Negligent solicitor struck off for failing to file accurate witness statement

An important ruling by the Solicitors Disciplinary Tribunal in the Solicitors Regulation Authority v Alastair James McGregor Gilfillan has reconfirmed that it is not only negligent for a solicitor to file and serve an inaccurate witness statement signed with a statement of truth, but also could lead to a solicitor being struck off the Roll.

Solicitors are highly regulated and owe their clients a contractual, statutory and tortious duty of care to act in their best interests. We understand as lawyers where solicitors go wrong and where solicitors fail to act in their client’s best interests to effectively act upon their client’s instructions.

We specialise in providing expert legal advice on professional negligence claims against solicitors and all members of the legal profession.

Professional negligence claims against members of the legal profession tend to be complex in nature and argument. Professional indemnity insurers will often instruct a specialist City of London law firm to defend claims vigorously and therefore it is essential to take legal advice at the outset from our expert professional negligence team.

SDT: Failure to serve an accurate witness statement is negligent

The solicitor sent a witness statement to the Court and the defendant containing a “statement of truth” bearing his client’s signature, which gave the misleading impression that his client had seen and approved the statement, when she had not done so. In doing so, the SDT found that he breached any or all of Principles 1, 2, 4 and 6 of the SRA Principles 2011 and he failed to achieve Outcomes O(5.1) and O(5.6). It was alleged the Solicitor had acted dishonestly.

The facts

The solicitor acted for a client, who was the claimant in a personal injury matter arising from a road traffic accident. Initially another fee earner at the firm had acted for the client and the solicitor took over conduct of the matter in July 2015.

The client told the solicitor in an email that not all of the items being claimed were caused by the first accident with the defendant. However, on 15 January 2016 the client’s first witness statement was sent to the defendant’s solicitors by email and filed with the Court without amendment.

The solicitor filed a second, corrective, witness statement to address this problem on 26 September 2016 but the statement was still inaccurate on material points. In addition, the second statement did not appear to have been approved by the client prior to it being filed and served.

At the trial on 14 October 2016, the client admitted that her first witness statement was misleading and denied having written or signed her (purported) second witness statement.

The SDT Judgment

the SDT found that the Respondent was an experienced solicitor who had been informed several times that a witness statement he had prepared on behalf of the client contained errors. Indeed, the client had returned the draft witness statement having made a number of alterations and amendments on it but none of those were incorporated. The client submitted that the solicitor failed to make the alterations and amendments which should have been made and as a result, the amount claimed for repairs of £1,917.36 was never changed even though it included an amount which related to damage to the client’s vehicle as a result of an unrelated incident.

The SDT noted in particular:

The Tribunal concluded that the Respondent could not have had a clearer indication that this case needed very careful attention. It was in his mind that the issue of dishonesty was hanging over the case and yet he took no steps to ensure that the damages being claimed were properly arguable and properly recoverable, despite having numerous opportunities to do so. Whilst the Respondent may have been under pressure at work, this was not an excuse to fail to give proper scrutiny to cases he was dealing with.

Solicitors Regulation Authority v Alastair James McGregor Gilfillan

The judge in the underlying claim heavily criticised the solicitor for not only filing a witness statement that was plainly wrong (despite corrections from the client) but for also filing a witness statement that had not been signed by his client:

Unless it is done properly, unless there is a good reason, it is not coming in because the solicitors were forewarned of it. If they are negligent, they are negligent…. ….If the solicitors have used people who do not know what they are doing or the supervisors are incompetent, then your client has a claim against them and you will have to advise her about that

When it was brought to the Deputy District Judge’s attention that work on the matter was conducted by a “Grade A fee earner”, the Deputy District Judge commented:

“That is straight negligence, then. You are going to have to advise your client that they are negligent, potentially. I cannot believe it was done by a Grade A fee earner…..I had assumed, because I did not know it was a Grade A fee earner, that this was the usual debacle where it was someone who had heard of the law, never studied the law and, when we get four tiers up there was a solicitor supervising it. I had no idea that something like this was produced by a Grade A fee earner. I would never dare show my face again if this was the quality of work I produced. That is something else.”

Download the SDT Judgment

What is a witness statement?

A witness statement is a formal document that contains a witness’s account of the facts relating to a particular dispute. The purpose of a witness statement is to provide to the Court (and opponent) written evidence to support a particular party’s case. Usually all parties in litigation will be required to produce a witness statement.

A witness statement is a crucial piece of evidence that will be referred to and relied upon at trial. Therefore, it is important to ensure that your witness statement is both accurate and comprehensive.

Preparing your witness statement

Witness statements should be prepared in compliance and accordance with Part 32 of the Civil Procedure Rules and Practice Direction 32. The Court also provides additional guidance and a template for preparing witness statements.

The first step will be to go through your recollection of all of the relevant facts and events with which you have been involved. This chronology provides a good foundation for your witness statement. The witness statement must be in your own words. Therefore, you must ensure that you understand what is included in your witness statement and that the contents of the witness statement accurately reflect your recollection of the facts.

