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Other sanctions
In most cases, orders for costs, perhaps on a higher scale, would be a sufficient
response to cases of inappropriate verification of pleadings. Such orders could
compensate the other parties for wasted effort caused by the misleading nature of the
offending pleadings. But where parties suffer consequences of false verification
which are not compensatable in costs, such as loss of the opportunity to secure
evidence to meet the real case, and so forth, the fair response in serious cases may be
to strike out the case of the party at fault.
Although the vast majority of cases would adequately be dealt with by orders of the
abovementioned types, there nonetheless remains an important public interest in
deterring persons from knowingly misleading the court and the other parties, so that
contempt proceedings should remain available in support of that public interest.
Leave of the court
In England and Wales, it appears that contempt proceedings may be brought in this
context either by the Attorney-General or anyone else with the permission of the court.
In the Working Party's view, only the parties and the Secretary for Justice should be
able to bring such proceedings, with the leave of the court in each case.
Statement of truth rather than affidavit
Contempt proceedings are less drastic than the potential penalty for making a false
affidavit presently provided for by s 40 of the Crimes Ordinance (Cap 200). This
provides :-
"Any person who wilfully uses for any purpose any affidavit which he knows to be false or
does not believe to be true, wherever such affidavit may have been sworn, shall be guilty of
an offence and shall be liable on conviction upon indictment to imprisonment for 7 years and
to a fine."
It is true that prosecutions for this offence are extremely rare. The same is likely to be
true of committal for contempt for falsely verifying a pleading. Nonetheless, it is in
principle possible for the maker of a false affidavit to face criminal prosecution –
which is not being proposed in relation to the verification of pleadings by a statement
of truth (as opposed to an affidavit).
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