In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court.  It provides a lesson in how important it is to stress to clients that recordings are “documents” and the dangers of clients producing things at the last moment.


The claimant sought a declaration that he was entitled to an interest in the family farm. That claim was resisted.  The family had fallen out.   The defendants had recorded meetings with the claimant without his knowledge. Those recordings were only disclosed late in the day (some of them part way through the trial). (The claimant was successful.


  1. The trial had been listed for the full week in November but was adjourned half way through because of the parents’ late disclosure of some taped recordings of separate conversations which either or both of them had had with Andrew, without him knowing he was being recorded, or their bank manager (Mr Sowerby) or a local auctioneer (Mr Foxwell). These recordings had been produced by the defendants to their solicitors on the morning of Friday 2nd November (the last working day before the start of the trial) and Andrew’s solicitors had been told of their existence by an email that evening. By the start of the trial the following Monday, three of the recordings had been transcribed and during his cross-examination Andrew was asked some questions about two of the taped conversations.
  2. However, by the morning of the third day of the trial it was apparent that there were yet further recorded conversations which were disclosable but which had not been disclosed. This unsatisfactory state of affairs was referable to the very late production of them by the defendants to their own solicitors, which was compounded by the fact that they had been delivered on a digital recording device which lacked a power lead and was suffering from a leaking battery. The first three recordings had been transcribed over the weekend once a power lead had been obtained.
  3. I was informed of this by Mr Adams, counsel for David and Josephine, on the morning of the third day who also told me that there were also recordings of other conversations between the parents and their solicitors in farming and partnership matters (Francis & Co.) which had also been recorded and in respect of which privilege would be claimed. In addition, there was mention of Ross also having recorded a conversation he had with Andrew.
  4. Although Mr Jenkins, for Andrew, had been quite phlegmatic about the late production of the three transcripts (having read them he was relaxed about Andrew being cross-examined upon them despite their lateness) the position as it was revealed to me on the third morning led him to submit that there had to be an adjournment of the trial. At one point during that morning it was also contemplated that it might be appropriate for me to issue a witness summons against Ross (despite his intention to attend voluntarily to give oral testimony at trial in support of his parents) in order that his recording might be produced. In the event, the production of that recording by Ross was the subject of agreement before the trial was adjourned to the dates in December.
  5. The upshot of these developments in early November was that the trial was therefore adjourned with an order that the defendants pay the claimant’s costs of that third day in any event. Fortunately, the dates in December on which the trial resumed had just become available to the court. By the time the trial resumed in December the further non-privileged recordings (including the one made by Ross) were available to the parties and the court.
  6. I feel bound to remark that this was not the only unsatisfactory aspect of the defendants’ approach to the trial so far as their recordings are concerned.
  7. In addition to the late, and staggered, production of transcripts of the disclosable recordings, the defendants also provided the relevant audio files by emails to the court. At the hearing in November, Mr Adams urged me to listen privately to the first three recordings in my chambers. Mr Jenkins did not object to me doing so and, in fairness to Mr Adams, by 10 December and before the second stage of the trial, he had at my suggestion produced a list of the particular extracts suggested to be worthy of being listened to by me in advance of the resumed hearing. The total playing time suggested by that list amounted to approximately 1 hour and 20 minutes, though a saving of approximately 10 minutes was identified in relation to one recording if the court did not have the time available to listen to the whole of it.
  8. As I made clear to Mr Adams at both hearings, I had concerns about this approach even though, by the time Andrew gave evidence at the first hearing, I had listened privately to one recording (labelled “No 32”) whilst following it in the transcript. Andrew was then asked some questions about that recorded conversation in cross-examination, but that was only by reference to the written transcript that had just been added the trial bundle. No part of the audio recording was played in court and neither was Andrew taken through the whole of the transcript. My listening to that one recording, which the transcript appeared to reflect adequately enough, led me to be unsurprised that Mr Adams did not press to have that recording played in court so that certain suggested nuances of speech, perhaps not apparent from the written word, might then be put to Andrew.
  9. In those circumstances, my concerns about me listening privately to the recordings were two-fold and emanated from different aspects of the overriding objective. The first concern reflected the defendants’ assumption that the court was able to devote more time listening to evidence than the parties’ trial listing accommodated. I recognise that Mr Adams’ politely worded “listening list” of 1 hour and 20 minutes was relatively light fare compared with the out-of-court preparation for hearings usually required of judges in the Business and Property Courts, though it was in addition to what had already been set before me in this case. I should also make clear again that – given the reason for the adjournment and what had already been urged upon me in relation to “No. 32” – I had, when adjourning, directed that the parties should by 4pm on 10 December specify which particular parts of the audio recordings it was suggested the court should listen to. Nevertheless, whereas the parties were fortuitous enough to benefit from another piece of litigation disappearing from what then became their December trial dates, so that I was able to give them those dates when adjourning on 7 November, the timing of the defendants’ late disclosure, coupled with their request that the court should then devote more of its own time to it, paid scant regard to the need for the court to devote resources to other cases.
  10. The second concern was much more important and it related to the potential unfairness of me listening privately to the recordings and perhaps drawing an adverse inference against a party, on one or more aspects of the conversation, without that party (or his or her counsel) having an adequate opportunity to resist any such quasi-inquisitorial leanings. If one side wishes to argue that something more, of forensic significance, emerges from a particular statement than what appears from the written record of it then, generally, that is something that should be put to the maker of it, if he is giving evidence. That is what the adversarial process usually requires and, once that is recognised, Mr Adams’ time estimate for the private listening can be seen to have been a potentially beguiling one. Had I felt myself to be in danger of forming an adverse but untested inference against Andrew (for that is presumably what his parents had in mind) then I would have wished to have heard Mr Jenkins further on the point. I imagine that one of the preliminary points he might have made is that a private listening shoHaving already listened to part of “No. 32” at stage one of the trial, I observed to Mr Adams during that first hearing that I could not see what more I was supposed to gain from listening to the recording that did not otherwise emerge from reading the transcript of ituld be no substitute for structured cross-examination.
  11. Nevertheless, and despite my misgivings about the process expressed at stage one of the trial, by the end of its second stage it was clear there was no such danger of me privately drawing an inference from the extracts of the recordings to which I did listen in chambers. . Mr Adams was unable to assist me with any specific suggestions. By the second stage of the trial he had provided me with the “listening list” (his solicitors copying Mr Jenkins and his solicitors into the message of 10 December). Consistent with his relaxed response to the earlier, more general request that I should listen to the audio files, Mr Jenkins indicated to me at the start of the resumed hearing that he had no wish to recall Andrew to address the further recordings disclosed even later. Andrew’s legal team had by then listened to all the recordings and indeed had input in relation to the transcription of them (including making amendments to the three initially transcribed). Again, I asked Mr Adams what further points his side were suggesting could and should be drawn from listening to them. As before, nothing specific was identified.
  12. All in all, the request that I should listen to the recordings disclosed by the defendants on the eve of the trial, and then during it, was a little wasteful of court resources. Better that, however, than the danger of drawing an inference from a statement without its maker having an adequate opportunity to avert it.