Paragraphs 17.1 to 20.3 of Practice Direction 32 set out the format and requirements of a witness statement which must be adhered to. If your witness statement does not comply with Part 32 in relation to its form, the Court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation (CPR 32 25.1) so it is important that witness statements are prepared properly.

What is a statement of truth?

In litigation, any statement of case or witness statement must be verified by a statement of truth. Part 22 of the Civil Procedure Rules sets out provisions for statements of truth.

The purpose of the statement of truth is to confirm that you believe that the facts stated in the entire witness statement are true.

If a witness statement is not verified by a statement of truth, then it may not be admissible as evidence. There are also penalties for verifying false statements with a statement of truth.

Consequences of inaccurate evidence verified by a statement of truth

Signing a statement of truth or allowing a solicitor to sign where you know that a document contains a false statement may lead to you being contempt of court (CPR 32.14).

Part VI of Part 81 of the Civil Procedural Rules contains rules about committal applications in relation to making, or causing to be made a false statement in a document verified by a statement of truth without an honest belief in its truth.

Common Examples of Solicitor Negligence

Examples of common claims against solicitors, barristers, patent attorneys and licenced conveyancers include:

  • Failing to provide correct legal advice: a claim can be brought if a lawyer has provided a negligent legal opinion, relied upon by a claimant, which has led to personal or financial loss.
  • Failing to fully investigate or properly evidence the claim: solicitors and direct access barristers may be negligent in not gathering all pertinent information to ensure a claimant’s case is successful e.g. by not obtaining witness statements which supports the version of events.
  • Failing to fully warn the client on the risks: for example a solicitor will be negligent if a specific risk warning that a tax avoidance scheme might fail.
  • Missing a limitation date leading to a claim becoming time-barred: if the original claim had merit, then a claimant is entitled to pursue the errant solicitor or law firm for their loss of chance of success in the claim.
  • Failing to comply with a court order or deadline: if your claim has been struck out by the court after your solicitor or barrister breached an order of the Court (e.g. an unless order), then you may have a claim against the legal professional for poor performance of the litigation.
  • Poor performance of instructions: failing to adequately investigate title to property when acting for the buyer of a property; failing to advise on burdens affecting a property e.g. restrictive covenants, adverse rights burdening the property, failing to register a mortgage/debenture at Companies House if acting for a buyer client company.

Can I challenge my solicitor’s bill?

In addition, unlike many other law firms, we have an experienced legal costs team, who specialise in challenging the reasonableness of bills/invoices rendered by your previous solicitor. We find that in many professional negligence claims, clients are not happy with the service they have received and in tandem the price that they have paid for the sub-standard work completed.

If you consider that your bill (i.e. invoice) is overpriced for the work that you instructed to be done, our expert costs team can help you to understand the reasonbaleness of the bill(s) and if appropriate, challenge the bill in addition to any professional neglgience claim.

Can I challenge my solicitor’s bill and start professional negligence proceedings?

This is a relatively contentious area. Challenging a bill is commenced in the Senior Courts Costs Office (SCCO), whereas commencing professional negligence proceedings (if the claim is for more than £100,000) is in the High Court.

One of the Court’s overriding objectives in the Civil Procedural Rules is to save time and expense. The Court generally do not condone claimants commencing parallel proceedings and if costs proceedings are commenced in the SCCO, and the pre-action protocol for professional negligence is ongoing, the SCCO will likely order a stay of the costs proceedings in order to enable the parties to comply with the pre-action protocol for professional negligence. However, this varies depending on the individual facts of a case.

No win No fee for solicitor and own client costs disputes

We specialise in costs disputes at the Senior Courts Costs Office (SCCO) proceeding under the Solicitors Act 1974. That is why we can offer a no win no fee agreement to clients once we have had sight of the relevant papers (and ideally a detailed bill of costs). This means you do not have to pay us anything should your solicitor’s bill not be reduced.

We will advise you on the merits of reducing your solicitor’s invoice. Discuss the merits of early protective without prejudice settlement offers. We draft Points of Dispute (for clients) and Points of Reply (for solicitors). We will Represent you at any directions hearing, preliminary issues hearing and the detailed assessment hearing before the SCCO.

Want legal advice on the merits of your case?

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Instruct Specialist Professional Negligence Solicitors

We are a specialist City of London law firm made up of Solicitors & Barristers operating from the only law firm based in the Middle Temple Inn of Court adjacent to the Royal Courts of Justice. Our team have expertise in advising on claims for compensation against professionals that have fallen below the standard expected, which causes clients financial or personal loss. We are experienced in bringing successful claims against negligent solicitors, barristers, financial advisers, surveyors, valuers, architects, tax advisers and IFAs.

LIMITATION ACT 1980 – WARNING

The Limitation Act 1980 sets out strict statutory deadlines within which you must bring litigation claims. Your legal rights will become irreversibly time-barred if you fail to take legal action (or defend a claim on time). Therefore, you should seek specific legal advice about your legal dispute at the very first opportunity so that you understand the time you have left. Failure to take advice or delay in taking action can be fatal to your prospects of success.

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