Illegally Procured Evidence in Civil Proceedings – Barristers’ Ethical Obligations

A recent article, published on 23 January 2023,  in the Bar Association of England and Wales’  “Counsel” magazine, authored by Stephen Kenny KC – chair of the Bar’s Ethics’ Committee, – and Abigail Bright of counsel, usefully addressed, by reference to the statutory barristers’ ethical rules, the proper response of counsel briefed with illegally obtained material.

The England and Wales’ rules have analogues in the 2011 Bar Rules (Qld), viz :

25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice.

26. A barrister must not deceive or knowingly or recklessly mislead the Court.

      …

95. A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

a. the barrister has information which is confidential to any other person in the case other than the prospective client, and –

1. the information may, as a real possibility, be material to the prospective client’s case; and
2. the person entitled to the confidentiality has not consented to the barrister using the information as the barrister thinks fit in the case;

         …

d. the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case;

         …

       …

99. A barrister may refuse or return a brief to appear before a court:

a. …

…

g. if the barrister’s advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be;

h. …

i.

The “Counsel” article, published with the consent of the England and Wales’ Bar Council, is this:

Advising a client on how they must deal with illegally obtained evidence can be ethically and professionally challenging, as Stephen Kenny KC and Abigail Bright explain

Illegally obtained evidence is mostly concerned with parties’ legal responsibilities, particularly with regard to disclosure of documents. The reason it features in this series of articles for Counsel on ethical responsibilities is that barristers confronted with evidence obtained by their clients illegally will have to be acutely aware of their core responsibilities to maintain their own independence (Core Duty 4), to observe their duty to the court in the administration of justice (Core Duty 1), to act with honesty and integrity (Core Duty 3) and to avoid diminishing the trust and confidence which the public places in them or their profession (Core Duty 5). Advising a client on how they must deal with illegally obtained evidence can be ethically and professionally challenging.

Starting points

Obviously, you must never advise a client to obtain evidence by illegal means, or to obtain evidence which can only be obtained illegally. Not only would that involve a breach of Core Duties 3 and 5; it might also well result in you becoming yourself an accessory to criminal acts. Even if obtaining the evidence would not involve criminal acts, but would expose the client to civil liability, eg for breach of confidence, in advising it you too might be exposed to an accessory liability.

However, the problems generated by illegally obtained evidence most frequently arise when a barrister is unexpectedly supplied by his client, in instructions or in conference, with documents that seem likely to have been obtained by illegal means. You may be asked how that evidence can best be used. Do not be tempted by that question! Stop reading! First you must try to establish whether the documents were obtained illegally.

Space here does not permit detailed consideration of the multiplicity of ways in which obtaining such evidence might have involved illegality. Illegality here is not confined to criminal acts – it encompasses also actions comprising an actionable breach of civil obligation or duty. Obvious types of illegality that may have been involved are, of course: theft, trespass (to land or goods), breach of confidence and the (now distinct) tort of misuse of private information; but consider also the offence under s 1 of the Computer Misuse Act 1990, the offence under s 170 of the Data Protection Act 2018, and the possibility of infringement of copyright and related rights (and of course any other forms of illegality that may be relevant on the facts). You should take time to consider carefully whether the documents have been obtained by illegal means. You need not dwell on how or by what means that was done. If the potentially illegal acts were done abroad, you may need advice on what was (im)permissible under applicable foreign law.

‘No privilege in iniquity’

If it appears to you, in the circumstances disclosed to you about how documents were obtained, that they were obtained by illegal means, this has one immediate consequence: the documents will not be privileged: Dubai Aluminium v Al Alawi [1999] 1 WLR 1964 (‘no privilege in iniquity’). They will therefore be subject to disclosure to opposing parties in the ordinary way, at the appropriate time; and you should so advise. If your client subsequently refuses to allow those documents to be disclosed, you must withdraw from the case (without disclosing the existence of the documents): see the BSB Handbook guidance at gC13.

The Imerman situation

In Imerman v Tchenguiz [2010] EWCA Civ 908 [2011] 2 WLR 592 the Court of Appeal considered (at [146]) that a party which has obtained its opponents’ documents by illegal means should not be entitled to obtain any benefit from having done so, and should not therefore be able to retain, pending disclosure, any such material. The order made in that case (see [147-152]) was to the effect that all originals and copies of such documents should be handed back to the opponent, with one complete set being passed to opposing solicitors, to be retained by them until otherwise ordered. Those solicitors would, in due course, have to advise their own clients on what documents, including those from the set handed back and retained by them, had to be disclosed to comply with obligations of disclosure when they arose. In the meantime, all those acting for the first party who had seen the illegally obtained documents were restrained from disseminating or making any use of any of the information obtained through reading the documents (at [150, 158]). (The use to which that information might subsequently be put at trial was the subject of further detailed consideration at [168-177].)

What then is the immediate professional duty of a barrister who is presented, confidentially, with an opponent’s documents, illegally obtained by the client? First, you must carefully read Imerman v Tchenguiz in detail. You will have to decide what, as a matter of law, that decision requires of your client. The legal duties on a client in such circumstances are matters of law, not of professional ethics. The advice you give will be your responsibility. But it seems to us that, where the offending material is that of an opponent, you should advise your client that it must all be handed back at once, perhaps subject to an undertaking from opposing solicitors to hold one complete set to the order of the court; and that all those on your client’s side who have seen the material should give an undertaking to the court not to disseminate or make any other use of any of the information contained in it, pending further order. Alternatively, you may think that the client’s duty is to apply to the court for a determination of how the opponent’s documents should be dealt with.

If you agree that the appropriate advice is along these lines, but the client refuses to act on your advice, we think you should withdraw from the case. Withdrawing from the case is a measure of last resort but this is consistent with the BSB Handbook guidance at gC13, referred to above; and also with Rules rC21.2, rC21.4 and rC25. The danger here is that if you have read material that is evidently confidential to your opponent, you will yourself owe duties of confidence to the opponent and/or will risk becoming yourself a defendant in proceedings to enforce that confidence: see Imerman at [159]. Further, if you have read such material and have not given an undertaking to the court to make no use of it, your duty to your client would require you to use it. The risks of conflicts of interest are clear. You will also need to consider whether, if it is not revealed that you have read material illegally obtained from the opponent, there is a risk that the court will be misled: see the Handbook guidance at gC11. (We do not think that Rule rC26.6, under which you may return instructions if you become aware of confidential or privileged information or documents of another person relevant to a matter on which you are instructed, controls the Imerman situation. Becoming aware of your opponent’s documents, illegally obtained, is a much stronger case; and we think you must withdraw if your advice on how the matter should be dealt with is not followed.)  

(emphasis added)

Editor’s note: The above decision in Imerman v Tchenguiz [2010] EWCA Civ 908, [2011] 2 WLR 592 was approved and applied in Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors [2019] QSC 68 per Jackson J, which was upheld on appeal in Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors [2019] QCA 305.