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
- Covertly recording somebody may potentially breach their human
rights, their rights of confidentiality or their data protection
- 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
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.