Evidence – Does It Matter How This Is Obtained (In Civil Court Proceedings)?
Evidence in support of a civil claim is clearly very important and can either make or break a case.
A court has general powers under the Civil Procedure Rules (CPR) 32 to control evidence.
But does it matter how the evidence was obtained?
In the leading case of Khaimah Investment Authority v Azima [2021] it was held:
“Cases of evidence procured by torture aside, the general rule of English law is that evidence is admissible if it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. Relevant evidence is admissible even if it has been stolen”
However, under CPR 32(2) the court has the power to exclude evidence that would otherwise be admissible – so it can and may matter how the evidence was obtained.
Salinas Pliego v Astor Asset Management 3 Ltd (2025)
This was a case in which the judge was called upon to decide two applications:
(i) an application by the claimants dated 5 March 2025, bearing a time estimate of 10 hours, seeking summary judgment on the liability elements of their pleaded claims in deceit and contract against the first and fourth defendants, alternatively a conditional order requiring security to be provided in the sum of US$315 million; and
(ii) a cross-application by the first and fourth to sixth defendants dated 18 June 2025, bearing a time estimate of 15 hours, seeking (a) to strike out or stay the action for abuse of process and/or risk of an unfair trial; and (b) directions as to the inadmissibility or permitted future use of certain evidence obtained illicitly by the claimants
The relevant facts were:
The Astor Defendants’ litigation solicitor was deceived into meeting a private investigator in the belief that he was pitching for a new client represented by them. He divulged information and offered insights into the perceived strengths and weaknesses of his clients’ position in these proceedings, including aspects of their litigation and settlement strategy. The meetings were secretly filmed and recorded. Those video and audio recordings were provided to the claimants who then applied for summary judgment.
The court was called upon to determine the following:
- Does the claimants’ unethical behaviour involve or constitute an abuse of process?
- What is the evidential status of the illicit information?
- Depending on the answer to (2) above, is the claimants’ possession of illicit knowledge likely to obstruct the just disposal of these proceedings or otherwise create a substantial risk of an unfair trial?
- If (1) or (3) above is shown, what is the appropriate and proportionate response of the Court?
- In light of (4) above, are the claimants entitled to pursue their summary judgment application and, if so, should they be granted summary judgment or a conditional order?
The court struck out the Claimants’ application for summary judgment but did not strike out or stay the Claimants’ claim as sought by the Defendants, despite the Claimants’ abusive conduct.
The court decided that the means by which the evidence had been obtained was an abuse of process and was highly critical of the unethical methods employed. But there was insufficient time to consider the weight of the actual evidence which would be undertaken at a further Information Review Hearing.
In addition, permission was granted to appeal and cross-appeal so the door is very much wide open for this decision to be reversed by a higher court.
Final Words
If evidence is relevant then it should be admissible. But given the discretion under CPR32.2, clearly there is room for evidence to be excluded (even if it is admissible) and so parties need to be careful how supporting evidence is obtained.
In addition, even if illicit or illegally obtained evidence can be admitted, there are other implications such as professional disciplinary risk and potential reputational ruin given these matters will be publicly reported.
If you require advice on evidential issues in civil proceedings or are concerned about the admissibility of material in your case, our litigation specialists can help. Contact our Dispute Resolution experts on 0330 822 3451 today for clear, strategic guidance tailored to your situation. Or request a callback.