“(a) Emails to and from Len Durham, a South African lawyer who advises me in relation to tax, legal and commercial matters, and documents prepared for the purposes of such advice. Much of this is subject to legal professional privilege; (b) Emails to and from my financial advisers; (c) Records concerning the business dealings of my family’s trusts, including trusts of which I am not a beneficiary; (d) Correspondence with banks and other bank documentation; (e) A number of financial ledgers and statements, including my personal financial statements, the financial statements of my companies and of family trusts; (f) Documents relating to my UK tax affairs; (g) Documents recording transfers and loans to and from me; (h) Draft reports of a commercially sensitive nature; (i) Records of my bank transactions; (j) Credit card statements for myself and my adult daughters.”
“All matters arising from or in connection with the intended marriage and this contract including but without any limitation whatsoever its interpretation, validity, existence or termination shall be determined in accordance with the laws as at the date of signing hereof of the Republic of South Africa.”
“The computer system contained many thousands of documents and emails created and/or sent and/or received by me and/or by my staff on my behalf or on behalf of my companies or family trusts, including communications with legal advisers such as my solicitors and Len Durham, a South African lawyer who provides extensive legal advice to me, and documents prepared for the purposes of obtaining legal advice. In addition, the computer system contained much material of a commercially and/or financially sensitive nature. Further, the computer system contained a great deal of personal and some medical information concerning both myself and my staff.”
“It seems clear that steps were taken by and on behalf of your client to attempt to protect his interests in the event of divorce in the early part of 2007.”
“My client, of course, accepts that your client is perfectly entitled to look at the Land Registry or other public registers or records, but it is surprising that your client has information in relation to the trusts. Can you please explain the position and confirm, once again, that your client or her family are not either in possession of Hildebrand documents you should disclose or in the process of obtaining any such documents or information. Please specifically confirm that your client and her family have not sought to access my client’s records or those of his staff and/or assistants whether on a computer or stored in any other way, and have not sought to intercept telephone or other discussions.”
“Since your letter of 23January my client, through a delivery to this firm, has been provided with copy documents, further copies of each I enclose. Neither my client nor ourselves have ever had any of the originals of these documents and I am therefore writing to you in this way without conceding that they constitute Hildebrand material. Neither my client nor we are in possession of any further Hildebrand material nor in the process of obtaining such. For the sake of clarity I confirm that my client has not instigated any search leading to the material that is the subject of this letter.”
“[The Wife] did not commission, nor did she participate in, the process by which the third party who obtained these documents did so. The same applies to this firm. My client and I reject your assertion that the action by which they were so obtained was illegal … I have already supplied you with the entirety of the documents with which we have been provided and I am therefore entirely confident that we have complied with the well established principles in Hildebrand cases.”
“I write substantively in relation to this matter. You are invited once more to reply to my letter dated26 February 2009 . The onus is upon you and your client to give a full and truthful account as to what has happened. I regard this matter as extremely serious.”
“It now appears that you have held documents in your office since the 3February 2009 without informing us and without taking any appropriate steps, and it was not until the 18February that you sent them to me. You have refused to provide a full account of the circumstances in which the documents arrived in your office which I asked for in my letter of the 26February. Quite frankly, it beggars belief that your client has had no involvement in the obtaining of these documents. An analysis of the files is ongoing, but it is our case that the files you have sent to us contain privileged information. You have no right whatsoever to retain these files or any copies of them or any paperwork derived from them including any index or catalogue of the documents. Please provide us by return the names of all those in your firm or outside your firm, including counsel, who have read these documents. Please let us know how many copies have been made, and to whom they have been sent. Please also confirm immediately upon receipt of this letter that no further reading of these files will take place. We invite you to return the files to us and any copies in their entirety today, together with any and all notes or other documents created by you or by counsel which have been based upon the Hildebrand documents, on the basis that our firm will undertake to keep the files and documents in our offices pending any application you wish to make in relation to the contents of those files. You have provided no justification whatsoever for the retention of them, and we expect to receive the files this afternoon. If not, litigation will immediately follow.”
