A Matter of Record
Drawing on her experiences in recent trials, Joanne Staphnill and Sarah McKay consider the implications for professionals and their insurers of the trend towards greater use of telephony recording technology by clients.
Professionals regularly advise their clients by way of telephone conversations. Few would expect that their client might record that call without their knowledge. Nevertheless, if that client subsequently brings a claim in negligence against that professional, the recording might be relied on as evidence. As telephony technology improves, it seems likely that audio recordings become a more regular feature in such litigation. Therefore professionals and their insurers need to be aware of the legal, risk management and cost implications of telephone advice being recorded.
Is it legal to record telephone calls?
It is not illegal for a person to record their private conversation with another person without consent, provided the recording is for their own use. However, under Regulation of Investigatory Powers Act 2000, the contents cannot be made available to a third party without the consent of the person who was recorded.
In civil proceedings, there is no general rule that evidence must be excluded because it was obtained illegally or improperly. However, CPR r.32.1 does give the Court a discretion to exclude evidence. The Court will ordinarily weigh up the public interest in discouraging the conduct by which the evidence was obtained, against the public interest in establishing the facts in the case. If the Court allows the evidence, it would still have the discretion to reflect its disapproval by other means, such as an adverse costs order.
Conduct and risk implications
A client could record conversations with their professional adviser for entirely innocent reasons, such as to save the need to make a written note of the call. It might not occur to some clients that it would be courteous to ask the professional’s permission to be recorded. However, if the client deliberately omits to inform the professional that their conversation is being recorded, the risks for the professional are magnified. At best, it could imply that the client has lost confidence in the professional. In a worst case scenario an unscrupulous client might deliberately try to extract an admission or statement which could later be used in a claim against the professional.
It has long been a risk management ‘rule of thumb’ that you should never say anything in writing that would embarrass you if read out in court, because of the often indelible nature of written documents such as emails. By contrast, until relatively recently telephone conversations were more ephemeral. If they were recorded at all it would be in a written attendance note, rather than a verbatim audio recording. As a result, some professionals treat telephone calls with clients as a more informal medium of communication and express themselves unguardedly. Now that digital technology is widely available that allows telephone calls to be easily recorded and stored indefinitely, professionals may need to adapt their approach. It would be sensible to conduct conversations on the assumption that a verbatim record is being created. Of course no client wants their professional adviser to behave like an automaton, but professionals may need to take more care to ensure that advice given over the telephone is as complete and as accurate as advice given in writing after more thought. Alternatively, where necessary, the professional could make it clear that the telephone advice is only preliminary and will be followed by a more considered written advice.
Also, where a professional is starting a retainer with a new corporate client, at the “Know Your Client” stage it might be appropriate to ask whether the client uses telephone recording technology and for what purpose.
Impact on evidence and costs
Audio recordings are “documents” for the purposes of civil disclosure and therefore must be disclosed in the same way as written documents.
Unlike a traditional written attendance note, a recording makes it possible to know precisely what was said. This could be an evidential advantage, or not depending on what was said in the call! The existence of an audio recording of a crucial call could potentially save some costs, if that saved the parties from having to incur significant costs on witness evidence trying to prove what exactly was said. However, the question of exactly what was said is only part of the process, and legal costs will still have to be incurred in ascertaining the legal implications of what was said.
Also, if there are many hours’ worth of audio recordings in a case, this in itself can impact significantly on the costs of the action. The party that made the recordings, and their legal team, will have to listen to them all carefully to identify which recordings (or even parts of recordings) are discloseable, potentially having to plough through vast quantities of irrelevant material as part of that task. The other party, and their whole legal team, will also have to listen to the disclosed recordings, perhaps many times, to understand their impact on the merits. Listening to audio recordings can be a much slower process than reading text documents, but may be necessary if the speakers’ tone of voice is important to understanding the evidence. It may also be necessary for one or both parties to pay for professional transcripts of the calls to be made, and for the accuracy of the transcripts to be agreed between the parties, both of which steps could result in significant costs being incurred.
To avoid any nasty surprises in terms of both evidence and costs, professionals and their insurers should try and find out at the pre-action stage whether the client made any audio recordings. This will then assist insurers in setting an appropriate defence costs reserves, and in protecting future costs recoveries by producing accurate a Precedent H costs budget.
For further information please contact: Joanne Staphnill, Partner on (0)20 7280 8874 or at Joanne.Staphnill@dwf.law
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.