Discretion to exclude improperly obtained evidence in civil proceedings in England and Wales

Abstract

Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules 1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of justice. It may be possible to break these down further, to concerns over abuse of the court's own procedures, and executive illegality. Analysing the decisions leading to these developments reveals the importance of human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing the content of the discretion/s.

Full text

RESEARCH ARTICLE
Discretion to exclude improperly obtained evidence in
civil proceedings in England and Wales
Alexandra Allen-Franks*†
Faculty of Law, University of Cambridge, Trinity Hall, Cambridge, UK
*Author e-mail: aikf2@cam.ac.uk
(Accepted 24 April 2022)
Abstract
Exclusion of improperly obtained evidence is often discussed in relation to criminal proceedings, but not
civil proceedings, where concerns about wrongdoing of state actors and deprivation of liberty are not
usually present. It is sometimes assumed that judges in civil proceedings in England and Wales had no
discretion to exclude relevant and reliable evidence based on how it was obtained (as a distinct concern
from exclusion of evidence of little probative value) prior to the enactment of the Civil Procedure Rules
1998. This paper seeks to demonstrate that this is wrong, arguing that a number of sources of power to
exclude evidence on the basis of how that evidence was obtained have arisen in England and Wales, and
that these are not attributable to the Civil Procedure Rules. There is a discretion which enables exclusion
of evidence where this is ‘in the interests of justice’, and a discretion to do with the administration of just-
ice. It may be possible to break these down further, to concerns over abuse of the court’s own procedures,
and executive illegality. Analysing the decisions leading to these developments reveals the importance of
human rights concerns to recognition of exclusionary discretion in civil proceedings, and for informing
the content of the discretion/s.
Keywords: law of evidence; improperly obtained evidence; human rights; civil procedure
Introduction
As recently as 2016, the existence of a discretion to exclude improperly obtained evidence in civil pro-
ceedings was a live issue in Aotearoa New Zealand. The New Zealand Court of Appeal held that no
discretion existed, partly because ‘the common law principle that the manner in which evidence is
obtained, even if improper or illegal, does not bar its admission at trial …well established in the
United Kingdom’
1
applied in New Zealand prior to enactment of the Evidence Act 2006.
2
In 2019,
†
PhD candidate, University of Cambridge, LLM (Cantab), LLB (Hons) (Otago), and enrolled barrister and solicitor of the
High Court of New Zealand. I would like to thank Dr Jonathan Rogers for his support and helpful comments, and Dr David
Erdos and Tim Cochrane for helpful comments and discussion. I am also grateful to the anonymous reviewers for their feed-
back. Any errors or omissions are my own. The PhD to which this research relates is funded by a Cambridge Trust
Scholarship and Trinity Hall Research Studentship.
1
The relevance of the English approach on this issue arose because of New Zealand’s historical links to the English legal
system. Prior to the creation of the New Zealand Supreme Court in 2004, New Zealand’s Court of Appeal was bound to follow
decisions of the Privy Council in New Zealand cases, and would ‘differ from the decisions of [the House of Lords] slowly,
reluctantly and only occasionally’: R Cooke ‘Divergences –England, Australia and New Zealand’[1983] NZLJ 297.
2
Commissioner of Police v Marwood [2015] NZCA 608, [2016] 2 NZLR 733, at [38]. Although the New Zealand Supreme
Court held that jurisdiction to exclude improperly obtained evidence (at least where such evidence has been obtained in
breach of a right contained in the New Zealand Bill of Rights Act 1990) does exist (Marwood v Commissioner of Police
[2016] NZSC 139, [2017] 1 NZLR 260), this has been the subject of criticism: S Optican ‘Every silver lining has a cloud
© The Author(s), 2022. Published by Cambridge University Press on behalf of The Society of Legal Scholars. This is an Open Access article,
distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unre-
stricted re-use, distribution and reproduction, provided the original article is properly cited.
Legal Studies (2022), 1–20
doi:10.1017/lst.2022.23
https://doi.org/10.1017/lst.2022.23 Published online by Cambridge University Press

the New Zealand Law Commission stated that ‘we think it is at least arguable that there should be no
jurisdiction to exclude improperly obtained evidence in civil proceedings involving only private par-
ties’.
3
Last year, the English Court of Appeal in Ras Al Khaimah Investment Authority v Azima was
faced with an argument that an appeal should be allowed partly on the basis that the evidence relied
on in the lower court had been unlawfully obtained.
4
Although acknowledging the existence of the
power to control evidence contained in the Civil Procedure Rules (CPR),
5
the Court also repeated
Lord Denning’s statement that in civil proceedings, ‘the judge has no discretion …The judge cannot
refuse [evidence] on the ground that it may have been unlawfully obtained in the beginning’.
6
When
this statement is still cited, it is no wonder that the existence of a jurisdiction enabling exclusion of
relevant evidence continues to be seen as controversial, with the most recent edition of the White
Book stating ‘rule 32.1(2) rightly assumes that the court has no general power to exclude admissible
evidence’.
7
The idea that there is no discretion outside the CPR enabling exclusion of improperly
obtained evidence thus continues to be a pervasive one.
8
That being so, this paper challenges the
view that CPR 32.1 (providing that the court may control evidence, and may ‘use its power under
this rule to exclude evidence that would otherwise be admissible’), as read in Jones v University of
Warwick,
9
is the modern source of exclusionary discretion in civil proceedings.
10
It does so by untan-
gling the threads of exclusionary discretion for English civil proceedings.
11
When the focus is taken
–the exclusion of improperly obtained evidence in civil proceedings: Marwood v Commissioner of Police [2016] NZSC 139,
[2017] 1 NZLR 260’(2017) New Zealand Criminal Law Review 228; New Zealand Law Commission ‘Second review of the
Evidence Act 2006 –Te Arotake Tuarua i Te Evidence Act 2006’(NZLC IP42, 2018); New Zealand Law Commission ‘The
second review of the Evidence Act 2006 –Te Arotake Tuarua i Te Evidence Act 2006’(NZLC R142, 2019).
3
NZLC R142, above n 2, para 7.80.
4
Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349.
5
Ibid, at [43].
6
Helliwell v Piggott-Sims [1980] FSR 356 (CA), at 357 (cited in Ras Al Khaimah Investment Authority v Azima, above n 4,
at [41]).
7
P Coulson (ed) Civil Procedure 2021, vol 1 (Thomson Reuters, 2021) para [32.1.4].
8
HL Ho ‘On the obtaining and admissibility of incriminating statements’(2016) Singapore Journal of Legal Studies 249, at
274; R Glover Murphy on Evidence (Oxford: Oxford University Press, 15th edn, 2017) p 59; R Parkes et al Gatley on Libel and
Slander (Sweet & Maxwell, 12th edn, 2017) para 33–11.
9
Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954.
10
See HM Malek Phipson on Evidence (Thomson Reuters, 20th edn, 2022) para 39–33 but noting that there are exceptions
when considering claims of public interest immunity or privilege; C Hollander Documentary Evidence (Sweet & Maxwell,
14th edn, 2021) para 27–01; I Dennis The Law of Evidence (Sweet & Maxwell, 7th edn, 2020) para 3–009, claiming that
the CPR introduced a ‘general exclusionary discretion into civil proceedings’; V Rijavec and T Keresteš‘Restrictions on
the admissibility of evidence’in CH van Rhee and A Uzelac (eds) Evidence in Contemporary Civil Procedure (Intersentia,
2015) p 99, attributing power to exclude improperly obtained evidence to the CPR; A Keane and P McKeown The
Modern Law of Evidence (Oxford University Press, 12th edn, 2018) pp 47, 61, stating that there was no discretion to exclude
evidence obtained improperly or illegally prior to the enactment of the CPR; R Munday Evidence (Oxford University Press,
10th edn, 2019) para 1.79, claiming that ‘the Civil Procedure Rules …have altered the position’; G Durston Evidence: Text &
Materials (Oxford University Press, 2nd edn, 2011) p 63; M Iller Civil Evidence: The Essential Guide (Sweet & Maxwell, 2006)
pp 1–40, claiming that following enactment of the CPR the court ‘has now for the first time been given a specific discretion to
exclude evidence that would otherwise be admissible’;Silversafe Ltd (in liquidation) v Hood [2006] EWHC 1849 (Ch), at [52].
11
For the approach in Scotland, see M Ross et al Walker and Walker: The Law of Evidence in Scotland (Bloomsbury
Professional, 5th edn, 2020) para 1.7.8; In re the Baronetcy of Pringle of Stichill [2016] UKPC 16, [2016] 1 WLR 2870, at
[77] citing Duke of Argyll v Duchess of Argyll (No 3) 1963 SLT (Notes) 42 (OH) and Martin v Mcguiness 2003 SLT 1424
(OH). For an overview of the approaches taken in national laws of other European states, see Rijavec and Keresteš, above
n 10. They classify the Republic of Croatia and Greece as applying a general principle of inadmissibility for illegally obtained
evidence, on a constitutional level, applicable to all types of proceedings. In contrast, Slovenia, Austria, Germany, Denmark,
Estonia, Switzerland, Finland, Poland, Sweden, Romania, Latvia, Hungary, Ireland and France are classified as states where
either there are no express provisions restricting the admissibility of illegally/improperly obtained evidence, and/or a balan-
cing of interests takes place in determining whether to admit/exclude. The countries with no, or limited, restrictions on evi-
dence are said to be Bulgaria, Malta, the Netherlands, the Slovak Republic, and England. For criticism of the approach taken
in Canada, where the judiciary has recognised a power to exclude evidence in civil proceedings, see P Sankoff and Z Wilson
‘A jurisprudential “house of cards”: the power to exclude improperly obtained evidence in civil proceedings’(2021) 99 The
2 Alexandra Allen‐Franks
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away from CPR 32.1, we see that there are at least three bases for exclusion of evidence in civil pro-
ceedings. Conceptually, these are either threads of one overarching general discretion, traceable to the
Court of Appeal’s 1913 decision in Lord Ashburton v Pape
12
albeit that this is now to be understood
within a human rights framework; or these are independent (but sometimes overlapping) discretions,
concerned respectively with abuse of the court’s own processes, executive illegality, and human rights
breaches. Whichever conception is preferred (general discretion or specific discretions), this untan-
gling brings the importance of human rights considerations to the foreground.