“The information contained in my letter of the 22January was given to me by my client. She informs me that she made notes of what her brother Robert told her verbally but did not receive any documents, merely the information in question. This was after your letter of the 15January denying that your client had any interest in various valuable properties we had listed and which my client knew your client had had interests in. It was ludicrous for your client to instruct you to deny any interest in them and expect my client to accept that assertion.”
“… formed a view that it was appropriate and necessary to obtain the documents that are the subject of the separate proceedings in order to protect my client’s interests given the position taken by your client in your correspondence to me which my client had shown Robert. When she became aware that he had obtained the documents in question, she took advice from myself and from counsel … I am afraid I do not accept that the material in this office, all of which has been copied to you, and which may or may not technically be Hildebrand documents, should be treated any differently from how the authorities require Hildebrand documents to be treated and I consider that we have complied with all our obligations in those respects and that it is not appropriate to be providing you with answers to your further queries.”
“Of course my client is aware that the material held here is confidential to the proceedings and will be provided only to such third parties as are instructed to advise her in connection with these proceedings.” “Of course my client is aware that the material held here is confidential to the proceedings and will be provided only to such third parties as are instructed to advise her in connection with these proceedings.”
“The documentation sent under cover of your letter of 5March is largely privileged and a significant proportion of the documentation you have previously sent is probably privileged. It is clear from the Queen's Bench Division proceedings that the question of privilege has been tested unilaterally by Mr. Zaiwalla and his counsel, Mr. Wolanski. We do not accept their analysis.”
“… the proper user of any of the Confidential Information referred to in [(a), or (b)] for the purpose of conducting the Defendants’ defence of this action.”
“… more problematic, [namely] (a) that, by reason of the particular arrangements entered into the First Defendant [the wife’s brother, Robert] was entitled to access all the material and (b) that, in any event, there would be an overriding public interest that the information be retained, even now, and made available for the purposes of the administration of justice and/or the protection of the [wife’s] financial interests and Article 6 rights and, in particular, to equality of arms in the conduct of her matrimonial dispute. There may be something of an irony about this argument … in circumstances where there is no way that any of the Defendants could have obtained access to the Claimant’s material by means of a court order. As Mr. White pointed out, court orders are available in appropriate circumstances for the preservation of evidence, and sometimes the carrying out of a search. That being so, it is hard to see how any infringement of the claimant’s Article 8 rights could be categorised as proportionate or necessary when no such steps have been taken on behalf of his wife. As a matter of fact, such orders are far from common and would only be made as a matter of last resort on the basis of strong evidence that a spouse has failed to give truthful disclosure.”
“First, since the First Defendant (at least) took the equivalent of thousands of documents, it is hardly reasonable to expect the Claimant to identify all the material which he says is subject to legal professional privilege. He relies upon first instance authority as support for the proposition that the burden lies on the Defendants to return the mixed bag …”
“Mr. Howard submits that the substantive part of his application which falls for determination in October would be rendered nugatory, or substantially diminished, if the wife and her legal representatives were to be permitted to read the seven files and/or to deploy the information contained within it for the purposes of the October hearing. He submits that this would significantly undermine the very issue being determined at that hearing, namely whether the wife can make any use at all of the material or whether the documents should be returned without any use being made of them either at that hearing or subsequently. He argues that there is, or should be, a clear line to the effect that no party can make use of improperly obtained material.”
