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Martin -v- McGuinness (Outer House, Court of Session)

14 April 2003
The issues

Human Rights – Enquiry Agents.

The facts

The Pursuer brought an action for damages following a road traffic accident on the 21st November 1996. The Defender argued that the Pursuer had exaggerated the effects of the accident and based this argument on Enquiry Agents evidence. The Pursuer argued that the Private Investigators conduct infringed Article 8 Rights. (Right to Respect for Private and Family Life). The pursuer sought to exclude the evidence.

Video footage had been shot of the pursuer outside his home. The pursuer made no objection to this. He complained however of the investigator coming to his house and speaking to his wife on false pretences and the manner in which he persisted in these enquiries causing his wife to become anxious and shaken. Subsequently, surveillance was carried out of the pursuer and his family from an adjacent property, including the use of a tele-photo lens to film events in the garden and around the house. It was alleged that some pictures were taken through the window of the Pursuer’s daughter’s bedroom.

The decision

1. The conduct of the private investigators as alleged was capable of amounting to an infringement of Article 8.

2. As to whether it was in fact conduct which amounted to an infringement of the pursuer’s right to respect for private and family life was an issue where a balance had to be struck between the Pursuer’s reasonable expectations of privacy and the competing interests of the defender and the community as a whole – i.e. whether it was conduct justified by Article 8.2. In this case the defender argued that there was a legitimate aim for obtaining and presenting the evidence, namely the protection of the rights and freedoms of others and that therefore it was necessary in a democratic society.

3. In the Court’s opinion the presentation of a false case against any defender in litigation would amount to an infringement of his rights, not only to protect his assets, but to a fair Trial. In an adversarial legal system, the parties themselves had to instruct and carry out all necessary investigations.

4. Observations in claims of this sort were common. A Pursuer intent upon exaggerating, was more likely to ensure he gave a convincing impression of extensive injury when he was in a public place. In and around his own home, he was more likely to be less circumspect and off his guard and it was there that the real pursuer was likely to be observed.

5. Having regard to these interests – the right of the Defender to protect his assets and the interests of the wider community in protecting theirs, and the impact of successful fraudulent claims on insurance premiums on the one hand, and on the other hand, the Pursuer’s right to respect for private and family life and having regard in particular to the degree of intrusion, such enquiries and surveillance carried out in this case were reasonable and proportionate steps on the part of the Defender and the Court would not be acting incompatibly with the Article 8 Right in admitting the evidence gathered by these enquiries.

Comments

This case has been included as an interesting example of the more robust approach of the Scottish Judiciary compared to, for example, the approach of the Court of Appeal in Jones -v- University of Warwick.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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