It’s time to stop the lying in adjudication and arbitration. Let’s attach a ‘statement of truth’ to referral or response papers, and make clients and lawyers sign it
“Sign here,” said the receptionist. It was a patient’s declaration form. “But I am only here for new spectacles,” I protested. “Sign here,” she repeated. I read it. “This is my application for an NHS-funded sight test. I declare that the information given on this form is correct and complete. I understand that if I withhold information or provide false or misleading information, I may be liable to prosecution and civil proceedings.” “Sign here,” she insisted. I had mistakenly added 10 years to my date of birth.
By the way, the receptionist is very pretty. I went in for my eyesight test.
I got to thinking about that form, but for a very different business. It’s this. From time to time, when in the chair of an adjudicator or arbitrator tribunal, porkies get told to me; not only fibs from witnesses but fibs from representatives too. Lies by witnesses are a mortal sin. Lies by a representative are mortal sins with knobs on. It’s time to insist that referral and response documents and any other “story” told to adjudicators comes with a declaration or “statement of truth”. Why? To remind those who put stories together that for the purposes of a binding decision, enforceable by the High Court, they must tell the truth … the whole truth. And that includes telling the whole story.
In litigation and most other tribunals here and across the world, it is not at all surprising to find that the Civil Procedure Rules include a practice direction along the lines of: “The following documents must be verified by a statement of truth.” This is a statement of case and response and a witness statement of fact or expert.
It will say that the party putting forward the case “believes that the facts stated in this statement of case or response are true”. Same with a witness statement and expert’s report. The legal representative usually only signs on the basis that his client has told the representative that the facts in the document are believed to be true. Woe betide any representative who knows that the contents are false, notwithstanding his client’s instructions to the contrary.
The lie will not amount to perjury. If dishonest, it is a crime. You must not dishonestly claim money or deprive someone of money. It is called theft
Now let’s be plain. Sometimes a client tells his representative not quite all of the story. Some even happily make up false stories, knowing that it will all come out of the mouth or from the pen of this “other bloke”. The representative is a sort of patsy, a fall guy. The client gets some sort of relief from sending the representative to the front line instead of him. But worse still is the representative who becomes so involved, so enthusiastic, that he actually puts the case together but misses out bits and pieces in his inquiry. He compiles a statement of case for loss and expense but “overlooks” areas of his own client’s culpability. A bit missed out is a failure to disclose all the facts. These folk are the “blind-eye brigade”. An added made-up bit of evidence is a lie. Half a story is also a lie. A lie is failure to tell the whole truth. When the story is presented for the party’s signature, the party has relied upon the investigations, the rummaging done by the enthusiastic representative. So, the declaration, which must be signed by the party and his representative, has to be robust. It needs to say: “Neither the party or his representative has:
- Submitted information, made statements which he knows to be false or does not believe to be true or is reckless as to accuracy
- Failed to disclose information known to him which may be damaging to his case.”
In adjudication, the lie will not amount to contempt of court or perjury. If dishonest, it will be a crime. Be plain. You must not dishonestly claim money or deprive someone of money. It is called theft, conspiracy and/or deception. A dishonest statement of referral or response in adjudication can be all of those, plus false accounting. The last item alone carries a maximum of 10 years’ imprisonment.
If I had dishonestly withheld information on that sight-test form, it would be fraud. If a representative knowingly and dishonestly puts up a claim or response, he does not need a sight test; he needs his head examined. That’s another state-aided test. Just fill in the form at reception; it’s on the left as you climb out of the prison van in Broadmoor.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org