PEOPLE, INCLUDING JUDGES, ARE READING WHAT YOU SAY ONLINE: IT IS NOT JUST CLIENTS

April 23, 2021 · by · in Civil evidence, Civil Procedure

Several people have already remarked that the judge in Ahmed & Anor v Ahmed [2021] EWHC 1021 (Ch) made it quite clear that he had looked up details of one of the advocates online, and these details were mentioned in the judgment.  It is prudent to remember that people can look up your own online profile, tweets and other social media for many purposes.  This can cause problems for lawyers and clients alike.

 

THE JUDGMENT IN AHMED

The judge noted that the advocate who appeared before him was a consultant to the firm of solicitors involved, and married to the senior partner.

“Mr Miah sought to explain his non-compliance with the Chancery Guide by saying that there was a delay on the part of the Claimants’ solicitors in sending the bundle to him and that the bundle omitted a number of documents which had previously been before the court; Mr Uddin denied that his solicitors were at fault. Mr Miah also explained that he was briefed only yesterday. I see from his solicitor’s website that he is married to the senior partner and is described as a consultant to the firm; I note that he did not tell me that he was unaware of the case before yesterday.”

LINKED IN – FIXED SOMEONE AS A SHADOW DIRECTOR

Social media played a part in the decision of Registrar Derrett in Green -v- Marston [2016] EWHC B11 (Ch). It illustrates the importance of social media across many fields of litigation.

THE CASE

The claimant was the liquidator of a company which was seeking repayment of sums paid to the defendant prior to insolvency. The key issue was whether the defendant was a de facto director of the company. This was denied by the defendant, Mr Lochner.

THE DEFENDANT’S LINKED IN PROFILE

The Registrar considered the evidence from the defendant’s LinkedIn profile.

“Business Card/LinkedIn
  1. In cross-examination counsel drew Mr Lochner’s attention to his business card for SMG where he is described as Corporate Finance Director and also his LinkedIn profile where the same description Corporate Finance Director is used. The profile says that he has held this position from ‘August 2009 – Present (4 years 1 month)’ which would mean September 2013. Mr Lochner said that he was asked to use this title and that he took it down when the Company went into Liquidation. Counsel drew his attention to the fact that the Company went into Creditors’ Voluntary Liquidation in February 2013. In the bundle there is another print of Mr Lochner’s LinkedIn profile where he is still described as the Corporate Finance Director of the Company and it states ‘August 2009 – present (5 Years 4 months)’ which takes us to December 2014. Mr Lochner conceded that he took it down sometime after the Company went into liquidation.”

THE RESULT

As a result of this, and it has to be said a panoply of other evidence, the defendant was found to be a shadow director and liable to make the repayments.

ONLINE RANTS ABOUT AN ONGOING CASE 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.

 

TWITTER TROUBLES

The use of social media in a case was considered by  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. I 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.”

FINDINGS OF FUNDAMENTAL DISHONESTY

In  Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe referred to social media activities as one of, a large number, of reasons why the claimant was found to be fundamentally dishonest.

“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.”

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.