In the recent case of Singh v Singh and Ors  EWHC 1432(Ch) the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. The claimant relied on recordings of meetings he had with the first defendant in private to prove that he was a co-owner of two businesses which he and the first defendant had set up together. No one else had been party to their discussions about ownership of those businesses and the evidence of the witnesses was contradictory.
The judge noted that caution should be exercised in relying on recordings 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. Nevertheless, the judge recognised that 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.
Admissibility of covert recordings
There is no rule under English law that specifically prohibits commercial parties from covertly recording face-to-face meetings. However, issues may arise when the party wishes to use a covert recording as evidence in court.
Audio or video recordings of meetings constitute hearsay evidence, i.e. statements made otherwise than while giving oral evidence in the course of the proceedings. Such evidence is admissible, provided safeguards in sections 2 to 4 of the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules (“CPR”) are complied with. These safeguards include a requirement to serve a notice of the intention to adduce hearsay evidence on the other party in the proceedings, along with details which may be reasonably required by the other party in order to deal with the fact that the evidence is hearsay. The other party has, in these circumstances, the power to call the person who made the statement in hearsay evidence for cross-examination.
In civil proceedings, the court does not have a specific power to exclude evidence on the ground that it was improperly or unlawfully obtained. However, the court has discretion to exclude evidence in order to achieve the overriding objective of ensuring cases are dealt with justly and at proportionate cost. Dealing with cases justly includes ensuring that the parties are on an equal footing and that the case is dealt with fairly and expeditiously.
Risks associated with covert recordings
- Human Rights: Admissibility of covert recordings may be affected by the application of the European Convention on Human Rights ("ECHR") as implemented by the Human Rights Act 1998 (“HRA”). Under the HRA, a Court, as a public authority, may not act in a way which is incompatible with the rights enshrined in the ECHR. In particular, the right to a fair trial (Article 6 ECHR) and the right to private and family life (Article 8) will be relevant. In relation to Article 8 rights, the court will first assess whether Article 8 is engaged, i.e. whether the person had a reasonable expectation of privacy (for example, this might be the case in the context of an employee’s disciplinary hearing). The Article 8 right is not absolute – interference with an individual’s right to privacy may be justified, if it was proportionate and in accordance with the law, for example in order to prevent a crime. In addition, the fact that a recording interferes with Article 8 rights will not automatically mean that the individual’s right to a fair trial is engaged – it might still be possible to conduct a fair trial of the issues at hand. The court will balance the probative value of the evidence in question against the nature and extent of activity which had infringed the right to privacy.
- Costs consequences: Even though the Court of Appeal has in the past admitted covert video recordings obtained by trespass, it has also penalised the party producing the recording in evidence in costs in order to deter improper conduct.
- Derivative civil actions: The individual, who has been recorded, may separately sue the recorder for the wrong committed in the course of obtaining evidence (such as breach of confidentiality).
- Data protection: There is a risk that a recording of a face-to-face meeting or a telephone conversation will contain “personal data”. Its collection and processing would then be subject to the Data Protection Act 1998 (“DPA”). The Information Commissioner’s Employment Practices Data Protection Code gives specific guidance on covert monitoring in the workplace and recommends its use only in exceptional circumstances, whilst the Information Commissioner’s CCTV code of practice provides guidance on the use of surveillance cameras.
- Offences under the Regulation of Investigatory Powers Act 2000: Interception of communications without authorisation is a criminal offence and may also be a tort. However, an individual recording a telephone call on a separate device held next to a telephone receiver falls outside the definition of “interception”, as does the recording of a conversation by one party to the communication, i.e. participant monitoring, although the latter might amount to surveillance, which may require prior authorisation. Businesses may avail themselves of the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations, which allows interception of business communications without consent of the parties involved in order to prevent or detect crime, provided certain conditions are met.
- Employment law issues: Recording of employees may trigger breach of the duty of mutual trust and confidence.
Recording commercial meetings without the other participant’s consent can be useful evidence in a dispute and despite the risks associated with such recordings, from an evidence standpoint, the English court appears to be willing to admit such recordings as evidence. However, parties need to be alive to the fact that recordings can be taken out of context. Where a party seeks to rely on a recording of a meeting as evidence in the proceedings, the other parties to the action should consider requiring disclosure of the entire recording, together with information on the context in which the recording was taken.