Year: 2018

Surveillance evidence – latest case law

There have been several reported cases in the past two years or so which deal with the admissibility of surveillance evidence obtained by insurance companies.

The most important message that comes across is that the court will consider when was the time when the defendant should reasonably have commissioned such evidence. The result of the application of that test, and how promptly the defendant then acted to obtain such evidence and make the requisite application for it be admitted in evidence, will be determinative.

The longer it is left and the nearer the time gets to trial, the more likely it is that the court will refuse such evidence.

Watson v MOD

In Watson v MOD the Claimant (C) was a soldier in the British army. She was injured in 2005, and an X-ray of the hip was taken at that time, but a hip problem was not diagnosed until 2010. In 2012 C was medically discharged from the army.

C commenced two personal injury claims against her employer. Liability for the first claim was admitted, but not for the second. C’s case was that, due to a delay in diagnosing a hip problem from 2005 to 2010, she was unable to work, was permanently crippled and in severe pain, and has to be discharged from the army in 2010. She quantified damages at £2 million.

In November 2015 C disclosed a report from her medical expert whose opinion was that the level of restriction displayed by C was disproportionate to what he had found, and that although she was experiencing pain, her disablement seemed mild, and her presentation in the examination room was our of keeping with her moving in reality.

D applied unsuccessfully for an adjournment of the trial listed for mid-May 2016, on the ground that its medical evidence would not be ready. Foskett J ordered disclosure of outstanding medical evidence by 29 February 2016.

D’s medical expert, having seen a video of C, concluded in his February 2016 report that her liability to bend over and pick things up was either through fear or conscious exaggeration. Conference was held with counsel to consider the evidence, and a decision taken to commission surveillance evidence.

On 17 March 2016 D received surveillance footage which showed C picking articles up from the floor, which it duly disclosed to C. On April 8, the court heard an application for permission to adduce surveillance evidence. A date was fixed for trial in May.

The claimant argued that the surveillance was not of value, and complained that the defendant had ‘ambushed’ the claimant with this evidence, which ought to have been commissioned after the claimant’s medical expert’s report was disclosed in November 2015.

The defendant argued that the footage was relevant because it showed the claimant assisting one of her children by bending down and putting something back into a bucket, which was inconsistent with her inability to pick a pen up from the floor, as demonstrated to one medical expert.

HHJ Yelton, sitting as a deputy High Court Judge, decided that it was not correct that the defendant should have commissioned the evidence in November 2015. He considered that the defendant was entitled to wait until it had a report from its own expert. The judge relied on Rall v Hume [2001] EWCA Civ 146 and the proposition that where video evidence was available that undermined a claimant’s quantum case substantially, it would usually be in the interest of justice to admit it, so long as that did not amount to a trial by ambush. His conclusion was that this was not an ambush, and that the trial date could be kept; albeit that that would require some considerable work on both sides.

Hayden v Madistone & Tunbridge Wells NHS Trust

In Hayden v Madistone & Tunbridge Wells, in February 2007, C, a cardiac physiologist, sustained a neck injury at work. She brought proceedings for damages for personal injury alleging that her continuing symptoms interfered substantially with her daily life and were likely to continue to impede her ability to return to work. She quantified her claim at £1.5 million.

Liability was admitted in April 2009, In October 2015, D’s pain medicine expert expressed concern that C ‘may actually be better than she makes out’. In May that year, the pain medicine expert considered that C’s physical impairment was not as great as she made out, and that the court case was having a negative influence in terms of her presentation before examiners, with one possibility being that C was grossly exaggeration for the purpose of financial gain.

In early January 2016 conference took place with counsel, in which the need for surveillance evidence was discussed, if the claim did not settle at a joint settlement meeting. There was no suggestion that any earlier thought had been given to the need for such evidence.

An unsuccessful JSM took place on 29 January 2016, and authority was granted by the NHSLA for surveillance evidence the following month. Four days’ surveillance footage was obtained. On 24 March 2016 edited footage was received by D and sent to C’s solicitors by post and to D’s pain medicine expert. D did not notify C by email that such evidence was on its way. This was Maundy Thursday, the last working day before Easter, and nine working days before trial.

C’s solicitors received the surveillance on 29 March, the Tuesday after Easter. The following day, D issued an application seeking an order entitling it to rely on the surveillance footage, and asking that it be dealt with on the trial date (11.04.16) before the claimant gave evidence.

