THE SOLICITOR, SOCIAL MEDIA AND THE DUTY TO DISCLOSE: WHEN A SOLICITOR ADVISES THAT DOCUMENTS BE DELETED OR HIDDEN…

There is an interesting/alarming report of an (unnamed) case on Kennedy’s website here, as part of a general discussion about wasted costs.  Discussing issues relating to fundamental dishonesty there is an account of a recent case where a claim had been brought alleging illness following a holiday.  The defendant pleaded fundamental dishonesty and the action was discontinued. What is remarkable is the record of the advice given by solicitors to hide or delete any holiday posts on social media.

THE DUTY TO PRESERVE DOCUMENTS AND A WEBINAR

It should (I would hope) be clear that advice to hide or delete documents of any kind is not only a breach of the solicitors’ duty to the court it is also, arguably, a criminal offence. The nature of this duty is explored in a webinar on the 19th November 2021 – Disclosure and Documentary Evidence, booking details are available  here .

THE CASE REPORTED BY KENNEDYS

The claimants brought a claim for holiday sickness. After the claim was discontinued the claimants waived privilege on the solicitors’ files.  The report reads.

“The solicitors’ file of papers confirmed that:

• The solicitors had repeatedly advised the claimants to hide/delete any holiday pictures or posts on social media.

• The solicitors had conducted social media searches and located material adverse to the claimants’ case.

• The solicitors obtained instructions on the same adverse social media evidence and then proceeded to issue court proceedings.

• The solicitors asked their clients to sign lists of documents, after the social media evidence had been located by them. The lists did not include the social media evidence.

The solicitors’ files were also missing a number of key documents including:

• The actual social media entries located by the solicitors which were exhibited to a letter they sent to the claimants.

• The claimants’ replies to the located social media posts; only the solicitor’s email thanking them for their input was included.

The contents of the files also raised additional issues as the solicitors had signed a statement, in response to the application for costs, stating that they had “asked the claimants from the outset about holiday photographs and social media evidence”. The file confirmed however that the only discussions they had with the claimants was to advise them to delete any comments or photographs, not to produce them as the statement had suggested.

All of this was then put in evidence by the defendant and the solicitors agreed to pay the tour operator’s costs on an indemnity basis.”