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). Thisconcerned 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.
The Defendants turned their focus to the manner in which the materials for the Report had been obtained. An urgent application was made by one of the Defendants seeking information and delivery up of the material privileged to him. That application was adjourned on provision by the Claimants of certain information together with the provision of the potentially privileged materials.
The Defendants made a further application for: (i) delivery up and destruction of the Defendants' confidential information, (ii) an order that the PIs must do the same, (iii) a prohibition on use of the information, (iv) termination of the PIs' instruction, (v) full details as to the use and dissemination of the information by the Claimants' legal team, and (vi) related disclosure (the Confidentiality Applications). The Confidentiality Applications also sought various declarations including as to the use of unlawful means by the PIs in obtaining the Defendants' confidential information and the absence of any privilege in documents instructing the PIs or created in furtherance of its investigations or the use of the Defendants confidential information. These were listed to be heard along with the restored Injunction Application on 26 and 27 March 2024 (pursuant to which the Claimants had confirmed in further evidence on 19 March 2024 that they were not relying on the Report and were no longer seeking asset freezing relief against the Defendants, but were instead seeking proprietary injunctive relief against newly joined corporate defendants).
During evidence gathering and preparations for the Confidentiality Applications, it came to light that the Claimants' solicitors had been aware since August 2023 that the PIs had obtained potentially privileged documents belonging to the Defendants. The Claimants' solicitors said they had sent these for review by independent counsel (although a small number had been shared directly by the PIs with the Claimants' solicitors, who quarantined these on discovering that fact).
Despite the extensive amounts of material thought to have been forged, the privileged documents were said to be genuine, as were some of the other documents appended to the Report. As such, the Defendants believed the PIs had accessed their genuine confidential information, including their email accounts, mostly likely explained by hacking or phishing over a prolonged period. The judgment notes that it remained unclear what other confidential material the PIs may have obtained, with the Report stating investigations began in 2020 and some documents having been obtained in 2021 and 2022.
It was further revealed in solicitors' correspondence the day before the restored hearing that a second firm of PIs had been engaged and had carried out surveillance, as part of which they had covertly recorded a meeting between of one of the Defendants, his daughter, his lawyer and two investigators (without the knowledge or consent of their instructing solicitors). A transcript of that meeting, which was highly likely to attract privilege, was inadvertently shared with the instructing solicitors (who confirmed that they deleted it without opening it, realising what it was).
At the hearing, the Defendants sought and were granted the further adjournment of the Injunction Application. The Court found that there was no prejudice to the Claimants in adjourning the Injunction Application until the position in respect of the Defendants' confidential and privileged information had been clarified (with the Claimants themselves recognising that such clarity was needed).
As to the Confidentiality Applications, the Court was willing to grant some of the relief sought to allow the Defendants better transparency as to what had occurred. This was fairly said by the Defendants to bolster their opposition to the eventual Injunction Application, including in relation to delay and "clean hands". However, while the Court noted the seriousness of the Defendants' allegations as to the acquisition of their confidential information, it also noted that there was not yet a pleaded case particularising the wrongs alleged by the Defendants, and that some of the relief sought by the Defendants may be better directed against the PIs rather than against the Claimants.
As such, the Court considered that its present focus should be on maintaining the integrity of the instant proceedings (which concerned the Claimants' claims against the Defendants for fraud and misappropriation of assets).
The Court emphasised at several points that the Defendants should give thought to the best vehicle for any other relief they might seek, and said that this was "more than a matter of form or procedure". The Court left the door open for subsequent claims to be made by the Defendants in relation to the matter.
The Court also held that there was no reason why the Claimants' Injunction Application, if still pursued, could not be resurrected after compliance with the confidentiality order. However, it is significant that the Claimants had already agreed that they would no longer rely on the Report and would not pursue asset freezing relief against the individual defendants and instead sought only proprietary relief restraining certain share and asset disposals from newly added corporate defendants. Leaving aside the risk of further claims against the Claimants and the PIs, the way in which events transpired in this case had a substantial impact on the strategy which the Claimants were seeking to pursue through the Injunction Application as against the Defendants.
FKJ
In FKJ v RVT, the Defendant had relied upon personal WhatsApp messages obtained from the work laptop of the Claimant (his former employee), and additionally through two alleged anonymous deliveries, in successfully resisting the Claimant's claims for sex discrimination in the Employment Tribunal. Having initially indicated she would seek to have the evidence excluded in the Employment Tribunal claim, the Claimant chose not to. Instead, the Claimant sought to enforce her rights in a separate claim for misuse of private information in the High Court. By reference to the decision not to seek the exclusion of the evidence, the Court commented that "As has often been observed, English courts tend to admit relevant evidence - even when improperly obtained or procured".
The Defendant, the head of the law firm at which the Claimant had been employed, counterclaimed for malicious prosecution, harassment and abuse of process, and sought reverse summary judgment on the counterclaims. The Defendant also pursued strike out of the claim on the basis that it constituted a Jameel abuse (a claim that would yield no tangible or legitimate benefit to the Claimant), a Henderson abuse (a claim she could and should have brought as part of earlier proceedings) and an abuse of the restriction on collateral use of documents disclosed in civil proceedings, under CPR 31.22. These arguments were roundly rejected by Master Davison who noted the previous judgment of Master Fontaine who said that the Claimant's claim appeared to represent "a very serious breach of her private information". Master Davison also recognised that the Claimant's claim could yield an award of many thousands of pounds.
Even if evidence which is illegally obtained is admitted in proceedings, that does not protect against subsequent claims related to the wrong.
Comment
These judgments do not suggest any displacement of the general trend that improperly obtained evidence will nonetheless be admissible in Court if relevant to the issues in dispute. Both considered the case of Imerman v Tchenhuiz and ors [2010] EWCA Civ 608 which provides authority for an injunction to be granted to prevent a party from accessing and using confidential information obtained wrongfully. However, it is a highly fact sensitive matter which requires any relief to be proportionate and sensible and in these cases that route was not followed.
However, these cases do demonstrate that a party obtaining and deploying such evidence could be vulnerable to claims for breach of confidence or misuse of private information if the evidence they have obtained comprised confidential materials. In FKJ such a claim was brought, and far from striking it out, the Court suggested that it was extremely likely to succeed. In Bourlakova, once it came to light that confidential and privileged materials had been improperly obtained, not only was a freezing injunction application effectively derailed, but the judgment made clear that the Claimants, and their PIs, left themselves open to risk of a claim for breach of confidence.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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