Video surveillance ambush… and how to avoid it

June 15, 2016

By David Knifton QC

Introduction

There is no doubt that video surveillance evidence demonstrating that a claimant is exaggerating the extent of his injuries or financial losses is a devastating forensic tool in the hands of the defendant. It may prompt the claimant or his advisers to abandon a claim which appears tainted by fraud, or at least encourage reappraisal and early settlement of a claim which appears to have been overstated. If the claim proceeds to trial, such evidence can be of considerable assistance in the judge’s assessment of credibility.

There are, however, understandable tensions as to how such evidence may be deployed. It is well recognised that a defendant is entitled to wait until a claimant has pinned his sail to the mast of a particular level of disability, through a witness statement and/or schedule of loss, accompanied by a statement of truth, before the defendant undertakes or discloses relevant surveillance. On the other hand, the deliberate tactic once employed by many defendants to withhold such evidence until the last minute with a view to wrong-footing the claimant is no longer acceptable.

Rall v Hume [2001] EWCA Civ 146 establishes that, where video evidence is available which potentially undermines the claimant’s case to an extent that would substantially reduce the award of damages, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the claimant and her medical advisers upon it, so long as this does not amount to trial by ambush.

The question which is likely to arise is this: what amounts to an ambush? Is it sufficient that the evidence is disclosed at such a late stage that it would be unfair to permit the defendant to rely upon it, or does there have to be evidence of some bad faith or improper motive on the part of the defendant? This issue was helpfully addressed by Foskett J in Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB).

The Facts

The claimant in Hayden had suffered a neck injury in a lifting accident at work on 23 March 2007, for which liability was not in dispute. There was, however, a dispute about the extent of her continuing symptoms. The claimant alleged that they interfered significantly with her normal daily life and were likely to impede her ability to return to work as a cardiac physiologist. The schedule of loss set out a claim not far short of £1.5 million. The defendant suggested that the symptoms were not as significant as claimed, and that her ability to work was not materially affected.

Case management directions were issued on 24 November 2014, providing a trial window between 1 February 2016 and 1 May 2016. The trial on quantum was subsequently listed on 11 April 2016 for 5 days.

The defendant’s pain management expert examined the claimant on 10 February 2015, and expressed the view in a report dated 8 March 2015 that he was concerned that she may actually be much better than she made out. In response to questions, he expressed the view on 22 May 2015 that it was possible that she was “grossly exaggerating for the purposes of financial gain”. Surprisingly, it was not until a conference with counsel on 15 January 2016 that the possibility of obtaining video surveillance evidence was first discussed (a delay which the judge found to be unexplained and unreasonable). Thereafter, there was no real urgency shown in pursuing it. Authority to obtain surveillance evidence was sought from the NHSLA on 19 January 2016 and, no settlement having been achieved at a JSM on 29 January 2016, was granted on 17 February 2016, a delay of 4 weeks. Surveillance was undertaken between February and March 2016, when it should have been obvious that the trial date might be imperilled. Edited surveillance footage was received by the defendant’s solicitors on 24 March 2016 (Maundy Thursday) and was sent to their experts and to the claimant’s solicitors by registered post on the same date, but without any email warning them to anticipate its arrival. It was received by the claimant’s solicitors on 29 March 2016, the first working day after the Easter weekend. The unedited footage was not supplied. On 30 March 2016 the defendant applied for permission to rely on the evidence, intending that it be dealt with on the first day of the trial, and on 5 April 2016 they disclosed a supplementary report from their pain expert dealing in detail with the surveillance evidence. Although they suggested that the claimant’s experts should be shown the evidence, the claimant’s solicitors declined to be “bounced” into doing so.

The application came before Foskett J on 8 April 2016, the last working day before the start of the trial. Rather than ruling on whether the evidence should be admitted, he vacated the trial and adjourned the application for 14 days to enable the claimant’s advisers to consider what position they wished to take. He accepted that it was proper for the claimant’s solicitors not to have disclosed the evidence to their experts, although by the time of the hearing the claimant and her pain management expert had commented upon the surveillance, concluding that it did not undermine her case. In the event, whilst heavily critical of the defendant’s unexplained and unreasonable delay (many features of which understandably suggested a deliberate ambush, although the defendant was acquitted of acting improperly or in bad faith), Foskett J decided (with considerable misgivings) that the overall interests of justice required the evidence to be considered at trial. He was influenced in that decision by the fact that the claimant and her expert had been able to answer the new material in a strong fashion, such that the playing field remained level. He therefore granted permission to rely upon it, whilst ordering the defendant to pay the costs thrown away by vacating the trial, the costs of the application hearings and the costs of the claimant’s experts considering the surveillance, on an indemnity basis.

