Jones v University of Warwick

A court exercising its discretion to exclude otherwise admissible evidence must balance the public interest in determining litigation on the truth against the need to deter unlawful and improper methods of obtaining evidence. The weight of those interests depends on all the circumstances, including the evidence’s significance and the gravity of the privacy breach.

A breach of Article 8 by a private investigator does not require automatic exclusion. The court must make the order required to deal with the case justly under the CPR. It may admit highly material evidence while marking its disapproval of the obtaining party’s conduct through costs orders.

The claimant sought substantial damages from her employer for a continuing hand disability following an admitted workplace accident. The defendant’s insurers obtained covert video recordings inside her home after their agent gained entry by posing as a market researcher. The recordings appeared inconsistent with the alleged disability.

A district judge excluded the recordings under CPR 32.1(2). On the defendant’s appeal, Judge Harris allowed their use. The claimant appealed to the Court of Appeal, contending that admission would be incompatible with her Article 8 privacy rights. The central issue was whether the improperly obtained recordings should be excluded from the personal injury trial.

1. The appeal was dismissed. The recordings were highly material, relevant and admissible. Their exclusion would produce an artificial and undesirable trial: new medical experts would need to be instructed without knowledge of relevant material, and the claimant could not properly be cross-examined on it.

2. The Court held that CPR 32.1 requires a balancing exercise. It must reconcile the public interest in exposing the truth in litigation with the public interest in preventing parties from benefiting from unlawful or improper evidence-gathering. The significance of the evidence and the gravity of the Article 8 breach will vary with the facts. Case management under CPR Part 1 also requires regard to the effect of a decision upon litigation generally, not merely the immediate dispute.

3. The insurer’s trespass and covert filming infringed the claimant’s privacy and were improper. However, they did not make exclusion inevitable. The relevant breach was that of the insurer’s agent, rather than the court. Once the court had decided that admission was required to deal with the claim justly under the CPR, its order was capable of justification under Article 8.2.

4. The Court rejected any suggestion that a suspected exaggerated claim could justify trespass or an invasion of privacy. The insurers’ motive did not excuse their conduct, whether or not the evidence might have been obtainable by other means.

5. Exclusion was not the only available response. To deter improper conduct while admitting the evidence, the defendant was to bear the costs of the admissibility proceedings, subject to further argument. The trial judge was also directed to take the defendant’s conduct into account when determining costs, including the recoverability of the enquiry agent’s costs and any appropriate indemnity costs order.

• Court of Appeal (Civil Division) dismissed the claimant’s appeal and upheld the admission of the covert home video evidence.
• Birmingham District Registry, Judge Harris allowed the defendant’s appeal from the district judge and permitted reliance on the recordings at trial.
• District Judge Wartnaby had excluded the recordings under CPR 32.1(2).