Surveillance and trial by ambush

Surveillance and trial by ambush

16561012_xlIn Hayden v Maidstone and Tunbridge Wells NHS Trust the court allowed the defendant’s application for the late introduction of surveillance evidence. Giles Mooney, barrister at 9 Gough Square Chambers and counsel for the defendant in the case, considers the case in more detail and concludes that defendants seeking to rely on surveillance footage should ensure that footage is obtained early in proceedings and disclosed well in advance of any trial date.

In Hayden v Maidstone and Tunbridge Wells NHS Trust, The Queen’s Bench Division allowed the defendant’s application for the late introduction of surveillance evidence. It did however order that the defendant should bear the costs thrown away by the vacation of the trial date, on an indemnity basis.

What were the key issues considered in this case?

This case concerned an application to rely on surveillance evidence in a personal injury case involving a claimant who was injured at work while assisting in moving a patient.

The defendant’s wish to rely upon surveillance evidence was perhaps unsurprising given that the claim was pleaded at nearly £1.5m and given that the orthopaedic and pain specialist evidence adduced by the parties was wholly at odds. Indeed the defendant’s pain specialist had raised doubts about whether the claimant’s symptoms were genuine. The defendant had served surveillance evidence which, in this case at least, appeared to show the claimant living a normal life and which the defendant’s pain expert claimed illustrated that the claimant was able to work.

The difficulty in this case was that the evidence had been obtained only a matter of weeks before the matter was listed for trial and the application was made just 11 days before the trial was due to start. Finally, the application itself was listed for hearing on the Friday before the trial started on the Monday.

In the circumstances, the claimant claimed she was being ambushed and objected to the evidence being admitted. Further, the claimant submitted that the defendant had prejudiced its own expert pain specialist by showing him the material before permission had been granted to rely on the footage and hence the defendant should be disbarred from relying on that expert. The claimant further submitted that the defendant had acted in bad faith.

Although the judge did grant the defendant permission to rely upon the surveillance footage, he severely penalised the defendant in costs.

What are the common issues in relation to surveillance evidence in personal injury claims?

Surveillance evidence is a well-established tool used by defendants to undermine claims for damages where it is suspected that the claimant is malingering or exaggerating (consciously or otherwise) their symptoms. The starting point in considering applications to rely on surveillance evidence remains the case of Rall v Hume [2001] EWCA Civ 146. In short, where the defendant asserts that the video evidence undermines the claimant’s case to an extent that would substantially reduce the award of damages, such evidence should be admitted unless it amounts to a trial by ambush. As a result, there is normally little issue with the admission of surveillance footage unless it is adduced very close to trial.

When disclosed very close to trial the issue of whether the late disclosure amounts to a trial by ambush is the key question for the court in deciding whether to admit or not.

Did the judgment help clarify the law in this area? What are the remaining grey areas?

The court provided useful clarification on what amounted to an ambush and whether bad faith was required on the part of the party seeking to admit the surveillance. In the course of arguments in this case the claimant attempted to show that the defendant had acted in bad faith to bolster its argument that there had been an ambush. The judge held that there had been no bad faith on the part of the defendant, but did find that there had been fault in failing to obtain the surveillance evidence as soon as its expert had raised concerns about the genuineness of the claimant. The unexplained delay from receiving that evidence (at the latest about nine months before the surveillance was commenced) was fault on the part of the defendant. The judge held that there was no necessity to show ‘sinister motives’ on the part of the defendant, but merely culpability for the delay.

In the circumstances it is clear that late applications to rely on surveillance evidence may well amount to ‘ambushes’ even where the defendant has not deliberately held onto the material for tactical advantage.

The judge then went further and suggested that more liberal use might be made in case management of orders requiring any surveillance footage to be served by a certain date. Any attempt to serve such footage after the date would require relief from sanction. It remains to be seen whether this suggestion is adopted by claimants and/ or judges case managing claims.

In relation the claimant’s submission that the defendant should not have shown the material to their expert until permission was granted, the defendant argued that defence experts had to see the material before the defendant could make a judgment on whether to use the material. Further, unless the footage was so obviously damaging to the claimant (which it was not in this case), the defendant would not be able to satisfy the first limb of the Rall v Hume test—that the material did undermine the claimant’s case.

The judge did not directly deal with this argument (to some extent it had been overtaken by the adjournment of two weeks granted by the judge between the initial application and its determination, during which period the claimant had been given permission to show the material to her pain expert) but he did make the point that just because an expert had seen the material it did not mean that the material had to be admitted in evidence. Further, he commented that ‘experts are familiar with the need not to refer to the content of any “without prejudice” discussions’. In short, it seems that defendants are able to show the material to their experts but that the experts must be ready to put it out their mind if an application to rely on the footage is subsequently unsuccessful. There is some tension between this judgment and that of Judge Collender QC in Douglas v O’Neil [2011] EWHC 601 (QB) at para [71].

What will likely happen next in this case?

The case has now been case managed through to trial with the parties being given permission to update the medical evidence in light of the surveillance footage. A trial is anticipated in December 2016.

What should lawyers advising in this area take from the case? What should they advise their clients?

Defendants seeking to rely on surveillance footage should be advised to ensure that footage is obtained early in proceedings and not left to the last minute. While defendants are entitled to withhold the surveillance evidence until the claimant has set out his or her case in a witness statement, disclosure should take place promptly thereafter. Any defendant choosing to withhold footage to the last minute or indeed not obtaining it until the last minute runs the risk of not being entitled to rely upon it or at the very least paying a heavy price in costs.

Claimants still face the reality that most of these applications, even made late in the day, are successful. However, they can take solace in the fact that even where they are unsuccessful in challenging the admission of late surveillance footage, they will not be penalised in costs and indeed are likely to be given time to deal with the issues arising from the footage and that wasted costs will be paid by the defendant in any event.

Interviewed by Susan Ghaiwal. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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