Take Note

One of the reoccurring themes of my job is myth busting.  People have many preconceived ideas of what their rights and obligations are, usually based on what they’ve read in the papers or seen on TV, and they assume it’s fact.  Sometimes it is.  Often it’s not.

One of the most common ones is the concept of common law spouses and that once you’ve lived with someone for X years (usually at least 2) you acquire some kind of statutory protection.  You don’t.  If you live with someone for 2 years or 20 years that doesn’t give you the same legal rights as you would have had if you had been married.  In fact, if you are unmarried, then you have practically no financial protection under family law.

Another favourite is the effect of something not being in writing.  I am regularly told that there is no contract, simply because they weren’t asked to sign anything.  In reality, a contract can come into effect on a nod (such as at auction) or a handshake.  With developments in technology, encouraged by the effects of lockdown, we are seeing more evidence of contracts coming into force through text and via social media and yet no matter how sophisticated our devices become, people still don’t understand the importance of “consideration”.  That doesn’t mean how nice you are to the other side, but that if someone offers to do something for you, for nothing in return (i.e. for no consideration) then it is not binding.  If I offer to buy your house, but pull out just before exchange of contracts, you can’t sue me for the costs you incurred any more than I could have sued you if you’d chosen to sell to someone for more money.

Technology brings other new and developing myths, some of which are not so straight forward.  Today I have been advising on the admissibility of covert voice recordings of a meeting.  My client insisted that the recordings were irrelevant because he hadn’t given his permission.  However, whilst there may be issues such as confidentiality, in the case in question I anticipate that a Judge may well want to hear what happened at the meeting and may well allow the recordings in provided they are genuine.  I’d also be concerned about a party’s reason for objecting to the recordings.  If you are satisfied that what you are saying now is consistent with what you said in the meeting, why not allow the recording in?  What’s the downside?  At least listen to the recording (i.e. to make sure it really is you, and that the voices are clear) before you decide.  You never know, the other side might be bluffing and then you’re one step ahead!

There may be other issues, such as whether there is any evidence that the recording has been edited, so I’d always reserve my position, but I wouldn’t necessarily reject it out of hand.

That doesn’t necessarily mean that you should automatically record everything surreptitiously.  This could backfire on you as well.  What does it say about you if you feel you have to record everyone and everything, but don’t tell anyone or ask anyone to agree?  At best you could come across as paranoid (not an ideal characteristic for a witness but, I’ve had worse).  At worst a Judge could infer that you are trying to set people up and are not honest and up front.

So, what’s the best advice?

Firstly, if you want to record a meeting, be open about it and ask everyone to agree, and agree to circulate a copy of it afterwards.  If people decline, then suggest that there be an official minute taker instead.  If they still decline, ask yourself why people don’t want to be on the record!

Secondly, if you think there is a possibility that others might record the conversation, be up front at the outset and ask people to confirm whether they are going to record it and say if you have any objections.  It would be reasonable, for example, to say that you know things are going to get heated and things could be taken out of context and so a recording might prevent people from speaking openly.  If, despite agreeing that the meeting was not going to be recorded, someone went ahead and recorded it, you have a greater argument for having that recording excluded and/or discrediting the person who broke the agreement.

Finally, as far as possible, only say things that you would not object to having repeated back to you in Court.  Even if no one is recording you, some people have incredibly good memories and some people (like me!) can touch type.  I can be looking at you, and typing every word you say.  Well ok, it would need some editing because my spelling is awful but you get the gist!

Kleyman & Co Solicitors.  The full service law firm.  Good with words and deeds.