SCHEDULES OF DAMAGES, WASTED COSTS AND THE STATEMENT OF TRUTH

It is important that the report of the decision in Brown -v- Haven by Flint Bishop in their post on wasted costs order is given wide publicity.  The judgment of Deputy District Judge Lingard is available here. (This is one of those cases where it is instructive to read the discussion as to costs which follow at the end of the substantive judgment).

“This is a case where whatever costs were wasted must be paid. It is also a case where I express grave reservations of the practice of a practice of solicitors in possibly putting too much pressure on employees or alternatively not supervising employees properly and in this case a solicitor ignoring the grave importance of the consequences of a statement of truth signed by a solicitor when clearly there was no authority to do it and in any event what was being signed was manifestly incorrect.”

“If solicitors dabble in running medical agencies as well, they should be completely  transparent, not use it as a way of increasing costs, a bit like, as I said earlier, miscellaneous  expenses often claimed, seldom proved or, if they are proved, in my experience – and  although I am a deputy district judge now, I have 20 years’ experience as a district judge – in my experience never often proved more than £15 or £20, and it is a very sad reflection of the state of affairs of litigation.”

THE CASE

A personal injury case included a claim for (prospective) physiotherapy charges of £880. The claimant stated, in evidence, that he was suffering from no symptoms and had no wish to pursue a claim.

When the claim was dismissed the judge issued a notice to show cause why the claimant’s solicitors should not pay the wasted costs claim of the physiotherapy charges.

THE PRO FORMA WITNESS STATEMENT

The witness statement was clearly not checked before it was served (or signed for that matter).

“A draft witness statement was prepared on the 13 February th which included, “(1) I wish to claim physiotherapy charges for £880. I did not have the treatment because it was not arranged but I will have this treatment going forward”.
9. There is also an interesting paragraph 39, which is now admitted to have been left in in error, “If the report is wrong for any reason, say so now and explain why the client did not correct eg accident circumstances, past claims and/or absent from work or gym”. The previous paragraph, “I wish to settle my claim on the basis of Dr Boonin’s report as I believe I will recover in line with the expert’s prognosis being that I will recover within six months”.
An “invoice” was prepared for the physiotherapy for 8 sessions (where the medical report recommended five or six. The pro forma invoice was, in fact, an estimate.

SIGNING STATEMENTS OF TRUTH ON YOUR CLIENT’S BEHALF

The solicitor who had signed the schedule produced a witness statement and was cross-examined.

16. It is crystal clear that certainly at the time this lady signed the updated schedule of damages and the statement of truth that she did not have specific instructions. It is clear on the balance of probabilities that the procedure in both Bollin and Amanda Cunliffe is to get a general form of authority from the client and then to sign any documents that they consider to be appropriate and tell the clients that they have done it thereafter. That was the clear evidence I had before me today.
17. The evidence was in relation to the updates schedule of damages that, and I quote, “I was unable to speak to the claimant at this stage and so was not prompted by any conversation with him. It was clearly an oversight on my part”
THE KNOWLEDGE OF THE SOLICITOR
19. The Practice Direction is quite clear as to the signing a statement of truth (Practice Direction 22 at 3.8). I do not take the point that Miss Nkochi-Nwankwo did not exactly know which paragraph it was. Nobody can be expected to remember each and every sub-paragraph of the Civil Procedure Rules. She said it was, “20 something”.
20. What I would have expected was that, knowing she was to be cross-examined, she would have brought the file so that if there were queries as to things she could have actually looked at the file but she did not, nor did they even bring the trial bundle. Mr Halstead said, “I did  not know there was a trial bundle”. There was a misunderstanding there because he thought it was a trial bundle relating to today but, of course, the trial bundle to which I referred was the trial bundle for the trial before me which I think was in Skipton which, of course, was prepared by the claimant’s solicitors.
21. Paragraph 3.8 of Practice Direction 22, reads; “Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement: that the client on whose behalf he has signed had authorised him to do so, 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 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”.
22. It is quite clear that there was no such authority and no such explanation and I am driven to the conclusion that the practice of this company, Amanda Cunliffe Solicitors, is not routinely to check before solicitors sign statements of truth. It is not difficult to write to the client, saying, “Dear Mr, Lord”, (or whatever you like to call yourself), “Brown”, “Here is a statement which we are required to file at court. Please confirm that it is true”. If the client then signs it as true, then some of the responsibility is taken off the solicitor although if the solicitor knows that what he or she is asking the client to sign is not true, then there would be a complicity in what is clearly – and I have to use the word – “perjury”, either “perjury” or “forgery”. It is a very, very serious matter.

