Are you listening to me!
It’s not uncommon for people to have misconceptions about
Common misunderstandings are things like “common law
spouse” which doesn’t exist, yet people still assume that if they have
lived with their other half for a set period of time, they have automatic
protection. They don’t.
I’m also often told that there is no binding contract,
simply because it’s not in writing. In reality, a contract could come into
existence by a handshake or even a wave of the hand. Of course, proving what
the terms of that contract are could be interesting, but I do love a challenge.
The most interesting latest misunderstanding relates to
recordings. Almost everyone has a mobile phone that can record conversations,
but people assume that unless it is agreed that a conversation can be recorded,
any recording is not admissible in court. They also assume that things like
WhatsApp messages aren’t relevant or cannot be relied on. In reality, electronic disclosure has become
a whole industry in itself, and, as a large law firm has recently discovered to
its cost, failing to get your head around what should be disclosed can be very
expensive and time consuming.
The bottom line is that anything you have that is
relevant to the case should be disclosed to the other side and the court. The
other side then has the opportunity to dispute the validity of anything you
disclose, and then it’s up to the court to decide. So, if you record a
conversation without letting the other side know, that recording not only could
but MUST be disclosed, even if it is not necessarily to your advantage. The
other side can then let the parties know if they want to challenge the
admission of that recording, such as by saying that it’s not their client’s
voice on the recording, or that you have edited the conversation in some way.
They might say that the recording has been taken out of context, but that is a
point for cross examination. Or they could, for example, challenge your
decision to record the conversation in the first place, and say that if their
client had known they were being recorded, they would have behaved differently,
and that they have been tricked in some way, but my counter argument to that
would be that whether the conversation was being recorded or not, if you are
being honest at all times, you should have nothing to fear.
I remember reading some years ago about solicitors
involved in a personal injury claim, where they had good reason to believe that
the person bringing the claim was not nearly as unwell as they were making out,
but they could not prove it, as the claimant was being very careful to use
crutches and a wheelchair whenever they were in public. Eventually the Defendant’s solicitors sent an
enquiry agent to the Claimant’s property, pretending to be someone doing market
research for a make up company. The Claimant allowed the enquiry agent in, and
participated in the market research project, which enabled the enquiry agent to
video the Claimant using a hidden camera. The subsequent recording showed that
the Claimant was considerably more mobile than she was making out. The
Claimant’s solicitor was incandescent with rage at the underhand way that the
Defendant had gone about proving that their client was lying, but the Judge
wouldn’t have it. Whilst he made it clear that there were obviously limits that
a party can go to, and he in no way sanctioned wholesale bugging and videoing
of opponents on private property, he accepted that the ends justified the
means. If she hadn’t been lying and trying to profit from that lie, it wouldn’t
have been necessary.
There are not one, but two take aways from this.
Firstly, make sure that your solicitor has ALL the
details you have on the other side. Don’t limit your disclosure to just emails
and letters but think more broadly. Notes, WhatsApp messages, texts, things
you’ve posted on social media. It’s all relevant and it’s for your solicitor to
advise you on whether you can use it or not.
Secondly, and perhaps most importantly, never say
anything to ANYONE that you wouldn’t want a judge to hear. Even if the other
side aren’t recording you, they can still include it in a witness statement and
although it could come down to your word against theirs, there is always the
risk that they leave the meeting and immediately make a contemporaneous note of
everything you said. A Judge could accept that note as being a true reflection
of what actually was said, which could be just as damaging as if they had
recorded the conversation. In fact, you can take that a step further and say
that any time you have an important meeting with a client/opponent, you should
make a note of what was said as you might need it to counter what the other
side have written down. Taking that even further, you could send an email to
the other party to confirm what was said, or you can go the whole hog, and have
a proper contract drawn up!
Kleyman & Co Solicitors. The full service law firm.
Because Big Brother could really be listening to you as well as watching you!