High Court refuses permission for claimant to rely on counter surveillance evidence


The decision of the High Court in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB) is a helpful decision for insurers facing applications by claimants to rely upon ‘counter-surveillance’ evidence.

The case involved a claim by an employee against her employer in relation to a workplace accident. Shortly before trial, the Defendant served surveillance evidence, and the trial date was vacated.

The Claimant sought permission from the Court to rely upon the report of a ‘video evidence analysis consultant’ in response to the surveillance evidence.

In his judgment, Edis J refers both to the appropriate provisions of the CPR and also relevant legislation.

Pursuant to CPR Part 35.1:

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

Under section 3 of the Civil Evidence Act 1972:

3 – Admissibility of expert opinion and certain expressions of non-expert opinion.

1. Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

2. It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

3. In this section “relevant matter” includes an issue in the proceedings in question.

The judge considered the earlier decision of Stadlen J in the case of Samson -v- Ali [2012] EWHC 4146 (QB) in which evidence from the same video evidence analysis consultant was permitted.

Edis J commented, however, that he did not feel that Stadlen J in Samson -v- Ali should be read as authority for the proposition that the video analysis evidence was necessarily admissible. He noted that the judge in that case did ‘not appear to have approached the issue purely as a matter of admissibility in law’.

He further noted that the video analysis consultant ‘principally seeks to give evidence of what he has seen when viewing the video footage and reading the surveillance logs. All he really says in addition to his factual analysis of what they show is that the operatives chose what to film and had the ability to decide when to film and when not to’.

The judge continued: ‘I do not believe that any knowledge or skill is involved in this exercise such as to subject its admissibility to the expert evidence threshold’.

He accepted that whilst factual analysis of the surveillance footage could be placed before the trial judge, expert evidence is only necessary to the extent that it assists the Court. If the judge is able to form his own conclusions without assistance, expert opinion is unnecessary and will therefore be excluded.

Whilst the judge further accepted that properly compiled expert evidence might be necessary if there were issues regarding – for example – the date / time stamping of video footage, he did not consider that the video analysis consultant in question had suitable technical expertise to assist on this issue.

The judgment provides a helpful reminder of the rules regarding admissibility of expert evidence, and is a welcome indication that the Courts are willing to take a firm line regarding evidence from ‘quasi’-experts, which does not provide any real assistance to the judge.

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