In the case of Lane End Developments Construction Limited v Kingstone Civil Engineering Ltd, Judge Halliwell ruled on a number of adjudication procedural issues, including whether the adjudicator had been validly appointed and whether a covert recording could be used as evidence in a Technology and Construction Court (TCC) case. Judge Halliwell concluded that the appointment of the adjudicator was defective based on the appointment application being premature, and that the adjudicator therefore lacked jurisdiction. Although this point of the decision is important to note, this article focuses on the point regarding the use of evidence obtained through covert recording.
Lane End was the main contractor on a housing development on a site in Cheshire. Kingstone was appointed to carry out enabling works for the development under a sub-contract. The Scheme for Construction Contracts (England and Wales) Regulations 1998, as amended (the “Scheme”) applied.
On 2 March 2020 Kingstone issued an interim payment application for £356,439.19. On 20 March at 7.46am Kingstone requested an adjudicator appointment by the RICS Dispute Resolution Service. Later that morning, there was a meeting of the parties where Kingstone presented an adjudication notice to Lane End. It later emerged that Kingstone had covertly recorded this meeting.
On 24 March 2020 the adjudicator’s appointment was challenged by Lane End, and while the contractor did not take issue with the timing of the notice of adjudication, it reserved its position as to the adjudicator’s jurisdiction. The adjudication continued, and on 27 April 2020 the adjudicator ruled that Kingstone was entitled to the full amount under the interim application.
- The issue arose for the judge as to whether he should admit, in evidence, Mr Barker’s recording together with his witness statement dated 19 June 2020 incorporating his own commentary based on the recording.
- Under the Civil Procedure Rules (“CPR”) 32.1, the Court was entitled to control the evidence. Lane End objected to the recording on a number of reasons; including that it was contrary to the European Convention on Human Rights (“ECHR”) Article 8 (right to privacy) and that it breached the General Data Protection Regulation (“GDPR”) restrictions regarding the processing of personal data.
Judge Halliwell’s decision
The Judge considered CPR 1.1 and the overarching principle that a case is dealt with justly and ensuring that the parties are on an equal footing. He ruled that the evidence held “limited probative value”, and also that allowing the evidence would amount to procedural unfairness. He stated: “Had Kingstone provided the audio recording […] earlier in the proceedings, Lane End would then have been presented with a reasonable opportunity to respond. Kingstone did not do so and, in consequence, Lane End has been placed at a significant tactical disadvantage.”
New issues also arose under the Human Rights Act 1998 and the GDPR. It was put forward for Lane End that covertly recording the interaction of persons is potentially capable of amounting to an interference with their rights of privacy under ECHR Article 8, even if conducted in a public context. This may extend to activities of a professional or business nature.
Judge Halliwell ruled that this recording was likely to have amounted to an unlawful interference with the rights of privacy (at least of the persons attending on behalf of Lane End), and the Court should therefore exercise its discretion to exclude the evidence.
Points to takeaway
- When considering the evidence put forward, the overarching principle of fairness to both parties will be taken into account, and the Court will seek to ensure the parties are on an “equal footing”. If the nature or timing of evidence put forward is likely to result in procedural unfairness, then the Courts may be reluctant to accept it. Parties should ensure that when submitting evidence they do so in sufficient time for the other side to consider it, and to avoid any suggestions of an “ambush”.
- This case also provides interesting guidance on the Right to Privacy under the Human Rights Act 1998 (which implemented ECHR) and the GDPR. It was argued by Counsel for Kingstone that the recording of the 20 March meeting should be admitted since it was made as an “aide-memoire” rather than for use in disputed litigation, however this was rejected by the Judge. Regardless of whether parties specify that a meeting is to be kept private and confidential, it is “best practice” for those in attendance to seek the consent of others prior to recording any meeting.
- This case may be of interest to those holding business meetings remotely while home-working remains the norm, particularly in relation to contentious matters. With the option to record meetings now easier than ever, parties should be mindful particularly of breaches to privacy and of the GDPR which can occur even in a public setting. If in doubt, seek permission of other parties prior to recording, and for those seeking to keep the conversation or meeting private, prohibit the use of any recordings.
- Certain evidence will be at the Court’s discretion to admit, however it is clear that evidence submitted at a late stage, seemingly to “ambush” the other party, and with potential privacy implications, will not be viewed favourably.
For more information on this or a related matter please get in touch with Iain Drummond at Iain.Drummond@shepwedd.com, Natasha Wyllie at Natasha.Wyllie@shepwedd.com or your usual Shepherd and Wedderburn contact.