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Party litigant's medical certificate found to be forgery

1 December 2014

A former company director has had decree for more than £6.5m granted against him by default, after the Court of Session learned that a soul and conscience medical certificate excusing his attendance was a forgery.

Lord Doherty in the Outer House granted decree for £6,507,000 in favour of one of five associated companies who were suing the man – all parties being referred to only by the letters A to F (the defender). F was a former director and chief executive of company E, which he founded, and whose shares had been sold to company D. He had entered into a service agreement but refused to resign as director when given notice of termination, and had since breached restrictive covenants to the detriment of the pursuers and the benefit of another company the shares in which were registered in name of a woman with whom he had a relationship.

F's solicitors had withdrawn from acting in August 2014 and he had since represented himself, though the court had advised him to seek advice. His motion in late October to discharge the proof diet had been refused. 

The day before the diet in November, a letter had been delivered to the court purporting to come from a psychological therapies team in East Kilbride and confirming on soul and conscience that F was unfit to attend court due to severe anxiety and depression. Its appearance was unusual and on inquiries being made, the practice confirmed that F was not a patient there, and it had not issued the letter. When F was contacted and asked to provide the name of the doctor he had consulted, he produced a further letter from a named GP certifying that "it would not be suitable for him to apear in court at the present moment".

The court still required the name of the doctor who had signed the earlier letter; the pursuers meantime obtained affidavits from individuals at the practice that it could not have come from there, and then contacted the GP, who then withdrew his own letter on the basis that the initial letter of which he had been shown a digital image) had been forged, and it had been misrepresented to him that the court appearance was a minor matter. If he had known the true facts he would not have agreed to provide his own letter.

F was contacted but did not appear at the proof diet. Lord Doherty noted that he had not been a patient of that GP practice until the previous week, that he appeared to have left the issue of his fitness until the last possible minute before the proof, that he had been evasive when questioned about the letter, and that he had given a misleading account to the GP. He had failed to attend a peremptory diet at a proof restricted to the question of damages, and although the sum sued for was a very large one, he had only himself to blame for not appearing. The proper consequence should be that decree was pronounced. 

Click here to view the judgment.


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