Surveillance: the challenge faced by claimants

Posted: 28/09/2018

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Surveillance is a long-standing form of investigation in both personal injury and clinical negligence cases and should not come as a surprise to either claimants or their solicitors.

In 2015, a Freedom of Information request found that year on year the use of surveillance was increasing. Figures showed that in 2013/14 the NHSLA spent £49,600 on detectives, which resulted in the authority estimating that it actually saved £3.7 million. This sum was calculated by comparing the cost of the final payout of claims against the predicted pre-surveillance claim value. Surveillance is ultimately designed to reduce the value of a claim, and in extreme cases discover if a claimant is acting in a fundamentally dishonest way.

The court’s starting point will generally be that it will allow the use of surveillance evidence in the interests of justice, provided that it does not amount to trial by ambush. The issue was brought to the fore once again in the case of Hayden v Maidstone & Tunbridge Wells NHS Trust. This case involved an employer’s liability claim for personal injury sustained at work. Liability was admitted and the claimant put the value of the claim at around £1.5 million.

In the early part of 2015, the defendant had obtained medical evidence which suggested the claimant was exaggerating her claim. However, it appeared that the first time surveillance evidence was seriously considered was in January 2016, when the defendant decided to await the outcome of a joint settlement meeting at the end of that month. As early as November 2014, the case had been subject to directions through to trial, with the trial window fixed from February to May 2016. The trial date was subsequently fixed for the middle of April 2016. When a joint settlement meeting failed to lead to a settlement, surveillance was undertaken in February 2016. The defendant’s representatives felt that the evidence obtained was inconclusive and therefore a further day of surveillance was undertaken in March 2016.

No mention was made in the directions questionnaire, submitted the day after the surveillance had been undertaken, of an intention to rely upon this evidence although a somewhat vague indication that further directions might be required was included. An edited version of the footage was subsequently received by the claimant on 24 March 2016 and was forwarded to the defendant’s experts and the claimant’s solicitors that day. The footage was sent via registered post and given the intervening Easter break, was not received by the claimant’s solicitors until 29 March 2016. The defendant solicitors made an application to rely upon the surveillance the following day, suggesting that their application be heard on the first day of trial. On 5 April 2016, some four working days prior to the trial, the defendant then served its expert’s comments on the footage, which were supportive of its case. In response, the claimant issued an application for the defendant’s application to be heard prior to the trial rather than on its first day. 

The applications were considered just three days before the date listed for the trial and at that point the claimant’s representatives were somewhat unsure as to the approach which they wished to adopt. The judge felt that this was a reasonable stance given the tight timeframes involved and adjourned the application hearing to 29 April 2016. He commented that he was giving the claimant time to consider whether she in fact wanted to oppose the defendant’s application on the basis that this type of application can backfire on defendants and lend weight to a claimant’s case. Reviewing the law and practice in relation to this issue at some length, he noted that such footage was a document for the purposes of the Civil Procedure Rules and was privileged, but that it would usually be admissible provided disclosure did not amount to trial by ambush. An objective test was required as to the real effect of the late application.

The judge was sympathetic to the claimant’s view that this was indeed an attempt at trial by ambush and was critical of the lack of detail in the defendant’s application notice and supporting witness statement as to the chronology of events. It was the delay between obtaining medical evidence, which was suggestive of potential exaggeration by the claimant, and actually obtaining the surveillance evidence, which caused the judge most concern.

Interestingly, it was the judge’s view that if the defendant’s application had been made on the first day of trial (as had been intended), it was unlikely that the application would have succeeded. He had a strong dislike for the defendant’s argument that, because the surveillance evidence had now been seen by the defendant’s experts and the claimant’s representatives, the “genie was out of the bottle” and therefore the evidence should be allowed. Nevertheless, it was only with considerable misgivings that the judge felt that overall it was in the interests of justice, now that the trial date had been vacated and there was time for the evidence to be considered, for the footage to be received in evidence.

Despite the circumstances of Hayden and the judge’s sympathetic reluctance to allow the surveillance to be used, this case only furthers the court’s supportive attitude towards surveillance evidence if there is any suggestion that a claimant is not telling the truth. As a result, the way that the law has been interpreted is to very much support disclosure and allow admittance of the evidence to trial regardless of when it was disclosed. Such an approach would raise questions regarding delay, and when a defendant has licence to do so, but it is rare for a court to suggest no licence, as demonstrated in Hayden. 

The question of whether or not there is an ambush does not require a sinister motive to be shown but asks only whether the behaviour is otherwise culpable. A defendant does not have to be shown to be acting in bad faith - what matters is the effect of the conduct on the claimant’s ability to deal with the evidence fairly.

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