Balancing fairness and probative value—when flawed surveillance still counts and draft reports remain privileged (Perrin v Walsh)
PI & Clinical Negligence analysis: Defence surveillance operatives can make serious errors in producing surveillance footage and later give untrue evidence, signed by statements of truth. Nevertheless, given the evidence was probative and these failures were not part of a deliberate and dishonest attempt to provide a misleading picture, and given that the claimant had a fair opportunity to deal with the surveillance evidence, it was not appropriate to exclude the evidence from the case. Further, where Expert B (Dr Jarman), had referred to Expert A’s draft report (Dr Mullin), and expert B had complied with his duty to set out the substance of his material instructions and there was no basis to conclude that expert B’s statement of instructions was inaccurate or incomplete, there was no basis for ordering disclosure of expert A’s draft report. Written by Rob Weir KC, barrister at Devereux Chambers.