This paper will take a roughly chronological approach, following the development of Lord
Ashburton v Pape. It will be argued that that decision effectively resulted in exclusion of relevant
and reliable evidence in an absolute manner, because of the way the evidence had been obtained
(although the precise basis for this has been contested). After lying dormant for several decades,
Pape was picked up in the 1980s and developed further. After discussing another common law devel-
opment concerning evidence obtained via torture, which will be shown to ground a discretion to
exclude evidence if its admission would ‘dishonour the administration of justice’,
13
we return to
Pape with Imerman v Imerman.
14
In Imerman, Lord Neuberger MR (as he then was) recognised a
discretion enabling exclusion of admissible evidence if a judge is ‘satisfied that it is in the interests
of justice to do so’. This paper argues that this development is traceable to Pape. Neither common
law jurisdiction has anything to do with the CPR, substantiating the claim that it is wrong to view
CPR 32.1 as the only source of exclusionary discretion in civil proceedings.
Human rights law provides yet a third source. Considering the relevance of human rights concerns
head on demonstrates that the recognition that CPR 32.1 could be used to exclude improperly
obtained evidence in Jones v University of Warwick actually had nothing to do with CPR 32.1, and
was wholly attributable to the Human Rights Act 1998.
Clarity as to the existence of power/s enabling exclusion in civil proceedings is important to enable
consideration of when exercising those powers might be justified. It will be recalled that the Court of
Appeal in Ras Al Khaimah Investment Authority v Azima seemingly doubted the existence of a power
to exclude relevant evidence, referring to Lord Denning’s view that there should be no discretion in
civil proceedings. Nonetheless, it recognised the availability of CPR 32.1, asking ‘if it established
that one party has obtained evidence unlawfully, how is the court to exercise its discretionary
power?’
15
The answer to the latter question will necessarily require the court to identify for what
cause –interests of justice akin to an equitable remedy, executive illegality or human rights law –
the evidence is sought to be excluded.
(a) Theoretical justifications for exclusion of evidence
Before discussing the development of Pape, it is necessary to say something about justifications for
exclusion of evidence. The intuitive attraction of admitting all relevant evidence, no matter how
obtained, in order to maximise the truth-finding capacity of litigation, means that the orthodox
view is that exclusion of evidence must be justified.
16
As ‘truth’is constrained by the boundaries of
the material before the court, proponents of a ‘truth at all costs’
17
view of litigation will endeavour
to keep the boundaries of permissible material wide, rejecting restrictions which might otherwise
Canadian Bar Review 145. For Australia, see s 138 of the Evidence Act 1995 (Cth). For the approach taken in New Zealand,
see the material cited in n 2 above.
12
Lord Ashburton v Pape [1913] 2 Ch 469 (CA).
13
A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2006] 2 AC 221.
14
Imerman v Imerman [2010] EWCA Civ 908, [2011] Fam 116.
15
Ras Al Khaimah Investment Authority v Azima, above n 4, at [43].
16
WTwiningRethinking Evidence: Exploratory Essays (Cambridge: Cambridge University Press, 2nd edn, 2006) pp 203–204.
17
CH van Rhee and A Uzelac (eds) Truth and Efficiency in Civil Litigation: Fundamental Aspects of Fact-Finding and
Evidence-Taking in a Comparative Context (Intersentia, 2012) p 7.
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arise if we were to take into account the way that evidence is obtained for admissibility purposes.
18
This underpinned the historical approach in criminal proceedings in England and Wales, which
was that there was no discretion to enable exclusion of evidence on the basis of how that evidence
was obtained. This is no longer the case.
19
A number of theories have been developed which may jus-
tify exclusion of relevant and reliable
20
evidence in the context of criminal proceedings. These are
deterrence, the protective principle, and the integrity principle. As will be seen from the discussion
of developments in civil proceedings below, these themes are familiar and broadly recognisable in rela-
tion to civil litigation too.
The deterrence/discipline justification applies specifically to evidence which has been improperly
obtained. The theory is that such evidence should be excluded to discipline the wrongdoer, and/or
deter future misconduct.
Andrew Ashworth’s protective principle (also called the rights thesis) provides that if an indivi-
dual’s rights have been infringed, the court should protect them from any disadvantage arising
from that infringement.
21
The relevant disadvantage is use of evidence obtained as a result of the
infringement against the individual. The theory holds that protecting an individual from that disad-
vantage requires that the evidence be presumptively
22
excluded. In 2003, Ashworth proposed an alter-
native formulation: ‘the court should rule in such a way that the state and the citizen are placed in the
positions they would have been in, had the [European Convention on Human Rights] not been
violated’.
23
Finally, the integrity justification claims that improperly obtained evidence should be excluded if
taking it into account would undermine the integrity of the criminal process.
24
At its simplest the
argument is that to rely on improperly obtained evidence in order to condemn an individual’s actions
involves unacceptable hypocrisy and moral incoherence on the part of the justice system through
application of a double standard.
25
The possibility of an integrity principle which extends to civil pro-
ceedings has been briefly considered by Chau, who suggests an integrity principle ‘based on the moral
incoherence between admitting the evidence and the aim of doing justice which is the aim of every
judicial proceeding[. This] would apply to any judicial proceedings’.
26
Mirfield describes three forms of integrity principle: court-centred integrity; public conduct integ-
rity; and public attitude integrity.
27
Public conduct integrity focuses on the reaction of the general
18
For a similar point, see Sankoff and Wilson, above n 11, at 155–156, where the authors state that the ‘first principle’of
the law of evidence is that all relevant evidence is admissible until proven otherwise, and this principle’s‘preference is for
more available information for finders of fact even in the face of compelling countervailing interests’.
19
Judges in English criminal proceedings may take into account the way that evidence was obtained when considering
whether to exclude prosecution evidence pursuant to s 78 of the Police and Criminal Evidence Act 1984, and there exists
a discretion at common law to exclude evidence where it has been obtained in contravention of the privilege against self-
incrimination: R v Sang [1980] AC 402 (HL).
20
Some commentators take the view that unreliable evidence should be excluded because its use at trial may increase the
risk of error in decision making: JD Jackson and SJ Summers ‘Fair trials and the use of improperly obtained evidence’in The
Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions (Cambridge: Cambridge
University Press, 2012) para [3–041]. There are exceptions. For example Twining, above n 16, records at p 67 that Charles F
Chamberlayne was of the view that ‘generally speaking, unreliable evidence is better than no evidence’. See also L Laudan
Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge: Cambridge University Press, 2006) p 121.
21
A Ashworth ‘Excluding evidence as protecting rights’[1977] Crim LR 723.
22
Ibid, at 728. Ashworth continued to maintain that the protective principle justifies a presumption of exclusion, rather
than automatic exclusion, in A Ashworth ‘Exploring the integrity principle in evidence and procedure’in P Mirfield and
R Smith (eds) Essays for Colin Tapper (LexisNexis, 2003).
23
Ashworth, above n 22, p 112.
24
Ibid, p 107.
25
P Chau ‘Excluding integrity? Revisiting non-consequentialist justifications for excluding improperly obtained evidence in
criminal trials’in J Hunter et al (eds) The Integrity of Criminal Process: From Theory into Practice (Oxford: Hart Publishing,
2016) p 269; P Roberts and A Zuckerman Criminal Evidence (Oxford: Oxford University Press, 2nd edn, 2010) p 188.
26
Chau, above n 25, fn 7.
27
P Mirfield Silence, Confessions and Improperly Obtained Evidence (Oxford: Oxford University Press, 1998).
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public to the admission of the evidence, in terms of the public’s likelihood to engage in future crim-
inality. The idea is evident in Justice Brandeis’dissent in Olmstead v United States:‘if the government
becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it
invites anarchy’.
28
Here, it is assumed that admission of improperly obtained evidence is always bad.
29
This is different from public attitude integrity, where what matters is whether the public will lose
respect for the administration of justice if evidence is admitted.
30
With public attitude integrity, we
can imagine situations where the public (whoever the ‘public’is) could lose respect for the adminis-
tration of justice if the evidence is excluded,
31
because of a perception of acquittal of the guilty based
on ‘technicality’.
32
This explains some jurisdictions’focus on convicting the guilty, as part of judicial
integrity.
33
We can imagine other situations where the public could lose respect if the evidence is
admitted. In contrast, court-centred integrity involves the court applying its own standards of propri-
ety and decency. Choo has called this the idea that ‘irrespective of appearances, exclusion should be a
moral duty of the court as a means of repudiating the impropriety and preserving the purity of the
judiciary [and the criminal justice system]’.
34
We will return to court-centred integrity below, as it
will be seen that it is this version of the integrity principle that has the most relevance to civil
proceedings.
Development of a general discretion to exclude
(a) Lord Ashburton v Pape
Lord Ashburton was a creditor opposing Pape’s discharge from bankruptcy.
