Anything you say……can and will be taken down and used in evidence against you!

We’re all familiar with the phrase (although these days the wording is slightly more complicated), and yet this is not about criminal law.

This is about records and recordings.

It is a commonly held misconception that you cannot record what someone else is saying without their permission. People also assume that you certainly can’t record something covertly.

I suspect that the reason for this is that so many call centres start with giving you a warning that the call may be recorded for training and monitoring purposes, so people think that it’s a legal requirement.

Whilst that is good practice, it isn’t the law. If I want to record our conversation, I can, and I don’t have to tell you about it.

Part of the rationale for that is that there isn’t a massive amount of difference between the conversation being recorded and my taking notes and relying on those notes and any witnesses to the conversation subsequently. If my client and the other side sit round a table with legal advisers, and one side makes an admission that the other side’s solicitors both witness and write down in their notes, how is that any different from an audio recording, but no one would think to dispute that in such a meeting, notes can be taken. So why can’t a recording be taken too?

What’s more, assuming that you’re not going to say something that you’re ashamed of or embarrassed by, what difference does it make whether you’re recorded or not? If what you are saying is true, honest and accurate, you should have nothing to fear from a recording. If you’re saying things that are not true, honest and accurate, then you must take the consequences of those inaccuracies being recorded, whether on paper, by recounting of witnesses or by audio.

People are still sceptical when I tell them this, so allow me to illustrate by reference to a recent Tribunal case.

A former director of high-profile law firm Mishon De Reya has recently succeeded in a claim against his former employers in respect of unfair dismissal and non-payment of commission. Part of the Tribunal’s decision was based on a recording of a meeting that the former director had made secretly. The Tribunal was particularly influenced by the fact that the employer’s notes of the meeting were “far from complete” when compared to the recording. In other words, they thought they’d get away with leaving key bits out, and the recording was instrumental in proving who was telling the truth. It also demonstrates that a Tribunal will accept a secret recording made by a director against a law firm. If a firm like Mishcon can’t get a secret recording thrown out, then no one can!

This does not mean that I think you should rush out and start recording everything and anything. However, it does mean that you shouldn’t be afraid to record something if you think it’s going to be relevant and it protects your position, so long as you’re going to use that recording sensibly.

It also means that you should never say anything to anyone that you wouldn’t want to be repeated to a Judge. If the other side are recording it, it might come back to bite you, and even if they are not, if they make a note of what you said, and repeat it to the Judge, who accepts their evidence over yours, you’re as badly off as you would have been if it had been recorded. In fact, there could be circumstances in which the recording might be better, if, for example, it was clear from your tone of voice that you were joking, or you only said it in response to something equally inappropriate that was said to you. Sometimes context is everything.

Kleyman & Co Solicitors. The full-service law firm. Because sometimes walls really do have ears!