Does Social Media = Jail Time?

Fraudulent litigants be warned!

Have you been entirely truthful? If not, you may fall foul to your own Social Media history!

The recent Court of Appeal judgment in Zurich Insurance PLC v David Romaine, [2019] EWCA Civ 851 (CA), makes it clear that committal proceedings can be brought against a litigant whose Social Media activity, in this case a Facebook account, reveals dishonesty.

The claimant issued personal injury proceedings against his former employer for noise induced hearing loss relying on a medical report which stated that he; ‘had not had any noisy hobbies’. The appellant solicitors commissioned an ‘intelligence report’, in which the claimants Social Media history was inspected, revealing that he was a motorbike enthusiast and performed in a live rock band. This was served. Tactically, the claimant discontinued his claim and the appellant issued committal proceedings. At first instance Goose J found that despite a contempt, it was not in the public interest for proceedings to be brought in circumstances of discontinuance at an early stage and dismissed the appellant’s application. The matter went on appeal, consequently the Court of Appeal granted permission for committal proceedings to be brought.

LJ Haddon-Cave stated; “a message needs to go out to those who might be tempted to bring – or lend their names to – fraudulent claims: that dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim”.

It is now clearer than ever that:
• Electronic evidence is and will become vital in cases, to establish the merit of a litigant’s case. The inspection of such, ought to be an additional step for legal professionals and will become key part of the preparation process for litigation.

• Over the past decade Social Media has changed how we communicate and share information about ourselves and our lives. It is a treasure trove of evidence in the public domain. This is easily accessible and not exempt from the eye of the law. Any assertion in evidence and conduct of parties, can be proven or unproven by gathering evidence from Social Media platforms to form an ‘intelligence report’, which in light of this recent judgment, will most likely become commonplace.

• Discontinuance under part 38, cannot be used by a claimant as a tactic to ‘wind up’ a claim, without adverse repercussions, in circumstances where there is clear evidence of untruths, particularly, from social media posts and in response to part 18 questions or in their witness statements.

• Committal proceedings should be considered in cases of fraudulent conduct.

© 2019 Whitestone Chambers

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