CIVIL PROCEDURE BACK TO BASICS 69 : SOCIAL MEDIA AND THE LITIGATOR: A RECAP

The earlier post on the judgment last  Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 was another case in which social media played a part.  The defendant holiday company found social media entries which appeared inconsistent with the claimants’ case that they had a poor holiday. This seems an appropriate time to recap on many  of the recent cases where social media has featured.

The appellant found various images and comments posted by the respondents on social media during their holiday, including Facebook posts, a YouTube video and two Twitter posts, which indicated that the respondents and their children were physically well during the holiday and had an enjoyable time while staying at the hotel.”

FACEBOOK FRIENDS

The Irish Times carried a report of a couple who staged a car crash. They claimed not to know each other, however they appeared in each other’s profile pictures.  This is now a common occurrence.

 

YOU ARE ALL DRESSED THE SAME: WEDDINGS AND KILTS

In PA -v-RK [2017] SC FOR 6 there was an issue as to whether an accident was staged. An important element of the trial was whether, and how well, the parties knew each other.

CROSS-EXAMINATION OF THE PURSUER (CLAIMANT)

“In cross on behalf of the party minuter, he accepted that on 9 September 2014 he had told Dr. Ian Kerss of the Alba Clinic, Dundee that he had had several back operations and that he had not actually worked as a roofer for more than 10 years. He was sure that he had not met the defender before the night in question. He was given a warning by the court at this stage. After that he appeared to be less sure that he had not previously met the defender. He was sure that he had not been at the defender’s wedding in about April 2014. When he was told that the party minuter had online photographs showing him at the defender’s wedding, he asked to see them. I allowed a short adjournment to allow the pursuer to reflect on his position. When the court resumed I reminded him of the earlier warning I had given him. At this point the party minuter was granted leave to lodge a fresh production, number 6/4 of process, for use in cross examination. The pursuer accepted that he was in the two photographs of guests at what appears to be a formal event that are reproduced in that production. He then vaguely remembered having attended a wedding with his girlfriend. He was one of a group of men similarly dressed except for the tartan of their kilt. Despite this he did not accept that he was part of a group even though he was one of seven adults in similar garb. He did not know the groom very well and he did not know many people at the wedding. He recalled that the bride was a friend of his girlfriend. It was a pure coincidence that the groom happened to be the defender in this case. He had had no idea whose wedding it was, as his partner had invited him to accompany her.”

CROSS-EXAMINATION OF THE DEFENDANT

[20]      He did not know the other driver. He had not met him before. He did not recollect his having been a guest at his wedding. His wedding had taken place in about April 2014. There were about 150 guests. He had not known most of the guests. He had spent most of the time with a small number of his family who had travelled from England for the wedding. The rest of the guests were friends and “friends of friends”. His wife is Scottish. When pressed he conceded that the pursuer’s partner is a friend of his wife. He had only met her in passing a few times. He did not recall whether he had met her before the wedding. He did not know her boyfriend (the pursuer) before the wedding. The suggestion was made that he had made up the story of the alleged accident in league with the pursuer. At this point I warned him that he did not require to answer a question that might involve him in admitting a criminal offence. He acknowledged that it might look like this had happened, but he denied it. He did not recollect having spoken to the pursuer before the crash.
[21]      In cross examination, he denied that there had been a groom’s party at the wedding. He had had a number of conversations with the pursuer since the accident, perhaps three in number. They had met from time to time at a local gym that they both frequented. These had been short conversations with no substantive content relating to the accident claim. When shown number 6/4 of process he confirmed that on about 20 April 2014 he had posted nine new photographs of his wedding including those that were reproduced in this production.  The pursuer’s partner is a friend of his wife. Around April 2014, this was a casual friendship. He disagreed with the suggestion that he had known the pursuer quite well before the date of the alleged accident.
[22]      He accepted that he had had the pursuer’s phone number stored in the contacts list of his mobile phone. He had deleted the entry for the pursuer from the contacts list that morning, i.e. just prior to being called to give evidence and after his arrival at court. He explained that he had done so to distance himself from the whole matter.  When asked why he had decided to delete the pursuer’s entry from his contacts list, he confirmed that he had understood the question but he declined to answer it citing my warning to him that he did not require to answer a question that might lead to his self-incrimination. He denied having spoken to the pursuer on the morning of the proof in the court house, by phone or by text. There had been only a few texts between them prior to the date of proof which were concerned with having been given a date for the proof.

 

DEFENDANT’S SUBMISSIONS

Because I like the defendant’s submissions so much I am including them here.

