High Court suggests judges should exercise greater control to prevent late deployment of surveillance evidence by defendants

The recently published judgment of Foskett J in the case of Hayden -v- Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) serves as an important warning for defendants seeking to rely upon surveillance evidence at a late stage in proceedings.

The issue of late disclosure of surveillance evidence has proved to be something of a ‘hot topic’ in recent weeks, with this case having been heard on the same date as the similar application before HHJ Yelton in the case of Watson -v- Ministry of Defence (Lawtel 11/04/2016).

The case involved a Claimant who sustained an injury at work in March 2007. The Defendant employer admitted liability in April 2009. Quantum was heavily disputed, with the Claimant’s case pleaded at circa £1.5 million; the case was listed for trial in the Royal Courts of Justice commencing in the week beginning 11 April 2016.

Following a joint settlement meeting in January 2016, at which the parties failed to agree terms of settlement, the Defendant made the decision to obtain surveillance evidence. Surveillance was subsequently carried out in late February and mid March 2016.

The Defendant served the surveillance nine working days prior to the commencement of the trial window. On 30 March 2016, the Defendant subsequently applied for permission to rely upon the surveillance evidence, requesting that the Application be heard on the first day of trial. The Application was initially listed for 08 April 2016, but was adjourned until 29 April 2016 (and the trial vacated) to allow the Claimant further time to consider and respond.

At the time that the Application was relisted, the surveillance footage had been seen by the Defendant’s pain expert who had prepared a supplemental report, but had not yet been viewed by the Defendant’s orthopaedic expert. In addition, the Claimant and her pain expert had been able to review the edited surveillance footage and comment.

The Claimant argued that the late service of surveillance evidence shortly before trial amounted to an ‘ambush’. The judge was sympathetic to the Claimant’s arguments in this regard. Although the Defendant contended that the delay in obtaining surveillance evidence was in party due to NHSLA protocols concerning such evidence, the Court was highly critical of the Defendant’s failure to commission the surveillance at an earlier stage in the claim.

Foskett J commented that the fact that some of the Defendant’s experts had already viewed the footage (ie that ‘the genie was already out of the bottle’) was not enough, in itself, to persuade him to grant permission for the surveillance evidence to be relied on. It was relevant, however, that since the adjournment of the initial Application hearing, the Claimant had been able to view the footage, and the Claimant’s pain expert had produced a supplemental report in response.

The judge stated that ‘with considerable misgivings, I have decided that the overall interests of justice require that the [surveillance] evidence is considered as part of all the evidence in the case. … I do have to make it clear that I have been influenced in the decision to which I have referred by the fact that the Claimant and one of her principal medical experts have been able to answer (as I have said, at least at face value)… in a strong fashion. The playing field has, in my view, remained level.

In view of the fact that the trial had to be vacated due to the Defendant’s late service of surveillance evidence, and that both sides would have to incur significant additional costs, the Court ordered that the Defendant pay the costs of vacating the trial, the two Application hearings, and the Claimant’s additional expert costs of viewing the surveillance footage, on the indemnity basis.

This judgment is an important warning to insurers that the Courts will take a dim view of late attempts to rely on surveillance evidence, particularly if this is likely to prejudice trial dates. Notwithstanding that the Defendant’s Application was successful in this instance, the judgment shows that the Court was highly reluctant to allow the evidence, and was ready to impose punitive costs sanctions to reflect the disruption to the Court timetable.

Insurers should take note and, in cases where obtaining surveillance evidence is considered necessary, should take appropriate steps to ensure that this is obtained and served in good time so as not to jeopardise any trial dates. As the judge commented: ‘Once the claimant’s case, both in relation to the disabilities relied upon and their consequences, is clearly articulated and the defendant is possessed of an opinion from an expert upon whom it relies that the claim is ‘suspect’, it seems to me that the obligation actively to obtain surveillance evidence arises if it is considered a proportionate approach to adopt in the particular case. The longer it is left and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable.

Of further interest are the general comments made by Foskett J at paragraphs 43 – 47 of his judgment. He suggests that it may be appropriate for Courts to raise the issue of surveillance at the case management stage, and specify a date by which any application to rely on such evidence must be made. A defendant who failed to comply with such a deadline but subsequently sought to rely upon surveillance evidence would have to jump through the relevant hoops of seeking relief from sanctions.

Whilst these comments are strictly obiter, it seems likely that claimants will cite this case in support of future requests for court directions to include provisions relating to surveillance. Although some claimants’ solicitors will routinely request such directions, the practice is likely to become more commonplace in light of this decision, and such requests may prove difficult to resist.

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