In Mustard v Flower the claimant was encouraged by her solicitor to record her examinations by the defendant’s medical experts. The judge allowed her to rely on this evidence to challenge two experts’ reports, accepting that “covert recording has become a fact of professional life”. In Gorbachev v Guriev a challenge to purported personal service of a claim form was resolved by detailed consideration of video evidence from two process servers’ phones and a report from an audio-visual forensic expert. The defendant had been served.
Recordings, whether secret or open, are likely to be the best evidence of what happened. Witness evidence is already under threat because of “the frailties of human recollection”, as the judge put it in Gorbachev. The seminal Gestmin v Credit Suisse decision explaining why even honest witness evidence is so unreliable has led to scepticism about the value of witness evidence in cases where contemporary documents exist.
The witness evidence working group led by Popplewell J has completed its report for the Business & Property Courts and we’re waiting for the promised authoritative statement of best practice to be published. The scope of the 2018 consultation survey would suggest, however, that the working group has not been focusing on the potential effect of increasingly available audio and video evidence.
Various legal and practical questions are prompted by these recent cases. Some are easier to answer than others – this is only the beginning of a conversation that should be led by those shaping our future civil justice system. These issues have been debated for many years in family, employment and personal injury cases but guidance in commercial cases is thin on the ground.
What is the status of audio and video recordings?
They are documents and may have to be disclosed to other parties, subject of course to questions of relevance, probative value and privilege. Practice Direction 51U sets out the rules of the Disclosure Pilot Scheme in the Business & Property Courts. Paragraph 2.5 states that “A “document” may take any form including but not limited to paper or electronic; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings.”
Does the fact that a recording is made secretly affect its admissibility?
In theory, yes, but in practice the courts tend to allow covert recordings to be relied on as evidence. Jones v University of Warwick is a good illustration. The Court of Appeal allowed the defendant to rely on video evidence obtained by an enquiry agent who had posed as a market researcher in order to film the claimant within her house. The court held that even though the evidence had been obtained unlawfully – by trespassing and breaching the claimant’s Article 8 right to privacy - this was not sufficiently outrageous conduct to require the defence to be struck out. That being the case, since the evidence was relevant and admissible, it would be artificial and undesirable for it to be excluded. The court could impose costs sanctions to reflect its disapproval of the way in which the defendant had obtained the evidence.
What other factors affect admissibility?
Where the party makes the secret recording and is present at the time, the courts tend to accept the recording as a legitimate personal record of a meeting even though the practice is described in the case law as being distasteful, reprehensible, or otherwise unattractive. The position is likely to be different if the party leaves the room but continues to record the discussion that follows their departure.
The recording of the governors’ deliberations in disciplinary proceedings after the claimant had left the room was excluded from evidence in Amwell View School Governors v Dogherty. However, a recording of private (and outrageous) comments made during a break in a grievance hearing was admitted in Punjab National Bank v Gosain. The fact that the claimant in Mustard v Flower recorded the material part of her neuropsychological assessment by mistake – she accidentally failed to stop the recording at the point agreed with the expert – was material to the decision to admit the evidence.
Are audio and video recordings privileged?
Video surveillance of personal injury claimants is accepted to be protected by litigation privilege and its existence does not have to be referred to when giving disclosure under CPR 31 since that would alert a fraudulent claimant and enable them to change their evidence (see Douglas v O’Neill). Issues in injury cases tend to concern the timing of disclosure to the claimant – if the claimant is ambushed by disclosure just before the trial, the court may decide to exclude the evidence.
In personal injury cases, the defendant claims privilege over the secret video footage to justify delaying its disclosure until after they have seen the claimant’s witness statement. In other circumstances, a party may find out about a secret recording, or suspect that one has been made, and want to gain access to it. This occurred in the RBS interest rate swaps litigation where secret recordings had been made by the claimants of staged meetings with two ex-RBS employees who thought they were meeting to discuss future business (Property Alliance Group v Royal Bank of Scotland). The claimants did not get the evidence they were hoping for but subsequently inadvertently revealed the existence of the recordings.
Birss J held that the recordings were not to be protected by litigation privilege and so had to be disclosed – he makes no mention of Douglas v O’Neill in his judgment and the approach taken in personal injury cases. Given that both parties to the conversations had different purposes in being there, the judge concluded that it was impossible to say that the dominant purpose was the litigation. The fact that the claimants acquired the evidence by deception was also material.
Where do we go from here?
Mustard v Flower and Gorbachev v Guriev illustrate the practical complexities and the cost of reviewing audio and video recordings, as well as the consequent cost of arguing about them. There may be issues concerning the accuracy of transcriptions, completeness of the recording(s) and collateral recording of third parties, such as those in the experts’ waiting rooms in Mustard. This evidence requires the involvement of specialists and potentially audio-visual forensic experts as was the case in Gorbachev. There is also potential for manipulation of the data: anyone who saw the recent BBC drama The Capture will never trust CCTV footage again.
At a time when every effort is being put into reducing the costs of civil litigation, the routine availability of smartphone and other audio and video recordings seems likely to increase costs in many cases. This will add to the escalation of disclosure costs caused by the exponential increase in the volume of electronic data. The Disclosure Pilot Scheme is intended to reduce disclosure costs but since it frontloads the disclosure process, it tends to increase costs in those cases which settle soon after the first case management conference.
And finally, we should also consider how this potential source of evidence affects the conduct of solicitors, in-house lawyers and other professionals. If covert recording is generally lawful, as the case law confirms, should professionals advise their clients and colleagues to record potentially sensitive meetings? Following Mustard v Flower, a personal injury claimant might now complain that their solicitor failed to advise them to record an expert examination. There is also the question of whether professionals should record their own meetings. Secretly recording your client is likely to be unethical – Donald Trump’s 2018 tweet “what kind of lawyer would tape a client?” comes to mind – but there could be circumstances in which it is justified.