On 5 April, D disclosed a detailed 13-page report dated 31 March from Dr Munglani, the thrust of which was that all footage supported his previously expressed opinion. An application listed for 8 April before Foskett J was adjourned for 14 days to allow C’s expert to view and comment on the footage. The judge also vacated the original trial date of 11 April. On 29 April, Foskett J heard D’s application to rely on the surveillance evidence.

The judge said that the earliest date at which the defendant should have commissioned surveillance evidence was May 2015, once the pain management expert had raised the possible motive of financial gain for the claimants presentation – and especially so because the schedule of loss at that stage raised a claim for loss of earnings of £700,000 and a pension loss claim of £150,000.

Foskett J said the delay to January 2016 in making that decision was unexplained and unreasonable; and even then, there was no real sense of urgency in what was done. He found that the claimant’s solicitors adopted the correct practice in April 2016 – given the proximity of the trial date – in not inviting the claimant’s experts to view and comment on the footage until the defendant’s application had been ruled on.

The judge said that not without considerable reservations, the playing field had remained level and the evidence would be admitted. However, he found it ‘deeply unattractive’ for a defendant to argue that once its expert had seen the footage, that the ‘genie was out of the bottle’ and the evidence would have to be admitted; that might well be seen as a reward for poor litigation behaviour. Foskett J said it was very tempting to put the genie back in the bottle but, having regard to the interests of justice overall, he granted permission to the defendant; although the defendant had to pay all the costs of the applications and of vacation of the trial date.

Foskett J said the court should consider making make greater use of orders which direct a ‘date by which’ surveillance evidence should be disclosed which, if disobeyed, would bring into focus the relief from sanctions jurisdiction.

Only by the skin of its teeth did the defendant get this evidence in. The judge made it clear that, had the full information been available to him on 8 April 2016, three days before the trial was due to start, he would probably have dismissed defendant’s application.

It was only because the claimant had not had an opportunity to consider the footage with her experts that necessitated an adjournment of the trial, and of the application. The claimant may have thought it unfair that the defendant achieved by chance what it would not have got had it acted more speedily.

In London, claimants often ask for a ‘date by which’ order, and it is usually opposed by the defendants. In reality, it is not always possible to forecast at a CMC quite when information will become available that should trigger a defendant considering obtaining surveillance evidence.

It seems unjust that a defendant who, at a later date than the ‘date by which’, only happens upon information which causes them to commission surveillance evidence, should then have to make an application for relief from sanctions.

Stewart v Kelly

In Stewart v Kelly, C, a police officer, was injured in a road traffic accident.

D commissioned surveillance evidence of C going about his daily life.

In 2015, C issued proceedings against D, and liability was admitted. A CMC took place on 25 March 2016, with detailed directions. The following day, C served a witness statement alleging neck and back injuries, which he said had caused his medical retirement from police service, and caused difficulty in relation to social functions, employment, standing, driving a car and also affecting what he could and could not do with his children.

In June 2016, D decided to commission further surveillance evidence. Then on 9 July 2016, after some period of lack of encounter with the claimant, some further footage was obtained.

A month later, D served unedited footage covering the period from 2013 to 9 July 2016 on C’s solicitors, together with an invitation to forward it to the claimant’s medical experts. C declined that invitation and suggested that D should make an application for the court, and on 20 August D applied for permission to rely on the surveillance evidence.

Between August and October 2016, due to the maladministration in the court administration, the case was listed before a deputy Master who, being concerned that the trial date might be lost, directed that it be re-listed before a High Court Judge.

On 31 October 2016 Blake J heard D’s application for permission to rely on surveillance evidence.

The judge said that there was no obligation on the defendant at the CMC to mention that it already had some surveillance footage of the claimant. He defendant was entitled to wait until he committed himself to his witness statement.

Once that witness statement was served in May 2016, it was reasonable for the defendant to get some up-to-date evidence. It was not a device to extend the period, nor was it an unreasonable thing to do. The time scale did not involve a protracted period or delay. There was no ambush.

Blake J said there was no good objection in principle raised by the claimant to agreeing that the evidence was admissible. The claimant’s legal team should have worked promptly form 9 August to find new directions to enable the trial date to be kept.

The judge found that it was that unreasonable objection, rather than the court maladministration, that would result in the trial date being vacated. He ordered that the claimant should pay the defendant’s costs of the application.

It is not always easy for a claimant to know when to take objection or not.

He may well have felt aggrieved at having adopted the course of action endorsed by Foskett J in not sending the footage to his experts for comment, and then falling foul of delays caused by a failure to list the application.

