Can defendant solicitors sign a defence or list of documents?

As a defendant personal injury law firm, we are occasionally required to sign a defence and list of documents on behalf of either our insurer client or their policyholder.

It goes without saying, that if the defence contains factual information regarding the claim or contains a positive denial, we ensure that the facts and denial are affirmed by the party or parties putting forward the claim. In these situations, we are often challenged by the claimant’s solicitors on our legal authority to do so. One claimant law firm in particular, regularly challenged this authority, resulting in the derailment of several trials; so we sought to settle this grey area with a persuasive decision.

The named defendant, in this case, was our insurer client’s policyholder, and the defence and list of documents were signed by one of our insurance litigation solicitors. Once the trial began, the claimant solicitors challenged this authority without prior application.

The judge entertained the claimant solicitor’s challenge and ordered that the trial be adjourned and that the claimant solicitors make their application to strike out the defence and/or the defendant’s list of documents.

We sought for the application to be heard in front of a Circuit Judge sitting at Central London, in order that this recurring dispute could be adjudged in a manner that would settle the issue once and for all. The presiding judge was amenable to this request. The claimant solicitors made the application to strike out both the defence and the list of documents, and the claim was transferred to Central London for a hearing in front of a Circuit Judge.

On the day before the hearing, the claimant solicitors withdrew their application to strike out the defence and proceeded with the strike out of the list of documents alone.

It then fell to His Honour Judge Parfitt to give his judgment on the issue having heard both sides of the argument and having considered all of the relevant provisions of the Civil Procedure Rules and case law.

His Honour gave the following judgment:

“I can see that the language in the rules is more finely balanced as between both parties’ arguments, but in the end, I prefer the argument of the defendant. This is a disclosure statement signed on behalf of an insurer. What is necessary is that it should be clear to the person receiving the list of documents (including the disclosure statement) how it is that the disclosure process has been conducted and who it is who is providing the signature and the statement that says that process has been conducted appropriately. As long as it is clear the basis upon which that person is making the statement on behalf of the disclosing party and as long as it is clear who the person is, i.e. they have been identified, and an explanation given why that person is considered to be appropriate, then that is sufficient to meet the requirements of the rules.

In addition, and substantially, it seems to me – in particular in this case – that the solicitor making the disclosure statement was the best-placed person to do that because the disclosure, in order to be consistent with the overriding objective and as efficient and as proportionate as possible in the context of this case, required documents to be looked for that might be in the insurer’s control or the defendant’s control. The solicitor, with his combined hats, was in the perfect position to see that the defendant had provided the relevant documents and that the insurer had provided the relevant documents and indeed the solicitor himself. That is what the disclosure statements says: that documents had been got from the defendant; documents had been got from the insurer; documents had been got from the solicitor’s record. That was what the person providing the disclosure statement vouched for.”

On this basis, His Honour dismissed the application.

As to the recurring nature of this kind of application, particularly from this firm of claimant solicitors, and the costs of the application, His Honour commented that:

“I am told that there are lots of other cases where claimants’ solicitors – and I think in particular this particular solicitor – raise points of this kind, that they are disruptive and it is to everybody’s benefit to have this sorted out.”

However, His Honour then went on to confirm that he was not willing to find that the circumstances were exceptional in relation to costs. He, therefore, did not make exceptional costs order against the claimant himself and ordered fixed costs in favour of the defendant. His Honour then added that:

“The position, I suspect, might be different in relation to persistent applications, but even then it may be it is not a question of the individual parties who should be potentially responsible, but if they are conducting themselves unreasonably then potentially the solicitors.”

The claimant solicitors did not seek permission to appeal this judgment and have not subsequently sought said permission.

As the claimant solicitors withdrew that aspect of the application concerning our authority to sign the defence shortly before the hearing, we did not obtain a determination on the same from His Honour Judge Parfitt. Arguably, the rules considered by His Honour apply equally to authority to sign a defence, if not more so.

However, following His Honour’s judgment, the same claimant solicitors made an application to strike out the defence, for the same reasons, in a separate case being dealt with by our firm. The application was heard by Deputy District Judge (DDJ) Newman sitting in the County Court at Liverpool, and we made the same submissions regarding our authority to sign.

DDJ Newman gave the application short shrift and dismissed the same. In giving her decision, she was particularly critical of the claimant solicitors, stating that:

“There is nothing wrong with the signature on this statement of truth. It is entirely clear what he intends to do. They act for the insurance company. It is perfectly properly executed and signed. I am staggered that the application has been made. I do not need to explain any more. There is just absolutely no merit in it. What on earth the solicitor thinks he is doing, I have no idea, but he is wasting his own time, he is wasting the defendant’s time, and perhaps, more importantly from my point of view, he is wasting the court’s time. This has been listed for an hour in a court which is so busy; it can barely cope, and has real work to deal with, not fanciful angels dancing on points of needles. It has been a waste of court resources and a waste of everyone’s time.”

On the back of this, DDJ Newman awarded indemnity costs of the application to the defendant in the sum of £1,200. When claimant’s counsel questioned the award of indemnity costs, DDJ Newman succinctly responded as follows:

“It is exceptional, and it is indemnity. This application is a disgraceful waste of court time. Yes, you can quote me.”

While the above findings are not binding on the lower courts; they are surely persuasive. The former case was carefully considered and handed down by a Circuit Judge in the County Court at Central London. The latter was in the claimant solicitor’s home court and considered a complete waste of the court’s time.