  The party minuters’  [defendant’s] counsel provided a written submission prepared after the first day of evidence. This is with the process and I will not repeat its terms here. He supplemented this with brief oral submissions which focused mainly on the evidence of Mr. Bathgate which was heard on the second day of the proof. He described the pursuer and defender as “Runyonesque” characters. In his response to the pursuer’s counsel’s submissions, he referred to an observation of the eighteenth century Italian economist Abbe (Ferdinando) Galliani (1728-1787):“la ricchezza e una ragione tra due persone”. Attention had been drawn recently to this maxim by the author John Lanchester, in his work “How To Speak Money ” (2014), who used a translation of this observation as “richness is a ratio between two people”. The maxim is about the idea that the idea of having plenty of money is not an inherent state, nor an absolute one. Both the pursuer and the defender had told out and out lies to get money. The conspiracy between them had broken down in the course of the proof. In the end, the defender had tried to distance himself from the potential consequences by saying as little as possible in the witness box.

 

THE SHERIFF’S CONCLUSIONS

“It is a strange circumstance in this case that each of the pursuer and defender initially strongly denied ever having met the other. The party minuters point to a Facebook posting which shows pictures posted by the defender after his wedding. He accepts that he posted them. These photographs caused both the pursuer and the defender separately to admit in the witness box that they knew each other prior to the date of the alleged accident.”
“The pursuer’s evidence was very problematic in a number of respects. Initially he denied even knowing the defender, as discussed in the preceding paragraph. He claimed that he had only attended the wedding along with his partner who knew the bride. Eventually he came to accept that two of the posted photographs showed him at the defender’s wedding only some four months prior to date of the “accident”. He was one of a group of male guests dressed in formal traditional Scottish clothing. One Facebook photograph showed the Pursuer and other men dressed in kilts and each wearing a black shirt and white tie of similar style. He denied being a close associate of the defender but they were sufficiently well known to each other for him to have participated in the male guest outfit colour co-ordination scheme for the defender’s wedding.”

THE RESULT

The pursuer lost.

 

FACEBOOK AND CREDIBILITY

Mr Justice Blake in Rathore -v- Bedford Hospitals NHS Trust [2017] EWHC 863 (QB).

THE CASE

The claimant brought an action for clinical negligence. Liability was admitted. The key issue was causation – whether the negligence had a major effect on  the claimant’s physical and mental health.

 

THE JUDGE’S ASSESSMENT ON CREDIBILITY: THE FACEBOOK PAGES

There were numerous factors in the judge’s assessment of credibility.  Here we just look at the references to Facbook

