earlier than March 2020. For the moment, I
simply observe that the misleading statements in HCR’s letters of 12 May and 22 June
2022 themselves appear to recognise that the period between May 2018 and March
2020 should properly be categorised as one of “delay”.
124. I regret to say that I treat any explanation for that delay given by Mr Morgan or (because
of the cross-contamination) by Ms Kay with a degree of caution. I see no other option
when Mr Morgan, who did not challenge Mr Wilton’s description of them as “lies”,
could offer no explanation for what can only have been intended in those letters to be a
smokescreen to conceal the true position.”

THE RESULT

The claimant’s case on limitation did not succeed and the action was dismissed.