Evidence: Legality Of 'Bin-Diving' Tested By Court Of Appeal And Survives

The issue of evidence obtained by illegal means was recently revisited by the Court of Appeal. The Court considered what must be shown to establish that evidence has been obtained illegally, the consequences of obtaining evidence by illegal means and how this can cross over into the area of legal professional privilege. It will be useful to have these aspects in mind when instructing enquiry agents and in any subsequent dealings with them.

The judgment is also noteworthy in the current climate of celebrity super-injunctions and anonymity orders, illustrating the courts' ongoing concern to balance an individual's right to privacy with conflicting human rights such as freedom of expression and the right to a fair trial.

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The issue of evidence obtained by illegal means was recently revisited by the Court of Appeal. The Court considered what must be shown to establish that evidence has been obtained illegally, the consequences of obtaining evidence by illegal means and how this can cross over into the area of legal professional privilege. It will be useful to have these aspects in mind when instructing enquiry agents and in any subsequent dealings with them.

The judgment is also noteworthy in the current climate of celebrity super-injunctions and anonymity orders, illustrating the courts' ongoing concern to balance an individual's right to privacy with conflicting human rights such as freedom of expression and the right to a fair trial.

Background

The CCC entities are part of an international construction group incorporated in Lebanon. Mr Masri is a businessman, resident in Jordan. The parties had previously contested a UK Court action arising out of their disputed share in some Yemeni oil revenues. This resulted in a judgment in favour of Mr Masri for $75m.

Since July 2006, Mr Masri has been attempting to enforce this debt, by various means, in several different jurisdictions, and CCC have been staunchly resisting enforcement using a variety of legal ploys. Understandably frustrated, Mr Masri's solicitors applied for a declaration that CCC as judgment debtors obstructing the enforcement process were in contempt of court, thereby intending to increase the pressure on CCC to pay up. CCC responded aggressively by issuing a number of applications attacking the basis and the evidence gathering methods used in the Masri contempt proceedings. The following issues came before the Court of Appeal for its determination.

Disclosure of enquiry agent documents

Mr...