Evidence: Legality Of

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.

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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.

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