Scottish decision allows illegally obtained confidential evidence to be used in court

In a ruling (50-page / 698KB PDF), the Outer House of the Court of Session considered whether information in emails obtained illegally should be admitted as evidence. Rejecting arguments that the court should exclude the evidence on grounds of fairness, the court decided to allow it due to the very significant impact it may have on the outcome of the case. The decision was influenced by the fact that those taking the case – the pursuers – were not responsible for the unlawful recovery of the evidence.

The case involved claims for damages against three people following the sale of an investment company. The company said that the former employees intended to set up a rival company despite agreements being in place that they wouldn’t, in the form of restrictive covenants in the sale agreement and in employment contracts. Evidence of their intentions was obtained illegally when emails accessed on a computer were printed and sent in the post anonymously to the former employers.

The court had to decide whether it was fair to admit the improperly obtained evidence. It permitted its use because of the importance of that information to the case and the fact that the company did not appear to have been responsible for the illegality. Courts are traditionally reluctant to enable a party to benefit from their own unlawful act.

In the ruling, Lord Sandison said: “The potential significance of the material in enabling the court to reach the correct and just conclusions in the litigations is clear and obvious. This factor supports the view that it might well be disproportionate to exclude material of such potentially probative quality from the court’s consideration.”

In reaching its decision the court also had to balance the interest of the former employees and determine whether admission would result in unfair prejudice to them.  However, the court found that there was nothing about either the circumstances of the creation of the material nor the way in which it was discovered which supported the suggestion that such prejudice would be manifestly unfair. The contents of the material may well be detrimental but that was said to be a different matter. 

The court also considered the confidential nature of the material and whether it should be excluded on that basis. In this case, but with “some hesitation” the court considered “that that balance remains to be struck in favour of the admissibility of the material in question. The risk of the court being led to a wrong and unjust result as between the parties should that material be excluded is the consideration which carries most weight and prevails against confidentiality rights because those rights do not concern any particularly sensitive or personal issue and because the company had not been shown to have infringed those rights directly, but only in the secondary”.

For the same reasons the court also rejected arguments that admission would be a breach of the right to privacy contained in article 8 of the European Convention of Human Rights.

The decision highlights the court’s discretion in allowing illegally obtained evidence and the various considerations to be balanced in reaching a decision. Of particular interest was the emphasis placed on the company’s apparent innocence in the illegal recovery.

Separately, the decision lends support to the importance of ensuring confidential digital information is securely held to avoid unauthorised access in the first place, said litigation expert Fiona Cameron of Pinsent Masons.

Litigation expert Laura Crilly of Pinsent Masons said: “The decision provides welcome support for a pragmatic approach to the best evidence rule; highlighting the significance of prejudice, or lack thereof, and whether there is an impediment to the court’s ability to determine the dispute correctly where only secondary evidence is available to the court. The judge’s characterisation of the printed version of the materials as a “physical manifestation of an essentially digital entity” will no doubt reflect the view of many practitioners.”