Covert or illicit recording – Can it be used as evidence in a civil fraud dispute?
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:
- the information contained in the recording is relevant to the issues in dispute; and
- the public interest in achieving justice in the dispute concerned by admitting the relevant evidence is greater than the public interest in promoting the observance of the law and discouraging improper conduct by parties to obtain evidence.
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.
Key points for consideration
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.
- It is not possible to reconcile in a totally satisfactory manner, the conflicting public policies which the district judge and the Deputy High Court judge had to try and balance in this case. The approach of Judge Harris was consistent with the approach which would have been adopted in both criminal and civil proceedings prior to the coming into force of the CPR and the Human Rights Act. The achieving of justice in the particular case which was before the court was then the paramount consideration for the judge trying the case. If evidence was available, the court did not concern itself with how it was obtained.
- While this approach will help to achieve justice in a particular case, it will do nothing to promote the observance of the law by those engaged or about to be engaged in legal proceedings. This is also a matter of real public concern.
- If the conduct of the insurers in this case goes uncensured there would be a significant risk that practices of this type would be encouraged…”
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:
- The specific facts of the case.
- How the recording was obtained? In this regard, the Court would take account of whether any illegal act was committed to obtain the recording(s) and if so, the nature of the illegal act committed.
- The type of information recorded e.g. whether the recording contained privileged material, confidential information and/or the information recorded reveals data protection or privacy breach issues. Each of these subject matters are complex and involve substantive legal issues that require careful consideration. For example, if the recording contains confidential information, the party whose confidential information was recorded will most likely seek (usually via injunctive relief) to restrain the use of the material.
- The relevance of the recorded information to the issues in dispute, the probative value (i.e. the usefulness of the information in proving or disproving a particular fact in the case) of the information and whether the admission of the recording infringes a specific exclusionary rule e.g. because it contains privileged information.
- The Court’s power under Civil Procedure Rules to control evidence. This power enables the Court to control which evidence to admit and which to exclude.
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.
If you require advice on the issues discussed in this article in relation to claims relating to fraud or otherwise, please do get in touch with us at firstname.lastname@example.org
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