35
Pape had obtained let-
ters written by Lord Ashburton to his solicitor. He did this by serving on the solicitor’s clerk a sub-
poena requiring the clerk to produce them. Although the time for operation of the subpoena had not
arrived, the clerk nonetheless handed them over in court. The clerk then left, and Pape took copies of
the letters and did not return the originals. There is some mention in the judgment of collusion
between Pape and the clerk. Although Pape was unable to use the original letters as evidence because
they were subject to legal professional privilege, he proposed to use copies as secondary evidence of
their contents in the bankruptcy proceedings. Lord Ashburton sought an injunction to restrain
Pape from doing so. This was granted, but with an exception permitting Pape to use copies of the let-
ters in the bankruptcy proceedings he was facing. To do so was said to be permitted under the Court of
Appeal’s earlier decision in Calcraft v Guest
36
(holding that a person may adduce a copy of a privileged
document as evidence of its contents but may not use the original). However, on appeal, Lord
Ashburton was successful in having the injunction amended to restrain Pape’s use of the copies
and of the information gained from them in the bankruptcy proceedings. The Court of Appeal lim-
ited
37
Calcraft, so that a person in Pape’s position could only use the copies in litigation if the owner of
the documents had not demanded their return and applied to restrain use of the confidential
information.
28
Olmstead v US 277 US 438 (1928) at 485, cited in ibid, 24.
29
ALT Choo ‘Improperly obtained evidence: a reconsideration’(1989) 9 Legal Studies 261 at 278: ‘Brandeis J in effect equa-
ted the “repute”rationale with a “deterrence of the public from crime”justification for exclusion’. See also RM Bloom and E
Dewey ‘When rights become empty promises: promoting an exclusionary rule that vindicates personal rights’(2011) 46 Irish
Jurist 38 at 70.
30
Mirfield, above n 27, p 24.
31
KS Broun et al McCormick on Evidence, vol 1 (Robert P Mosteller ed, Thomson Reuters, 8th edn, 2020) S 165.
32
C Slobogin ‘Why liberals should chuck the exclusionary rule’(1999) 1999 University of Illinois Law Review 363 at 436.
33
Bloom and Dewey, above n 29.
34
ALT Choo ‘A question of “desirability”: balancing and improperly obtained evidence in comparative perspective’in A
Roberts and J Gans (eds) Critical Perspectives on the Uniform Evidence Law (The Federation Press, 2017) pp 219–220.
35
Lord Ashburton v Pape, above n 12.
36
Calcraft v Guest [1898] 1 QB 759.
37
J Auburn Legal Professional Privilege: Law and Theory (Bloomsbury Publishing, 2000) p 234.
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In terms of English authorities, Pape seems to have existed under the radar for decades: it was not
until a line of cases in the 1980s that it was picked up in any substantial way.
38
This is perhaps due to
the widely held belief that there was no discretion to exclude relevant evidence based on how that evi-
dence had been obtained.
39
It may also be explained by the confusion which arose from the different
interpretations of the judgment.
40
In discussing the cases that started to build on Pape, it is simplest to start with the clarification of
the effect of Pape which came from an obiter statement in ITC Film Distributors Ltd v Video Exchange
Ltd.
41
In ITC, Warner J agreed with counsel that Pape stood for the general rule that ‘where A has
improperly obtained possession of a document belonging to B, the court will, at the suit of B,
order A to return the document to B and to deliver up any copies of it that A has made, and will
restrain A from making any use of any such copies or of the information contained in the document’.
42
This interpretation was confirmed by the Court of Appeal in Goddard,
43
where the court clarified that
Pape and Calcraft mean that a litigant may adduce copies of privileged documents as secondary evi-
dence of the content of the documents in litigation (Calcraft), but if the litigant has not yet used the
documents, the fact that it intends to do so will not prevent the privilege holder succeeding in a claim
for delivery up and restraining use of confidential information contained in the documents (Pape).
44
Although this quirk of timing was unsatisfactory, ‘the proposition must hold unless and until revised
by a higher authority’.
45
According to Nourse LJ, ‘once it is established that a case is governed by
[Pape] there is no discretion in the court to refuse to exercise the equitable jurisdiction according
to its view of the materiality of the communication, the justice of admitting or excluding it or the
like’.
46
In terms of the facts of these cases, ITC concerned the obtaining of documents belonging to the
claimants or their solicitors, by a defendant from the courtroom while a hearing was taking place.
The judge found that the documents had been obtained by a trick, but made an order entitling the
second defendant to retain and use copies. In argument over whether that order should stand, the
second defendant relied on the principle that in civil proceedings the court has no power to exclude
relevant evidence even if improperly obtained (citing Helliwell v Piggott-Sims).
47
The claimants relied
on Pape and the need for the judge to ‘balance the public interest that the truth should be ascertained
…against the public interest that litigants should be able to bring their documents into court without
38
It was distinguished in Woodland Furniture (London) Ltd v Ministry of Works (1956) 6 P & C R 1 (QB), at 8; Butler v
Board of Trade [1971] Ch 680 (Ch), at 690; Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] QB 952;
and Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 (CA). In the other cases where Pape was relied on
by a judge rather than just cited by counsel, the facts concerned injunctions to prevent newspaper publication of confidential
information, rather than the issue of admissibility of confidential information/improperly obtained evidence in court pro-
ceedings: Duchess of Argyll v Duke of Argyll [1967] Ch 302 (Ch); Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd
[1975] QB 613. See C Tapper ‘Privilege and confidence’(1972) 35 MLR 83, stating that Pape had being ‘lying dormant
for nearly sixty years’;DVaver‘Keeping secrets, civilly speaking’(1992) 13(3) Advocates’Quarterly 334, offering reasons
concerning aspects of legal culture to explain Pape’sdormancy at fn 28.
39
Support for this is found in the fact that in the seminal case of Kuruma v R [1955] AC 197 (PC) (establishing the fairness
discretion for exclusion of evidence in criminal proceedings), Calcraft was referred to as supporting the proposition that the
courts do not care how evidence is obtained but Pape was not mentioned.
40
In particular concerning a statement of Cozens-Hardy MR at p 473. See Tapper, above n 37; JD Heydon ‘Legal profes-
sional privilege and third parties’(1974) 37 MLR 601; P Matthews ‘Breach of confidence and legal privilege’(1981) 1 Legal
Studies 77; NH Andrews ‘The influence of equity upon the doctrine of legal professional privilege’(1989) 105 LQR 608;
Auburn, above n 37, p 235. I prefer the ‘natural interpretation’that ‘the court was preventing Pape from carrying out his
intention to use the copy letters in evidence’of Dennis, above n 10, para [10–021].
41
ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431.
42
Ibid, at 438 (emphasis added).
43
Goddard v Nationwide Building Society [1987] 1 QB 670 (CA).
44
Ibid, at 683.
45
Ibid, at 684.
46
Ibid, at 685.
47
Helliwell v Piggott-Sims, above n 6.
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fear that they may be filched by their opponents, whether by stealth or by trick, and then used by them
in evidence’.
48
There were problems in relying on Pape, as the documents had already been used in the proceed-
ings (and Pape was said to turn on timing, as was later confirmed in Goddard). Nonetheless, the public
policy argument succeeded. The second defendant’s actions were ‘probably contempt of court’and
‘the court should not countenance it by admitting such documents in evidence’.
49
To the extent
that the documents had not already been looked at by the judge, the evidence was excluded.
50
The
concept of what the court cannot countenance raises the deterrence/discipline justification for
exclusion, mentioned above. ITC also demonstrates the potential relevance of integrity concerns to
exclusion in civil proceedings.
51
ITC’srelevance to Pape is limited, given the fact that Pape did not apply in ITC. Nonetheless, ITC is
an important decision as it widened the grounds upon which evidence may be excluded in a civil pro-
ceeding from evidence obtained in breach of confidence, to evidence obtained in contempt of court.
52
It could be said that ITC was recognition of an exclusionary rule, mandating exclusion where evidence
has been obtained in this specific way, making it quite limited. Alternatively, it could be said that it
suggested the beginnings of an exclusionary discretion, which was not necessarily so limited to the
‘filching’of documents from court.
53
For the purposes of this paper it is not necessary to form a
final view on its relevance.
In Goddard, the defendant to a negligence action had acquired an attendance note from the clai-
mants’solicitors recording conversations between the claimants and their solicitors. The claimants
applied to strike out the passages in the defence which relied on the attendance note, and for an
injunction restraining the defendant from using or relying on it. The first instance judge held that
once the defendant had the note it was entitled to use it however it wished. The Court of Appeal
allowed the claimants’appeal on the basis of Pape, as read with Calcraft (setting out its understanding
of the effect of these two cases together, as outlined above).
Pape and Goddard related to improper obtaining of information from the physical confines of the
courtroom or from an officer of the court. A different fact pattern emerged in Naf Naf SA v Dickens
(London) Ltd, where the claimants had obtained evidence against the defendants through execution of
an Anton Piller (search) order.
54
There had been insufficient evidence to grant the order, as well as
48
ITC Film Distributors Ltd v Video Exchange Ltd, above n 41, at 440.
49
Ibid, at 441.
50
See also Universal City Studios Inc v Hubbard [1983] Ch 241, at 252–255 where Falconer J attempted to reconcile ITC
with Helliwell. However, see Universal City Studios Inc v Hubbard [1984] Ch 225 (CA), at 237.
51
Dennis, above n 10, para [8–006].
52
ITC Film Distributors Ltd v Video Exchange Ltd, above n 41, at 440.
