TAKING EVIDENCE; WITNESS STATEMENTS AND NOT MISLEADING THE COURT: BRETT -v- THE SRA CONSIDERED

The question of the duties owed by a lawyer to not mislead the court was at the forefront of the decision yesterday in Brett -v- The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin).  This case has obvious and very wide ramifications. Here we consider it in the context of drafting witness statements.

THE FACTS

Mr Brett was the in-house lawyer for the the Times. A journalist obtained details of an anonymous blogger by unlawful means.  Mr Brett knew of those means but the acts were not disclosed. The source of the information was in issue in court proceedings but the journalist’s statement did not refer to it but explained how he could have obtained the information from other sources. Counsel for the the Times were not told of the unlawful acts. These omissions came to light during the Leveson Enquiry and the SRA brought proceedings on the grounds that Mr Brett knowingly allowed the court to be misled. The SDT upheld these findings and suspended Mr Brett for six months and he was ordered to pay £30,000 costs.

THE APPLICATION TO THE DIVISIONAL COURT

The Divisional Court allowed the appeal to the extent of interfering with the finding that Mr Brett had “knowingly” misled the court and replaced that with the word “recklessly”.  There had been no appeal against the suspension and the £30,000 costs order stayed intact.

DISCUSSION OF THE LAWYER’S DUTY TO THE COURT

1. y misleading the court is that the latter is apt to apply to a case where, as is alleged here, the solicitor permits the court to proceed on an incorrect assumption as to the facts, knowing that the court is so doing even though he may mistakenly believe that he has a good reason for so doing: such as misguidedly wanting to protect a witness who has confided in him on an occasion attracting a duty of confidentiality.
2. Mr Brett accepts without demur that he was negligent in failing, on his case, to realise that the witness statement of PF was potentially misleading to the Court. He also accepts that he was negligent in failing to take steps to respond to the concerns expressed by O about that statement and the skeleton of Anthony White QC and Jonathan Barnes, which was, in turn, based on an inaccurate perception of the true position, their relying on the misleading elements in PF’s witness statement.
3. This Court has power under Section 49 to make such order on an appeal as it may think fit. A breach of Rule 11.01 can arise on the basis of deceit, or knowingly or recklessly misleading the Court. In this case at least one of the particulars is couched in the alternative as knowingly and/or recklessly misleading a Court. In my judgment, it is open to this Court, if it were to conclude that the finding of the SDT was wrong on the basis of Mr Brett having:

“knowingly allowed the Court to be misled”

nonetheless, to conclude that he was guilty of a breach of Rule 11.01 on the basis that he “recklessly” allowed the Court to be misled if, on the facts properly found, that was the correct conclusion.

1. Accordingly, I will consider not only whether the SDT was wrong to conclude that Mr Brett was guilty of “knowingly” allowing the Court to be misled but also consider whether, if so, he was, nonetheless, guilty of “recklessly” allowing the Court to be misled, always remembering that Mr Brett does not accept that contention, but only accepts that he was negligent.
2. I remind myself that the word “recklessly”, in criminal statutes, is now settled as being satisfied:

“with respect to (i) a circumstance when he is aware of a risk that it exists or will exist and (ii) a result when he is aware that a risk will occur and it is, in circumstances known to him, unreasonable for him to take the risk” (See R v G [2004] 1AC 1034 Archbold para 11-51.)

I adopt that as the working definition of recklessness for the purpose of this appeal.

(b) The scope of the legal professional privilege as applicable to PF

1. The second preliminary issue concerns the application in this case of the doctrine of legal professional privilege and/or the prohibition on requiring a person to incriminate themselves. Mr Brett has been much exercised by his perception that the SDT, as part of its reasoning, appeared to be of the view that he was under a duty to disclose to the court that PF had initially identified the blogger as RH by means of his unlawful access to RH’s email account. That, Mr Brett asserted, would have contravened PF’s legal professional privilege which was the basis upon which the disclosure by PF to Mr Brett had been made and/or would require PF to incriminate himself.
2. For my part, and with the agreement of the parties, I have approached this case on the basis that it may well be that PF made this disclosure to Mr Brett on an occasion of confidentiality, one of legal professional privilege or one where similar obligations of confidentiality arose.
3. I also accept Mr Brett’s argument that it is long established, as a fundamental principle of our legal system, that there can be no requirement for a solicitor to disclose anything that is said to him on an occasion of legal professional privilege save where his client or the person who made the disclosure on such an occasion agrees to waive that privilege.
4. It follows, therefore, that in so far as the SDT in its reasoning either did, or appeared to, conclude that there was a duty upon Mr Brett to disclose that which had been revealed to him by PF on an occasion of confidence and/or legal professional privilege, then the SDT was in error.

