A shot to the foot
Facebook has around 38 million users in the UK and it has become an invaluable tool used by Defendant’s Insurers and Solicitors in seeking to rebut liability or, more often causation.
I have dealt with a number of liability admitted cases where the Defendant has resisted making any offer of compensation based largely upon information obtained via a Claimant’s Facebook account. Indeed, a Defendant’s Solicitor at a national Defendant Firm once advised me that his firm had “banks” of employees routinely trawling through the Facebook accounts of every Claimant, fishing for useful information.
It may be individual posts of, for example, the Claimant who claims to be incapacitated due to a leg injury posting a video of herself dancing on a stage at a nightclub (it happened) or by linking the Claimant to previous Claimants who had previously been proven to be fraudulent.
The truth is that most people are not especially judicious about what they post so it is fertile ground for the Defendant looking to discredit a Claimant and many a genuine claim has failed due to minor inconstancies, even where there is a reasonable explanation, so the value of Facebook to Defendant’s cannot be overestimated.
The use of Facebook in personal injury litigation was highlighted in the case of Nield v Loveday (2011).
Here, the Claimant stated that after an accident in 2006 he was unable to drive, needed to use a wheelchair and suffered anxiety when travelling. The Defence combined traditional surveillance with perusing the Claimant’s Facebook page, where he had posted photographs of a caravan holiday in Italy, to discredit the Claimant and he was eventually jailed for nine months for contempt of Court.
As most Facebook users will be aware there are various secrecy levels in respect of the user’s profile. Some users apply no secrecy setting and thus their posts are available for all to see. There are however ways and means of getting behind secrecy settings and there is no doubt that Defendant’s will do what they can to obtain the best evidence available to them.
The question is then whether such evidence, surreptitiously obtained, would still be admissible. The answer is that the Court does have discretion, as per the case of Rall v Hume , where evidence obtained in the claimant’s home and at her child’s nursery was excluded.
The important point is that evidence that has been obtained unlawfully does not inevitably lead to it being excluded – although the court may not admit certain evidence because of the circumstances in which it was obtained.
The difficulty for the Claimant is that perhaps the dance on the stage in a nightclub may in reality have been performed whilst anaesthetised by alcohol, and for which there was a heavy pain price to pay the next day, but the fact is it is very damning evidence.
Defendants do not always get it right though; I was also once presented with a large folder of Facebook pages linking my client to a known fraudster; beautifully and painstakingly put together. The only problem is that the individual concerned was not my client; it just so happened to be someone with the same name living in the same area.
It would thus be prudent for us to ask potential Claimant’s about their Facebook activity, check it out ourselves and point out that, even with secrecy setting in place, what they post may still be accessible by Defendants.