“… the wife’s legal representatives should be entitled to go through all the documents in order to be able to argue at the October hearing (a) whether and if so which are relevant; and (b) whether and if so which might be privileged or might not be privileged. He accepts … that a party is entitled to assert privilege, but appears to be submitting that the other party’s legal representatives are themselves to look at the documents to see whether privilege is proper claimed. This seems to me a rather startling proposition. Nevertheless, Mr. Turner submits … that the wife’s legal representatives should be able to go through all of the documents to be able to argue whether they are (a) relevant; and (b) privileged. He submits that all members of the wife’s legal team should be able to look at the documents for the purposes of conducting the defence of the application to be determined in October. He asks why the proviso which was considered to be appropriate for the defence in the Queen's Bench Division proceedings should not also be considered to be appropriate for him and the wife, or for the wife in the Family Division proceedings. So, he submits, that to be able properly to argue all the issues which will arise for determination at the October hearing, the wife’s legal representatives need to be able to use the documents and the information contained within the seven files.”
“In one of what became our frequent arguments along the lines of my challenging Vivian as to why he stayed in our marriage when he seemed to have so little commitment to it, I asked him what he was waiting for, and specifically whether he was waiting to sort out his money before divorcing me. His response was to the effect of: ‘I don’t need to wait, Lisa, to secure my money, I am always prepared’.”
“On many occasions over the last year or so, when sitting around the dinner table with the family, Vivian has said in a gleeful and boastful, but nevertheless serious way, that no one would ever find his money because he had hidden it so well. It seemed to me from what I learned of Lisa’s divorce proceedings, and from the sort of remarks referred to … above, that Vivian was intending to misrepresent his financial position in the matrimonial litigation, so I decided to download financial material relating to him that was held on my computer system. Only a small part of this material went to Withers … before Vivian secured injunctions preventing me from sharing with them the balance of the material. As a result, there is still information relating to Vivian’s financial resources and trust structures, and his recent activities in respect of the same, that is known to me but which has not gone to Lisa or Withers, and which I believe to be crucial to the proper determination of Lisa’s financial claims within the divorce proceedings. I would like to share that information with Lisa’s solicitors and the Family Court if permitted to do so but, at present, I am prevented from doing so.”
“It is my belief that Vivian has been arranging his financial affairs in such a way as to prevent Lisa from receiving a proper settlement on their divorce.”
“What Vivian was saying to me was reminiscent of things he has said to me on many occasions over the last year and a half. For example, he has used phrases to the effect of: ‘I'm bullet proof’: ‘my structure is bullet proof’: ‘you could never find my money’. He has also said on many occasions that his money could go quickly from one jurisdiction to another and that he can move it around the world to different jurisdictions very easily.”
“From what Vivian has been saying to me, I now know that he has been arranging his financial affairs in such a way as to try to prevent Lisa from having a proper divorce settlement. I have further information which I believe is relevant to the determination of Lisa’s financial claims ...”
“The wife would not be compelled to answer the husband’s questionnaire on the following grounds: (1) it would be an abuse of the process of the court to compel the wife to answer the husband’s questionnaire, because of the husband’s improper conduct by making surreptitious discovery of the wife’s papers as to do so would be to condone the conduct of those who acted improperly and in bad faith; (2) it was of the essence of the questionnaire procedure that the request for information was a genuine one and made by a party in ignorance of the answer. Where the request represented an attempt by the husband to obtain information as to which he was already fully or partially informed by making improper discovery of [certain documents] …it would be oppressive for the wife to answer the questionnaire in ignorance of the extent of the fund of knowledge which the husband was in a position to derive from [those documents]. That principle also applied to the interrogatory procedure.”
“The court should regard the use of all methods of discovery by a party who has taken discovery into his own hands as an abuse of its process and restrain it.”
“The original and copy documents which [the wife] had taken were discoverable documents and all those that she had in her possession at the discovery stage of the litigation should have been disclosed at that time, i.e. at the time of the delivery of her questionnaire, or earlier upon request. Those coming into her possession at a later stage should have been disclosed forthwith.”
“The Family Courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken, will be admitted in evidence because there is an overarching duty on the parties to give full and rank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.”
