A question of purpose and the public interest: the dividing line between how evidence is obtained and when it may be admitted
There is no rule in English law that evidence obtained illicitly or improperly is automatically rendered inadmissible. Instead, the court has a general power under CPR 32.1 to control evidence. This discretion extends to excluding evidence that would otherwise be admissible. When examining the issue in Jones v University of Warwick  EWCA Civ 151, the Court of Appeal provided guidance:
- The court must seek to give effect to the conflicting public interests involved in establishing the true position of a case versus discouraging illicit conduct in obtaining evidence.
- The weight attached to each of these interests will vary according to the circumstances.
- The court can mark its disapproval in other ways, most obviously through an adverse costs order.
The recent case of Prinse v Landmasters (Overseas) Ltd and others  EWHC 281 (Ch) illustrates this balancing exercise in action. The court had to weigh up (1) whether to admit evidence around which there were serious questions as to whether it had been obtained improperly or not, and (2) enforcing the terms of a consent order, the breach of which had come to light (and been acknowledged) as a result of this evidence.
In reaching its decision, the court placed weight on the purpose for which the evidence was deployed, namely the enforcement of a court order, and the public interest that the court has in seeing that its orders are enforced. While fully acknowledging that the court should not be seen to be condoning unacceptable practices, the court held that the balance on this occasion came down in favour of admitting the evidence.
Proceedings had been compromised by way of a consent order. Among other things, the order provided that the claimant and defendants were not to transfer or assign any property of the first and second defendant to themselves or to any company owned in part by them. The claimant submitted evidence to the court, including bank statements relating to the accounts of the second defendant and the fourth defendant’s joint account with his wife, which showed that the second defendant (through the third and fourth defendants) had paid £25,000 to the fourth defendant’s company in breach of the consent order.
The claimant applied for a declaration that the third and fourth defendants had breached the consent order and that they should repay the sum. In response, the third and fourth defendants submitted that the bank statements had been unlawfully obtained and reliance on them breached the principles of confidentiality.
Obtaining the bank statements
The defendants had been pressing for an explanation as to how the bank statements had been obtained for several months. Initially, counsel for the claimant indicated to the court that he did not have any instructions on the matter. Later in the hearing, counsel indicated, on instructions, that the bank statements had been obtained after the claimant had spoken to the relevant bank, which had freely provided the statements to him. When the court queried how this could have happened, particularly in relation to personal bank statements relating to a joint account apparently not only held by the fourth defendant but also his wife, the claimant’s explanation was that he had been accompanied by his grandfather (the father of the fourth defendant) who had asked the bank for the statements.
The court noted that the explanation provided by the claimant was not formally in evidence. It made it a condition of its order (requiring the return of the £25,000) that the explanation be set out in a witness statement verified by a statement of truth.
In the court’s view, there were clearly still issues around whether the bank statements were properly obtained and the lawfulness of that exercise. In particular, it observed that it would be surprising that a reputable clearing bank would be prepared to hand over bank statements merely on the say-so of the father of one of two personal account holders. Notwithstanding this, and even if it was to be assumed that the bank statements had been obtained unlawfully, the court did not consider it was appropriate to exercise its power to rule them inadmissible.
Ultimately the question whether the bank statements, which were clearly admissible in evidence (given their relevance), should be excluded as inadmissible involved the court in exercising its discretionary procedural and case management powers in accordance with the overriding objective of dealing with the case justly and at proportionate cost, bearing in mind the need to ensure that parties were on equal footing and that the application was dealt with fairly. In applying this test to the instant case:
- If the bank statements were necessary to enable the claimant to identify and articulate the breach, which was now admitted, then, clearly, he was on an unequal footing in relation to the defendants, who knew all about what had happened.
- The reason why reliance was placed on the bank statements was to identify and establish a breach of a court order.
- There was a clear public interest in such matters being placed before the court, which had a clear interest in ensuring that its orders are observed. That also was an outward-facing matter of public interest that had resonance in cases other than the instant case.
The defendants argued that the claimant was effectively relying upon its own inequitable conduct in asserting relief. However, the court observed that it could equally be said that the defendants would be seeking to avoid their own breach of a court order in seeking to exclude evidence of such breach in reliance on those bank statements. In this case, there would be an element of each side seeking to come to court with not entirely clean hands. Therefore, even if the court were to accept that the bank statements had been improperly obtained, it would not, for that reason, refuse to admit them in evidence in support of what was an admitted breach of a court order.
LIDW21: A view from London and India - How dispute avoidance can keep construction and infrastructure plans on track
Join us as we discuss the challenges of the possible rise in disputes in the construction and infrastructure sector in India
The Lawyer, New Law Journal, International Adviser, CDR Magazine and eprivateclient report on the firm's partner promotions
Charles Russell Speechlys promoted five lawyers to partner, effective 1 May 2021.
Recent Trends In Firewall Legislation: BVI, Bermuda And Gibraltar
Charles Russell Speechlys promotes five to Partner
The promotions are effective 1 May 2021 and are accompanied by one Legal Director and 15 Senior Associate promotions.
ICC 2021 Rules
The ICC has recently updated its rules for arbitration: the new rules entered into force on 1 January 2021 (the “2021 Rules”).
The Lugano convention – the journey continues
The UK’s departure from the European Union has had the effect of leaving the UK outside of the Lugano Convention of 2007.
Adding claimants pre-service and amending outside the limitation period: pitfalls for the unwary
Sonia looks at a recent High Court judgment and its important guidance on the ability of claimants to be added to a claim before service
Joe Edwards, Simon Heatley and Lauren Kelly write for Practical Law on damages-based agreements
Law firms entering damages-based agreements face a catch-22.
Damages-based agreements: an island of clarity in changing seas
Simon, Joe and Lauren look at a recent judgment which is a welcome island of clarity in the damages-based agreement sea of uncertainty.
Patrick Gearon FCIArb
Insolvency Legislation in the GCC
The interesting times of the last 14 months were preceded by the interesting times of the financial crisis of 2008/2009.
Guidance where Domestic Abuse alleged
Rhys Novak quoted by Citywealth on the ways companies can combat potential issues of fraud
Is fraud on the rise and should investors be wary?
Bribery & Corruption team successfully act in Italian bribery prosecution
Helen Coward, Hugh Gunson and Guy Bud write for Tax Journal on remuneration arrangements in partnerships with mixed membership
Odey Asset Management LLP and HFFX LLP consider the law relating to remuneration arrangements in partnerships with mixed membership.
Mind the gap? Enforcing transition-period UK judgments in Switzerland revisited
A decision on an application to apply the Lugano Convention after the end of the UK’s transition period.
The rise of cost sanctions in family law proceedings (even against successful parties!)
CIS General Insurance Limited v IBM United Kingdom Limited - An analysis
Slow and chaotic – lessons from a digital transformation disaster in CIS General Insurance Limited v IBM United Kingdom Limited.
Stewart Hey featured in The Lawyer's reporting on the post-Brexit disputes landscape in the UK
Post-Brexit, the importance of making sure contracts have certainty with regards to jurisdiction and enforcement has never been greater.
Ghassan El Daye
Ghassan El Daye quoted by The National on the Dubai courts rejection of Dh1.3m rent refund claim
A convenience shop in Dubai lost its claim to a rent refund of Dh1.3 million from its landlord on grounds of lost revenue during lockdown.
Warranties on an indemnity basis: a question of damages
John and Simon take an in-depth look at warranties on an indemnity basis