53
In Goddard v Nationwide Building Society, above n 43, Nourse LJ approved of the availability of this public policy based
exclusion (at 685–686). However, he said that ITC ‘proceeded not on an exercise of the court’s discretion but on grounds of
public policy’. It is true that the decision was made for reasons of public policy, but that does not mean it cannot also be an
example of the exercise of a discretion. Rosemary Pattenden, in Judicial Discretion and Criminal Litigation (Oxford: Oxford
University Press, 1990) pp 2–3, calls ITC an example of a ‘concealed’discretion, meaning a rule leaving ‘the decision-maker
with considerable freedom of choice …because they contain value-qualified precepts which require a personal assessment of
the circumstances’. Pattenden’s acceptance of ITC as representing an example of exercise of a discretion here can be con-
trasted with R Pattenden ‘The discretionary exclusion of relevant evidence in English civil proceedings’(1997) 1
International Journal of Evidence & Proof 361. Writing prior to the inclusion of the power to control evidence in the
CPR, Pattenden states that there is no discretion to exclude prejudicial evidence in civil proceedings (at 362), but that a
judge can allow questions to a witness to go unanswered if the questioning is oppressive, or to avert a breach of confidence
by a witness (at 364). She also says that ‘there is some English authority for a discretion to exclude evidence to prevent pro-
cedural unfairness to a party’(at 365). While recognising that ‘stealing an opponent’s documents in the precincts of the court’
(citing ITC) leads to ‘the crude expedient of keeping out relevant evidence’(at 381), in an earlier passage she cited ITC in
support of the proposition that ‘the existence of a discretion to exclude improperly obtained evidence in civil proceedings
has been repeatedly denied’(at 365). In my view, ITC does not support this claim, and Pattenden’s reference appears to
be to Warner J’s summary of counsel’s submissions rather than his Honour’s own view.
54
Naf Naf SA v Dickens (London) Ltd [1993] FSR 424 (Ch).
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material non-disclosure by the claimants in seeking it. The first defendant sought an order restraining
the claimants from making any use of the evidence obtained via the Anton Piller order. Hoffmann J
(as he then was) stated that as a matter of the law of evidence, the ‘Anton Piller yield’was admissible,
but ‘admissibility of the information as evidence’was not the end of the matter: ‘there is equally no
doubt that the court has a jurisdiction in personam to make an order restraining a party from making
use of information which he has gained in circumstances which the court considers make it inequit-
able that he should be able to do so’.
55
He said this was in reliance on ‘a line of cases commencing with
[Pape]’.
Hoffmann J considered that it was appropriate to prevent the claimants relying on the evidence, as
at the stage that proceedings had reached it would not ‘seriously affect the ability of the court to do
justice in these proceedings’to prevent its use.
56
If there was anything in the evidence which would
materially assist the claimants to prove their case, it was appropriate that they should go through
ordinary discovery procedures to get that information, ‘without at this stage being able to make use
of information which has illegitimately been obtained before its time’.
57
Justice to the defendant,
who would be ‘entitled to feel aggrieved if he is told that the order ought never to have been made,
that the [claimant] has obtained an illegitimate advantage by it, but is nevertheless entitled to use
it’also meant that the order should be made.
58
To return to the rationales which are said to justify exclusion of evidence discussed above, the
exclusion of relevant and seemingly reliable evidence in these cases looks like a strong form of
Ashworth’s protective principle.
59
A strong version of the protective principle would lead to automatic
exclusion once a rights breach is established. Pape, as confirmed in Goddard, rejected any balancing
which might otherwise be carried out. In the later case of Derby, the court explained
60
that a balancing
exercise between the public policy consideration of completeness of evidence before the court and of
legal professional privilege is inappropriate, as the balancing act has occurred through creation of the
rule of privilege.
61
This follows the same logic as Ashworth’s alternative formulation of the protective
principle, which (despite Ashworth’s claims that it supports a presumption rather than automatic
exclusion) seems to require automatic exclusion following breach of a constitutional or fundamental
right, precisely because any balancing concerns have been determined through declaration of the right
in legislative form.
62
A similarly absolute approach was taken in cases involving mistaken disclosure of
privileged material.
63
The inability of Pape, the defendants in ITC and Goddard, and the claimants in Naf Naf, to rely on
the various documents that they had obtained is akin to exclusion of evidence in a civil proceeding
based on the way that evidence was obtained. Putting aside ITC, the equating of an equitable
power to restrain use of confidential information, and an exclusionary discretion within the law of evi-
dence, may be seen by some as controversial.
64
This is exemplified by the way that Hoffmann J
55
Ibid, at 427.
56
Ibid, at 428.
57
Ibid, at 429. See also Sullivan v Sclanders [2000] SASC 273, (2000) 77 SASR 419, at [68].
58
Naf Naf SA v Dickens (London) Ltd, above n 54, at 429.
59
Ashworth, above n 21; Ashworth, above n 22; P Roberts ‘Excluding evidence as protecting constitutional or human
rights?’in L Zedner and JV Roberts (eds) Principles and Values in Criminal Law and Criminal Justice (Oxford: Oxford
University Press, 2012).
60
Through citing The Aegis Blaze [1986] 1 Lloyd’s Rep 203.
61
Derby Co Ltd v Weldon (No 8) [1991] 1 WLR 73 (CA). See also Istil Group Inc v Zahoor [2003] EWHC 165 (Ch), [2003]
CP Rep 39, at [93].
62
Ashworth, above n 22, p 112.
63
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 (CA), at 1046. See also Derby Co Ltd v
Weldon (No 8) [1991] 1 WLR 73 (CA); Pizzey v Ford Motor Co Ltd [1994] PIQR P15 (CA); Hayes v Dowding [1996] PNLR
578 (Ch).
64
Matthews, above n 40, contains a close textual analysis of Pape to argue that breach of confidence is different from the
law of evidence. The article is critical of the assumption that the effect of an injunction to restrain a breach of confidence is to
prevent admissibility in evidence. For criticism of Matthews’analysis, see Andrews, above n 40. For more general criticism of
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attempted to contrast the law of evidence and ‘admissibility of the information as evidence’with an
equitable power to restrain use of the information obtained in Naf Naf. But it is argued here that
any equitable rule which affects the admission of evidence is also a rule of evidence.
65
Other writers
have referred to the rule from Pape in evidentiary terms.
66
Most significantly for the argument here,
Ho has suggested that:
67
Pape ought to be seen as a manifestation of a larger principle …It concerns fairness in the use of
evidence and it may be so stated: A party will be prevented from tendering admissible evidence of
a matter, over which his opponent could have resisted disclosure by claiming privilege had com-
pulsion been sought, if it would be unfair to allow the use of the evidence. If the evidence is ten-
dered, the Court may exclude it or expunge it even though it is admissible.
In a footnote to this statement, Ho says that ‘this is in substance a civil law rule corresponding to the
criminal law discretion to exclude admissible evidence if its reception would operate unfairly against
the accused’.
68
It is submitted that a focus on the substantive effect of the rule is more persuasive than
a technical approach which turns on the equity label.
69
The substantive effect of Pape was that it
enabled exclusion of relevant evidence in a civil proceeding, well before the fairness discretion was
recognised in relation to criminal proceedings, and well before the enactment of the CPR. It applied
in limited circumstances and was constrained by timing, and there has been a lot of confusion over
Pape.
70
However, the importance of Pape, at least in the context of this paper, is the fact that it pro-
vided the foundation for a general discretion to exclude improperly obtained evidence in civil proceed-
ings, as recognised in Imerman v Imerman.
71
This is discussed in section (c) below.
the view that an equitable principle cannot also be considered a rule of evidence, see Vaver, above n 37. At 343, he states that
‘technically, a combination of propositions is supposed to justify this schizophrenia –admissibility is a question of law, breach
of confidence is a question of equity, and equity follows the law but does not mix with it’and argues at 344 that while there
may be some good reasons for this, ‘what is unsupportable is the doctrinal cleavage between enjoinability and admissibility’.
65
Although obviously not determinative of the point, it is interesting that New Zealand’s Evidence Act 2006 provides that
‘all relevant evidence is admissible in a proceeding except evidence that is inadmissible under this Act …or excluded under
this Act …’ (s 7). Section 69 of the Act grants a judge a discretion to prevent disclosure of confidential information in a
proceeding. If a judge exercises their discretion under s 69 and evidence is held to be inadmissible, the equitable relief
which would be available under the rule in Pape is treated as part of the law of evidence. In its preliminary work leading
to the Evidence Act 2006, the New Zealand Law Commission stated that ‘although privilege and public interest immunity
rules stem from …public and social policies, the practical impact which the rules have on the availability of evidence
means that they are properly part of the law of evidence’: New Zealand Law Commission ‘Evidence law: principles for reform’
(NZLC PP13, 1991) para [13].
66
CB Robson ‘Evidence –admissibility in civil actions of evidence illegally obtained by private persons’(1964–1965) 43
North Carolina Law Review 608, at 613, calling Pape an example of an ‘exclusionary policy’; JJ Arvay ‘Slavutych v Baker:
privilege, confidence and illegally obtained evidence’(1977) 15 Osgoode Hall Law Journal 456, at 463, arguing that Pape
(as read with the Canadian case Slavutych) had led to the emergence of a ‘limited illegally obtained evidence rule’in
Canada; Andrews, above n 39, at 608, calling reconciliation of Calcraft and Pape ‘a long-standing controversy within the
law of evidence’; C Tapper ‘Evidential privilege in cases involving children’(1997) 9 Child and Family Law Quarterly 1,
at 4, calling Pape a‘somewhat vague equitable exception [where] the rule of privilege is effectively converted into a rule
of inadmissibility’.
67
HL Ho ‘Admissibility, privilege and the expunging of evidence’(1994) 6 SAcLJ 146, at 150.
68
Emphasis in original.