Ambush

Foskett J reviewed the authorities, noting that a surveillance video is a “document”, but remains privileged unless relied upon. He endorsed HHJ Collender QC’s description of an “ambush” in Douglas v O’Neill [2011] EWHC 601, as follows:

“In my judgment the issue of ambush comes to this – are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the defendant from relying upon it?”

Foskett J considered this description both helpful and consistent with the Court of Appeal’s decision in Rall v Hume, as “it eliminates the need to find some sinister motive in the actions of the party seeking to rely upon the surveillance evidence and focuses on whether the delay in revealing it was ‘otherwise culpable’”. In other words, the issue of ambush depended upon a consideration of fairness, rather than conducting a mini-trial into whether there had been a deliberate ploy to wrong-foot the claimant:

“the focus should be an objective one based upon the real effect of the late application to rely upon this kind of evidence on the preparations for the trial and, most importantly, on the trial date itself, particularly if fixed. The time estimate for the trial may change which can affect other cases in the list.”

Foskett J made the following additional observations, which may be relevant when dealing with applications of this kind:

1. It would not be a determinative consideration to the balancing exercise that an expert who had seen the surveillance evidence would be required to put it out of his mind and make no reference to it if the application to admit such evidence were refused. Both experts and judges are familiar with this need.
2. Likewise, the fact that “the genie is out of the bottle”, whilst not irrelevant, should not be over-stated, since otherwise a defendant would be able to produce surveillance evidence at the last minute and assert that, since it was now on the playing field, it must remain in play. Such an argument was deeply unattractive and might be seen as a reward for poor litigation behaviour.
3. Pending further consideration by the Civil Procedure Rule Committee, more liberal use might be made of a case management direction that any application by the defendant to rely on the evidence of enquiry agents or video evidence at trial should be made no later than a specified date, as had been done in O’Leary v Tunnelcraft [2009] EWHC 3438, so as to give the court greater control over preventing the unjustifiably late deployment of surveillance footage. Such an order could either be raised by the parties or by the court itself at the case management stage, so as to focus the defendant’s mind on the need to address such evidence in a timely way, to enable a record to be made of the position of both parties and the reason for making the order, and to bring into focus the relief from sanctions jurisdiction if the order is disobeyed.
4. A very significant factor in deciding whether to accede to a late application is the time when the defendant ought reasonably to have commissioned such evidence. Once the claimant’s case, both in relation to the disabilities relied upon and their consequences, is clearly articulated and the defendant is in possession of expert opinion that the claim is “suspect”, the obligation actively to obtain surveillance evidence arises. 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.

Lessons Learned

Whether acting for a claimant or a defendant, Foskett J’s analysis brings into sharp focus the need for lawyers to address video surveillance evidence in accordance with the overriding objective. Tactical considerations will be important, but must be subordinate to the requirement of fairness. I would suggest that the following considerations should apply:

(a)    If acting for a defendant, it is important that the decision whether to obtain surveillance evidence is made at an early opportunity, as soon as the defendant has evidence to suspect that the claim may be exaggerated.

(b)   Thereafter, whilst it is perfectly legitimate to withhold such evidence until the claimant has pinned his sail to the mast by attesting to the truth of a witness statement or schedule of loss, it is important that the evidence is disclosed and relied upon as soon as reasonably possible. The longer the delay, particularly if the trial date is jeopardised, the more likely it is that permission to rely on the surveillance evidence will be refused on the grounds that, objectively judged, the delay was culpable.

(c)    If acting for a claimant in a case in which the issue is likely to arise (e.g. a chronic pain case), seek a direction at the case management conference that “any application to rely on surveillance evidence should be made by no later than [date]”, ensuring that any such date allows sufficient time for the evidence to be considered by the claimant and her experts in good time before the trial. Whilst Foskett J was told by the Senior Master that the making of such an order is often resisted by the defendant, the decision in Hayden provides a compelling basis for the court to do so.

(d)   If the application to rely on surveillance evidence is made later than that date, the parties must be prepared to address the issue of relief from sanctions under CPR 3.9, having regard to the guidance in Denton v White [2014] EWCA Civ 906. The fact that there has been culpable delay may not, as Hayden illustrates, be fatal to the admission of such evidence, but the defendant will need to demonstrate that the claimant has a fair opportunity to deal with it before trial. It will, I suggest, be rare indeed for a judge to vacate the trial to allow such consideration, even if this may require the genie to be put back in the bottle!