(c) The options open to Mr Brett in safeguarding privilege and yet not misleading the court

1. In my judgment, however, this debate was by no means central to the issues the SDT had to determine. The charge against Mr Brett was one of knowingly (and/or recklessly) allowing the court to be misled in two particular ways; first, by causing or allowing a witness statement to be served and relied on (the PF statement) which created a misleading impression as to the facts and matters deposed to in that statement and, secondly, allowed the court to proceed on the basis of an incorrect assumption as to the facts and matters set out in that witness statement.
2. I address below the issue whether the court was misled. If it was then I conclude that Mr Brett, to the extent that he knew that the court would be misled or that he was aware that there was a risk that it might be misled, was required by Rule 11.01 to take steps to avoid that result.
3. In my judgment that duty, not knowingly to mislead the court or not to take the risk that the court might be misled, is not incompatible with the duty of confidentiality owed to a person who has disclosed material on an occasion of legal professional privilege. Mr Brett was, like any other lawyer, always in a position to avoid misleading the court or to remove the risk of the court being misled without breaking that privilege.
4. There were a number of options available to him. One was to obtain the agreement of PF to waive privilege so that the true factual position could be presented to the court. A second was to correct the misleading impression given by the witness statement by making it clear that the witness statement only intended to convey that the identity of Nightjack as RH could have been revealed through publicly available sources, as evidenced by the fact that PF had undertaken such an exercise. In the absence of a waiver of privilege Mr Brett could have adopted the position that TNL was not prepared to say how it was that PF, in fact, discovered the identity of Nightjack. A third was for Mr Brett to disclose to his instructed counsel, Mr White QC and Barnes, the true position concerning the circumstances in which PF initially discovered the identity of Nightjack and to invite them to correct paragraphs 7 and 8 of the skeleton and in open court to make a statement, different from the one which Mr White QC made, which would similarly avoid giving a misleading impression to the court. A fourth was for Mr Brett, on behalf of his client TNL, to abandon defending the claim without revealing the information given to him by PF on an occasion of legal professional privilege.
5. None of these options would have involved breaking the confidence in which PF had made his disclosure to Mr Brett, but each of them would have avoided allowing the court to be misled.
6. In my judgment, therefore, the focus of Mr Brett on the significance of the issue of the legal professional privilege and/or the prohibition on self-incrimination is a red herring. The real focus of the SDT’s considerations, and of this appeal, are the dual questions (a) was the court in fact allowed to be misled, and, (b) what was Mr Brett’s state of mind when these circumstances arose in which the court was allowed to be misled?

(d) The misleading of the court

1. I am in no doubt that the court was misled. The passages in PF’s statement to which I have referred can only sensibly be read as an account, by PF, of how he first identified Nightjack as RH using publicly available sources. That was, on any view, a misleading impression. What had happened was that PF had initially identified Nightjack as RH by using exclusively unlawful methods, his unlawful access to the email accounts. The exercise which he did undertake, to see whether he could identify RH as Nightjack using publicly available sources, was undertaken at the insistence of Mr Brett only after PF had disclosed to Mr Brett that he had identified RH by illegitimate means.
2. The use to which such exercise could legitimately be put was, as Mr Brett correctly advised, to demonstrate to a court that Nightjack could be identified as RH using only lawful means so as to provide a basis for seeking to resist the injunction.
3. O required PF to remove any uncertainty of what he meant in his witness statement by confirming, in a witness statement, that he did not, at any time, make any unauthorised access to any email account. Mr Brett’s response, coming as it did from a hugely respected and highly experienced solicitor in the field, was understood by O to be a denial that PF had unlawfully accessed RH’s email account.
4. Furthermore, TNL’s counsel, in their skeleton argument, understood that to be the case. When O requested further clarification of the true position, either by a further witness statement from PF or a correction of the potentially misleading impression the skeleton argument gave, they received neither a witness statement from PF nor a correction.
5. In those circumstances, in my judgment, it is wholly understandable that Mr Tomlinson QC made, before Mr Justice Eady, the concession he made and invited the Judge to deal with the case on the basis that it was more likely than not that, based on PF’s evidence, the identity of Nightjack as RH, was discovered by detective work, not by unlawful means.
6. Furthermore, it is clear that the Judge was invited to adopt this approach by Anthony White QC on exactly the same basis. He, inadvertently, misled the court because he was unaware of the true position.
7. Finally, it is clear that the judge accepted the invitation of both parties to approach the case in that way and, accordingly, proceeded to analyse the case on the assumption that RH had been identified by PF by means solely within the public domain. In so doing the Judge, TNL’s counsel and RH’s counsel had been misled by a combination of the misleading nature of PF’s witness statement, Mr Brett’s apparent denial that there had been any unlawful access to RH’s email account and his failure to respond in any way to O’s invitation to clarify the matter once and for all.