  1. The defendant points to inconsistencies between: her accounts to professionals and many of the events recorded in a personal diary that she kept for the period 2006 to 2008; the posts made by her on her Facebook page; what she was telling her employer were the reasons for her absence form work; what she was telling Bedford Social Services in August 2009 who were making enquiries as to the well-being of her children; what she was telling a Dr Manjure who took a history from her in the context of a claim for damages resulting from the 2011 RTA…
  1. The claimant’s Facebook page was accessed by Natasha Rutter on behalf of the defendant on 23 February 2016 and she made a statement exhibiting posts back to August 2009. I recognise that reliance on individual posts showing the claimant in glamorous clothing, attending social events with others, including her husband, should be treated with considerable caution. She has explained in her witness statement in reply and her oral evidence that from the onset of the pain in the winter of 2005, she felt the need to project to her family and friends an image of the dynamic active person she used to be. For similar reasons, she made an effort to attend the numerous social gatherings that are part of social life of two extended Sikh families living in east central England. It is also perfectly understandable why she would want to make an effort to be with her two children as they grew up and go on outings together. I accept that some of these factors may explain her appearance on any given post.
  2. Equally, I accept that there is a need for caution in how to assess her diaries, apparently written from January 2006 before any thought of litigation could have occurred. At the earlier part there are regular entries; gaps come later. The fact that a stressful or painful experience is not recorded does not of itself mean that it did not happen, although the diary does contain numerous entries about pain. The fact that the claimant attended social events with her friends and extended family, sometimes travelling considerable distances to do so, does not itself mean that she was pain free or did not pay a pain penalty the next day. Isolated entries have limited significance in forming a view as to the reliability of her evidence.
  3. Nevertheless, taking all the strands of the defendant’s case on this topic together, and viewing each individual strand with the degree of caution I have endeavoured to summarise above, I am satisfied that on a number of significant topics I cannot rely on her evidence….
  1. There are numerous Facebook posts in 2011 of the claimant looking very glamorous with elaborate hair, make up and Indian dress. I appreciate that some of these photographs may have been from earlier occasions as one or two were claimed to be and that the claimant’s appearance is important to her self-image. A particularly glamorous picture of the claimant posted 23 April 2014 excited an exchange of admiring comments about the claimant’s hair to which she ‘it’s just layers, I did it myself’. In cross examination she explained that she was trained as a make-up artist but ‘did it myself’ just meant did not go to hairdressing saloon and Amo did the hair. I do not accept that answer as an honest one.
  2. On 7 June 2014 there was a post from Legoland Windsor, and later at Crown Plaza Beaconsfield. The caption was a lovely day out with the family. In cross examination the claimant said that she was making an effort for the children. She did walk around a lot but her sister was there to help if it all became too much. I accept the defendant’s point that it is difficult to reconcile the prospect of her undertaking such an expedition at all with the picture in the DLA form or the claimant’s account of her limited mobility given to Mrs Gooch in 2014.
  3. Although no single entry or photograph presents a knockout blow to the claimant’s credibility, and I take into account that in Facebook the claimant may be presenting a positive image of herself, I am satisfied that her social life and her mobility was considerably greater than she claimed for the purposes of the present case and the DLA application. Her unreliability on these issues is not a problem of recollection of the trajectory of her illness as seen through the spectrum of someone with a psychiatric condition, rather she has given exaggerated or untruthful accounts of her social life at a time when she claims to have undergone a significant deterioration in her condition and was making a number of different claims for compensation…
  1. The experts made opposing observations on the relevance of the Facebook and diary entries to their opinions, whilst recognising that these were ultimately matters of evaluation by the court. Dr Valentine was concerned that the material raised veracity issues and in particular noted a smiling Facebook post from Nando’s with her husband on 7 August 2014, the same day as his examination of the claimant. Although she would needed to eat something that day he would not have predicted the activity recorded after seeing her presentation with severe and disabling pain and her account of her relationship with her husband. Her claim that she does not go anywhere unless she has to is undermined by the Facebook material and does not support a genuine presentation at the time of her examination. He also noted her ability to pick up a form spontaneously that was documented by Dr Master, four months later.

FABRICATION OF DIFFICULTIES

In Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe (sitting as a judge of the High Court) found a claimant to be fundamentally dishonest. Social media played a part.

  1. Having considered the Facebook posts in trial bundle 7A in so far as they provide a contemporaneous account of his frame of mind it would seem that he was able to present an entirely normal face to the world. He has been on enjoyable holidays and partaken in normal family activities. He enters into light-hearted and joking banter with friends. He enters into emotionally warm interactions with friends particularly at times of anniversaries and birthdays and so on. He can successfully interact with strangers in foreign countries. He has over the period of years represented in these posts been on various trips and engaged in various activities. He has entered into some more in-depth serious debates on very many issues of politics and political history.
  2. I find that the fact that he can put posts on social media in the way that he has and clearly get enjoyment from all sorts of everyday activities is a reflection of the fact that he has fabricated/exaggerated his symptoms and even in the first 6 months they were not as severe as he has depicted and this further supports my conclusion that he has significantly exaggerated and fabricated his difficulties.

 

“SOCIAL MEDIA, LITIGATION AND LITIGATORS”

This is the title of an article that appeared in the American Bar Association Law Practice Today That article identifies a number of key issues:-

  • Litigators are using social media for discovery of information about clients, opponents, witnesses and others.
  • That there could be malpractice (negligence) issues if a litigator fails to conduct social media searches.
  • One lawyer observes:
    “I can see it being a big malpractice issue especially in the world of personal injury law. I think anybody defending a case where pain and suffering and permanent physical injury are at issue must dig into the plaintiff’s social media from day one. On the other side of the coin, plaintiffs need to either stay off social media or let their lawyers screen everything before it gets posted.”
  • Courts are increasingly receptive to evidence gained through social media.
  • There can be disclosure issues in relation to “cleaning” up social media pages.
  • Lawyers have to develop strategies to advise clients about the use of social media and litigation.

IT CAN BE YOUTUBE AS WELL

We have looked before at the decision of Judge Seymour in Cirencester Friendly Society -v- Parkin[2015] EWHC 1750(QB). A claimant under an insurance policy was found to be fraudulent:

  1. Nemesis overtook from Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media. So it was that it has transpired that, far from being incapable of working and suffering from any such condition as he has described, he is actually an aficionado of a type of sports supercar called “Noble” and seems to have spent the greater part of the last 10 or 12 years refurbishing a Noble sports car and driving it, sometimes racing it, principally in Cyprus. Mr Parkin seems to live in Cyprus, or at least lived in Cyprus certainly until 2012, with, and not separately from, his wife and seems to have continued to use cannabis.

