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

I am told by counsel that they have not been able to identify any authorities that specifically deal with the issues raised in this case. The Court is therefore required to consider some of the authorities relating to surveillance evidence.

The use of surveillance evidence within personal injury litigation was recognised in Douglas v O’Neill [2011] EWHC 601, where HHJ Collender QC, sitting as a Judge of the High Court, stated at [42]:

“Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a court that may demonstrate that a claimant's evidence is false. Such evidence may show inconsistencies that are inexplicable by a claimant. Its production may lead to the end in one way or another to a claim or a part of a claim. It may be a powerful tool in preventing the successful advancement of a case which is based on untruth.”

Whilst a potentially powerful weapon, the Court has the power to prevent the Defendant from relying on such evidence. The power to control and exclude evidence is found in CPR 32.1:

“(1)

The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

The issue of fairness, in the context of ambush, was considered in Rall v Hume [2001] EWCA Civ 146, where Potter LJ said, at [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.”

HHJ Collender QC considered the issue of ambush and said, at [46] to [47] of Douglas:

“46.

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.

47.

The latter type of order would be one that used the penalty of preventing the use of relevant evidence against a defendant for failing to act in a manner consistent with effective and fair case management.”

At a previous hearing, I referred myself to the decision of Jones v University of Warwick [2003] EWCA Civ 151, a case in which surveillance evidence was obtained by gaining access to the claimant’s home by deception. Lord Woolf LCJ cited the judgment of HHJ Harris QC, sitting as a Deputy High Court Judge, and went on to uphold his decision. Paragraph 15 of Lord Woolf’s judgment reads as follows:

“[HHJ Harris QC] continued by saying that:

‘The primary question for the court is not whether or not to give approval tothe method whereby evidence was obtained. It is whether justice and fairness require that this highly material evidence, which contradicts the evidence which she has given to others, should be put to her before the trial judge to enable him to reach a sound conclusion about the true extent of any disability. True, the claimant was herself deceived but there is strong prima facie evidence that she herself is deceiving or misleading the defendants to enrich herself thereby. It is not easy for the defendants to protect themselves against exaggerated claims. Anyone with much experience of personal injury litigation will know that the defendants and their insurers are frequently faced by claimants who suggest that their disabilities are far greater than they are, and large sums of money may be unjustifiably sought. Though such people are rarely, if ever prosecuted, in many cases what they do or seek to do must amount to the crime of obtaining property or pecuniary advantage by deception. In these circumstances I do not believe that the courts should be too astute to prevent effective investigation by the defendants of claimants against them. Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified, dishonest and fraudulent claims. In the instant case I have no doubt that the latter considerationsdo and should outweigh the former.”

Whilst I may not entirely agree with HHJ Harris QC that defendants and insurers are “frequently faced by claimants who suggest that their disabilities are far greater than they are”, there is a clear public interest in discouraging and unearthing cases where such fraudulent claims are advanced.

The Court of Appeal went on to make clear that there is public concern in ensuring that the law is observed and that the types of practice adopted in that case did not go uncensured. Lord Woolf went on to say at [28]:

“That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge's decision not to exclude the evidence.”

One must understand the limitations of surveillance evidence, however. As was stated in Cullen v Henniker-Major [2024] EWHC 2809 (KB):

“…I accept that if something is shown on the footage, that is determinative of it happening. However I do not accept that the absence of something on the footage is determinative of it not happening.”

I too would accept that proposition. I would also add that the value of surveillance evidence is in what is seen, not what might have been seen on another day or at another time or place. One must be particularly cautious when, as is alleged in the present case and in Cullen, the footage obtained appears incomplete and where there are gaps in what was recorded. Surveillance footage cannot definitively show what the subject is feeling or how much pain they are in. It is merely a snapshot in time. I also accept that an individual’s condition may vary throughout the course of a day, week, month or year, and maybe in response to activity that had occurred prior to the obtaining of such footage. It is therefore only a piece of evidence in the jigsaw. Medical expert witnesses, like the Court, must understand the utility and limitations of such evidence and thus the weight that it should be given. Questions of honesty, dishonesty and exaggeration are matters for the trial judge, not for medical expert witnesses to decide upon, noting that the role of medical expert witnesses is to assist the Court.

As I stated within the ex tempore judgment that I gave at a previous hearing of this case, the Court has a power to restrict evidence and, in particular, refuse permission for the Defendant to rely on surveillance evidence, where it is appropriate to do so. This is an exercise of judicial discretion having made an evaluative judgment considering the competing public interests outlined by the Court in Jones. Having reached that conclusion, the parties agree that the Court needs to consider the probative value of the surveillance evidence and how that is weighed against the prejudice created by the failings alleged by the Claimant.