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<\/a>\n <\/div>\n<\/p><\/div>\n<\/p><\/div>\nIn these days of almost everybody having some form of recording
\nmedia (such as a mobile phone) within constant reach, we regularly
\nfind that parties to litigation try to rely upon the content of
\ndiscussions that have been recorded by one of the parties to a
\nconversation without the knowledge or consent of the other. Indeed
\nin the current coronavirus enforced lockdown parties regularly
\ncommunicate by video conferences which are easily recorded at the
\ntouch of a button. \u00a0Whilst such covert recordings can
\ncertainly have their uses, reliance on them has to be treated with
\na degree of caution.<\/p>\n
Whilst in civil proceedings, the Court does not have a specific
\npower to exclude evidence on the ground that it was improperly or
\nunlawfully obtained, it does have a discretion to exclude evidence
\nto ensure that cases are dealt with fairly.<\/p>\n
When determining whether to exclude the secretly obtained
\nevidence, the Court will take into consideration the balance of
\ndiscouraging the conduct of parties taken to obtain the evidence
\nand establishing the true position.<\/p>\n
It is important to bear in mind a number of issues
\nincluding:<\/p>\n
- \n
- Covertly recording somebody may potentially breach their human
\nrights, their rights of confidentiality or their data protection
\nrights.<\/li>\n
\n <\/p>\n - Even if such recordings are allowed as evidence, the Court may
\nchoose to penalise the party that made the recording in some way
\n(usually in relation to costs).<\/li>\n
\n <\/p>\n - An employer covertly recording an employee might be found to be
\nbreaching the obligation of mutual trust and confidence implied
\ninto every contract of employment.<\/li>\n\n<\/ul>\n
The above issues are not exhaustive but a flavour of some of the
\ntypes of issues the Court has to consider.<\/p>\nThe timing of disclosure is also a factor. Courts are very
\nreluctant to allow one party to “ambush” the other by
\ndisclosing any evidence (but particularly evidence of this nature)
\nat or shortly before trial unless there is a very good reason.<\/p>\nParties who wish to object to the admissibility of such evidence
\nhave a number of options but are normally well advised to act
\nquickly. In particular, objection should be made to the party
\nseeking to rely on the evidence within 28 days of it being
\ndisclosed. If the matter cannot be resolved by agreement then it
\nwill be necessary to ask a judge to determine the issue. Sometimes
\nthis is left until trial to spare the costs of a separate
\napplication. However, such a strategy will inevitably involve the
\ntrial judge being privy to the evidence in order to determine its
\nadmissibility. Whilst judges are well practiced in disregarding any
\nevidence which they deem to be inadmissible, sometimes there can be
\na concern that such evidence may subconsciously play a part in the
\njudge’s findings.<\/p>\nThe content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n\nPOPULAR ARTICLES ON: Litigation, Mediation & Arbitration from UK<\/p>\n<\/p><\/div>\n
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