What if a fraud victim obtains or is in possession of an audio recording, obtained improperly, which contains information that the victim believes proves a civil fraud has been committed? Will the Court allow such material to be admitted as evidence in support of the victim’s fraud claim?
Courts disapprove of parties seeking to obtain evidence through improper means (i.e. unauthorised recordings, for example through bugging devices). In certain circumstances however, the Court is prepared to admit as evidence a covert, or even an illicitly obtained recording, provided it is satisfied that:
That said, even if an improperly obtained recording is admitted as evidence, the Court has the power to reflect its disapproval (of using improper means to obtain evidence) in its decision e.g. make a cost order (most likely the costs incurred relating to the admissibility of the recordings) against the party that intends to adduce the recording or reduce any damages / compensation awarded to that party.
In our view, the following paragraphs in the judgment by Lord Woolf CJ in the Court of Appeal’s decision in Jones v University of Warwick encapsulate the balancing exercise the Court is required to undertake in order to decide whether or not to admit a covert or illicit recording as evidence.
In the Jones case, the claimant issued a personal injury claim against the defendant (her employer). The defendant’s insurer instructed an enquiry agent who filmed the claimant at her home (having gained access to her home by deceiving her) and in public. The video evidence, the admissibility of which was in dispute, related to those made at the claimant’s home. The Court of Appeal decided to admit the covertly obtained recordings. However, on costs it held “… we therefore propose, because the conduct of the insurers gave rise to the litigation over admissibility of evidence which has followed upon their conduct, to order the defendant to pay the costs of these proceedings to resolve this issue before the district judge, Judge Harris and this court …”.
  1 WLR 954
 The filming of the claimant in public was not in dispute. It was common ground between the parties that these videos were not as helpful to the defendant’s case as those made at the claimant’s home.
 Paragraph 30, Jones v University of Warwick  1 WLR 954
As part of the balancing exercise, the Court is likely to take account of several factors including:
Needless to say, it is likely that the issue regarding the admissibility of a covert or illicit recording will increase the cost of determining the underlying dispute between the parties.
Given the advances in technology, recordings can be made, without consent, with relative ease.
The content of a recording, obtained without consent, may be all or the only substantive evidence a party has to prove that a fraud has been committed. In such circumstances, one can recognise why that party would want the recording to be admitted as evidence to prove its case.
The Court has the power to admit such material as evidence, even if it was obtained through improper means. However, in such circumstances, the Court also has the power to ‘penalise’ the party that obtained the recording (e.g. by way of a cost order) to demonstrate its disapproval of use of improper means to obtain evidence.
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