69
Cf Auburn, above n 37, p 245, arguing that Pape ‘and the cases following it have given the equitable breach of confidence
doctrine a status and effect it simply cannot have’.
70
Documentary Evidence makes an absolute (and, it seems, correct) statement that ‘injunctive relief was always available to
prevent breach of confidence’(Hollander, above n 10, para 27–01). At the same time. Keane and McKeown’sModern Law of
Evidence is less confident, stating that this exception ‘arguably’existed (Keane and McKeown, above n 10, p 47). Murphy on
Evidence refers to Goddard and ITC as ‘[leaving] the law in a rather unsatisfactory condition …This problem has never been
resolved as a matter of common law’(Glover, above n 8, p 76). Likewise, Dennis comments that later authorities trying to pin
down the basis of the Pape exception ‘are in disarray’: I Dennis The Law of Evidence (Sweet & Maxwell, 6th edn, 2017) para
[10–022], although this comment has been removed from the 7th edition.
71
Imerman v Imerman, above n 14.
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(b) Integrity and the common law
In terms of a chronological narrative of developments, it is necessary to comment here on another
development, concerning evidence obtained through torture.
In A v Secretary of State (No 2),
72
the applicants appealed against their detention pursuant to the
Anti-terrorism, Crime and Security Act 2001, in part on the basis that in certifying that they should be
detained, the Secretary of State had relied on evidence of a third party obtained through torture. The
Special Immigration Appeals Commission held that if there was such material, it could examine it and
decide what weight to attach to it. The House of Lords held that the evidence could not be admitted,
overturning the Court of Appeal.
It is clear from the opinions in Athat the inadmissibility of evidence obtained through torture
applies to all proceedings.
73
This could be because of the ‘special’nature of torture as a particularly
heinous way of obtaining evidence. However, an additional explanation for the irrelevance of proceed-
ing categorisation lies in exploring the integrity principle (in its court-centred version).
74
For example,
Lord Bingham referred to use of evidence obtained via torture as ‘incompatible with the principles
which should animate a tribunal seeking to administer justice’.
75
Lord Hoffmann stated that in
cases where the methods used to obtain evidence were ‘such that it would compromise the integrity
of the judicial process, dishonour the administration of justice, if …the evidence [was] admitted’then
‘the evidence [may be] rejected on the ground that there would otherwise be an abuse of the processes
of the court’.
76
It is impossible to escape the conclusion that the abuse of process doctrine, as devel-
oped in criminal proceedings from Ex p Bennett onwards, has been influential here.
77
If there was any
doubt, Lord Hoffmann’s comment that ‘English law has developed a principle, illustrated by [Bennett],
that the courts will not shut their eyes to the way the accused was brought before the court or the way
the evidence of his guilt was obtained’makes this clear. As Choo and Nash argue (in the context of
criminal proceedings):
78
The decision in A and Others represents an acknowledgement that there may be circumstances in
which a court should be prepared, ‘on moral grounds’, to exclude reliable evidence because of the
manner in which it was obtained. It may signify a recognition that the mismatch between the
courts’divergent approaches to exclusion of improperly obtained evidence and stays for abuse
of process has finally been laid to rest, and that integrity considerations do have a role to play
in determinations of exclusion. Yet what is remarkable is that the House of Lords has achieved
this reconciliation by casually uncovering a common law principle of exclusion that had previously
been thought not to exist, and thereby extending the reach of Ex p Bennett into the realm of evi-
dential exclusion.
While Choo and Nash are arguing that Ais significant for exclusion in criminal proceedings, it is
argued here that Amay be significant for exclusion in civil proceedings also, beyond torture evidence.
This is illustrated by the way Awas used in Serious Organised Crime Agency v Olden.
79
In Olden, the
issue was whether the Serious Organised Crime Agency could rely on evidence found to have been
unlawfully obtained in a criminal proceeding, for the purposes of a civil application under the
Proceeds of Crime Act 2002. Although strictly unnecessary given availability of CPR 32.1, the High
72
A v Secretary of State for the Home Department (No 2), above n 13.
73
Ibid, at [35], [113]. This was confirmed in Shagang Shipping Co Ltd (in liquidation) v HNA Group Co Ltd (Liberty inter-
vening) [2020] UKSC 34, [2020] 1 WLR 3549, at [105].
74
Mirfield, above n 27, p 24.
75
A v Secretary of State for the Home Department (No 2), above n 13, at [52].
76
Ibid, at [87].
77
R v Horseferry Road Magistrates’Court, ex p Bennett [1994] 1 AC 42 (HL).
78
ALT Choo and S Nash ‘Improperly obtained evidence in the Commonwealth: lessons for England and Wales’(2007) 11
International Journal of Evidence & Proof 75 at 86 (emphasis added).
79
Serious Organised Crime Agency v Olden [2010] EWCA Civ 143, [2010] CP Rep 29.
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Court recognised a power to exclude the evidence if ‘its admission would dishonour the administration
of justice, or compromise the integrity of the judicial process’, in reliance on A.
80
Importantly, the
Court of Appeal agreed, stating ‘as Lord Hoffmann said in [A]: “there is a discretion in all cases to
exclude admissible evidence if its admission would dishonour the administration of justice or com-
promise the integrity of the judicial process”’.
81
Although purporting to quote directly from Lord
Hoffmann, this is not exactly what his Lordship said. It is worth quoting Lord Hoffmann in full to
show the distinction:
English law has developed a principle, illustrated by cases like [Ex p Bennett], that the courts will
not shut their eyes to the way the accused was brought before the court or the evidence of his guilt
was obtained. Those methods may be such that it would compromise the integrity of the judicial
process, dishonour the administration of justice, if the proceedings were to be entertained or the
evidence admitted. In such a case the proceedings may be stayed or the evidence rejected on the
ground that there would otherwise be an abuse of the processes of the court.
The evidence was not ultimately excluded in Olden. However, the recognition of a discretion to exclude
based on integrity concerns in civil proceedings (and extension of Abeyond torture) is a significant
departure from the previously understood orthodox position, which has received little attention.
It may be suggested that this extension of Awas wrong: it utilised a misquote of what Lord
Hoffmann actually said, and it represented a misunderstanding on the part of the Court of Appeal.
In introducing Lord Hoffmann’s words, the Court of Appeal had said that ‘in civil proceedings the
court looks to different criteria to decide whether to exclude evidence’. But Lord Hoffmann’s discus-
sion had been in respect of the development of discretion to exclude evidence in criminal proceedings,
post Kuruma.
82
In any event, the High Court in Olden had decided the admissibility point based on
CPR 32.1, and the Court of Appeal had affirmed the High Court’s approach (although allowing the
appeal on other grounds). It may therefore be said, based on the role of CPR 32.1, that the High
Court’s reference to Awas obiter, as was the Court of Appeal’s subsequent confirmation of the effect
of A.
These are valid arguments. But it is not fanciful that a later court would rely on Aas furnishing a
discretion to exclude. Olden is simply an illustration of the potential reach of A, or at least the ideas of
court-centred integrity that it represents, in civil proceedings. This brings us back to the question of
whether the evidence was inadmissible in Abecause of the use of torture, or because of a harder to
grasp idea of the integrity of the court. If it was the latter, this leaves open the possibility that there
are other methods of obtaining of evidence which might have such an impact ‘on the integrity of
the judicial process, dishonour[ing] the administration of justice …in such a case …the evidence
[may be] rejected on the ground that there would otherwise be an abuse of the processes of the
court’in the words of Lord Hoffmann. Again, this is independent of the CPR.
(c) Imerman
It is now possible to return to the development
83
of Pape in Imerman (concerning a matrimonial
property dispute). The first defendant had taken copies of information and documents (some
250,000) concerning the claimant’s finances from the claimant’s computer without consent. A conten-
tious issue was whether the court had any power to prohibit the defendants making use of the infor-
mation in ancillary relief proceedings. At first instance, Moylan J held that:
84
80
Serious Organised Crime Agency v Olden [2009] EWHC 610 (QB), at [26].
81
Serious Organised Crime Agency v Olden, above n 79, at [41] (emphasis added).
82
Kuruma v R, above n 39.
83
Although Primary Group (UK) Ltd v The Royal Bank of Scotland plc [2014] EWHC 1082 (Ch), [2014] RPC 26 described
Imerman as ‘in essence …a straightforward application of [Pape] to the electronic era’, at [224].
84
Imerman v Imerman [2009] EWHC 3486 (Fam), at [133].
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…the court’s power to make these orders is derived from broader principles which …can now be
framed within the rights and obligations created by articles 6 and 8 of the European Convention, but
which can also be seen from English authorities predating the Human Rights Act.
The authorities that Moylan J was referring to included Pape and ITC, showing that the ‘broader prin-
ciples’in the Pape line of cases had coalesced around the terminology of the ECHR and the Human
Rights Act 1998. Also demonstrating the connection between developments in Pape and general integ-
rity ideas from A v Secretary of State, Moylan J referred to the High Court in Olden as an authority for
existence of the court’s power to control the use of irregularly obtained material.
85
The taking of
material from the claimant’s computer was an interference with his Article 8 right, so Moylan J
ordered that the files be returned to the claimant for removal of any privileged material. However,
any remaining material was to be handed back to the claimant’s wife for use in the ancillary relief pro-
ceedings. The claimant appealed against the order to return the files.
In the Court of Appeal, Lord Neuberger MR agreed that the material was covered by the claimant’s
Article 8 right, and he was entitled to maintain a claim for breach of confidence in relation to it.
86
Like
Moylan J, Lord Neuberger also said that the case could be analysed ‘by reference to the equitable prin-
ciples exemplified by such cases as [Pape]’.