TWITTER TROUBLES

We have also looked at the the decision of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) when one of the claimants was cross-examined about Twitter interactions.

  1. In December 2008 and December 2009 Mr Swift was involved in road traffic accidents, and brought claims for compensation which were successfully resolved.
  2. On 22nd February 2013, Mr Swift was involved in the following conversation on Twitter:
Leon Swift either of you’s jumped on this sonae claim bandwagon?
TC been all over the radio
MC residents living close going to solicitors due to harmful emissions from the plant
MC looks like everyone’s doing it now because it’s shut down
Leon Swift they’ve admitted liability so anyone living or working in the area at the time of the fire can claim
MC get on it ken/tom
MC not for me #too honest
Leon Swift too honest ya, good one matt. I’m getting involved I reckon, pays for the summer holiday if it goes thru
TC ha ha you’re a bad man Leon
MC he’s a fraud Tom
Leon Swift takes a fraud to know a fraud Matthew. Mr ‘I was in that car that crashed ye’ #showmethemoney
MC my neck was sore when Dave crashed #thetruth
Leon Swift Asking for trouble driving in flip flops
MC if you crash give us a shout #whiplashclaim
MC I’m sure you was fine that time Dave had a crash
Leon Swift least I was in the car though Matthew
MC so was I”
  1. Mr Swift tried to dig himself out of the massive hole created by these exchanges. He said that the use of the term “bandwagon” was not the best choice of words. He agreed that the Tweets could be construed as indicating that any claim he made would be fraudulent. However, he told me that he was not saying at the time that his claim was not genuine. He well understood, he said, that an admission of liability did not mean that one could recover  damages regardless of injury.
  2. watched Mr Swift very closely during the course of Mr Jones’ well-briefed and well-constructed cross-examination. One possible explanation for his extreme discomfiture and obvious embarrassment was that his Tweets were being taken out of context, and he was ashamed by the impression they may have been making. Another explanation is that he well knew that the Tweets contained accurate insights into his true state of mind. Making allowances as I do for the degree of banter that may accompany much discourse over these social networks, but having regard to all the available evidence, I regret that I have to favour the second explanation.
  3. Mr Swift is a well-educated young man and ought to be ashamed of himself. The Defendant’s pleaded case of fraud has been proved to the requisite standard. His claim fails.

FACEBOOK AND FRAUD

It is dealing with allegations of fraud that a study of Facebook has become most prevalent.

FACEBOOK FRIENDS: YOU TWO MUST KNOW EACH OTHER

Similarly in the trial in Nama -v- Elite Courier Company Ltd (5th March 2015, Lawtel) Deputy District Judge Lindwood considered an argument that a witness did not know the claimant before the trial.

“I do not accept that she did not know Mr Al-Jabri before the accident. I find it highly unlikely that a fellow engineer (as appears from the photographs of him wearing clothing suitable for an engineer) – and a fellow Iraqi who was her Facebook friend since 2011, [the accident happened in  2013] who lives in Birmingham – just happened at ten o’clock that morning to be walking (as opposed to using the underpasses) on this very busy roundabout on the outskirts of London.”

ASSESSING CREDIBILITY IS NOT AS DIFFICULT AS IT USED TO BE

In the Canadian case of Bruni -v- Bruni judge J.W. Quinn noted

“In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e- mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.”  

FACEBOOK SHOWS YOU GOING OUT

In Rathore -v- Bedford Hospitals NHS Trust [2017] EWHC 863 (QB) Mr Justice Blake also found that Facebook played a key part in assessing credibility.  The claimant said she never went out.

The experts made opposing observations on the relevance of the Facebook and diary entries to their opinions, whilst recognising that these were ultimately matters of evaluation by the court. Dr Valentine was concerned that the material raised veracity issues and in particular noted a smiling Facebook post from Nando’s with her husband on 7 August 2014, the same day as his examination of the claimant. Although she would needed to eat something that day he would not have predicted the activity recorded after seeing her presentation with severe and disabling pain and her account of her relationship with her husband. Her claim that she does not go anywhere unless she has to is undermined by the Facebook material and does not support a genuine presentation at the time of her examination. He also noted her ability to pick up a form spontaneously that was documented by Dr Master, four months later.

 

ONLINE RANTS COULD BE DISCLOSABLE

In Martin -V- Giambrone [2013] NIQB 48 the defendant, who had a Mareva injunction against him wrote, after the hearing:

“They thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.

