Case law: Court rules secret recording can be used in evidence, but advises caution

Parties to a dispute wishing to secretly record conversations, or obtain covert CCTV footage, should take legal advice on the potential problems in using such recordings, or risk them being inadmissible as evidence in court. The High Court has ruled they must be approached with caution.

A party to a shareholder dispute secretly recorded conversations between him and his business partners. He sought to rely on these recordings in court to support his claim. No-one else had been present during these conversations, and the parties' evidence in court was otherwise contradictory. The other party argued the recordings were inadmissible.

The High Court disagreed, and David Cooke J stated in his ruling: "It is true to say that these must be approached with some caution, as there is always a risk that where one party knows a conversation is being recorded but the other does not the content may be manipulated with a view to drawing the party who is unaware into some statement that can be taken out of context. But there can be great value in what is said in such circumstances, where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them."

However, there are a number of legal issues associated with secret recordings in potential disputes, which may mean they are inadmissible as evidence, or otherwise carry an adverse consequence. Relevant issues include:

• recording someone secretly may breach their human rights;
• secret recordings are sometimes allowed as evidence, but the party who made the recordings is penalised when the court is deciding who pays which legal costs;
• the party being secretly recorded might sue for breach of confidentiality;
• the recording may breach the other party's data protection rights (there is specific guidance in the Information Commissioner's Employment Practices Data Protection Code and CCTV code of practice);
• a recording of an employee may be a breach of the duty of mutual trust and confidence.

Recommendations

• Parties to a dispute, whether with employees or third parties, who wish to secretly record conversations or obtain covert CCTV footage should take legal advice on the potential problems in using the recordings, or risk them being inadmissible as evidence in court

Case ref: Singh v Singh and Ors [2016] EWHC 1432

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.