Lies, damn lies and lawyers!

Ok, not quite, but you know what I mean.

In the same way that statistics can be open to interpretation and manipulation, so can the law.

For that reason, when clients tell me that the other side have lied or committed fraud (or worse) I have to sound a note of caution. Not because I’m not up for a fight (trust me, I’m ALWAYS up for a fight), but because there is a big difference between what I think probably happened, and what I can prove actually happened.

If you look at any trial that ever takes place, you’re always going to have people on one side saying TRUE and people on the other side saying FALSE. If they agreed on everything, or even on most things, they wouldn’t be taking it to Court. So it follows that at some point during the trial, the Judge is going to have to decide whose version of events or interpretation of the documents or the law (or, more often, a combination of all of those things) s/he prefers. It therefore follows that having found in favour of one party, the other party’s case has been ruled out.

That does not, however, mean that there is then an automatic finding that someone must have lied and there must be a perjury claim. Sometimes it’s just a question of interpretation. Sometimes it’s a mistake on the facts or the identities. Take a criminal trial where a witness positively identifies the accused as the person they saw committing the crime. If the accused is acquitted, does that mean that the witness lied. Of course not. If that was going to be the automatic conclusion, no one would ever give evidence, but it’s bigger than that. The jury have to decide beyond reasonable doubt. No matter how certain the witness is, if their eyesight isn’t great, and they weren’t wearing their glasses, and it was dark, the jury may feel that the witness evidence isn’t quite good enough to justify a conviction.

Nevertheless, I will regularly have clients telling me that they want me to include references to fraud in pre-action correspondence and court papers, because if I accept that my client is telling me the truth, it must follow that the other side are lying, and that their grounds for not paying or for disputing liability are in some way fraudulent. Unfortunately, it is not that simple and simply because the other side have a different understanding of the contract or recollection of the events does not automatically mean fraud. What’s more, fraud is one of those areas of law that you never EVER allege or plead unless you have solid evidence. A difference of opinion is not solid evidence and pleading fraud without sufficient evidence can lead to significant costs implications for anyone found to have alleged it without good grounds.

So if your solicitor or barrister refuses to include a fraud allegation in your case, that does not mean that they don’t have faith in you or what you’re saying, it just means that they are trying to protect you from a massive risk. If, as the case progresses, fraud can be proven or at least alleged with less risk, you can always amend your pleadings at that point.

Kleyman & Co Solicitors. The full service law firm. The truth will set you free.