87
The ordinary response of equity would be an injunction
to restrain passing on or using the confidential information obtained, unless there was any good rea-
son why equity should decline relief.
88
Under the Hildebrand rules, it had been thought that ‘a spouse
may profit from an unlawful breach of confidence (or tort) to the extent that, whilst she will be
required to return originals and disclose the existence of the copies, she may retain those copies’.
89
However, this could no longer be condoned by the courts, so did not provide a good reason to decline
relief.
90
There was no basis for special rules in family proceedings.
91
Mrs Imerman could not take the
law into her own hands:
92
If she had sufficient evidence to obtain a search order from the court, it cannot be right for a
judge effectively to sanction her committing a legal wrong by by-passing the court’s procedures
and hacking into her husband’s computer records …If she did not have sufficient evidence to
obtain a search order, it would be even more offensive if a judge effectively sanctioned her
[actions].
These comments draw on court-centred integrity as a justification for exclusion,
93
underlining the
potential universality of the integrity principle given the context here of private litigation.
Mrs Imerman was not permitted to retain copies. They were to be returned to Mr Imerman, with
one set to remain with his solicitors, who would advise him as to his disclosure obligations when
appropriate. Mrs Imerman was also restrained from using any of the information she had obtained,
‘at least for the time being’.
94
When/if she sought to rely on her recollection of any of the unlawfully
obtained information (perhaps to claim that Mr Imerman had made inadequate disclosure, for
example) it would be admissible.
95
However, ‘as a matter of common law, a judge often has the
85
Ibid, at [136].
86
Imerman v Imerman, above n 14, at [76], [79].
87
Ibid, at [105].
88
Ibid, at [72]–[74].
89
Ibid, at [106].
90
Ibid, at [107].
91
Ibid, at [137].
92
Ibid, at [142] (emphasis added).
93
Mirfield, above n 27, p 24.
94
Imerman v Imerman, above n 14, at [150].
95
Ibid, at [170]. For an example of a party attempting to rely on recollection of improperly obtained information, see Thum
v Thum [2019] EWFC 25.
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power to exclude admissible evidence if satisfied that it is in the interests of justice to do so’.
96
This is a
broad claim. Lord Neuberger gave Marcel v Commissioner of Police for the Metropolis as authority for
this proposition.
97
But, in Marcel we again find the influence of Pape, as the Court of Appeal recog-
nised there that a court has a discretion to grant an injunction to prevent a breach of confidence, sup-
ported by Pape. Overall, this means that the broad exclusionary discretion recognised in Imerman is
traceable to Pape. Regardless of Pape’s effect in the earlier cases, it now provides the foundation for a
general discretion to exclude evidence in civil proceedings based on how that evidence was obtained.
That discretion is broadly worded, and has nothing to do with the CPR.
98
(d) Reconciling A/Olden and Imerman
Although Olden (High Court) was cited by Moylan J in Imerman, Lord Neuberger did not refer to it (or
to A). It seems safe to conclude that the recognition of a general discretion in Imerman would have
occurred regardless of what was going on in Aas potentially expanded in Olden.Wecanseethisfrom
the long development of Pape itself. This raises the question of whether there are two discretions here
(Pape/Imerman,andA/Olden), or one. To reconcile the Imerman discretionary exclusion if it is in the
‘interests of justice’with the A/Olden ‘discretion in all cases to exclude admissible evidence if its admission
would dishonour the administration of justice or compromise the integrity of the judicial process’,we
could understand these as being the same general discretion (it being in the ‘interests of justice’to exclude
evidence ‘if its admission would dishonour the administration of justice or compromise the integrity of the
judicial process’). There may be benefits to recognition of a general discretionary power. However, it is
possible to draw a distinction between the two (accepting that such a distinction was probably not in
the minds of the judges deciding these cases). The A/Olden discretion could be understood as being con-
cerned with executive illegality,
99
which would bring this aspect of exclusionary discretion in civil proceed-
ings much closer to the understanding in criminal proceedings, which is preoccupied with official or
state-sanctioned wrongdoing. The cases in the Pape line could be characterised as being concerned
with abuse of the court’s own processes (if we carve out privacy concerns, which are discussed in the
next section). Pape itself could be said to have involved abuse of the subpoena procedure. Naf Naf also
fits this characterisation, involving misuse of the court’s Anton Piller jurisdiction. The discussion in
Imerman also draws out the idea of abuse of the court’s own processes through ‘sanctioning’an omission
to use those procedures through a litigant taking matters into their own hands. Although ITC was tech-
nically ‘outside’the Pape line, it also fits this theme as the conduct in that case was characterised as ‘prob-
ably contempt of court’. In terms of the common rationales said to justify exclusion of evidence in
criminal proceedings, both A/Olden and Pape/Imerman align with the integrity principle and deterrence.
In summary, the above discussion has shown that there is at least one general discretion enabling exclu-
sion of improperly obtained evidence in civil proceedings, with a long history. It may be possible to char-
acterise these cases as supporting two independent discretions. In any event, the CPR have nothing to do
with either. There is a further aspect which we will turn to now, which is the relevance of human rights.
2. Relevance of human rights
It is difficult to untangle human rights concerns from the general discretion(s) discussed above
because it will already be obvious that there are human rights overlays to the cases discussed,
96
Imerman v Imerman, above n 14, at [171].
97
Marcel v Commissioner of Police of the Metropolis [1992] Ch 225 (CA), at 265. In Lifely v Lifely [2008] EWCA Civ 904,
Ward LJ relied on the same page of Marcel to support the claim that ‘even before the Human Rights Act was enacted, the
court has had a discretion whether or not to admit evidence which was wrongfully obtained’.
98
The CPR did not apply in Imerman per CPR 2.1(2). Rule 22.1 is the Family Procedure Rules 2010 equivalent to CPR
32.1, however this did not come into force until 6 April 2011, ie after Imerman had been decided.
99
Even though Awas about foreign torture, the general rule against admission of evidence obtained via torture depends in
part on concerns over executive illegality (see A v Secretary of State, above n 13, at [97]).
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particularly post enactment of the Human Rights Act 1998 (HRA 1998).
100
However, it is necessary to
draw human rights out in its own discussion. If we characterise Imerman and A/Olden as independent
discretionary powers, then the fact that evidence may be obtained in breach of a person’s human rights
requires independent recognition of an exclusionary power, to capture cases where the abuse of the
court’s processes or executive illegality discretions would not apply. This is demonstrated by Jones v
University of Warwick. Further, even if we characterise the Imerman and A/Olden examples as threads
of a general discretion, human rights concerns (a) provide further external justification for the neces-
sity of recognising some discretionary power and thereby rejecting the idea that there is or should be
no discretion in civil proceedings once and for all; and (b) provide content for the exercise of the
discretion.
(a) Recognition of a discretion enabling exclusion where evidence has been obtained in breach of a
Convention right is necessary
Section 6 of the HRA 1998 states that it is unlawful for a public authority to act in a way which is
incompatible with a Convention right, and defines ‘public authority’as including a court or tribunal.
This means that Convention rights have remedial horizontal effect,
101
as it is unlawful for a court to
exercise its discretionary powers to grant remedies in a manner contrary to Convention rights.
102
As is
well known from the way the tort of misuse of private information has evolved,
103
‘enforcing
[Convention rights] may require a court to modify the common law’.
104
This provides context for
Moylan J’s comment in Imerman that:
105
…the court is entitled, and in appropriate circumstances will be required, to control the use of
information irregularly obtained for the purposes of the proceedings if it is necessary to effect a
fair trial and/or to protect one party’s rights under Article 8.
It is clear from the European Court of Human Rights’reasoning in the criminal case of Khan that
refusal to recognise a discretion enabling exclusion of evidence on the basis of how that evidence
had been obtained in civil proceedings would have raised issues under Article 6 of the
Convention.
106
In Khan, Mr Khan claimed that his Article 6 (right to fair trial) and Article 8
(right to respect for private life) rights had been breached, because he had been convicted of offending
following a trial where the prosecution had relied on evidence obtained in violation of his privacy.
Although the European Court agreed that Mr Khan’s Article 8 right had been violated, this did not
mean there was automatically a breach of Article 6. This was because Mr Khan had had the chance
to challenge the authenticity and use of the evidence in the domestic courts pursuant to section 78
of the Police and Criminal Evidence Act 1984, which permits a judge to exclude evidence if satisfied
that its admission would have such an adverse effect on the fairness of the proceedings that it ought
not to be admitted. The significance is that if the criminal court had had no discretion to consider
exclusion, there would have been a violation of Article 6. It was the fact that a source of exclusionary
power was available that was important, not whether the power was ultimately used to exclude. The
100
A v Secretary of State involved the right to be free from torture and the right to a fair trial, and Imerman involved the
right to respect for a private life (and that particular right, and the transformation of breach of confidence into the tort of
misuse of private information, gives us language to deal with some, if not all, of the Pape line, as recognised by Moylan J).
101
AL Young ‘Mapping horizontal effect’in D Hoffman (ed) The Impact of the UK Human Rights Act on Private Law
(Cambridge: Cambridge University Press, 2011).
102
St Merryn Meat Ltd v Hawkins [2001] C P Rep 116 (Ch); Wilson v First County Trust Ltd (No 2) [2003] UKHL 40,
[2004] 1 AC 816, at [174].
103
Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
104
Wilson v First County Trust Ltd (No 2), above n 102, at [180].
105
Imerman v Imerman, above n 83, at [134] (emphasis added).
106
Khan v United Kingdom (2001) 31 EHRR 45 (ECtHR).