It was held that the post could be disclosed both to the judge dealing with the Mareva injunction and the judge hearing the main action.  The judge rejected an argument that the post was private and confidential. He held it was relevant and disclosure was necessary for disposing fairly of the proceedings and the main action.

GUIDANCE IN LOCKE: (AS SO OFTEN IN LITIGATION IT ALL COMES DOWN TO BUNDLES)

Important guidance as to the presentation of social media at trial is given in the judgment of Andrew Edis QC (as he then was) in Locke -v- Stuart [2011] EWHC 399(QB)

3 lever arch files of Facebook searches carried out by the solicitors or agents of the Second Defendant to determine what links between people may be shown by their lists of friends on their publicly available Facebook pages. These searches were done in respect of 28 people in November 2008, April 2009, January 2010, February 2010, and September 2010 (Facebook Bundles 1 and 2) and repeated more recently in respect of a small selection of those individuals (Facebook Bundle 3). I shall call these FB/1, FB/2 and FB/3. Those searches could not be repeated recently in respect of some of the key characters in this case because the privacy settings on Facebook had been changed. Jaimes Locke, the Claimant’s brother, told me that he had done this because of a problem with a girlfriend, and not to avoid further scrutiny by the Second Defendant.”
Case Management
33. Far too much documentation has been placed before the court. There are extenuating circumstances in that this claim was once part of a series and the extensive documentation in the bundles may perhaps have been necessary to deal with all the claims. There was an opportunity to reduce the documentation, which was not taken.
34. It should be possible to prepare a document, based on the documentation including the witness statement of Mr. Smith and the 3 lever arch files of documents, together with the further 3 lever arch files of Facebook searches and only the necessary material, can be adduced to deal with that. It may further also identify which inferences are agreed and which are not.
35. A document can easily be devised which sets out in a short form how entries on Facebook are created and what inferences may safely be drawn from them. This document, having been created, can be used in any case where this class of evidence is adduced. I think that a significant amount of time of the court was taken up in a debate about the strengths and weaknesses of Facebook evidence where really an agreement should be capable of being reached on this question.
36. The process of agreeing the primary facts and the proper limits of any inferences which they may justify will start with a statement such as that prepared by Mr. Smith in this case, and will be assisted if particular care is taken to include appropriate concessions as to the proper limits of any “link” contended for.
37. On 1st September 2010 District Judge Coffey gave conventional directions for the compilation and lodging of an agreed trial bundle. It will appear from the above that this was not strictly complied with: each party lodged its own documents. This was the stage at which the parties should jointly have addressed the question of what documentation was really required to resolve this case.
38. I explored the question of confidentiality and the use of witness statements from one action in another action with Mr. Smith. He satisfied me that this was considered in the present case and that the relevant controls on the use of material were observed. I mention this because I regard this as an important feature in this type of case and would regard it as a serious matter if it were not properly attended to. This is related to paragraph 39 below.
39. Insurers making allegations of the kind which I have found proved in this case must do so with care. Their legal advisers have obligations which require them to advance such allegations only on proper grounds. I consider it to be inappropriate for trial bundles to contain the names and personal details of people with the suggestion that they have been guilty of fraud unless there are proper grounds evidentially for that assertion. I have found that this occurred in the case of an accident in August 2007 in Liverpool, and it may well be that it has happened in other cases too.
40. In making these observations I intend no criticism of any of the lawyers in this case. I am very grateful to both counsel for helping me with great skill through a factually complex case in a relatively short period of time. I have heard from both solicitors in evidence and accepted what they say without reservation. The documents, though too voluminous, have been properly prepared and it is quite plain that Mr. Smith in particular has done an enormous amount of work on this case with a great deal of care. The purpose of the inclusion of this section in this Judgment is to record my experience of trying this case in the hope that it may assist the case management and preparation of any further similar cases which may arise.

 PREDICTIONS MADE IN 2015

In an article for SCL Chris Dale made Predictions for 2015  these included the important observations

“This checklist idea will be encouraged by a case in which the lawyers will simply forget to ask their clients or their opponents about some source of electronic data whose absence becomes painfully obvious at a late stage in the proceedings. This might be an apparently trivial social media source like Twitter, Facebook or LinkedIn or something else which makes the lawyers suddenly realise that all this talk about ‘the cloud’ embraces everyday applications which people use to communicate. It might be a photograph whose metadata pins a witness to a place and a time. These are no less a ‘document’ than an e-mail or a Word file. The problem won’t come simply because of a formal defect in compliance with the rules but because the overlooked source contains evidence which turns the case”