Small Claims Call Recording Evidence

MasterOfNone

I have a Small Claim against a company for getting sizes wrong with a bespoke product installation.

Despite serving them with a survey to verify this, they doubled down with a counterclaim.

During the works I received dozens of calls from tradesmen, companies, deliveries etc and ended up recording calls for keeping track of things. I understand this is not unlawful as long as it is for personal use and not disclosed to 3rd parties.

I accidentally recorded their surveyor confirming an important detail of the work on call. Because of the precision required in the work, they promised an important detail that is not expressly worded on contract. They are now trying to manipulate figures on the contract in order to discount for the error.

The recording was found in hindsight, I mentioned of it with a transcript in my LBA and also referred to this in my particulars of claim.

I was advised by a solicitor to disclose a transcript with my Witness Statement, but not necessarily the file. I read conflicting views about civil litigation and Judges frowning upon recordings where other parties are unaware (threads below, pls amend https).

In this case I am an individual and they are a company, but I am not sure if I would be penalised on costs or worse give them grounds for suing me after the case.

hxxps://icaew.com/archive/library/subject-gateways/law/legal-alert/2016-09/case-law-court-rules-secret-recording-can-be-used-in-evidence

https://forums.moneysavingexpert.com/discussion/5691445/small-claims-phone-recording-evidence

https://forums.moneysavingexpert.com/discussion/6030337/small-claims-court-secret-recordings

There is no follow up from other people who used this in evidence on those threads.

waamo

You seem to have taken legal advice from a solicitor. Rather than follow advice from unqualified strangers you would be much better to follow qualified legal advice.

hollydays

It's up to the judge whether he accepts the evidence

steampowered

There's nothing illegal about keeping a recording in this sort of situation.

If you want to use the recording as evidence, you need to disclose details - it sounds like you have done this by including a transcript as part of your evidence with your witness statement.

It is ultimately up to the judge to decide what weight to put on this evidence, and whether it is even relevant.

I don't quite understand from your post why the recording is relevant to the issues in your case. After all you were recording a third party surveyor, not the company you are suing. I can't work out why a recording of a surveyor would be any use in helping the court decide what the terms of your contract were, and whether the contract has been breached or not. But that may be just because we don't have the full background on this thread.

MasterOfNone

waamo wrote: »

You seem to have taken legal advice from a solicitor. Rather than follow advice from unqualified strangers you would be much better to follow qualified legal advice.

Thanks, I understand what you mean but this was an ad-hoc phone call at the early stages of the case. They are not representing me.

So I didn't feel confident enough on the advice and from things I have been reading it remains unclear.

DCFC79

waamo wrote: »

You seem to have taken legal advice from a solicitor. Rather than follow advice from unqualified strangers you would be much better to follow qualified legal advice.

This OP

Come back when you have any news OP, coukd help other posters in the future.

MasterOfNone

steampowered wrote: »

There's nothing illegal about keeping a recording in this sort of situation.

If you want to use the recording as evidence, you need to disclose details - it sounds like you have done this by including a transcript as part of your evidence with your witness statement.

It is ultimately up to the judge to decide what weight to put on this evidence, and whether it is even relevant.

I don't quite understand from your post why the recording is relevant to the issues in your case. After all you were recording a third party surveyor, not the company you are suing. I can't work out why a recording of a surveyor would be any use in helping the court decide what the terms of your contract were, and whether the contract has been breached or not. But that may be just because we don't have the full background on this thread.

Thanks for replying.

Sorry, I will clarify the matter a little better.

The surveyor on call is the surveyor of the company, he works on behalf of the company and undertook a survey to arrange the product sizes, place the order and installation.

The survey I served to the company was evidence from my own side, to define the error in the works.

So in the call with "their" surveyor before signing the contract he promises to achieve a specific detail that the company now denies.

In terms of a transcript, this is only in my LBA and mentioned in my Particulars of the case. We are not yet at disclosure stage for trial but I was planning to add in my Witness Statement.

The question is, if the Judge accepted this do I also need to file the actual audio file with the recording.

And if this is admitted, would the other side have grounds to sue me for the recording after the trial?

edit: or the Judge penalise me on costs?

waamo

What is the size of the claim? If this is on the small claims track costs are rarely awarded. As a general rule costs are only awarded if one side acts unreasonably. The bar for unreasonable behaviour is usually set pretty high.

MasterOfNone

waamo wrote: »

What is the size of the claim? If this is on the small claims track costs are rarely awarded. As a general rule costs are only awarded if one side acts unreasonably. The bar for unreasonable behaviour is usually set pretty high.

Yes it is SCT and approximately £4k, I have some costs that can be awarded under this track.

You should have seen the emails from the other side and the counterclaim, it might set new bar for unreasonable...

waamo

MasterOfNone wrote: »

Yes it is SCT and approximately £4k, I have some costs that can be awarded under this track.

You should have seen the emails from the other side and the counterclaim, it might set new bar for unreasonable...

It depends. Emails in themselves aren't unreasonable even if they are ridiculous. If they've marked them "without prejudice" you can't show them anyway

unholyangel

waamo wrote: »

It depends. Emails in themselves aren't unreasonable even if they are ridiculous. If they've marked them "without prejudice" you can't show them anyway

Only if the correspondence is regarding a settlement. Even then, there are some circumstances in which they can be admissible.

OP you're needlessly worrying. Your solicitor has advised you accordingly. Submitting the transcript is a loophole as such. If they dispute the content of the transcript, the judge can then decide whether to allow the recording or not.