UK: Statements of Truth – Alternative Facts

Last Updated: 30 May 2003

To what extent can a statement of truth be signed when there are inconsistent sets of facts pleaded? This was the issue addressed in the case of Clarke (Executor of the Will of Francis Bacon) v Marlborough Fine Art (London) Limited and Marlborough International Fine Art Establishment [2002] 1 WLR 1731. 

Mr Justice Patten found that, in certain circumstances, inconsistent sets of facts could be pleaded within a claim. Patten J held in relation to Part 22 of the Civil Procedure Rules (CPR) that those signing particulars of claim could plead the inconsistent facts in the alternative if they did not have personal knowledge of the relevant matter, provided there was plausible evidence to support both alternatives.

The purpose of CPR Part 22 is that by requiring a party to verify the factual content of his statement of case, claims in which the party could not maintain an honest belief would be eliminated. Proceedings for contempt of court may be brought against a party making a false statement (CPR 32.14).

In this case, the claimant had sought permission to further amend the particulars of claim to introduce a plea which was inconsistent with one of the existing claims.


In October 1958, the artist Francis Bacon entered into an agreement with Marlborough Fine Arts Limited (Old Marlborough) for a period of ten years, with an option to terminate in 1963 (the 1958 Agreement). The agreement provided for the acquisition by Old Marlborough of a specified number of Bacon’s paintings and gave them the sole right worldwide to sell and authorise the sale of artistic works by Bacon. Bacon terminated the agreement in 1963, but he continued to sell his paintings through Marlborough (in its various entities, including the first and second defendants) until his death in 1992.

The original version of the particulars of claim alleged that the 1958 agreement gave rise to fiduciary duties on the part of Old Marlborough and that an essentially contractual arrangement continued after the introduction of the first defendant (a successor to Old Marlborough) in 1968. This arrangement was alleged to comprise an exclusive sales agency for Bacon’s works and an agreement made by conduct under which the first defendant would provide management and other services for Bacon. In the alternative, it was pleaded that even if there was no underlying agency relationship or contractual agreement for management services, there was nonetheless a de facto relationship of trust and confidence between Bacon and the defendants under which Bacon relied on them to act in his best interest. 

The particulars of claim were then amended to remove any allegation of a contractual relationship after 1964 and to remove references to the alleged contract in respect of management services. The revised particulars of claim therefore focused on alleging a fiduciary relationship between Bacon and the defendants. Under that relationship, the defendants were under a duty not to put themselves in a position of conflict between their personal interests and their duties to Bacon, a duty not to profit from Bacon without his fully informed consent and a duty to account to Bacon for all their dealings in respect of his work and all monies received by them in respect of his paintings. 

The underlying claim therefore relied upon allegations of breach of fiduciary duty and presumed undue influence as the basis for seeking compensation and other relief from the defendants in respect of their dealings with Bacon’s art.

The claimant then sought to further amend the particulars of claim to plead actual, as well as presumed, undue influence. In summary, the proposed further amendments alleged that in March 1978 Bacon informed Frank Lloyd of Marlborough of his intention to sever his ties with Marlborough and instead be represented by a rival gallery. The claimant alleged that Lloyd’s response was to tell Bacon that if he left Marlborough, he would have problems obtaining access to funds belonging to him which Marlborough had paid into Bacon’s Swiss bank account, and Bacon would be "exposed to the English tax authorities". Bacon then wrote to the rival gallery informing them that he had decided not to change his gallery and was remaining with Marlborough.

The defendants objected to the proposed amendments on grounds which included inconsistency, arguing that the claimant could not advance, as part of a unified claim, allegations that Bacon lived under threat from Marlborough of exposure of his tax affairs, yet maintained in Marlborough trust and confidence that they would continue to give him a fair deal. The threats, if made, would have destroyed any belief by Bacon that Marlborough was continuing to act in his best interests. They argued that by applying CPR Part 22, the amendments should be refused.


Patten J did not accept the claimant’s submission that no factual inconsistency existed between the claims of presumed undue influence and actual undue influence in this case. He accepted that actual and presumed undue influence may co-exist in a particular relationship, but he found that in this case they were mutually contradictory and the amendment could not be allowed in its current form. However, the judge considered that it was open for the claimant to plead both presumed and actual undue influence in the alternative, rather than in one unified claim.

The judge held that CPR Part 22 was not designed to exclude the possibility of pleading inconsistent factual alternatives, but rather to prohibit dishonest or opportunistic claims. It was also to discourage cases which are unsupported by evidence but put forward in the hope that something might turn up on disclosure or at trial. If an alternative set of facts is clearly pleaded as such, then the claimant is not necessarily stating that he believes both sets of facts are true. The claimant in this case is affirming his honest belief that, in this case, on the basis of either one set of facts or the other, Bacon was the subject of undue influence in his dealings with the defendants.


Whilst it is unusual to plead facts which are inconsistent, it does occur. It is especially the case in situations where the claimant, or signatory of the statement of truth, is an executor or a liquidator of a company, as they are often looking back at events of which they have no personal knowledge, and trying to assemble a claim from the facts. In such cases, they may need to plead alternative sets of facts, and the statement of truth will then be a declaration that they believe one of the sets of facts to be true. It is for the court to decide which set of facts this is.

This decision will give comfort to those putting their name to statements of case where there are claims arising out of matters which have been pleaded on inconsistent facts. This may include lawyers, insurers, in-house counsel, as well as executors or liquidators. What is clear, however, is that the courts will not allow this to undermine CPR Part 22 and its strict requirements for the maker of the statement of truth to have an honest belief in the facts stated in the document.

Article by Christa Band

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions