Nothing but the truth
With judges showing growing displeasure at litigants found in contempt of court, solicitors ought to take particular care in how they record their advice to clients, says Clare Arthurs
The concept of contempt of court is reasonably straightforward: a person is guilty of contempt if he interferes or attempts to interfere with the administration of justice during legal proceedings. But a flurry of recent cases has come as a reminder of the practical complexities of assessing contempt and illustrates how the courts will treat litigants who have made false statements of truth.
The standard of proof presents the first hurdle. Those applying for a person's committal must prove that person's contempt beyond reasonable doubt. Given the criminal nature of contempt proceedings, any genuine doubt should be resolved in the respondent's favour.
In Montgomery v Brown [2011] EWHC 875 (QB), a personal injury claim arising from a car accident at work, Mrs Justice Cox set out a fourfold test. The court must be satisfied that: (1) the claimant made false statements; (2) he knew them to be false when he made them; (3) when they were made they would be likely materially to interfere with the course of justice; and (4) the claimant knew that such interference was likely.
On balance, the court found that there was doubt as to the claimant's state of mind. The court was critical of the claimant's 'high degree of carelessness and irresponsibility' in the conduct of his claim, which included failing to put his mind to (or even read) important documents such as witness statements. However, his willing disclosure of information about his employment since the accident both to his solicitors and the applicants' insurers was not consistent with a deliberate suppression of the truth.
The court also recognised that the claimant's state of mind had been affected by the accident.
Cox J questioned the advice and assistance the claimant had received from his solicitors. They had failed to take proper instructions, served documents such as the particulars of claim without reference to or instructions from him, and failed to follow up lines of enquiry when authorised to do so. More specifically, they had failed to advise the claimant on the purpose of the disclosure process and the importance and effect of either him or his advisers signing a statement of truth without the claimant holding an honest belief in its truth.
Judicial displeasure
Where a finding of contempt is made, the respondent will have to demonstrate compelling mitigating circumstances to escape the court's full wrath.
Mr Nield, the claimant in a personal injury action following a road traffic accident, was recently committed to prison for nine months for contempt. He had verified his statement of claim and witness statement despite knowing that they contained much false information which exaggerated the value of his claim (Nield v Loveday, 13 July 2011, unreported). The court found he had misled his solicitor. His wife, who had verified false statements to support his claim, admitted her contempt and was given a suspended six-month sentence. The court recognised that it was not the most serious contempt and that they were previously of good character. However, they had been explicitly warned by their solicitor that they risked imprisonment if they signed something they knew not to be true.
In another case, South Wales Fire & Rescue Service v Smith [2011] EWHC 1749 (Admin), the respondent fireman admitted making four false statements in support of his claim for damages following an accident at work. Moses LJ was scathing in his criticism of Mr Smith's 'ignominious' behaviour. However, the accident took place in 2005; the false statements were made in 2007, and admitted in 2009. Although the contempt proceedings were begun in 2010, a combination of legal aid, permission hearings and complicated procedural issues resulted in the full hearing only taking place in July 2011. Moses LJ held that the passage of time rendered a custodial sentence futile and emphasised the need for contempt proceedings to be brought as urgently as possible to underline the 'all-important message of deterrence'. Accordingly Mr Smith received a suspended sentence (with conditions).