“Here there is no public interest in taking another’s documents: the public interest in so far as it prevails, is in the need for a fair trial of the ancillary relief claim with all relevant facts before the court and this could be achieved by resort either to the court’s search and seizure warrants or to a Hildebrand plea to admit the documents in evidence no matter how they were procured.The Matrimonial Causes Act 1973 can be invoked to justify admitting the evidence contained in the documents: but one cannot construe the Act as authorising the commission of the torts of trespass or conversion. Thus it seems to me to resort to self-help is to take a risk.”
“The deviousness of one of the parties and the need for the court to have full and frank disclosure to fulfil the court’s statutory duty will justify the admitting the documents in evidence but, subject to the possibility of de minimis infractions being overlooked for the reasons I have just discussed above, it cannot justify or excuse the commission of the wrongful interference with property. Nothing in this judgment is intended to cast doubt upon the Family Division’s practice to admit all relevant evidence in the search for truth or to impose sanctions where there has been improper conduct.”
“Ward LJ may be right to suggest … that even documents taken in breach of the Hildebrand ‘rules’ will at any rate be admitted in evidence; but, I, for my part, would not express myself so categorically.”
“… in an appropriate case there must be an authoritative adaptation of the ‘rules’ to documents in electronic form; and it will no doubt be informed in part by Tugendhat J’s decision in L v. L.”
“… a co-existence of the admissibility in the family courts of documents secretly obtained with, nevertheless, a tortious liability on the part of those who had obtained them or who shared responsibility for their having been obtained. Such a co-existence would compromise the ability of family practitioners to advise that action on the part of their clients in accordance with the Hildebrand ‘rules’ was permissible and would thus in my view disable the family courts from discharging their statutory duty in certain cases. It would be as unfortunate as it would be unnecessary for us to suggest, as does Ward LJ at [57] that to act even in accordance with the Hildebrand ‘rules’ ‘is to take a risk’, or to state, as he does at [58] that ‘at most the Hildebrand “rules”, and the extent to which they are observed or broken, may have an impact upon damages’. Indeed, as already appears, I am far from persuaded of the validity either of his suggestion or of his statement, about which we have not heard argument. The present proceedings, whether at this preliminary stage or at substantive trial, are not those in which actions within the Hildebrand “rules” fall to be tested, whether against the law of tort or otherwise. Other such proceedings may arrive in this court; in my view, if now only in the interests of legal clarity, they should do so. But, although (to be fair to Eady J) the claimant’s defence to the strike-out application was not presented to him with specificity, his appeal to us is squarely presented on the basis that his claim does not challenge actions in accordance with the Hildebrand “rules”.”
“Counsel for the plaintiffs puts his case in two ways. First, he relies on Lord Ashburton v. Payne[1913] 2 Ch.460 . He submits, and I agree, that that was not an isolated decision but is illustrative of a general rule that where A has improperly obtained possession of a document belonging to B the court will, at suit of B, order A to return the document to B and to deliver up any copies of it that A has made, and will restrain A from making any use of any such copies or of the information contained in the document.”
“… communication of that confidential and private information to her solicitors for use in the litigation could never be characterised as misuse of it.”
“… whether and, if so when, a defendant to a personal injury claim is entitled to use as evidence a video of the claimant which was obtained by filming the claimant in her home without her knowledge after the person taking the film had obtained access to the claimant’s home by deception.”
