UK: Evidence: Legality Of "Bin-Diving" Tested By Court Of Appeal And Survives

Last Updated: 28 June 2011
Article by James Sterling and Simon Chandler

The issue of evidence obtained by illegal means was recently revisited by the Court of Appeal. The Court considered what must be shown to establish that evidence has been obtained illegally, the consequences of obtaining evidence by illegal means and how this can cross over into the area of legal professional privilege. It will be useful to have these aspects in mind when instructing enquiry agents and in any subsequent dealings with them.

The judgment is also noteworthy in the current climate of celebrity super-injunctions and anonymity orders, illustrating the courts' ongoing concern to balance an individual's right to privacy with conflicting human rights such as freedom of expression and the right to a fair trial.

To view the article in full, please see below:


Full Article

The issue of evidence obtained by illegal means was recently revisited by the Court of Appeal. The Court considered what must be shown to establish that evidence has been obtained illegally, the consequences of obtaining evidence by illegal means and how this can cross over into the area of legal professional privilege.  It will be useful to have these aspects in mind when instructing enquiry agents and in any subsequent dealings with them.  

The judgment is also noteworthy in the current climate of celebrity super-injunctions and anonymity orders, illustrating the courts' ongoing concern to balance an individual's right to privacy with conflicting human rights such as freedom of expression and the right to a fair trial.

Background

The CCC entities are part of an international construction group incorporated in Lebanon.  Mr Masri is a businessman, resident in Jordan.  The parties had previously contested a UK Court action arising out of their disputed share in some Yemeni oil revenues.   This resulted in a judgment in favour of Mr Masri for $75m. 

Since July 2006, Mr Masri has been attempting to enforce this debt, by various means, in several different jurisdictions, and CCC have been staunchly resisting enforcement using a variety of legal ploys.  Understandably frustrated, Mr Masri's solicitors applied for a declaration that CCC as judgment debtors obstructing the enforcement process were in contempt of court, thereby intending to increase the pressure on CCC to pay up.  CCC responded aggressively by issuing a number of applications attacking the basis and the evidence gathering methods used in the Masri contempt proceedings.  The following issues came before the Court of Appeal for its determination.

Disclosure of enquiry agent documents

Mr Masri's solicitors had specifically instructed enquiry agents to search for documents that might assist his case for enforcing the judgment debt.  In particular, the agents had been searching documents placed in refuse sacks on the pavement outside CCC's London offices.  Copies were taken of relevant documents before returning the originals to the refuse sacks.

CCC alleged that the enquiry agents' conduct was unlawful on grounds of trespass and/or theft and/or breach of confidence.  On that basis, they said that the unlawful conduct should justify the exclusion of any material gathered during the refuse trawl as evidence in the proceedings. 

Consideration of this aspect itself was deferred until the eventual contempt hearing.  However, the Court of Appeal was asked in the meantime to decide whether CCC was entitled to the disclosure of certain categories of documents that CCC argued were relevant to them being able fairly to pursue the issue.  In particular, CCC sought disclosure of: (i) all instructions given to the enquiry agents by Mr Masri's solicitors; (ii) all subsequent reports produced by the agents; and (iii) any other documents relevant to the issue of whether documents had been lawfully or unlawfully obtained by the agents.

Legality of bin-diving?

Before the Court of Appeal would rule on this application, it decided that CCC would first need to show that they could make out a "prima facie" case that the evidence had been unlawfully obtained. 

As regards the allegation of theft, this required, amongst other elements, a clear intention to permanently deprive the owner of the documents or the use of them.  CCC could not show this.  Firstly, it was highly arguable that the documents had been abandoned by CCC, given that they had been left out for refuse collectors to take away.  Second, there was quite clearly no intention by the enquiry agents to permanently deprive the companies of the documents in the refuse bags because they had been copied and the originals returned.

CCC were also, on the facts of the case, not able to raise any strong arguments to show trespass (the refuse having been left out in a public place) or a breach of confidentiality (for instance, the refuse sacks had not been marked "private and confidential").

The lesson for the use of enquiry agents is that, in the circumstances outlined above, "bin-diving" can be a legitimate means of evidence-gathering so long as the necessary care is taken to ensure that the documents in question have, in fact, been abandoned.  Relevant copies should also be taken as swiftly as possible, before returning the material to its former place and state.  It will be prudent, if practicable, to suitably record the process, in case of subsequent challenge.