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right to a fair trial also covers civil proceedings, so transposing this reasoning to civil proceedings leads
to the conclusion that there would be issues under Article 6 if English judges disclaimed any discretion
to exclude evidence in civil proceedings where that evidence was obtained in violation of Convention
right/s, so that a discretion must be recognised (even if its use is rarer in civil proceedings than in crim-
inal proceedings).
This is confirmed by López Ribalda v Spain.
107
That case concerned an allegation by the applicants
that their employer’s decision to dismiss them had been based on video surveillance implemented in
breach of Article 8 ECHR. They complained that admission of the evidence in unfair dismissal pro-
ceedings had been a breach of Article 6. The Grand Chamber found that although Article 8 was
engaged, it had not been breached. Nonetheless, it considered the Article 6 issue.
The Grand Chamber reiterated the principles which it had developed in a criminal law context.
These included the fact that the question under Article 6 is whether the proceedings as a whole
were fair. In relation to Article 8 cases, fairness under Article 6:
108
has to be determined with regard to all the circumstances of the case, including respect for the
applicant’s defence rights, and the quality and importance of the evidence …it must be examined
whether the applicant was given an opportunity to challenge the authenticity of the evidence and
oppose its use.
These principles were relevant to civil cases as:
109
while the “fair trial”guarantees are not necessarily the same in criminal-law and civil-law pro-
ceedings, the States having greater latitude when dealing with civil cases, [the Court] may never-
theless draw inspiration, when examining the fairness of civil-law proceedings, from the
principles developed under the criminal limb of Article 6.
Applying these principles, the Grand Chamber found no violation of Article 6. The applicants had
been able to oppose the use of the evidence in the domestic proceedings, as the domestic law provided
that evidence obtained in breach of a fundamental right had to be excluded. The Employment
Tribunal therefore directly addressed whether the evidence had been obtained in breach of Article
8 and found that it had not been (a conclusion supported by the Grand Chamber).
110
This emphasises
the importance of existence of a power enabling consideration of exclusion, as suggested above in reli-
ance on Khan.
(b) Reappraisal of Jones v University of Warwick
Jones v University of Warwick is credited with clarifying that CPR 32.1 could be used for excluding
improperly obtained evidence. However, what Jones actually does is demonstrate the importance of
human rights concerns to the recognition of powers of discretionary exclusion, within the framework
of the HRA 1998.
The facts were that Jones was suing the University (her employer) for damages arising from an
injury. An inquiry agent, acting for the University’s insurers, accessed Jones’home by posing as a mar-
ket researcher and filmed her with a hidden camera. Based on the footage, an expert opined that Jones
was not suffering from a continuing disability. The University applied for leave to adduce the video.
Jones argued it should be excluded under CPR 32.1(2), because of trespass and infringement of her
privacy. The first instance judge had excluded the evidence. However, on appeal, the High Court
gave the University permission to adduce the video –it was relevant evidence, Jones had been
107
López Ribalda v Spain (2020) 71 EHRR 7 (ECtHR).
108
Ibid, at [151].
109
Ibid, at [152].
110
Ibid, at [154].
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provided with copies of the recording and had not been ambushed, and in general the fact that evi-
dence had been obtained illegally or improperly did not render it inadmissible as a rule.
Jones appealed to the Court of Appeal. Lord Woolf gave the judgment, stating that the High Court’s
approach was ‘consistent with the approach which would have been adopted in both criminal and civil
proceedings prior to the coming into force of the [CPR] and the [HRA 1998]’.
111
That approach was
one where ‘if evidence was available, the court did not concern itself with how it was obtained’.
112
However, the approach now had ‘to be modified as a result of the changes that have taken place in
the law’.
113
Clearly, these changes were the enactment of the CPR, as well as the HRA 1998.
Taking the CPR first, the wording of CPR 32.1(2) (the court may ‘use its power [to control evi-
dence] to exclude evidence that would otherwise be admissible’) is broad enough to encapsulate
improperly obtained evidence. But seen in the light of the background to the CPR, using CPR 32.1
in this way becomes contentious.
114
The Woolf Reports placed the need for judicial control of evidence
very much in the context of controlling evidence to reduce costs and delays. A few extracts from the
Reports demonstrate the point:
115
The inappropriate use of experts to bolster cases leads to additional cost and delay. It arises and is
allowed to continue because parties at present have complete control over the scope and manage-
ment and presentation of their case …
116
The legal profession will …be performing its traditional adversarial role in a managed environ-
ment governed by the courts and by the rules which will focus effort on the key issues rather than
allowing every issue to be pursued regardless of expense and time …
117
The powers which the new rules will give to judges to control and limit evidence will result in far
greater judicial control over the pace, scope and ordering of litigation.
118
There is no discussion in the Woolf Reports of use of case management powers to prevent use of evi-
dence because it was improperly obtained.
119
Although in Less v Benedict, Warren J stated that ‘it
should be remembered that the CPR were drafted with the ECHR in the background and were clearly
intended to be compliant with it’,
120
the Woolf Reports contain no overt discussion of the ECHR or
effect that reliance on evidence obtained in breach of a Convention right may have on the litigants’
Article 6 right to a fair trial.
Coming back to the discussion in Jones, Lord Woolf stated that a judge exercising the discretion
contained in CPR 32.1 in accordance with the CPR’s overriding objective needed to ‘consider the effect
of his decision on litigation generally’.
121
As an example of this wider approach, Lord Woolf referred
to the fact that resource allocation decisions in an individual case had to be made with reference to
111
Jones v University of Warwick, above n 9, at [21].
112
Ibid.
113
Ibid, at [24] (emphasis added).
114
A Zuckerman Zuckerman on Civil Procedure: Principles of Practice (Sweet & Maxwell, 4th edn, 2021) para 11.92: ‘Give
[n] that it is a case management tool, CPR 32.1(2) ought not to be seen as a basis upon which to deal with questions of
principle that have nothing to do with case management. …[it] was not intended to confer on the court the discretion
to exclude improperly obtained evidence’.
115
See also Sir Harry Woolf ‘Access to justice: interim report of the Lord Chancellor on the civil justice system in England
and Wales’(1995) ch 5; Sir Harry Woolf, ‘Access to Justice: Final Report’(1996) ch 5, para 29; ch 15.
116
Woolf, Interim Report, above n 115, ch 23.
117
Woolf, Final Report, above n 115, ch 1, para 3.
118
Ibid, ch 17, para 84.
119
K Grevling ‘CPR r 32.1(2): case management tool or broad exclusionary power?’in D Dwyer (ed) The Civil Procedure
Rules Ten Years On (Oxford: Oxford University Press, 2009) p 254.
120
Less v Benedict [2005] EWHC 1643 (Ch), [2005] 4 Costs LR 688.
121
Jones v University of Warwick, above n 9, at [25].
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their impact on allocation in other cases. He then said that ‘proactive management of civil proceed-
ings, which is at the heart of the [CPR], is not only concerned with an individual piece of litigation
which is before the court, it is also concerned with litigation as a whole’. So far this supports the view
that CPR 32.1 is about evidence which is of limited relevance or case management regarding resource
concerns, and falls short of application to highly relevant evidence.
Lord Woolf went on to say:
122
So the fact that …the defendant’s insurers …have been responsible for the trespass …and
infringing her privacy contrary to Article 8(1) [ECHR] is a relevant circumstance for the
court to weigh in the balance when coming to a decision as to how it should properly exercise
its discretion in making orders as to the management of the proceedings.
This is a subtle extrapolation from the text of the overriding objective which focuses on proportionality
(resource management), to a general principle of ‘proactive management’concerned with ‘litigation as
a whole’, capable of encapsulating HRA concerns. In exercising its discretion:
123
The court must try to give effect to …the two conflicting public interests. The weight to be
attached to each will vary according to the circumstances. The significance of the evidence will
differ as will the gravity of the breach of Article 8, according to the facts of the particular
case. The decision will depend on all the circumstances.
The background to the CPR demonstrates that it was the HRA 1998 which did the heavy lifting in
prompting recognition that it was possible to exclude the evidence on the basis that it had been
improperly obtained as distinct from case management (resource) concerns. Although Jones was not
written in this way (and it must be acknowledged that the parties agreed that there was an ability
to exclude pursuant to CPR 32.1) the recognition that CPR 32.1 could be used in order to exclude
improperly obtained evidence in that case should be understood as an application of section 3 of
the HRA 1998. That provision states that ‘so far as it is possible to do so, primary legislation and sub-
ordinate legislation must be read and given effect in a way which is compatible with Convention
rights’. It was argued above that the European Court of Human Rights’reasoning in Khan (and,
later, Ribalda) means that refusal to recognise a discretion enabling exclusion of evidence on the
basis of how that evidence had been obtained in civil proceedings (whether through CPR 32.1 or
otherwise) would have raised issues under Article 6. In that sense, the recognition of discretion in
Jones was inevitable. Even if the wording in CPR 32.1 had not been available, the later developments
in Imerman and Olden demonstrate that the law was already on this path. This undermines the aca-
demic and sometimes judicial focus on the CPR as the source of the discretionary power to exclude
evidence in civil proceedings, and instead emphasises the importance of Convention rights.
Understood in this way, Jones is either an example of the human rights-based thread of the general
exclusionary discretion, or an example of a third discretion (alongside the Imerman and the A/Olden
discretions). But either way, CPR 32.1 is about resource management, and it is very unlikely that a
court would exclude evidence pursuant to CPR 32.1 in a case where cost and time concerns did
not apply, unless the facts were such that it was in the interests of justice to do so (in the words of
Imerman) or where admission would dishonour the administration of justice (in the words of A/
Olden). This suggests that Zuckerman’s view, that CPR 32.1 should not be used for ‘questions of prin-
ciple that have nothing to do with case management’, was right all along,
124
and CPR 32.1 is not a
distinct source of exclusionary power (when considering improperly obtained evidence, rather than
122
Ibid (emphasis added).
