London calling… Admissibility of improperly obtained evidence

What approach should be adopted where a party to civil proceedings objects to another party's statement of case, or to an amendment to it, on the basis that the other party has allegedly used unlawfully or improperly obtained material?

In Adjoin Ltd v Fortytwo House SARL,1 the key issue for the court was whether, in principle:

(i)??????????????if a stay of proceedings were granted; and

(ii)?????????????if that stay led to the disclosure of evidence that information had been passed to the defendant in breach of confidentiality i.e. provided to the defendant improperly,

there was any real likelihood that the court might not allow the defendant to amend its defence for that reason.

The court considered that a party may generally adduce evidence in civil proceedings if it is relevant, and (torture aside) the court is not to be concerned with how the evidence was obtained.

The parties' arguments focused on the test for the admissibility of evidence, rather than on the court's power to strike out where there has been misconduct. The claimant had not argued that it would no longer be possible to have a fair trial, or for the court to do justice if there had been a leakage of information. In this case, the court found that it was unrealistic that any facts might emerge which would result in the court refusing the defendant's amendments. The claimant's application for a stay was dismissed.

This case broadly highlights that evidence is evidence – even if it is obtained improperly (and should not be refused on this basis unless a fair trial is impossible).?

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1 Adjoin Ltd v Fortytwo House SARL [2022] EWHC 2710 (Ch)

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Brian Perrott and Colin Chen (HFW)