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Facebook evidence: a defendant solicitor’s view

Facebook has nearly 30,000,000 users in the UK and is now viewed as an important first port of call for employers, insurers and defendant solicitors, as it provides a real-time snapshot of a potential employee or claimant. The use of Facebook in personal injury litigation was highlighted in this year’s widely reported decision of Nield v Loveday.

Graham Loveday, a former lorry driver, claimed that after an accident in 2006, he was unable to drive, needed to use a wheelchair and suffered anxiety when travelling. However, a combination of surveillance and viewing of Mr Loveday’s Facebook page – where he had posted photographs of a caravan holiday in Italy – led to successful proceedings against Mr Loveday (who received a nine-month prison sentence) and his wife (who received a suspended sentence). The decision inLocke v Stuart [2011] was also influenced by Facebook, as it was used to show links between claimants and witnesses in a series of staged accidents.

What information is available to the outside world is a matter of choice for Facebook users, who decide how much they want to share through privacy settings. If they do nothing, the default is that other users can see only basic information: name; picture; gender; friends and networks; hometown; activities and experiences. Facebook has recommended privacy settings, which provide restricted access to three classes of user – ‘Everyone’, ‘Friends’ and ‘Friends of Friends’. Friends have the least restricted access and Everyone has the most. Users can also customise privacy settings, so that only specified Friends can see a particular picture or post.

There is no doubt that, potentially, there is a wealth of valuable information within a claimant’s Facebook page, including:

  • Information on liability;
  • Connection to alleged independent witnesses;
  • Confirmation of identity through photographs;
  • Work status;
  • Level of activity or disability;
  • Future whereabouts for surveillance purposes.

As Nield seems to confirm, the question is not whether evidence obtained from a claimant’s Facebook page is admissible but rather: does it apply to all cases, regardless of how the information was obtained?  A comparison with covert surveillance evidence is relevant here and may provide an indication as to how the court would approach the issue.

When a defendant intends to rely on surveillance evidence, this involves consideration of the Human Rights Act 1998 and a balancing exercise between the claimant’s right to respect for his or her private and family life, and the defendant’s right to a fair trial.

The starting point is Jones v Warwick University [2003]. In this case, video evidence was obtained by deception, when the surveillance operative posed as a market researcher to gain access to the claimant’s home. The evidence was admitted, despite being obtained unlawfully (i.e. by deception). However, the court does have discretion, as illustrated in Rall v Hume [2001], where evidence obtained in the claimant’s home and at her child’s nursery was excluded.

The important point is that evidence that has been obtained unlawfully does not inevitably lead to it being excluded – although the court may not  admit certain evidence because of the circumstances in which it was obtained. Moreover, as in Jones, even if the court does admit certain evidence, it may penalise in costs the party that seeks to rely on it.

Putting this in the context of evidence obtained from a claimant’s Facebook account, there would appear to be no absolute bar on relying on Facebook evidence, although much depends on the circumstances in which it was obtained.

To avoid conflict with Rule 1 of the Solicitors’ Code of Conduct  (and arguably Rule 10.04 regarding contact with another party who has retained a solicitor), lawyers should not obtain evidence from Facebook by deception. They must also, however, act in the best interests of their clients.

If a claimant chooses not to have any privacy restrictions (i.e. Facebook is open to everyone), then there is no deception. In these circumstances, any evidence obtained can be freely relied upon and there should be no costs sanction. However, all the solicitor should do is look at the page: there should be no exchange of messages as this could constitute contact with a represented other party, thereby potentially coming into conflict with Rule 10.04 of the Code of Conduct.  It is possible to search Facebook and view a user’s pages (subject to the privacy settings they have in place) without having an account by clicking on this URL.

However, in line with the duty to act in the best interests of the client, solicitors should not necessarily decline to rely on evidence obtained from Facebook, even if it was obtained by deception or pretence. The lawyer’s duty to the client in these circumstances is to advise them that:

  • The court may not admit the evidence;
  • The court may impose costs sanctions whether or not the evidence is admitted.

It is a matter for the court to decide whether and on what basis or terms such evidence is to be admitted. Any ‘useful’ evidence viewed on a claimant’s Facebook page can be printed off, creating a document that is subject to standard disclosure obligations.

If the evidence is obtained at the pre-litigation stage, then it can/should be disclosed at this point, as a claimant is more likely to give up before he or she has any liability for third-party costs. It remains, however, a judgment call for individual solicitors.

In litigated cases, the primary obligation is to disclose in line with any court direction for disclosure or, if the evidence is obtained after that date, in compliance with a solicitor’s obligation to disclose a document as soon as practicable after it has come into existence. As with surveillance evidence, withholding disclosure until the claimant has produced a witness statement or fully pleaded schedule of loss is justified.

Unlike surveillance evidence, however, there does not appear to be any need to notify the court for case management purposes (seeRall v Hume) or to take any other positive steps. It is up to the claimant to apply to prevent the defendant from using the evidence on the grounds it was unlawfully obtained.

There is no doubting the benefits of reviewing Facebook and other social media when considering the veracity of a claim. This is clear from the decisions in Nield and Locke in the field of personal injury litigation, as well as in other areas of the law, notably divorce cases.

Lawyers, then, should consider reviewing all avenues of social media in appropriate cases but should always do so in accordance with the Code of Practice. As well as professional obligations, duties to clients should also be borne in mind and it is for the court to decide whether unlawfully obtained evidence is admissible and on what terms. Furthermore, if the claimant chooses to allow open access to a Facebook account, then there is no question of any unlawful act.

Posted on Nov 3rd, 2011 by Lyons Davidson