Signing a statement of truth
If a witness’s or a party’s statement – signed with a statement of truth – is said to be incorrect, or untruthful, can the witness or party blame the solicitor who drafted it; or, in the case of the party, use that party’s own ‘incorrect’ signed statement as a basis to a professional negligence claim?
Hughmans (A Firm) v Dunhill  EWHC 716 (Ch) (20 March 2015), Arnold J was a claim by Hughmans for summary judgment on their application for unpaid fees; and Alexandra Dunhill’s counter-claim based on their professional negligence. That it took Arnold J 254 paragraphs to conclude the applications before him is a reflection of the complex factual background to the case, and to its various court applications dating back to 2013. The Dunhill and Turner matrimonial proceedings had been continuing from 2012 to 2014. Hughmans acted for Ms Dunhill only between April 2010 and November 2012.
The main features of the case were a family trust for Ms Dunhill and the parties’ three children, which seems to have been largely broken up mostly to provide an Eaton Place flat for them (on their separation from her husband Mr Turner); Mr Turner’s agreement to an order for periodical payments for her and the children; allegations that he had not provided full disclosure of his means at the time of that agreement; and his progressive illness which was likely to make it impossible before too long for him to work.
Amongst Ms Dunhill’s allegations in reply to Hughmans’s claim and her professional negligence counterclaim was a complaint as to the preparation of her Form E (financial statement) in relation to her variation of periodical payments application; and of a later statement in those proceedings.
Arnold J explained these allegations (‘AST’ was the family trust) as follows:
' So far as the Form E is concerned, Ms Dunhill contends that this was inaccurate and misleading … in particular in stating that Ms Dunhill beneficially owned 100% of 71 Eaton Terrace. As counsel for Hughmans pointed out, however, the Form E was accompanied by Ms Dunhill's witness statement dated 22 July 2010. This explained that Ms Dunhill had agreed to Mr Turner's request to release money from the AST (as varied by Second 2003 Consent Order). Furthermore, paragraph 14 of the witness statement implied that she had used the money to buy her house, although it did not spell this out. Furthermore, the account given in the witness statement dated 22 July 2010 was amplified in the witness statement dated 6 July 2011. This made it crystal clear that Ms Dunhill had used the trust money to purchase 71 Eaton Terrace. It also stated clearly that Ms Dunhill had wanted the property to be in the name of the AST rather than in her own name. In these circumstances, I consider that Hughmans has a real prospect of establishing that the Form E was not materially inaccurate or misleading, or at least that any inaccuracy was subsequently corrected.'
Statement prepared by a solicitor ‘inaccurate or misleading’
On the statement of 6 July 2011, the inaccuracy alleged by Ms Dunhill in particular arose as follows:
' … Ms Dunhill contends that this was inaccurate … in particular in stating in paragraph 29 that the AST [the family trust] had been ‘dissolved’. Counsel for Ms Dunhill told me on instructions that it was Ms Dunhill’s case that Mr Black had invented this statement and inserted it in her mouth, an allegation which is not pleaded (or least not clearly pleaded). In the alternative, he submitted that Mr Black should have realised that it was legally inaccurate. Mr Black's evidence is that the witness statement was prepared ‘with great care on the basis of [Ms Dunhill's] detailed written and oral instructions.'
These two paragraphs and the circumstances surrounding such claims raise three particular problems for the party who makes the claims:
- That in Ms Dunhill’s case there is corroborative evidence – often her own – to refute what she alleges;
- If an allegation of making up a statement is to be made in a professional negligence claim it must be properly and fully pleaded in the statement of claim (or, as here, the counter claim); but
- If a witness or party alleges that a statement prepared by a solicitor has put words in their mouth and they have signed it, they risk a contempt of court application in relation to their statement of truth if they are found to be untruthful in their original allegation (Family Procedure Rules 2010, r 17.6).
Arnold J concluded this part of his judgment on these statements as follows:
' In my view the correct status of the AST [the family trust] during that period is not entirely clear. In particular, as noted in paragraph 29 above, it is not clear what happened to the balance of the money left in the AST account after the March 2004 transfers. Furthermore, while it may have been technically inaccurate to say that the AST had been ‘dissolved’, I consider that it is arguable that this was a reasonable way to express, in summary and in layman's terms, what had happened, at least having regard to the rather fuller explanation of what had happened which preceded this statement. Accordingly, I consider that Hughmans has a real prospect of establishing that the witness statement was not materially inaccurate or misleading.'
Ms Dunhill had not established that she has a viable defence to Hughmans’ claim, nor any tenable counterclaim. Hughmans succeeded on their claim for their fees. Arnold J allowed Hughmans’ application and dismissed Mrs Dunhill’s counterclaim.
On the statements, she had failed to show what Hughmans had prepared was ‘inaccurate or misleading’; but even had she done so, she must still answer any question as to whether what she had signed was her own and that she must therefore be bound by it.