James Byrne writes this week's PI article on Surveillance
"Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put a before a court that may demonstrate that a claimant's evidence is false. Such evidence may show inconsistencies that are inexplicable by the claimant. Its production may lead to the end in one way or another to a claim or part of a claim. It may be a powerful tool in preventing the successful advancement of a case which is based on untruth." (per His Honour Judge Collender QC in Douglas v O'Neill EWHC 601 (QB) at para 42)
As I hurriedly made my way over Waterloo Bridge early one cold and foggy morning the other week I received a call from a client solicitor. Normally a bright, breezy and optimistic sort of person I was struck by the utter despair in her voice. She told me in solemn tone that an email had just landed in her Inbox from Defendant's solicitor in a chronic pain case very shortly going to trial. The email crowed that we would be receiving in the DX a copy of a surveillance DVD in respect of our client, a 33 year-old builder, the contents of which would prove he was nothing but a rotten liar and meaning ruin for our case.
We waited for the damning package to arrive. When it did it come it was only edited highlights of hours of surveillance. On one view it was unhelpful to our case (on two views it got worse!). Accompanying the disc was a letter from the very same solicitor telling us that in light of the impending trial, now only days away, they had taken the liberty of showing the DVD to their expert witnesses to get their comments and inviting us to do the same to ours.
To cut a long story short our experts never saw the DVD, it was never played at trial, and we got a fair result based on the evidence before the Trial Judge. The fact the DVD did not become part of the evidence was not down to some brilliance on the part of the Claimant's legal team (as much as I wish it were so). Its exclusion was purely down to the fault of the Defendant's solicitor and their failure to appreciate that surveillance material, though a legitimate weapon is one that must be handled carefully or it can blow up in your face.
It is with this in mind that I write this article in the hope of setting out some the pitfalls that both Claimant and Defendant solicitors should be aware of when handling surveillance material.
It is well established that a surveillance video is a "document" for the purposes of the CPR (Sally Rall v Ross Hume  EWCA Civ 146).
In the normal course of events CPR 31.6 provides that standard disclosure requires a party to disclose documents on which it relies (whether supportive of the party's case or adversely affect/support the other party's case). CPR 31.11 provides that this duty is ongoing until proceedings are concluded. Surveillance videos do not normally fall into the standard disclosure rules because, if obtained for the purpose of litigation, they are privileged material until such time as privilege is waived (Douglas).
As such a Defendant is not under a duty to put the Claimant on notice that they have already, or intend to obtain surveillance material during the case management stage of proceedings. Whilst this should not be read as a warning to Claimants to be on-guard that around every corner, behind every bin, or in every parked car the Defendant's video camera is lurking, it is not too hard to make an educated guess as to when it is more likely that a Defendant will adopt this legitimate tactic to comfort itself that a Claimant is being honest. From my own experience when defending claims we have tended to consider video surveillance as a proportionate and legitimate expense if the claim is of particular high value and the long term prognosis is unclear, where the schedule seems exaggerated for the type of injury, where our expert has highlighted the Claimant as ‘suspect', or our client raises reasonable evidence based concerns about the Claimant's honesty.
Seeking to rely on the evidence at Trial
Returning back to my case, the inexcusable mistake the Defendant's solicitors made was to send the DVD and then do nothing in the expectation that the next move was ours. The Defendant had a weapon but instead of aiming it at us they shot themselves in the foot. We sat there waiting for the inevitable application to come but it didn't. It was only on the morning of trial that my rather exasperated and resigned opponent put me on notice that he needed to make the application late. Below I set out the keystone principles of the arguments advanced.
As with majority of cases where surveillance material becomes available there had already been and gone deadlines in respect of the service of evidence. In such circumstances the burden is on the Defendant to apply to be able to rely on such evidence directing the court to its powers to control evidence pursuant to CPR 32.1 (see Watson v Ministry of Defence  EWHC 3163 (QB).
So what it the court's approach to such an application? Potter LJ in Rall helpfully sets out the starting point at para 19:
"In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the Claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush..."
In Hayden v Maidstone Tunbridge Wells NHS Trust  EWHC 1121 (QB), Mr Justice Foskett added to this at paragraph 44 of his judgement saying that the test should not just be one of ambush but also whether the Defendant has addressed the issue in a timely way (he went on to advance the need for more "date by which" orders that if disobeyed meant the Defendant would have to apply for relief from sanction).
