How to deal with Surveillance evidence
As a Claimant lawyer, the allegation of Fundamental Dishonesty or the use of surveillance by the Defendants has almost become a normal stage of pursuing a claim for personal injury. It is as if every Claimant is considered to be dishonest until the Defendants fail to prove otherwise. The Court’s starting point is to usually allow surveillance footage as it is seen to be in the interest of justice, provided it doesn’t amount to trial by ambush.
We’ve all had that sinking feeling when the post arrives on our desk with the dreaded disc or USB drive from the other side which they believe shows the Claimant doing something they shouldn’t or said that they couldn’t. However, time after time I have found that watching the footage or looking into how it was obtained and/or served on us, doesn’t damage the Claimants case at all.
The first step is to ensure the footage has been disclosed in an appropriate way. The ABI guidelines state “the original DVD/CD/memory stick should eb from virgin stock (that is new and unused). The original media should never be edited under any circumstances, but copies to provided working copies. The original retained securely for production in Court or forensic examination as necessary. All events that occurred during the surveillance operation must be recorded in long hand in the surveillance log. The evidence should be recorded contemporaneously or as soon as reasonably practicable after the event and in any case while the events are still fresh in IT’s memory”. Therefore, the footage cannot be edited to show only what the Defendants want it to show, ensure they provide a full copy of the footage along with the surveillance log prepared by the operative who conducted with surveillance along with their qualifications.
There are several keys points in which the Claimant has the opportunity to attempt to “flush out” any potential allegations of dishonesty or production of surveillance evidence; those are Pleadings, Disclosure and at CMC. The Defendants should make an appropriate Application to produce and rely upon the surveillance and it should be accounted for in the cost budgets. If it was not included in the budgets, then updated should be obtained given the considerable additional work that will be required.
The Defendants are most likely to make their application to adduce surveillance evidence upon receipt of the Claimant’s witness statement on the basis the Defendant wants the Claimant to “pin his sail to the mast” in relation to a particular level of disability. Ultimately, the Defendants will want the surveillance footage to contradict the disabilities alleged by the Claimant in their statement even if the matter has already been listed for trial. In the case of Watson v MOD (2016) EXHC 3163, a trial was listed for mid-May 2016 however the Defendants didn’t disclose the surveillance footage until the 17th March 2016. The application rely on the footage was heard on the 8th April 2016, and despite the imminent of the trial, the Court allowed the application and the trial went ahead as listed.
Despite the finding above, the Defendants aren’t allowed to ambush the Claimant with surveillance however proving they have been ambushed is the tricky point. The case of O’Leary v Tunnellcraft Limited (2009) EWHC 3438 is the only matter where the Claimant was found to have been ambushed by the surveillance footage. The case had been set down for Directions in November 2014 with a trial window of February to May 2016. In 2015 the Defendants obtained medical evidence which suggested the Claimant was exaggerating her claim however, surveillance wasn’t undertaken in February and March 2016. The Defendants filed their Direction Questionnaire the day after the surveillance was obtained but they made no mention of the footage. An edited version of the footage was served on the Claimant in late March 2016 and the Defendants made an application to be heard on the 5th April 2016 just 4 working days prior to the commencement of the trial. The Judge found the surveillance to be, for the purposes of the Civil Procedure Rules, privileged and would therefore usually be admissible provided the disclosure of the same did not amount to trial by ambush. The Judge took a sympathetic view towards the Claimant that it was indeed an attempt to trial by ambush. The delay between obtaining the medical evidence and the suggestion that the Claimant was exaggerating caused the Judge concern. The Defendant’s medical expert had been provided with a copy of the footage before the Application was made to rely upon it and therefore the “genie was out of the bottle”. On this basis, the trial was vacated to allow the Claimant’s solicitors to consider the footage and take further instructions.
How do you respond to the surveillance footage you have received? Ensure you request a full unedited copy of the footage with the surveillance log and go through this with the Claimant. Consider instructing your own expert to analyse the footage and how it was obtained. You can always use Part 18 to put questions to the Defendants to clarify why they have relied on certain sections of the footage and why they haven’t included others, especially footage that supports the disabilities alleged by the Claimant. Our firm recently received footage that could only have been obtained by gaining access to the Claimant’s property and, showed their children playing in the garden and we have challenged the admissibility of the footage. Most importantly, the Application to produce and rely on the footage should be made shortly after it was obtained, appropriately accounted for in any cost budgets and served within a reasonable time period in relation to any trial date.