Right to a fair trial

The Court of Appeal considered this issue and determined that, even if a prima facie case of illegal evidence gathering could be made out, the prospect of persuading any trial judge that it would be just to exclude the material in these circumstances was "wholly remote".  It is notable that CCC never directly alleged that, without disclosure of the enquiry agents' papers, they would not be able to have a fair trial on the issue of contempt.

This aspect will usually be decided on the factual circumstances in play. Here, CCC were not assisted by:

  • their reported obstructive attitude from the outset of the enforcement proceedings;
  • their apparent determination to take any legitimate point, whatever its merits, in relation to the contempt proceedings;
  • the comparative lateness of their application for specific disclosure of the agents papers; and;
  • the low chances of a prima facie case of illegality being made out.

We suggest that, if CCC had had a better track record in the previous proceedings then there might have been a different outcome.  As discussed in our previous Law-Now, the position might also have been different if CCC could have shown that the enquiry agents acting for Mr Masri had other, more conventional, means available to them to obtain the evidence in question. 

In these circumstances the courts will weigh up whether, in the event that evidence has (potentially) been obtained via illegal means, it would still be in the interests of justice to allow the evidence to be admitted.  This will typically depend on the gravity of the alleged law-breaking compared with the significance or weight of the evidence in question to the fundamental issues in the case. These issues must also be considered in the context of an individual's right to a fair trial and/or right of privacy and the conduct of both parties to the dispute.

Legal professional privilege

The Court of Appeal decided that, in any event, the first two categories of documents requested by CCC were clearly privileged; the application concerned material that had been produced by and for Mr Masri's solicitors in the course of litigation and for the purposes of litigation.  Had the Court decided that the instructions to the enquiry agents encouraged law-breaking then the outcome may well have been that privilege never attached to the documents and disclosure duly ordered.

On a separate matter, CCC also sought disclosure of an email which an unnamed informant had sent to Mr Masri's solicitors.  This email forwarded another email that had originally been sent from CCC to a large number of individuals.  CCC were seeking disclosure of this informant's covering email to Mr Masri's solicitors as a means to identify that (hostile) source.  The Court refused to order disclosure of the part of the email which would have identified the sender, on the basis that it was also protected by legal professional privilege, the relevant part of it having been deliberately redacted for this very purpose.

Disclosure of the identity of enquiry agents

The Court of Appeal were, however, willing to make a finding that Mr Masri's solicitors were obliged to provide CCC with certain information relating to the identification of the enquiry agents, both the firm and individual involved.

In support of the contempt application, Mr Masri's solicitors had sworn an affidavit asserting that its search had been conducted using only legitimate means (and for the sole purpose of the ongoing enforcement proceedings), based on confirmation provided to the solicitors by the enquiry agents. 

UK law states that an affidavit must "indicate" the source of any matters that are outside of a deponent's own knowledge (i.e. which are instead matters of information or belief).  At the initial hearing, the Judge had held that there was a distinction between the words "indicate" and "identify" in dismissing the application by CCC seeking identification of the agent.  However, the Court of Appeal viewed matters differently, attributing particular significance to the fact that the evidence had been provided under affidavit, "the most formal type of written evidence".  The Court upheld the need for CCC to be able to investigate the basis of the solicitor's stated information or belief. 

This lead to a finding that Mr Masri's solicitors were obliged to identify the individual at the enquiry agent who had provided them with the confirmation set out in the affidavit, together with the name of the firm of enquiry agents for whom the individual worked.  However, there was no need to disclose the identity of anyone else who was engaged in the actual work that was undertaken by the enquiry agents.  Accordingly, the information ordered to be disclosed was in a very narrow category.

The Court also went on to recognise that there may be particular occasions where the "source" must not be specifically identified, such as where confidentiality is an issue.  It held that the use of the word "indicate" in the Court rules is sufficiently flexible to allow for such situations.  It ruled that there were no exceptional circumstances on the facts of the CCC case.

Comment

The Court of Appeal's decision should be borne in mind by solicitors or clients instructing enquiry agents, so that agents are fully aware of the potential extent of their duties to their instructing clients/solicitors and of the courts' powers to force disclosure of such material where it takes the view that dubious methods have been deployed.  As the decision illustrates, the Court will take an even-handed but robust approach to such matters and a party perceived as using technical devices to frustrate the judicial process can expect adverse results.

Further reading: Consolidated Contractors International Company SAL and Another v Munib Masri [2011] EWCA Civ 21 

To read our Law Now on the Court of Appeal's earlier decision in  Imerman v Tchenguiz (2010)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 24/06/2011.

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

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.