The post earlier this week in relation to the need for full disclosure on without notice injunctions also highlighted the need for first hand evidence. There are real dangers when a solicitor signs a witness statement. That principle was highlighted by Mr Justice Tugendhat in John Terry -v-Persons Unknown  EWHC 119 (QB).
The claimant was seeking an injunction preventing the disclosure of certain private information. A witness statement in support of a without notice injunction had been made by the claimant’s solicitors. (Mr Terry was initially referred to as “LNS” and appears as such in the judgment.
THE FORM OF THE EVIDENCE
- The evidence submitted is in the form of a short witness statement made by the applicant’s solicitor. In order to maintain confidentiality, all the substantive evidence is contained in a nine page exhibit headed “Confidential” (“the exhibit”). The exhibit has 111 pages of attachments. All but 4 of these are print outs from the internet, mainly of results of searches against the name of LNS and the other person.
- In the exhibit the solicitor describes LNS as a person well known in the field of professional sport. He goes on to state:
“On Wednesday evening, 20 January 2010, and together with [another solicitor of the same firm] I spoke with [LNS]’s business partners [BP1 and BP2 – “the business partners”]. [The business partners] told me of [LNS]’s very grave concern over the possibility of intrusion into [LNS’s] personal life. This concern has arisen as a result of [LNS] being aware of rumours circulating among the [relevant sporting] community concerning [LNS’s] private life. It is that concern that leads to the present application being made… In the afternoon of 22 January 2010 [the business partners] met with [the other person] at a London hotel. [The other person] confirmed to [the business partners] that [the other person] considered the fact and detail of [the other person’s] relationship with [LNS] to be private and that [the other person] did not want any such information … to become public. For the avoidance of doubt however it should be made clear that a substantial amount of information is in the public domain concerning [the other person] which in the case of a less well known person would not be in the public domain, at least some of it at [the other person’s] instigation or with [the other person’s] consent I refer by way of illustration … [and illustrations of this are attached to the exhibit]. At the meeting, [the other person] executed a confidentiality agreement and side letter confirming these wishes. A copy of these documents is attached….”.
- The side letter is dated 21 January 2010 and addressed to the applicant’s solicitors. It consists of seven lines signed by the other person personally. The other person writes:
“I understand that there have been claims made concerning a relationship between [LNS] and myself. Whilst I do not make any admission as to the truth or otherwise of such rumours, speculation concerning [LNS, the other person and the Relationship] is private and I agree to keep such information private and confidential. If I receive any enquiries from the media concerning the above, I agree that I shall notify [BP1] about this as soon as possible”.
- The confidentiality agreement bears the same date and signature. It consists of 15 clauses covering two full pages. It starts:
“As a result of my dealings with you there has been speculation about a relationship with you. Whilst I do not make any admission as to the truth or otherwise of such speculation, I do not want such information to be disclosed. In order to assist you in keeping such matters confidential and in consideration of £1 receipt of which is hereby acknowledged I agree as follows:
2. I agree not to disclose any Confidential Information to any third parties (save to my legal advisors or as required by law).
3. I agree not to disclose any Confidential Information to any media organisations, journalists or any 3rd party who may provide such Confidential Information to any media organisation …
14. The terms of this agreement are confidential…”
- So the source for the information contained in the document is not the applicant directly, nor the other person. It is the business partners. This is a matter of concern. It is not said that the business partners are solicitors, or have received any advice from solicitors as to how they should go about collecting information to be put before the court. I infer that they are not solicitors. The significance of this is that solicitors owe duties to the court and are skilled in taking statements from witnesses. It is very important that information from witnesses should be what the witness truly believes, and that words should not be put into the mouth of a witness: see White Book (2010) note 32.8.1. An applicant for interim relief owes duties of full and frank disclosure to the court. No one but a solicitor will be in a position to assess what that duty requires in the context of an application such as this. When the evidence before the court is not verified by the person who is the source for the information, there is not the assurance that that person feels at risk of sanctions if the information is untrue.
