Bates: Chaotic drafting process
The High Court has referred a direct access barrister to the Bar Standards Board for signing a statement of truth that pleaded a false allegation of fact.
Deputy Judge Alan Bates said [1] what happened was the result of “chaos and incompetence” mainly on the part of the barrister, and he had concerns about “professional conduct which go beyond the quality of service he provided to the claimant”.
The judge did not name the barrister, referred to only as ‘Barrister M’, noting that he was not party to the hearing and had not had the chance to account for his actions.
Barrister M acted for Kevin Demirci Properties Ltd in suing a firm of architectural design consultants over its work on proposed student accommodation in Swansea.
The particulars of claim (PoC) pleaded that the claimant had suffered loss of over £13.5m, whereas its pre-action correspondence, which had not advanced the false fact, claimed around £6.5m.
The false fact was that the claimant had entered into a joint venture agreement with Sir Robert McApline to develop the land, leading to a loss of opportunity for profits.
Barrister M signed the statement of truth on behalf of the claimant and filed the PoC at court.
The claimant, through its sole director Mr Demirci, waived privilege so that Judge Bates could see what happened.
He decided that the false fact was mainly the fault of Barrister M and arose from him failing both to read into his instructions properly and to make “appropriate inquiry into the facts of the case”.
The barrister also failed to take “appropriate steps” to obtain the claimant’s confirmation of the facts set out in the draft PoC prior to signing the statement of truth.
“The chaotic drafting process was detrimental to Mr Demirci’s ability to properly review the facts set out in the draft PoC and to ensure, in discussion with Barrister M, that the pleading was accurate.
“I have seen no evidence that Barrister M advised Mr Demirci of the importance of ensuring that all the facts set out in the finalised draft PoC were accurate, prior to giving Barrister M authority to sign that document on behalf of the claimant.”
Mr Demirci had to take some of the blame, the judge added. “He should have insisted on satisfying himself that all the facts set out in it were true, and not simply relied on, or deferred to, Barrister M’s drafting or advice.
“He was, however, a layperson struggling to deal with a legal professional to whom he was entitled to look for guidance and who was not proving easy to work with.”
Judge Bates said that, before a legal representatives signed a statement of truth on behalf of a client, it was “essential” that they:
- Explain to the client the importance of ensuring that the facts set out in the document are true, the significance of the statement of truth, and the consequences of signing a false statement of truth;
- Ask the client to confirm that it believes all the facts stated in the document to be true; and
- Obtain a “clear and unequivocal instruction” from the client to sign the statement of truth on the client’s behalf.
He continued: “Based on the contemporaneous documents I have seen, it is not clear to me that Barrister M did any of those things.
“Further, it appears that he signed the statement of truth on draft 5, i.e. a version of the document that was not the finalised version, and without having obtained client instructions to sign that version as the final version.
“In my view, it may be arguable that his conduct fell below the standard required by the Bar code of conduct.”
Judge Bates decided to refer Barrister M to the Bar Standards Board so that it could address his concerns.
He went on to reject the defendant’s application to strike out the claim and its application for permission to bring contempt proceedings against Mr Demirci. He also granted the claimant permission to amend its PoC.