What the court terms an ‘ambush' and when it considers it has arisen was helpfully elucidated in Douglas where it was defined as (a) circumstances in which the evidence is disclosed such that the Claimant does not have a fair opportunity to deal with, or (b), where the Defendant has failed to act in a manner consistent with effective and fair case management.
Dealing with the second limb of the ‘ambush test' first, it is not in the scope of this article to provide a non-exhaustive list of when it can be alleged that a Defendant has failed to act in manner consistent with effective and fair case management. Each case will be judged on its particular facts and I am sure you the reader can imagine such situations without too much trouble. In my case the Trial Judge was particularly interest in two issues that are worth considering:
- The Defendant solicitors had held onto the DVD until after we had provided updated expert evidence: In rebuttal the Defendant was able to rely on the decision in Douglas where it was ruled that Defendant's are entitled to hold on to surveillance DVD's for a reasonable time before disclosing them so that they can assess the quality of the evidence in their possession against the up-to-date position of the Claimant. - What is a reasonable time must of course be referenced to the first limb of the ambush test.
- That the Defendant had shown his experts the DVD before obtaining the permission of the court to rely on them, whilst the Claimant had not: This was of course a slightly trickier argument for the Defendant because we had taken the deliberate decision not to show the Claimant's experts the DVDs until we knew that it was admissible evidence. The case of Hayden assisted both parties in dealing with this issue. In Hayden the court supported the Claimant's decision not to show the DVD to its experts on the basis that the Claimant should not have to be ‘bounced' into potentially undermining their own case by colouring it's experts minds with potentially inadmissible evidence, nor making life easier for the Defendant to argue that there is no prejudice. The fact that the Defendant had shown the DVD to his experts, whilst no ideal, was not fatal to the case, nor would it force the court's hand to admit the DVD evidence, because experts should be more than capable of putting inadmissible evidence out of their minds. If they fail to do this then it would likely lead the court to make negative findings in respect of their competency and credibility.
In respect of the first limb of the ‘ambush test' the Defendant was in a wholly more difficult position and it was on this limb that the Trial Judge, referencing the case of O'Leary v Tunnelcraft  EWHC 3438, refused the Defendant's application, and any application to adjourn. The factors the Trial Judge took into account when making his decision under this limb were (though many of these factors could have easily fallen under the second limb):
- The application seeking to admit the DVD was only made on the day of trial.
- The edited Surveillance DVD was only provided 6 working days before the trial.
- The Defendant failed to provide the unedited material until 3 days before the trial.
- The Claimant and the Claimant's expert did not have, and would most likely not have had, time to consider the evidence (both the edited and unedited footage) before trial.
- The Trial length would have to be extended putting the court diary in jeopardy.
- There would be increased costs both for the Claimant and the court (admittedly this could have been dealt with by other sanctions).
Perhaps I am being too critical of the Defendant's solicitors in this case. Whilst there were some serious failings on their part regarding process they did find themselves in a position where they reasonably wanted to wait until the Claimant had pinned his sails to the mast before unleashing the DVD. The problem was that deadlines were tight and they failed to appreciate the consequences of such a move on the trial date. It can be a difficult balancing act for both Defendants and the court to judge.
Application for Strike Out
In the final part of this article I plan to deal quickly with the situation where a Defendant solicitor finds himself or herself in possession of surveillance material that they believe is so damning in its content that the Court will likely find that the Claimant is exaggerating or lying. What are the chances of getting the case struck out as an abuse of process pursuant to CPR 3.4(2) (b)?
Defendant solicitors need to be wary that their application at an interlocutory stage is not premature. This consideration will be at the forefront of the Court's mind. In Alpha Rocks Solicitors v Alade  EWCA Civ 685, where the Claimant successfully appealed a decision to strike out their claim, Vos LJ (at para 22) stated:
"... In my judgment, the court should exercise caution in the early stages of a case striking out the entirety of a claim on the grounds that a part has been improperly or even fraudulently exaggerated. That is because of the draconian effect of so doing and the risk that, at a trial, events may appear less clear cut than they do at an interlocutory stage. The court is not easily affronted, and in my judgment the emphasis should be on the availability of fair trial of the issues between the parties."
Alpha Rocks was recently applied in the County Court case of Admans v Two Saints Ltd (2016) (available on Lawtel). In that case, though still during the case management stage, the Judge did strike out the Claimant's case as an abuse because he found fraud. The Claimant was a litigant in person and the Judge had a chance to question her directly during the application, though not under oath, about surveillance evidence before him. It was only because he had questioned her and formed an opinion of her that he felt able to strike the case out.