It’s not uncommon for people to have misconceptions about

the law.


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!