- There is no information given as to the business in which the two “business partners” are partners of the applicant. As noted below, the exhibit includes a statement that LNS has “a number of high profile sponsorship or endorsement deals for companies…” That is a business which successful sporting figures commonly engage in. It is a matter of common knowledge that for very successful professionals, income earned in this way can be very large indeed. But high profile sponsors are sensitive to the reputation of the sports professionals to whom they pay the large sponsorship fees demanded for promoting the sponsor’s products. They may cease to use a famous face if it is associated with behaviour of which the sponsor or the public may disapprove.
- I infer that the business partners are engaged in the promotions of LNS for sponsorship deals, and that their business interest is to protect LNS’s reputation. I am left in serious doubt as to whether the information sourced through the business partners is full and frank.
- I am also troubled by the two documents signed by the other person. The other person is also a famous person, but not in the world of sport, and not as famous as LNS. The impression conveyed by the evidence is that the Relationship was one between equals. But the Confidentiality agreement signed by the other person is similar in form to one that an employer might require to be signed by someone providing services, such as a personal assistant. It includes the words “In order to assist you…” It refers to a consideration of £1, but I am left wondering whether that was the only consideration. I do not feel confident that the two documents signed by the other person express the other person’s personal wishes, as opposed to what the other person has been willing to agree to at the request of LNS, for whatever reason. I have no information about the other person’s views about the Relationship and the present state of it.
- There is little explanation of how the business partners came to be talking to the other person at all. There is no explanation before me of the circumstances surrounding the obtaining of the documents signed by, or the information attributed to, the other person. Such circumstances may be highly relevant to the credibility and weight of the evidence in the other person’s words: “I do not want such information disclosed”.
- An explanation was advanced orally by Mr Spearman for why LNS did not make a statement personally. It is that this application is urgent, and the applicant has professional engagements which made it impossible in the time available for LNS to give first hand evidence. I can accept that explanation in principle, but with a number of reservations. First, that is not an explanation of why it is sourced through the business partners, and not given directly to the solicitors in the usual way. Second, it is not an explanation why the other person has not made a statement, but has expressed what are said to be the other person’s wishes through a formal confidentiality agreement and side letter. Third, I must decide the case on the evidence that is before me: I cannot assume that the evidence before me carries the same weight as it would carry, if it had been given directly by LNS and by the other person. Fourth, since the only explanation for the form of the evidence is its urgency, I would expect an undertaking that at any return date LNS, and the other person will submit witness statements made by them personally. If either LNS or the other person is unwilling to do that, I would expect a substantive explanation for why not. And if at that stage LNS continues to ask the court to have regard to the Art 8 rights of the interested persons, I would expect similar evidence, or similar explanation, in respect of the first interested person. Mr Spearman did not have an opportunity at the hearing to address me on all of these points.
- I return below to the position of the other person and the interested persons.
For this, and many other reasons, the judge declined to make a without notice injunction.
He made it clear “I would require undertakings that at the return date the evidence of the applicant and the other person be in the form of signed statements, or that there be a satisfactory explanation of why it is not”
On witness statements and the use of submissions and evidence
- Do I want your opinion? (Opinion evidence in witness statements).
- What are witness statements for?
- Why a solicitor should not make statements on contentious matters.
- Witness statements and the lawyer as witness: knowing the difference between evidence and submissions (and why it matters).
- Drafting witness statements and the lawyer as witness
- Proving matters by evidence: a lesson from the family court
On the duties not to mislead the court
On without notice applications and the duty of candour
- Football, sex, injunctions & material non-disclosure: be careful not to get on the judge’s offside.
- The duty of full and frank disclosure: a case in point.
- Freezing Orders and the duties owed on ex parte applications: nuclear weapons that can blow up in your face. (There are useful links to other articles on this subject in that post).
- Without notice applications for freezing orders: the dangers abound: Greenwich case contains some timely lessons
- Solicitor found to have deliberately misled the court: Boreh -v- Djibouti