Intelligence in the Manufacturing sector

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28 February, 2023

Claire Edbury
Senior Associate, Commercial Litigation

The black leather jacket hid the recording equipment, and it was only months later at the end of the case that my client confessed to having recorded all our meetings. I do not know why she did this, but I should have been alive to the possibility as part of her case relied on hours of conversations she had recorded with our opponent in the litigation. The information gathered was, in her opinion, essential evidence of the contract she had entered. The question for me was could these recordings be used as they had been obtained secretly without our opponent's permission?

The position in the civil courts is that unlawfully obtained evidence will not be automatically excluded and is admissible. However, the court will balance the public interest in establishing the true position as against discouraging unlawful behaviour. The court has power under the court rules to exclude evidence and will decide what weight to attach to it. The court will take account of any breach of data protection rules and infringements of human rights.

If a contract has not been set out in writing, it is possible that the parties have a different understanding of what was agreed, and a dispute may follow. A recording of discussions between the parties could be useful as it may explain what the opponent's view of the agreement is and make it difficult to run any contrary argument in any litigation. However, the courts approach such recordings with caution, being aware that the conversation may have been manipulated. Further, such recordings may be of limited use as it is likely that they will not cover all essential terms and there is the risk that they may assist the opponent.

The use of secret recordings undermines trust between the parties and may have a detrimental impact on the commercial relationship with that customer or supplier or indeed the wider business community. More conventional information gathering is however, encouraged, particularly if there is a dispute and there is the possibility of litigation. We need to understand the opponent's business and its financial position. There is useful information in public records such as Companies House, the Land Registry and the website for the supplier or customer. If required, we sometimes arrange for information to be obtained by credit reference agency searches or by surveillance. We need to be sure that the opponent has sufficient assets to satisfy any judgment we may obtain.

As for my misgivings about being recorded - I've told myself it was fine - my client was just gathering intelligence!

For more information contact Claire Edbury in our Manufacturing & Engineering department via email or phone on 0333 207 1143. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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