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In this article we examine the recent case of Ras Al Khaimah Investment Authority v Azima [2021] EWCA in which the Court of Appeal considered the question of whether a party which had unlawfully obtained documents could nevertheless be permitted to rely on that material.
Ras Al Khaimah Investment Authority (RAKIA) is the state investment entity of the Emirate of Ras Al Khaimah, one of the emirates making up the UAE. Mr Azima is a businessman who had dealt previously with RAKIA.
RAKIA and Mr Azima entered into a joint venture relating to a training academy for pilots. A dispute arose between the parties in relation to that joint venture which was eventually settled.
Pursuant to the settlement agreement, RAKIA paid Mr Azima $2.6m, relying it said on representations made by him as to the amount he had invested in the joint venture and as to the fact that he had always acted in good faith towards RAKIA.
RAKIA subsequently brought proceedings in England against Mr Azima in which it alleged (amongst other things) that it had been induced to enter into the settlement agreement by means of his fraudulent misrepresentation.
Mr Azima denied that allegation and also contended that RAKIA's claim against him should be dismissed on the basis that, in bringing the claim, RAKIA had relied on confidential emails which it had obtained by the unlawful hacking of his email accounts. RAKIA denied that it was responsible for the hacking (stating that an unknown party had hacked his accounts and had subsequently disclosed a large cache of Mr Azima’s emails online through publicly accessible websites).
Following a hearing in the High Court, it was held that (i) Mr Azima had induced RAKIA to enter in the settlement agreement by means of fraudulent misrepresentation and (ii) on the balance of probabilities RAKIA was not responsible for the hacking of Mr Azima's emails.
Mr Azima appealed. In doing so, he argued (amongst other things) that (i) RAKIA was, in fact, responsible for the email hacking and (ii) RAKIA should not therefore have been entitled to rely on that wrongfully obtained evidence (without which, Mr Azima argued, its claim against him would have failed).
The Court of Appeal considered the law relating to the exclusion of unlawfully obtained documents and confirmed as follows:
In the present case, the Court of Appeal attached significant weight to the fact that:
The Court of Appeal concluded therefore that – even if RAKIA had hacked the emails – they should not be excluded as evidence in the proceedings. In doing so, it endorsed the conclusion of Judge at first instance who had held as follows:
“If I had found that RAKIA had hacked Mr Azima's emails, I would not necessarily have excluded the illicitly obtained evidence as, without it, RAKIA would have been unable to prove its claims and Mr Azima would have been left with the benefit of his seriously fraudulent conduct.”
The Court of Appeal was not, of course, legitimising attempts to obtain documents unlawfully, and noted previous Court of Appeal guidance to the effect that – even if that evidence was not excluded - the court could still find ways to express its disapproval of unlawful conduct in gathering evidence; most notably by requiring the party in question to pay costs even though it may have been successful litigant.
The decision clearly concerns highly unusual circumstances (which hopefully most clients will never be involved with). That said, the case still highlights - to those contemplating litigation - the high evidential value of contemporaneous documentary evidence (collated, of course, through legal means) and reinforces the need to obtain early specialist advice when dealing with the determination of complex disputes.