PROCEEDING TO TRIAL ON AN INCORRECT SCHEDULE

23. What is then said by the solicitor concerned is, “The claim proceeded to trial. The claim still included the claim for physiotherapy pursuant to the estimate. I still had not cross-referenced the claimant’s actual recovery with the outstanding claim for physiotherapy and therefore assumed that the client still required it”.
24. Clearly, there was no proper consideration because six months had expired back in February of this year, in fact at the time the client had written, saying in his witness statement, “I am 28 happy to go with the six months prognosis”. Any careful examination of the file would have shown that there was an almighty mistake. If it had been rectified then, this hearing would not have happened, but what I am then told is, “My focus was on procedural aspects and to ensure everything was ready for trial” – a myopic view of procedure, forgetting the facts. “Should the claim have been successful, I would have realised my error in relation to the claim for physio as it would have become obvious on receipt of the damages and then I would have dealt with sending payment to the client advising him what the monies were for and in what amount”.
25. Miss Nkochi-Nwankwo went on to say, “There are occasions where sometimes there might be a case where physiotherapy payments are received when the physiotherapy has not, in fact, been received. As a general rule we would ensure we administered the payment of that but we may pay money to the client if so instructed, otherwise we would make the payment but we would only” – she qualified that later – “make the payment to the client if the physio had, in fact, been done”.
26. In re-examination, in answer to a fairly leading question by Mr Halstead, she said, “Well, yes, I would have had implied authority”.
27. I am sorry. That is not the case. This is a case where a claim for physiotherapy charges which is inflated from the beginning is made without proper concern for arranging the physiotherapy at all. It is done on the basis of an invoice. Nothing is done to sort out the physiotherapy. Comments are made about it in the witness statement which is actually signed after the six months prognosis is complete and the witness statement says, “I am happy to settle my claim on the basis of the six months prognosis”, which means by that stage the physiotherapy was totally unnecessary.
28. The 6 April, what I can only describe as a false statement of truth is signed. The claimants  are put on notice in May by a counter schedule and still do nothing about it and still include details of it in the trial bundle and until queried at trial it appears still to be a live claim.
 29. This is a case where whatever costs were wasted must be paid. It is also a case where I express grave reservations of the practice of a practice of solicitors in possibly putting too much pressure on employees or alternatively not supervising employees properly and in this case a solicitor ignoring the grave importance of the consequences of a statement of truth signed by a solicitor when clearly there was no authority to do it and in any event what was being signed was manifestly incorrect.

THE DISCUSSION AS TO COSTS

I have recommended that everyone read the discussion as to costs afterwards. The interchange is instructive. It includes:

“MR HALSTEAD: Sir, I do not know if we could have 21 days?
JUDGE LINGARD: No.”

SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENTS: SILLY, DANGEROUS AND POSSIBLY UNETHICAL

I have written before about the “profound lack of wisdom” in signing statements of truth on behalf of a client.  If this is too subtle I can make it clearer: it is silly, dangerous and possibly unethical at times. It puts entire careers at risk. Do this at your peril.

If you are signing a statement of truth on behalf of a client makes sure that you can and do comply, entirely, with the Practice Direction.

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