KB-2023-000278 - [2025] EWHC 2536 (KB)

I repeat that I have very real concerns about how TSG have approached their assignment in this case. These concerns have been augmented by the witness evidence served ahead of this hearing to provide an explanation/response to the concerns raised by the Claimant. The Defendant accepts that there have been errors on the part of TSG; that is undoubtedly correct.

I take as the starting point, as Potter LJ put it in Rall, that in any application of this kind, 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 claimant and her medical advisors upon it. As Lord Woolf indicated in Jones, that is just the starting point.

Similar to what was said by Lord Woolf in Jones, I am not satisfied that the failings identified by the Claimant, as serious as they are, are such that I should exclude what is otherwise clearly probative evidential material. The conduct of the Defendant’s agents and insurers is not so outrageous that the Defence should be struck out, nor does the Claimant suggest this to be the case. This case will be going to trial, and it would be artificial and undesirable for the evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. In my judgment, it would be manifestly unfair to the Defendant to deprive them of the ability to place the surveillance material before the trial judge. The issue of the weight that the trial judge gives such evidence is an issue for the trial judge. It will be open to the Claimant to cross-examine the surveillance operatives and others form TSG and to submit that the evidence is unreliable for the reasons that have been advanced before me. However, those reasons are not such, in my judgment, that I should order that such evidence should be completely excluded from consideration.

The Claimant has sufficient time to deal with the surveillance evidence and will have an opportunity to provide evidence in response to the surveillance evidence. The experts will have an opportunity to consider and provide comments on the evidence. In all the circumstances of the case, I am content that the Claimant has a fair opportunity to deal with the surveillance evidence. I reject the submission that “the surveillance evidence and the circumstances surrounding its creation and manipulation are such that the Claimant does not have a fair opportunity to deal with the surveillance and could not have a fair trial were it to be admitted”.

I accept the submission made by the Defendant that the Court and expert witnesses in personal injury litigation are, or should be, astute at understanding the limitations of surveillance evidence. I reject the contention that the experts will not be able to perform the “mental gymnastics involved to ignore the prejudicial footage”, as Ms Ashworth put it, to weigh the evidence appropriately in this case. Factual findings are the domain of the trial judge.

There will be circumstances where the conduct of a defendant, or its agents, is so egregious that probative and otherwise admissible surveillance material should be excluded from consideration utilising the Court’s power pursuant to CPR 32.1. Whilst the conduct of TSG in this case is/was extremely poor, I am not satisfied that the threshold has quite been reached such that the surveillance evidence in this case should be excluded, but it was not far away. The providing of patently untrue witness statements to the Court, endorsed with statements of truth, is a matter of serious concern to the Court. The Claimant can consider her position as to whether she wishes to take any further steps with regards to that issue, this Court offering no view one way or the other as to the appropriateness of doing so. It is incumbent on defendants, insurers and those they engage to obtain covert surveillance evidence to uphold the highest standards integrity and propriety. In my judgment, TSG have fallen far short in this case.

However, given the countervailing interest in the trial judge having all probative material before them to be able to reach a properly balanced decision in what is a serious personal injury case, with serious allegations made by the Defendant as to the Claimant’s (dis)honesty, I exercise the discretion to allow the Defendant to rely on the surveillance material obtained.

As Lord Woolf said in Jones, at [30]:

“Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes...In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant’s control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective and taking into account the wider interests of the administration of justice, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.”