Someone once described the smartphone as an incredibly powerful surveillance device that can also make phone calls. They were right.
The ubiquity of mobile devices has led to unprecedented opportunities for spying (both by the State and individuals). Perhaps due to certain ‘trust issues’, politicians, lawyers and employers seem particularly exposed.
But how compelling is secretly recorded evidence?
Potentially, very.
That’s according to the case of Singh v Singh [2016] EWHC 1432 (Ch), which provides some long overdue and common-sense guidance on how Judges should approach it.
The case concerned a dispute between two former business partners about the division of shares held in two companies. In support of the Claimant’s version of what was agreed, he produced recordings of three meetings with the Defendant which he had made in secret (as well as large volumes of WhatsApp messages).
During the secretly recorded conversations, the Defendant made clear admissions that the Claimant was entitled to a 50 per cent shareholding. The Defendant’s attempts to explain away his remarks were found implausible (§ 12 and 62).
At § 11 His Honour Judge David Cooke gave a pithy statement of principle:
[Secret recordings] must be approached with some caution, as there is always a risk that where one party knows a conversation is being recorded but the other does not the content may be manipulated with a view to drawing the party who is unaware into some statement that can be taken out of context. But there can be great value in what is said in such circumstances, where the parties plainly know the truth of the matters they are discussing and are talking (at least on one side) freely about them.
As this issue crops up frequently in the employment tribunal, I’ve added some of my observations below. These are equally relevant to contractual disputes:
Employers:
- Reduce the risk of unhappy employees spying on you by ensuring that all meetings and discussions on employment matters are accurately ‘minuted’. Circulate minutes soon after any conversations and give employees the opportunity to make or suggest edits.
- This sounds tedious and many workplaces get into bad habits by holding important discussions without a note-taker. Good minuting can be crucial for building a trusting environment, avoiding mistrust and possibly protecting you if litigation follows.
Employees:
- There might be very good reasons to secretly record discussions with your employer, especially if you believe they are involved in wrongdoing or concealing the truth. But like many powerful weapons, it should be wielded with care and only where necessary. If you are discovered, you might be guilty of misconduct which can result in a sanction or even dismissal.
- Avoid editing. Get the recordings fully transcribed by a professional. Presentation is key.
- Bear in mind that not every Judge will welcome such evidence and if the recording seems unjustified it could undermine your credibility.
- A less risky but equally valid strategy is to take good notes during meetings or conversations and then, shortly afterwards, summarise the key parts of what was said in an email. Send the email to the employer and any witnesses to the discussion and invite them to make any edits as soon as possible or by a short deadline. Inevitably, if the summary is accurate they won’t have anything to add.
- If you end up in a Court or Tribunal, a Judge will probably find your uncontested and contemporary email summary far easier to follow than a long and rambling transcript filled with irrelevant remarks.
In Singh, the recordings had a very powerful influence on the outcome of the case. Judges are very often faced with flat conflicts of evidence. In these kinds of “he said, she said” scenarios, where everything turns on the credibility of the witnesses, the evidential value of secret recordings can be extremely high. However, the weight to be given to such evidence always depends on the nature of the case, whether the conversation has been manipulated or edited, and of course the exact contents of what was said.
In my case, my forensically certified secret recordings of a conference call with lawyers did no good in court because not one judge agreed to listen to them. Further, over one hundred Ontario Canada lawyers refused to take my case – even though they agreed that the recording proved the lawyers lied to the court about the call, and that evidence was used to convict me of contempt of court in absentia while I wasn’t even in the country and was unaware of the hearing.
When I returned to Canada to overturn my conviction, many of the young lawyers I approached were sympathetic and forthright, even admitting that they were ashamed to have to turn me down. They explained that they dared not take my case because they feared the professional and social sanctions that would certainly result. Some cited conflicts of interest involving past colleagues and law firms, while others explained that they regularly receive work from the large Bay Street firms, and could not afford to jeopardize that source of business.
A surprising number of lawyers told me that it was their firm’s policy not to litigate against lawyers, or to bring motions or evidence that would harm the careers of other lawyers. (“Yes, Mr. Best, the lawyers lied to the judge to convict you, but our firm simply does not handle this type of case.”)
So having recorded evidence is good if you need to preserve and prove the truth.
That doesn’t mean that the legal profession or the court will allow the truth to be heard – especially if it damages the careers of fellow members of the Club.
Here is an article about my case published by the University of Windsor – National Self-Represented Litigants Project. The institute of former Ontario Chief Justice Winkler and the Dean of York University’s Osgoode Hall Law school tweeted that this article is ‘important’ and advised all to read it:
https://representingyourselfcanada.com/2016/07/07/the-client-most-lawyers-fear-and-wont-represent-at-any-price/
At the following link, you can listen to the recording and compare it with the evidence the lawyers swore to the court, and make up your own mind.
http://donaldbest.ca/welcome-hear-the-secretly-recorded-phone-calls-that-the-judges-refuse-to-listen-to/
Donald Best
Secretly recording evidence is not good if you are in some conference or in meeting of company.