Statements of truth and nothing but
District Judge Neil Hickman explains why statements of truth need to be taken more seriously
The ubiquitous statement of truth was probably the most significant innovation in the Civil Procedure Rules 1998 (CPR).
Yet it seems to be misunderstood and taken for granted.
The basic statement of truth is '[I believe][the (claimant or as may be) believes] that the facts stated in this [document being verified] are true' - practice direction 22 2.1.
A witness statement requires the words 'I believe that the facts stated in this witness statement are true' - practice direction 22 2.2.
There is a special form of statement of truth for use at the end of an expert's report - practice direction 35 1.4.
CPR, rule 22.1 and practice direction 22 specify the documents which must be verified by a statement of truth.
They include a statement of case and a witness statement.
If a litigant wishes to rely on matters set out in his application notice as evidence, it must be verified by a statement of truth - practice direction 22 1.2.
Why is it important?
The statement of truth has had a dramatic effect on statements of case.
It is no longer proper to put forward a case in which you do not believe.
The practice, condemned by Lord Woolf, of deliberately framing defences to keep all options open for as long as possible should have ceased.
In Clarke v Marlborough Fine Art (No 2)  All ER (D) 286 (Nov), Mr Justice Patten allowed a claimant to plead alternative claims, provided that they were properly expressed as alternatives.
What is not permissible is to plead mutually contradictory claims, or claims which are unsupported by any evidence and are merely speculation or invention.
It has to be said that in the county court, especially in certain road traffic cases, this principle is sometimes honoured in the breach.
So who can sign? A witness statement should obviously be signed by the witness.
Difficulties seem to arise with statements of case and similar documents.
Practice direction 22, paragraph 3.1 is quite clear about who can sign: the party or his litigation friend, or the legal representative of the party or litigation friend.
A responsible officer of a company may sign.
There are special provisions in practice direction 22 dealing with trustees, partners and the Motor Insurers' Bureau.
A managing agent may not sign - practice direction 22 3.11 - nor may a non-solicitor debt-collector.
Sometimes a managing agent or debt collector signs, describing himself as a 'litigation friend.' If he is lucky, he will receive a tart note inquiring whether his client is a child or a patient.
If he is less lucky, the note will be copied to the client.
If he persists in the practice, he will find the proceedings or statement of case struck out.
Section 7 of the Powers of Attorney Act 1971 might be taken to suggest that an attorney should be able to sign on behalf of the donor.
However, section 7 only authorises an attorney to do anything which the donor can lawfully do by an attorney.
In Clauss v Pir  Ch 267, it was held that this did not permit an attorney to swear an affidavit containing the evidence of the donor - in that case, an affidavit of documents.
So it appears that an attorney cannot sign a statement of truth.
A solicitor may sign a statement of truth confirming that his client believes in the truth of the document in question.
The solicitor should sign in his own name and not that of the firm.
The solicitor's signature should mean that he has the client's authority to sign, that he has explained to the client that he will be confirming the client's belief in the truth of the statements concerned, and that the consequences of a false statement have been explained (see practice direction 22, paragraphs 3.7 to 3.10).
There is a widespread suspicion that these requirements are not being taken as seriously as they should be.
Getting it wrong
Where a statement of truth has been omitted (Hannigan v Hannigan  All ER (D) 693 (May); LB Southwark v Warrell  EWCA Civ 2083) or completed incorrectly (Law v St Margarets Insurances Ltd  All ER (D) 97 (Jan)), the overriding objective means that a party should generally be allowed to put matters right rather than being struck out.
Deliberately signing a false statement of truth is a contempt of court.
In Malgar Ltd v RE Leach (Engineering) Ltd (2000) The Times, 17 February, Sir Richard Scott, the Vice-Chancellor, in dismissing an application for permission to take committal proceedings in respect of a false statement made by the defendant at an early stage but not persisted in, said: '...The court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought.
I repeat that these are not proceedings brought for the furtherance of private interests.
They are brought in the public interest and are in some respects like criminal proceedings.
Nonetheless, they are civil proceedings ...
to which the overriding objective set out in CPR 1 is therefore applicable....'
Committal was seen as disproportionate.
It may not always be viewed that way.
There are alternatives to committal as the court can 'exercise any of its powers under the rules'.
There are many ways this can be done.
For example, the offender may be condemned in costs.
In Molloy v Shell UK Ltd  All ER (D) 79 (Jul), the claimant had signed a statement of truth claiming to have been rendered unable to work and seeking more than 300,000 in damages.
In fact he had been able to return to work and the judge, awarding him 18,000, branded him 'spectacularly dishonest'.
The Court of Appeal held that he should have been ordered to pay all the defendant's costs from the date of a payment in.
It may be thought he was fortunate not to be landed with the defendant's costs throughout having regard to CPR rule 44.3(5)(d).
Or a party may have part of his statement of case struck out, or may be refused permission to amend.
In Malgar, Sir Richard Scott said: 'It is important that flagrant breaches of the obligation to be responsible and truthful in verifying statements of case and in verifying witness statements should be policed and enforced, if necessary by committal proceedings...'
Many judges are increasingly concerned at the casual attitude sometimes shown towards statements of truth.
A solicitor who puts forward a plainly false statement of truth is likely at least to be required to attend personally to explain himself, and may well find himself facing disciplinary proceedings.
Solicitors are officers of the court.
A false statement of truth potentially amounts to deliberately misleading the court.
District Judge Neil Hickman sits at Milton Keynes County Court.