123
Ibid, at [28].
124
Zuckerman, above n 114, 11.92.
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costly or time-consuming evidence). The text of the rule is convenient, but without CPR 32.1, the
courts would have recognised an exclusionary discretion regardless. We see this from the develop-
ments of Pape, occurring well before the enactment of the CPR, and the culmination of these devel-
opments in Imerman (where the CPR did not apply). That a discretion would be recognised was also
necessary applying the jurisprudence of the European Court of Human Rights. Of itself, this is a sig-
nificant untangling of the scant authorities on exclusion of improperly obtained evidence in civil
proceedings.
(c) Content of human rights based discretionary exclusion
Aside from human rights concerns requiring recognition of a discretion, the ECHR human rights
framework is also important because it informs the content of the discretionary exercise. Jones and
Imerman provide examples.
In Jones, Lord Woolf considered that the insurer’s conduct was not ‘so outrageous’that the defence
should be struck out, and ‘it would be artificial and undesirable for the actual evidence, which is rele-
vant and admissible, not to be placed before the judge’.
125
This represents a disappointing return to the
traditional view that there should be no discretion, even while recognising that exclusion was possible.
To exclude the evidence would mean each side would need to instruct fresh experts, and ‘evidence
which is relevant would have to be concealed from them …it would not be possible to cross-examine
[Jones] appropriately’.
126
Although not using this language, these are Article 6 concerns. As a result,
Lord Woolf would not interfere with the High Court’s decision. However, it was ‘appropriate to make
clear that the conduct of the insurers was improper and not justified’,
127
raising deterrence ideas. Lord
Woolf proposed to order the defendant to pay the costs of the admissibility proceedings, and indicated
to the trial judge that in determining costs ‘he may consider the costs of the inquiry agent should not
be recovered’.
128
Further, if it turned out Jones had an innocent explanation for her movements in the
videos, ‘this is a matter which should be reflected in costs, perhaps by ordering the defendant to pay
the costs throughout on an indemnity basis’.
129
This was not a ‘perfect reconciliation of the conflicting
public interests’, but was ‘at least [a] solution [which] does not ignore the insurers’conduct’.
130
In Imerman, the human rights framework meant that in determining whether to admit evidence of
Mrs Imerman’s unlawfully obtained recollection of the contents of the documents, the court would
have to balance her Article 6 right to a fair trial with all available evidence, against Mr Imerman’s
Article 8 right. The balancing exercise may also involve Article 10, and the Mr Imerman’s Article 6
right ‘on the basis that he might say the trial was unfair if it extended to evidence which had been
wrongly, even illegally, obtained from him’.
131
Conclusion
Putting CPR 32.1 in its place reveals either one general discretion to exclude when it is in the interests
of justice to do so (using this as a catch-all phrase to encompass Imerman, A/Olden and human rights
concerns), or potentially three discretions: the Pape/Imerman line, which permits exclusion when a
party to litigation has abused the court’s own processes, perhaps aligning with deterrence/discipline
and court-centred integrity rationales borrowed from the literature concerning criminal proceedings;
125
Jones v University of Warwick, above n 9.
126
Ibid.
127
Ibid, at [29].
128
Ibid, at [30].
129
Ibid.
130
Ibid.
131
Imerman v Imerman, above n 14, at [176]. See The Commissioner of Police of the Metropolis v Times Newspapers Ltd
[2011] EWHC 2705 (QB), [2014] EMLR 1 for an example of this balancing in practice, in relation to reference to ‘leaked’
information in a statement of defence.
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the A/Olden discretion to exclude where there has been executive illegality (with differing outcomes
depending on the seriousness of the illegality), more clearly aligned with the integrity rationale as
related to criminal proceedings; and a discretion to exclude where evidence has been obtained in
breach of a person’s human rights, which will sometimes overlap with facts giving rise to the previous
two, and will sometimes be distinct.
132
It may be that it is most pragmatic to recognise one general
discretion, reflecting the practical realities of judicial decision making, and reserving the more specific
categories identified here as tools for academic commentary and critique.
To the extent that the exclusionary discretion in civil proceedings has been the subject of any
detailed discussion, the view has been expressed that the approach in civil proceedings is now
much closer to that applying in criminal proceedings.
133
One judge has called the approach under
CPR 32.1 and under section 78 of the Police and Criminal Evidence Act ‘broadly the same’.
134
This is not true if CPR 32.1 is understood as related to resource management concerns, but is true
if CPR 32.1 is understood as a stand-in for the human rights discretion in the way explained in section
3(b) above. When taking the latter view, it is interesting to observe that this position has been reached
through a process of slow, obscure development, in contrast to the very visible maturation of section
78 jurisprudence. Section 78 was a late addition to the Police and Criminal Evidence Bill, but was the
subject of considerable debate in the Commons and Lords. While the text of section 78 may be cri-
ticised, along with the way the provision has been used, the issue of exclusion in criminal proceedings
is very much in the open. In contrast, the overlapping developments leading to recognition of discre-
tion/s to exclude in civil proceedings have been largely ignored in the conversation over exclusion of
improperly obtained evidence, and there has been no statutory intervention.
The messy development here is not necessarily a bad thing, and it is a proxy for development of the
common law generally. But going forward, it is time to definitively reject the view that there is no dis-
cretion to exclude evidence in civil proceedings based on how the evidence was obtained. As Hollander
suggests, ‘that was always simplistic, if not misleading’.
135
Court-centred integrity concerns were start-
ing to emerge in the Pape line of cases, and are now of further relevance following A(perhaps
extended in Olden). Further, the fact that a court is a public authority under the HRA 1998 requires
recognition of a power to exclude evidence to uphold the right to a fair trial contained in Article 6
ECHR. It is also time to recognise that CPR 32.1 is not responsible for the existence of the discretion-
ary power to exclude evidence based on how the evidence was obtained.
An advantage of untangling the authorities concerning exclusion of improperly obtained evidence
in civil proceedings is that this enables us to move into consideration of how and why exclusion in civil
proceedings may be more or less desirable than exclusion in criminal proceedings, as well as facing
head on the desirability of having one general discretion or many discretions. There are a whole
range of issues of principle which deserve attention. Sankoff and Wilson draw attention to many of
these in their article on the position in Canada, with a particular focus on the pursuit of truth.
136
Other issues include what improperly obtained evidence means for the purposes of civil procedure
(do we only care about evidence obtained in breach of a person’s human rights, as the most serious
subset of improperly obtained evidence, so that the Imerman and A/Olden limbs are actually narrower
examples of a broader principle concerned with human rights, rather than independent discretions?
Do we define human rights only as Convention rights, or does this apply more widely, for example
to statutory data protection rights?); the extent to which the identity of the party wrongfully obtaining
the evidence matters (if we are concerned about judicial integrity, is this limited to actors who have
some kind of state sanctioned role, or is it more general?); the extent to which it matters whether it
is a claimant or defendant seeking to rely on improperly obtained evidence in a civil proceeding,
132
Imerman itself is a good example of overlap –there was both a concern about misuse of the court or involvement of the
court in sanctioning wrongdoing, and the distinct fact of interference with Mr Imerman’s Art 8 rights.
133
ALT Choo Evidence (Oxford: Oxford University Press, 5th edn, 2018) p 180.
134
Egeneonu v Egeneonu [2018] EWHC 1392 (Fam), at [15].
135
Hollander, above n 10, para [27–01].
136
Sankoff and Wilson, above n 11, at 166, 170–171.
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given that section 78 of the Police and Criminal Evidence Act 1984 applies only to prosecution evi-
dence, not defence evidence; and the relevance of disclosure obligations and ‘inevitable discovery’of
evidence alongside the Imerman concern with abuse of the court’s own processes.
Some jurisdictions include express reference to exclusion in civil proceedings in their evidence
legislation,
137
or have grappled with admissibility of improperly obtained evidence at the highest levels
of the court system.
138
It may be that we are content to sit back and allow the judiciary to continue to
develop the law. To come back to the position in Aotearoa New Zealand which opened this paper, this
is the view which has been taken by the New Zealand Law Commission, which recently considered
whether amendment of New Zealand’s Evidence Act 2006 was required to make express reference
to powers to exclude improperly obtained evidence in civil proceedings. In concluding not to
amend, the Law Commission stated, ‘[framing] a test for exclusion of improperly obtained evidence
in civil proceedings without the benefit of judicial decisions or extensive engagement from submitters
is likely to create more problems than it would solve’.
139
However, the attempt at untangling English
authorities which has been made in this paper, and the untangling of Canadian authorities in Sankoff
and Wilson’s article,
140
suggests that the New Zealand Law Commission’s hope that the incremental
development of the common law will solve the issue of exclusionary discretion in civil proceedings is
perhaps overly optimistic.
137
See for example s 138 of the Evidence Act 1995 (Cth, Australia), which provides that evidence that was obtained
improperly ‘must not be admitted unless the desirability of admitting …outweighs the undesirability of admitting evidence
that has been obtained in the way in which the evidence was obtained’, applying to both criminal and civil proceedings.
138
Marwood v Commissioner of Police, above n 2.
139
NZLC R142, above n 2, para 7.83.
140
Sankoff and Wilson, above n 11.
Cite this article: Allen-Franks A (2022). Discretion to exclude improperly obtained evidence in civil proceedings in England
and Wales. Legal Studies 1–20. https://doi.org/10.1017/lst.2022.23
20 Alexandra Allen‐Franks
https://doi.org/10.1017/lst.2022.23 Published online by Cambridge University Press