Lord Thomas of Cwmgiedd, CJ :

Lord Thomas made some succinct observations about the role of the lawyer in these circumstances.

a) The duty to the court

1. It has always been the duty of a barrister, solicitor, legal executive or any other professional representing a client in proceedings before any court to discharge not only the duties to his client but the duty to the court. That duty is in part reflected in s.188 of the Legal Services Act 2007 as a duty applicable to anyone exercising rights of audience or conducting litigation in the court by virtue of an authorisation under the Act as a duty to “act with independence in the interests of justice”. The content of the duty to the court is spelt out in a number of cases.
2. In Arthur J.S. Hall v Simons [2002] 1 AC 615, Lord Steyn emphasised at 680D the importance of the overriding duty of the advocate to the court, as did Lord Hope at page 715F. Lord Hoffmann summarised some of the duties at 686E:

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case. They may not make imputations of dishonesty unless they have been given the information to support them. They should not waste time on irrelevancies even if the client thinks that they are important. Sometimes the performance of these duties to the court may annoy the client. So, it was said, the possibility of a claim for negligence might inhibit the lawyer from acting in accordance with his overriding duty to the court. That would be prejudicial to the administration of justice.”

1. In Ridehalgh v Horsefield [1994] Ch 205 at page 234 Sir Thomas Bingham, MR (as he then was) made clear that although a legal representative of the parties was bound to strive to win a case, he must do so without in any way seeking to evade the rules intended to safeguard the administration of justice. In Medcalf v Mardell [2003] 1 AC 120 Lord Hobhouse made clear at paragraph 54 the fact that the duties to the court reflected the public interest in the administration of justice. Further statements of the duty can be found in numerous other cases, including Lumsdon v The LSB [2014] EWHC 28 (Admin) at paragraphs 57-9 and Randall v The Queen [2002] 1 WLR 2237 (in the judgment of Lord Bingham at paragraph 10).
2. These duties find some expression as regards solicitors in the Solicitors’ Code of Conduct to which Wilkie J has referred at paragraphs 10-14 above (now to be found in the SRA Code of Conduct 2011). The Bar Code of Conduct was and is in very similar terms.
3. Every lawyer must be alive to the fact that circumstances can arise during the course of any lawyer’s professional practice when matters come to his knowledge (or are obvious to him) which may have the effect of making his duty to the court his paramount duty and to act in the interests of justice. In many cases it will be clear what course the lawyer must take, either through the way in which the case is presented or by withdrawing from acting for the client. In others it may be more difficult. The lawyer may not be absolutely sure that his actions will discharge his duty to the court. In such a case, for reasons which I shall explain, a lawyer would be ill-advised if he did not put the matters before a person more senior within his firm or before independent counsel, making full and complete disclosure to such a person of all the relevant circumstances.
4. The reason why that is so important is that misleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice in England and Wales and the standing of the profession depends particularly upon the discharge of the duties owed to the court.
5. Where an advocate or other representative or a litigator puts before the court matters which he knows not to be true or by omission leads the court to believe something he knows not to be true, then as an advocate knows of these duties, the inference will be inevitable that he has deceived the court, acted dishonestly and is not fit to be a member of any part of the legal profession.
6. As conduct that is dishonest, such as misleading the court with such knowledge will inevitably be, is so serious, it is of the utmost importance that in difficult circumstances which can confront any advocate or litigator, that advocate or litigator has at the forefront of his mind his duty to the court, the necessity to avoid breach of that duty and, if he has any doubt as to how to discharge that duty, by taking independent advice.”

THE RELEVANCE OF THIS TO DRAFTING WITNESS STATEMENTS

The Lawyer’s duty is clear.  She or he have to take clear and positive steps to prevent the court being misled.   Allowing a witness to sign a witness statement which the lawyer knows has untruths in it is a breach of the duty to the court. Great care has to be taken to ensure that the statement is accurate and not misleading.  It is difficult, and probably impossible, to hide behind a cloak of legal professional privilege. If in doubt the lawyer should take advice.