Supreme Court confirms that a party, and not its solicitor, should sign the disclosure statement
At a CMC, the appellant was ordered to file and serve a disclosure statement certified by a statement of truth, to be personally signed by him. Although the appellant’s duty of disclosure was explained to him by his solicitors, the statement of truth was signed by the appellant’s agent (because the appellant is a Saudi prince and, it was claimed, there is a Saudi Arabian protocol that members of the Royal Family should not become involved in any way in litigation). The respondents applied for, and obtained, an unless order, and when the appellant failed to comply with that order his defence was struck out and judgment entered against him. The appellant was subsequently refused permission to vary the order so that his solicitor could confirm on oath that the appellant had given full disclosure.
The Supreme Court (by a majority of 4:1) has now rejected the appellant’s appeal against these earlier decisions. In so doing, Lord Neuberger (who gave the leading majority decision), confirmed the view that the party himself should sign the disclosure statement unless there are “good reasons” for someone else to sign. Accordingly, the judge had been correct to consider that a direction that the appellant personally sign the statement reflected normal practice. To have someone other than the appellant sign the statement would be a “real risk to the overall fairness of the proceedings….Everyone else will have put their cards on the table. The Prince will deal through an agent” (as per Norris J, with whom the Supreme Court agreed). The unfairness would be that the appellant could avoid criticism for concealing some relevant communication (when none of the other parties could avoid such criticism).
The Supreme Court dismissed the appeal and refused relief from sanctions, but confirmed that it did not thereby intend to impinge on the reasoning or decisions of the Court of Appeal in Mitchell v News Group Newspapers (Weekly Update 43/13) and Denton v TH White (Weekly Update 26/14).
COMMENT: This case confirms that a client, rather than the solicitor, should usually sign the disclosure statement. Although the Supreme Court recognised that there can be a departure from this position if there are “good reasons”, convenience alone may not suffice and hence sufficient time should be allowed to ensure that a client signs the statement, where possible. This decision also makes it questionable whether a solicitor may sign the disclosure statement if, as a result of the way the matter has developed, there is no-one at the client’s organisation who has overall responsibility for the search for documents.