Court of Appeal finds evidence should not have been excluded even if obtained by hacking

The Court of Appeal has dismissed an appeal against a judge’s decision upholding a claim where the claimant had relied on evidence obtained through the unlawful hacking of the defendant’s computer. The court found that, even if the claimant was responsible for the hacking (which had not yet been established) and its case would have failed without the unlawfully obtained evidence, the evidence should not have been excluded or the claim struck out: Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349.

This underlines the traditional approach of the English courts to unlawfully obtained evidence, which is generally to admit it if it is relevant to the issues in the case, particularly where the evidence would have fallen within the opponent’s disclosure obligations in any event. It was also significant that refusing to admit the evidence – or striking out the claim as an abuse of process – would leave the defendant with the benefit of their fraud. The court described that element of public policy as “at least as strong, if not stronger, than disapproval of the means by which relevant evidence is gathered”.

For more information see this post on our Litigation Notes blog.