a. Human Rights
The ECHR was incorporated into UK law by the Human Rights Act 1998. Section 6 provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section “public authority” includes-
(a) a court or tribunal
(b) any person certain of whose functions are functions of a public nature…”
b. Civil Procedure Rules
In 1999 the courts in England and Wales adopted a new civil procedure code “with the overriding objective of enabling the court to deal with cases justly”. Rule 32.1, so far as relevant, provides:
“(1) The court may control the evidence by giving directions as to…
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”
J injured her right hand in an accident at work and claimed substantial compensation, on the basis that she had a continuing disability. Her employers admitted liability for the accident, but denied that J had the disability which she claimed. On two occasions a private detective employed by the employer’s insurers gained access to J’s house by pretending to be carrying out market research and filmed J without her knowledge. Having viewed the film, the employer’s medical expert concluded that J’s hand functioned entirely normally.
J’s employers applied to the court for permission to show the video at the hearing of the claim. Under English law the evidence would be admissible, but J submitted that the court should exercise its discretion to exclude the evidence under Rule 32.1 because of the unlawful entry into J’s home by the private detective and the infringement of her right to privacy under Article 8 of the ECHR.
6 September 2010