Risking a pyrrhic victory

Solicitors are often

asked whether illegal

or covertly obtained evidence can be used in the course of civil litigation to support their client's claims.

The recent case of Singh v Singh [2016] EWHC 1432 is a useful reminder that there is no absolute prohibition on the use of such evidence and courts will often accept it if it is pertinent to the case. Notwithstanding this, solicitors should think carefully before advancing such evidence as it can carry significant risks.

Pursuant to Civil Procedure Rules 32.1, the court can decide what evidence to admit. When doing so it will balance the need to discourage law breaking against the need to have all of

the material facts before the court. In Singh the claimant secretly recorded meetings with the defendant; His Honour Judge Cooke admitted the recordings since they showed that the defendant's evidence was false. However, HHJ Cooke cautioned courts against placing undue reliance on such recordings since the party making them may seek to draw the other party into making statements which

could be taken out of context.

Even if the court decides to allow unorthodox evidence,

there is a risk that it will sanction the party advancing it to express disapproval of how it was obtained. In Jones v University of Warwick [2003] EWCA Civ 151, the defendant's investigators entered the claimant's home under false pretences (an act of trespass and breach of the claimant's privacy) in order to secretly film the claimant for the purposes of exposing a false injury claim. This covert evidence was admitted. However, in order to deter such conduct, Lord Woolfe ordered

the defendant to pay the costs

of time spent debating the admissibility of this evidence.

Before using or inadvertently obtaining unorthodox, covert, or illegal evidence, solicitors should also consider the following:

• Solicitors who sanction law breaking risk criminal prosecution, professional embarrassment (including being struck off the roll), and significant adverse publicity. Such actions would also breach the mandatory principles set out in the
  
  code of conduct, including the duties to: uphold the
  
  rule of law and the proper administration of justice; act with integrity; and behave in a way that maintains the trust the public places in the provision of legal services;

• Under the Regulation of Investigatory Powers Act 2000, it is a criminal offence
  
  to intercept a communication (including emails and telephone calls) without
  
  the consent of both the sender and recipient;

• Pursuant to the Data Protection Act 1998, it is a criminal offence and civil wrong to obtain or procure the disclosure of personal data without the consent of a data controller (for example, persuading a company employee to disclose company records containing personal data);

• Evidence obtained through torture or inhumane or degrading treatment (contrary to article 3 of the European Convention on Human Rights) will not be admissible;

• Privileged material will not
  
  be admissible unless it came into existence as a result of a criminal act or to further a criminal enterprise; and

• If you or your client obtain evidence which you decide not to deploy (due to concerns about how it was obtained or the fact that it
  
  is harmful to your case), you may still find that you are obliged to disclose it to the court or your opponent (for example, because it falls within the test for standard disclosure or because you owe a duty of full and frank disclosure to the court).

While such evidence might lend significant support to a case, it should be treated with caution: its advancement might result in

a pyrrhic victory with significant cost (and other) consequences or in the claim/defence being struck out in its entirety.

Richard Byam-Cook is a senior solicitor at Macfarlanes and a committee member of the Junior London Solicitors Litigation Association www.lsla.co.uk/junior