“… this court to consider two competing public interests: the interests of the public that in litigation the truth should be revealed and the interests of the public that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence.” 113. Under the heading “Squaring the Circle”
“It is not possible to reconcile in a totally satisfactory manner, the conflicting public policies which the district judge and the judge had to try and balance in this case. The approach of Judge Harris was consistent with the approach which would have been adopted in both criminal and civil proceedings prior to the coming into force of theCivil Procedure Rules and the Human Rights Act 1998 . The achieving of justice in the particular case which was before the court was then the paramount consideration for the judge trying the case. If evidence was available, the court did not concern itself with how it was obtained. While this approach will help to achieve justice in a particular case, it will do nothing to promote the observance of the law by those engaged or about to be engaged in legal proceedings. This is also a matter of real public concern. If the conduct of the insurers in this case goes uncensured there would be a significant risk that practices of this type would be encouraged. This would be highly undesirable, particularly as there will be cases in which a claimant’s privacy will be infringed and the evidence obtained will confirm that the claimant has not exaggerated the claim in any way. This could still be the result in this case. Fortunately, in both criminal and civil proceedings, courts can now adopt a less rigid approach to that adopted hitherto which gives recognition to the fact that there are conflicting public interests which have to be reconciled as far as this is possible. The approach adopted in Kuruma v The Queen[1955] AC 197 and R v Sang[1980] AC 402 and R v Khan (Sultan)[1997] AC 558 which was applied by the judge has to be modified as a result of the changes that have taken place in the law. The position in criminal proceedings is that now when evidence is wrongly obtained the court will consider whether it adversely affects the fairness of the proceedings and, if it does, may exclude the evidence … In an extreme case, the court will even consider whether there has been an abuse of process of a gravity which requires the prosecution to be brought to a halt …”
“In principle … the starting point in any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the claimant and her medical advisors upon it.”
“Potter LJ added that this does not apply if the conduct of the defendant amounts ‘to trial by ambush’. The discretion on the court is not, however, confined to cases where the defendants have failed to make proper disclosure. A judge’s responsibility today in the course of properly managing litigation requires him, when exercising his discretion in accordance with the overriding objective contained in CPR Pt 1, to consider the effect of his decision upon litigation generally. An example of the wider approach is that judges are required to ensure that a case only uses its appropriate share of the resources of the court … Proactive management of civil proceedings, which is at the heart of the Civil Procedure Rules, is not only concerned with an individual piece of litigation which is before the court, it is also concerned with litigation as a whole. So the fact that in this case the defendant’s insurers … have been responsible for the trespass involved in entering the claimant’s house and infringing her privacy contrary to article 8(1) is a relevant circumstance for the court to weigh in the balance when coming to a decision as to how it should properly exercise its discretion in making orders as to the management of the proceedings. Mr. Weir argues that unless it was necessary for the insurers to take the actions they did, the evidence must inevitably, at least in a case such as this, be held inadmissible. He submits that otherwise the court would be contravening the duty that it is under, pursuant to section 6 of the Human Rights Act, not to contravene article 8. While the court should not ignore the contravention of article 8, to adopt Mr. Weir’s approach would fail to recognise that the contravention would still remain that of the insurer’s enquiry agent and not that of the court. The court’s obligation under section 6 of the [1998 Act] is to not itself act in a way which is incompatible with a convention right … As the Strasbourg jurisprudence makes clear, the Convention does not decide what is to be the consequence of evidence being obtained in breach of article 8 …”
“While not excluding the evidence it is appropriate to make clear that the conduct of the insurers was improper and not justified. … The fact that the insurers may have been motivated by a desire to achieve what they considered would be a just result does not justify either the commission of trespass or the contravention of the claimant’s privacy which took place. We come to this conclusion irrespective of whether Mr. Weir is right in contending that in this particular case the evidence could be obtained by other means. Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes. In this appeal, we therefore propose, because the conduct of the insurers gave rise to the litigation over admissibility of the evidence which has followed upon their conduct, to order the defendants to pay the costs of these proceedings to resolve this issue before the district judge, Judge Harris and this court even though we otherwise dismiss the appeal. This is subject to Mr. Owen having an opportunity to persuade us to do otherwise. In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs.”
“In giving effect to the overriding objective, and taking into account the wider interests of the administration of justice, the court must, while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.”
