Defendant entitled to rely upon surveillance evidence served three months pre-trial

In the decision in Stewart -v- Kelly (Lawtel 31/10/2016), Blake J has provided further guidance concerning the admissibility of surveillance evidence.

The claim arose from a road traffic accident; liability was admitted by the defendant, but quantum was disputed. The Claimant alleged that he was suffering from continuing neck and back pain. A trial date was fixed for November 2016, and it was ordered that the Claimant serve a final witness statement in May 2016.

The Claimant’s final statement set out particulars regarding pain, and inability to carry out household tasks, bath his young children or wash his car.

The Defendant had obtained surveillance evidence on various dates between 2013 and 2015, however following receipt of the Claimant’s final witness statement, further surveillance footage was obtained in July 2016.

The Defendant served unedited surveillance footage, together with statements from the surveillance operatives, in August 2016. The Claimant objected to the introduction of the footage, and so the Defendant applied to the Court for permission to rely upon the same.

The claimant contended that the objections to the surveillance evidence were valid. It was asserted that the Defendant’s application should have been made sooner, that it was not appropriate for the Defendant to wait until service of the Claimant’s witness statement to disclose the surveillance, and that the surveillance evidence had been served too late to preserve the trial date in November 2016.

In considering the case, Blake J applied the reasoning set out in the judgment of Foskett J in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB).

The judge accepted that a defendant ‘is entitled to wait until a claimant has pinned his colours to the mast’. In the instant case, Blake J accepted that this was when the Defendant had been served with the Claimant’s final witness statement, which set out the extent of his purported difficulties.

He further accepted that the Defendant had acted properly and quickly in deciding to obtain further surveillance evidence in July 2016, and by serving the evidence in August 2016. The judge considered that it was reasonable for the Claimant and his medical experts to be able to respond to the evidence in the three month window before trial; there had been no ‘ambush’ or undue delay by the Defendant.

The Claimant could and should have provided the evidence to his experts; it was not appropriate for the Claimant to simply wait for the Court’s determination of the Application before taking steps to respond to the surveillance evidence.

This is a helpful decision for insurers seeking to rely on surveillance evidence when defending personal injury claims. It supports the proposition that a claimant cannot simply ‘sit back’ and await the Court’s determination of the issue of admissibility of surveillance evidence, but must take active steps to ensure that trial dates may be complied with.

However, it also serves as a reminder that a defendant seeking to rely upon surveillance evidence must act promptly to serve footage once a claimant has committed him or herself to a final position (whether by way of witness evidence, or a final Schedule of Loss endorsed with a statement of truth).

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