However, the case points up the need to evaluate with care when the claimant had first ‘pinned his colours to the sail’ as regards the functional consequences of his injuries.

Hicks v PRs of Rostas and MIB

In Hicks v PRs of Rostas and MIB, C was injured in a road traffic accident caused by the negligence of D1 on 17 April 2013.

He sustained orthopaedic and abdominal injuries, and claimed to have suffered a psychiatric reaction. Although he had recently been made redundant, he was hopeful of reengagement by his former employer or another business at a high level of remuneration, including benefits in kind.

Judgement was entered against D1 on 2 January 2015, with damages to be assessed. The MIB was joined as D2 C’s provisional schedule valued his claim, based on a 25% discount rate multiplier, at over £1 million.

In February 2015, D obtained surveillance footage of C. A CMC took place on 21 December 2015 at which detailed directions were given. In March 2016, D obtained further surveillance footage of C on two days. D then disclosed footage from February 2015 and March 2016 to C in June 2016.

On 15 July D issued an application to rely on surveillance evidence, asserting that the footage showed the claimant functioning at a much higher level than he had suggested in his evidence and to the experts, and that he had been fit to return to work for some time. D asked C’s solicitors to provide a statement from C in response to the DVDs. In July 2016, C’s solicitors sought disclosure of the unedited footage, and in February 2017 d disclosed further footage relating to further dates.

On 8 March 2017 the first listing of D’s application to rely on surveillance evidence was adjourned to a High Court judge, because of concern that the trial may have to be vacated.

On 14th March, C served a witness statement responding to the footage, and on 17 March there was a hearing of D’s application to rely of surveillance evidence, some five weeks prior to trial, with Easter intervening. D asked orally in the face of the court for an order entitling them to rely both on the footage referred in to the application notice (relating to February 2015 and March 2016), but also that disclosed in February 2017 (relating to December 2013 June, July and October 2016).

The defendant argued that it should be able to rely on all disclosed footage but, if not, then at least that relating to February 2015 and March 2016 referred to in the application notice. It asserted that this was not an ambush; and the trial date should be vacated if the application was successful. The claimant’s counsel had conceded that, taken at its highest, the surveillance evidence had the potential substantially to reduce the quantum of the claim, and in particular the claim for past and future loss of earnings.

The claimant’s case was that this was in fact an ambush, because the defendant now sought to rely on all the footage, including that disclosed only in February 2017. It argued that the trial date should not be vacated. HHJ Reddihough, sitting as a Deputy High Court Judge, found that the defendant was not to be criticised for having waited to issue the application to rely on the February 2015 and the March 2016 footage until after receiving the claimant’s witness statement.

However, he said the defendant was to be criticised for late disclosure of footage in February 2017; this should have been disclosed very much earlier. Nonetheless, the judge said that this was not an out and out ambush, because the defendant had made it clear in June 2016 that its case was that C’s disabilities were far less than he maintained. Both the defendant’s and the claimant’s solicitors were to be criticised for having failed form August 2016, when neither party’s counsel was available for a hearing, to take firm steps to ensure an early listing of the application when it had potential to affect the value of the case and the parties being ready for trial.

HHJ Reddihough said it would not be just to deny the defendants the right to rely on any surveillance footage if the result might be that the claimant might be very substantially over-compensated. The court would allow the defendant to rely on the footage relating to February 2015 and March 2016 that had been disclosed in June 2016, but not that disclosed in February 2017. The trial date would have to be vacated.

It is unsurprising, given the potency of the surveillance, that the claimant did not push for a hearing date after August 2016. It is more surprising that the defendant did not do so.

This is the second case where court office failings let the parties down, but it was very much in the interest of the defendant to secure an early listing.

All judges in these cases referred to the decision of Swift J in O’Leary v Tunnelcraft [2009] EWHC 3438 (QB). In that case the judge refused permission to a defendant to rely on surveillance evidence in August 2009, some 31 days prior to trial; a situation that she accepted amounted to an ambush.

She considered that such evidence would lead to the trial being lengthened and so not able to proceed, and would be contrary to the overriding objective of ensuring that case used only the appropriate share of the court’s resources.

The circumstances in O’Leary are not that markedly different from those in the cases referred to above. Had Swift J been hearing the defendant’s application in Watson, Hayden, Stewart and Hicks, the results may have been very different. As it is, what appears to have weighed heavily with the judges is the risk that, without surveillance footage, a claimant might achieve an award of compensation hugely in excess of that to which they were entitled.

Accordingly, the evidence was admitted – even where this resulted in a vacation of the trial date.