“[T]he balance of justice in the period before any judgment is delivered in this action requires that the copies be held in the custody of the husband’s solicitors, pending resolution of the issues in this case. If that happens, then the husband and his solicitors will be under the obligations which any litigant in the Family Division is under, in particular the obligation to give disclosure of relevant material at the appropriate time (if the proceedings are not dismissed). Disclosable documents may in principle include documents that have been deleted from the hard drive but are still recoverable from it.”
“It is frequent in matrimonial disputes for one party (in this case the wife) to suspect that the other party is about to destroy documents, or conceal information which is, or may be, relevant to the proceedings, and to do so with a view to preventing her from obtaining from the court the financial provision to which she claims to be entitled. While the law provides for court orders to be made for the preservation and obtaining of evidence for the purpose of future legal proceedings, claimants, or potential claimants sometimes resort to measures of self-help by copying, seizing or attempting to access digital copies of documents. The other party in such a case, in this case the husband, has rights, including privacy, confidentiality and legal professional privilege, in relation to relevant documents. The rights of privacy and confidentiality (but not any right to privilege) may be overridden by the competing public interest that any trial should be conducted on full evidence where the documents are relevant. But unless a document or information is relevant to the actual or intended proceedings in question, the rights of privacy and confidentiality will not be overridden at the instance of the potential or actual claimant, here the wife. These measures of self-help therefore give rise to legal difficulties. The difficulties that measures of self-help give rise to in this context include the danger that the husband’s rights will be overridden, when they would not be overridden if the matter had been the subject of an application for a preservation or search order made to the court. Rights of confidentiality, and legal professional privilege, have long been protected by the common law. Measures of self-help could in the past involve the commission of civil wrongs, such as trespass, breach of confidence and breach of copyright. In the last 20 years or so the legal protection of information has been greatly increased. This has in large measure been in response to the development of computers and their use for word processing and sending of electronic messages. The amount of information that can be stored on a laptop is vast, and techniques for copying are quick and simple for experts. So the potential fruits of self-help are of a different order from those of former days. These developments have given rise to the question of the extent to which measures of self-help are also in breach of the criminal provisions of the law designed to protect the databases contained in digital form in computers.”
“It is illuminating to look at the form of search order set out in the practice direction toCPR Part 25 . It contains provision for the solicitors for one party to search the documents of the opposing party, effectively for the purpose of carrying out the exercise of finding what is disclosable and separating it from what is not disclosable. The form contains numerous safeguards for the party whose documents are being searched. Without them, a Court could not make a search order consistently witharticle 8 of the Convention . There is provision for the party to whom the order is directed to have an opportunity to seek legal advice and to ask the court to vary or discharge the order before it is executed. The court will normally require the appointment of a supervising solicitor, who is an independent third party. There is provision for the person whose documents are to be searched to gather together documents he believes may be incriminating or privileged. The applicant for such an order must give undertakings to the court. [89] Perhaps most important, is that it has long been recognised that such orders are extremely intrusive and should only be granted if and to the extent that they are necessary and proportionate. In Lock v. Beswick[1989] 1 WLR 1268 Hoffmann J. said: ‘Even in cases in which the plaintiff has strong evidence that an employee has taken what is undoubtedly specific confidential information, such as a list of customers, the court must employ a graduated response. To borrow a useful concept from the jurisprudence of the European Community, there must be proportionality between the perceived threat to the plaintiff’s rights and the remedy granted. The fact that there is overwhelming evidence that the defendant has behaved wrongfully in his commercial relationships does not necessarily justify an Anton Piller order. People whose commercial morality allows them to take a list of customers with whom they were in contact when employed will not necessarily disobey an order of the court requiring them to deliver it up. Not everyone who is misusing confidential information will destroy documents in the face of a court order requiring him to preserve them.’”
“[97] Thus the argument is that the wife is seeking to retain a position which she has occupied by self-help, when, on the evidence available, she could not have got herself into that position by an application to the Court, and in any case could not have got herself into that position without submitting to conditions which by law are necessary to protect the rights of the husband. This seems to me a powerful argument, which I accept. [98] So long as the laptop and all copies are preserved by other means, the wife should not be permitted to that advantage. The husband, of course, proposes that the laptop and all copies be preserved by other sufficient means, namely by his own solicitor.”
