Consolidated Contractors International Co SAL v Masri – use of enquiry agents  EWCA Civ 21 www.bailii.org/ew/cases/EWCA/Civ/2011/21.html
In the latest development in this hard-fought litigation arising out of a dispute concerning an oil concession in Yemen, the Court of Appeal reviewed the position regarding evidence obtained by enquiry agents.
Four years ago the claimant, Mr Masri, obtained a judgment in the Commercial Court against the defendants for US$75 million. The defendants have not paid any part of the judgment despite acknowledging that they have resources of great magnitude, and the claimant brought proceedings for contempt against them arising out of alleged breaches of court orders connected with the enforcement process. Enquiry agents were instructed on behalf of the claimant to obtain information to help the claimant to enforce the judgment debt.
The enquiry agents searched for documents which had been discarded by the defendants as rubbish on the pavement outside their London offices. Where they identified documents which might be relevant, they made copies of those documents and returned the originals to the refuse sacks outside the offices. They confirmed to the claimant’s solicitor (as reported in his affidavit) that they had used these methods of obtaining documents on several previous occasions and that their conduct had not been criticised by the court.
In October 2010, David Steel J held a case management conference in relation to the committal application in which the defendant made various applications for disclosure of documents held by the claimant. Some of the applications were for documents which had been obtained by enquiry agents. The defendants argued that the evidence obtained by enquiry agents had been obtained improperly, as a result of trespass, theft or other unlawful conduct. The judge refused to order any disclosure. He concluded that in relation to the evidence obtained by enquiry agents, the defendants had not made out a case of unlawful and improper conduct, but that even if they had, the prospects of excluding the evidence would have been wholly remote. The defendants appealed.
The Court of Appeal allowed the appeal in relation to one aspect of disclosure only, namely the source of the information concerning the enquiry agents' activities contained in the claimant’s solicitor’s affidavit. The name of the enquiry agents who employed the source of the information should also have been given but, save for the source, the individuals who carried out the work did not have to be named.
Obtaining evidence where a party is faced with an unscrupulous claim or defence can be tricky. This can arise in personal injury claims where the claimant is suspected of exaggerating their symptoms (as in Jones v Warwick University) or in divorce proceedings where the husband is suspected of failing to make full disclosure of his finances (as in Tchenguiz Imerman v Imerman). The court will not condone unlawful behaviour but it may still admit the evidence whilst penalising the wrongdoing party in costs.
In the present case, copying documents found in rubbish was thought by David Steel J not to give rise to a prima facie case of unlawfulness. The Court of Appeal agreed with him. Where a prima facie case of unlawfulness is made out, the evidence will still be admissible unless the court takes the view that in all the circumstances including the conduct of the party that has obtained it, it is just to exclude it. This is ultimately a case management decision for the judge.
In the recent decision in Walsh v Singh (www.bailii.org/ew/cases/EWCA/Civ/2011/80.html) Mr Singh had used spyware on a laptop used by Miss Walsh. They had lived together for eight years and had been engaged but ended up in court fighting over items of property such as the engagement ring and interests in property. Counsel for Mr Singh had sought to cross-examine Miss Walsh on privileged material obtained from her laptop in order to belittle and discredit her at the trial. After the trial the judge refused to order Miss Walsh to pay Mr Singh’s costs from the relevant date after the latter’s successful Part 36 offer because of his disgraceful behaviour concerning this spyware, his unjustified attempts to portray her as mentally unstable and his conduct of the trial. This decision was upheld on appeal.