In these days of almost everybody having some form of recording media (such as a mobile phone) within constant reach, we regularly find that parties to litigation try to rely upon the content of discussions that have been recorded by one of the parties to a conversation without the knowledge or consent of the other. Indeed in the current coronavirus enforced lockdown parties regularly communicate by video conferences which are easily recorded at the touch of a button. Whilst such covert recordings can certainly have their uses, reliance on them has to be treated with a degree of caution.
Whilst in civil proceedings, the Court does not have a specific power to exclude evidence on the ground that it was improperly or unlawfully obtained, it does have a discretion to exclude evidence to ensure that cases are dealt with fairly.
When determining whether to exclude the secretly obtained evidence, the Court will take into consideration the balance of discouraging the conduct of parties taken to obtain the evidence and establishing the true position.
It is important to bear in mind a number of issues including:
- Covertly recording somebody may potentially breach their human rights, their rights of confidentiality or their data protection rights.
- Even if such recordings are allowed as evidence, the Court may choose to penalise the party that made the recording in some way (usually in relation to costs).
- An employer covertly recording an employee might be found to be breaching the obligation of mutual trust and confidence implied into every contract of employment.
The above issues are not exhaustive but a flavour of some of the types of issues the Court has to consider.
The timing of disclosure is also a factor. Courts are very reluctant to allow one party to "ambush" the other by disclosing any evidence (but particularly evidence of this nature) at or shortly before trial unless there is a very good reason.
Parties who wish to object to the admissibility of such evidence have a number of options but are normally well advised to act quickly. In particular, objection should be made to the party seeking to rely on the evidence within 28 days of it being disclosed. If the matter cannot be resolved by agreement then it will be necessary to ask a judge to determine the issue. Sometimes this is left until trial to spare the costs of a separate application. However, such a strategy will inevitably involve the trial judge being privy to the evidence in order to determine its admissibility. Whilst judges are well practiced in disregarding any evidence which they deem to be inadmissible, sometimes there can be a concern that such evidence may subconsciously play a part in the judge's findings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