“I am prepared to accept for the purpose of this argument that there is at least a good arguable claim for misuse of private information which is protected byarticle 8 of the ECHR . However, the matter does not end there. Even before theHuman Rights Act 1988 was enacted, the court has had a discretion whether or not to admit evidence which was wrongfully obtained.”
“I cannot, however, see why that public interest should in all cases and in all circumstances outweigh the public interest in ensuring a full and fair trial on full evidence ...”
“The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under article 8 and the right of freedom of expression as is enshrined inarticle 10 of the Convention . Lord Hope spoke in paragraph 95 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure”
“It would be wholly disproportionate to exclude this evidence and I have no hesitation whatsoever in rejecting the submission advanced on Nicholas’s behalf. I add this caveat. What forensic use, if any, should be permitted of an opponent’s private information when it has been obtained criminally, or unlawfully, or opportunistically, or even adventitiously gives rise to current problems ... My judgment will not be and should not be the last word on this expanding jurisprudence as it is deliberately fact centred and fact sensitive.”
“The general rule in English law is that relevant evidence is admissible, regardless of how it may have been obtained. That principle has been well established in both criminal and civil cases for a long time ...”
“In civil cases there is no directly corresponding statutory provision. That there is nonetheless a discretion to exclude evidence if its admission would dishonour the administration of justice or compromise the integrity of the judicial process was recognised by Lord Hoffmann at paragraph 87 of his speech in A v. Home Secretary (No. 2) [2006] 2 A.C.221 at p.280. Mr. Talbot conceded, in my view rightly, that the discretion would also extend to excluding evidence if its admission would give rise to a breach of a litigant’s right to a fair trial under article 6. But he submitted the circumstances here were not such as to require the court to exclude any of the evidence. Mr. Krolick submits that, quite apart from the discretion confirmed in A v. Home Secretary (No 2), there is a wider basis for the exclusion of evidence because theCPR 32.1 (2) permit the court to use its power under that rule “to exclude evidence which would otherwise be admissible”
“In my view, the decision whether to exercise the court’s power in civil proceedings to exclude evidence which would otherwise be admissible must depend upon an assessment of the circumstances of those proceedings. The court must balance competing considerations: on the one hand, the public interest in the court considering all relevant evidence and on the other hand, the need to avoid a disproportionate interference with the rights of an individual.”
“I derive support for my views from the note at paragraph 32.1.4 of the current edition of the White Book. This is to the effect that there is no express limitation on the exercise by the trial judge of the power under 32.1(2) to exclude evidence, but it must be exercised in accordance with the overriding objective of dealing with the case justly. Where it is argued that evidence has been obtained in breach of an ECHR right there is no rule under the ECHR requiring the exclusion of such evidence, but the court must act in such a way as to ensure the proceedings as a whole are fair.”
“A variation on this theme is that interference with correspondence is contrary to the right of privacy protected by article 8 … The cases in which these new principles have so far been applied [Wainwright v. Home Office[2004] AC 406 , Campbell v MGN Ltd[2004] AC 457 and McKennitt v Ash[2008] QB 73 ] have been primarily concerned with the wrongful communication of information, in respect of which the claimant had a reasonable expectation of privacy, to a third party or to the world at large. That is not the situation now before the court. There has been no ‘misuse’ of any information, or breach of confidence, on the part of the solicitors. Such information as they have been given has been received, noted and retained purely for use in connection with court proceedings and the protection of their client’s interest in that context. That is in accordance with the common practice recognised in the Hildebrand cases. It does not involve ‘misuse’.”
“It does not follow that because an act of covert surveillance is lawful it can never result in a contravention of the Convention rights.”