NEWS – “without comment”

AN INTERESTING ARTICLE FOR ‘EVIDENCE’ GATHERERS……

“The Courts will not necessarily exclude evidence simply because it has been unlawfully obtained or stolen.”

In cases involving unlawfully obtained evidence, the approach of the English Court has typically been that justice is best served by considering all relevant evidence, even where there has been a breach of law in obtaining that evidence. The Courts will not necessarily exclude evidence simply because it has been unlawfully obtained or stolen. Rather, the court has a discretion whether to admit such evidence. However, there can be broader implications for those who improperly obtain evidence.

The recent case of Bourlakova v Bourlakov [2024] EWHC 765 (Ch) concerned the use by the Claimants of private investigators to obtain evidence in support of a freezing order application. Some of the documentary evidence relied on by the Claimants was said to be illegally obtained, and some of the documents were said to be fabricated. Furthermore, some of the documents obtained by the investigators were privileged to the Defendants. When the issue came to light, the Defendants obtained an adjournment of the freezing order application, and orders for destruction and delivery up of the documents concerned. The practical and procedural implications are clear. The Court also commented that it was “under no illusion as to the potential seriousness of the acquisition of confidential information belonging to another” and recognised that the relief sought by the Defendants was “not (yet) made in the context of an action for breach of confidence”.

Another case demonstrating the risk to those who procure evidence illegally is FKJ v RVT & Ors [2023] EWHC 3 (KB). This concerned the allegedly unlawful acquisition by a law firm partner of 18,000 of his former employee’s WhatsApp messages, which he successfully used to defend proceedings that she had brought against him in the Employment Tribunal alleging sex discrimination, following her dismissal for misconduct. The employee subsequently brought a High Court claim for misuse of private information in respect of the acquisition of her WhatsApps, which provides an illustration of the residual risk to those who procure evidence through unlawful means – even where such evidence is admitted.

These cases show that although the courts usually permit deployment of such evidence if relevant to the primary case, there can be other consequences for the party who obtained it by improper means. There is a tension between admitting such material into evidence, and the problems that can arise when the material is found to be confidential.

Bourlakova v Bourlakov 

The Claimants had used private investigators (PIs) to obtain information for use in support of an on notice application for freezing injunctions against various Defendants (the Injunction Application) which was to be heard on 21 and 22 February 2024. The Claimants’ evidence in support of the Injunction Application included a solicitor’s affidavit to which a report prepared by the PIs was appended (the Report). The affidavit also referred to material provided to the solicitors by the PIs as being potentially privileged and which had been subject to privilege review by independent counsel. The Report itself exhibited various documents which were said to evidence a risk of dissipation of assets. The Defendants served evidence in response to the Injunction Application demonstrating that much (though not all) of this evidence was forged. The Claimants therefore said that they would not rely on the Report but that there was still sufficient evidence of risk of dissipation to support the Injunction Application. However, in the event, the hearing of the Injunction Application was adjourned.

Parties should beware when gathering evidence and ensure that they know what is being done on their behalf. Where reliance is placed on evidence acquired in circumstances that may engage the privacy rights of others, the procedural and legal ramifications could be serious.

FULL ARTICLE: https://www.macfarlanes.com/what-we-think/102eli5/the-risks-of-relying-on-unlawfully-obtained-evidence-102jb5f/

Posted by: Ian (D.Withers)

www.WAPI.org