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

The Claimant alleges that there are examples where TSG operatives have filmed ‘selectively’ in that they have deliberately chosen not to film the Claimant partaking (or not, as the case may be) in activities that would support her claimed level of disability.

The Defendant avers that the obtaining of surveillance is dynamic, and operatives have to make decisions about what to record and how to record it as the situation before them evolves. I have read the statements that have been provided by two of the TSG surveillance operatives outlining the approach they take. The Claimant asserts that the explanations provided about avoiding detection and the like do not hold water.

One example of the criticisms made by the Claimant relate to 5 April 2023, where the Claimant invites the Court “to conclude that there is a strong likelihood that observations continued…and that this has either not been recorded or not been saved”. This relates to surveillance of the Claimant walking around a supermarket with her mother. The Claimant was recorded for about 20 minutes in the supermarket, with the footage within the supermarket ceasing at 11:40 hours. The Claimant is not then seen again on footage until 12:39 hours. The Claimant further points to the surveillance logs for that day, which do not state that footage stopped at around 11:40 hours. There is an entry at 11:14 hours regarding the Claimant entering the supermarket and the next entry is at 12:39 hours regarding the Claimant leaving the supermarket. The Claimant avers that the log would have stated if surveillance had been suspended at 11:40 hours.

I have witness statements from Mr Finnigan and Mr Davis regarding this date. They explain how they go about obtaining footage and how they must weigh up the benefits of obtaining more footage with the risks of being seen and compromised. There is also footage, served as part of the unedited footage, which suggests that the Claimant is still in the supermarket at 12:29 hours, with the operative just filming the front of the store without capturing any footage of the Claimant. Mr Wittering further explains how surveillance was also obtained that day following the Claimant around B&Q and therefore the surveillance operatives had to switch to avoid detection.

I can understand how there would be a risk of compromise of a covert surveillance operative obtaining footage in a supermarket setting where the subject of the surveillance is moving slowly through the supermarket for the reasons that Mr Finnigan and Mr Wittering explain. I can also appreciate that this risk would be heightened where close surveillance was obtained around one shopping outlet, followed by a further one, particularly where the subject is accompanied by another individual throughout. I can therefore see why constant surveillance would not be undertaken and I reject the suggestion by the Claimant’s Solicitor that, pursuant to the overriding objective, surveillance undertaken should be constant; that is unrealistic in a supermarket setting in circumstances such as these. Insofar as expecting the surveillance logs to mention when surveillance is stopped, I agree that one would expect this to be recorded. However, there is footage at 12:29 hours where it is said that the Claimant is still in the supermarket, yet that does not appear in the logs. I cannot see a benefit to the Defendant of TSG failing to capture or disclose footage of the period whilst the Claimant is in the supermarket, if it exists. The Claimant can of course give evidence about this trip. Insofar as she cannot remember the day in question, as is suggested, she can give evidence about her usual abilities around the supermarket. The absence of surveillance to counter any evidence she gives on the point will unlikely assist the Defendant. I do not understand how it is said obtaining footage on this day in the manner that it was constitutes a deliberate attempt to give a misleading impression, as the Claimant asserts.

Another example of the complaint is an allegation about footage that was, or was not, obtained on 24 June 2024. The Claimant alleges that the operative deliberately chose not to record her loading her mobility scooter into the rear of her vehicle, instead only filming the immediate period before and after that manoeuvre. The Claimant alleges that this is because it may have shown the Claimant struggling with that task. In response to this allegation, Mr Finnigan, the surveillance operative in question, states that he could not record the Claimant because there were other parties walking around, there was a risk of compromise, and he also had to get into his car to be ready to follow the Claimant as she left the car park.

In my judgment, I cannot see what the surveillance operative would have to gain by stopping the recording for a short period of time whilst the mobility scooter is loaded into the rear of the vehicle. I reach that view because the recording may have demonstrated that this was a difficult manoeuvre for the Claimant but equally, she may have been seen to lift the scooter with ease. The surveillance operative would not have known that before the event. The recording of the lifting of the scooter into the rear of the car, whether difficult or not, may have assisted the Defendant just as much as the Claimant. Furthermore, I accept that surveillance operatives would have to be cautious about being detected, not only by the Claimant but also by members of the public who may be milling around. I accordingly reject Ms Ashworth’s submission that “the clear inference as to why Mr Finnigan did not tape this or has deleted it, is that this would be of assistance to the Claimant”. I also reject the submission that a misleading impression is created. There is no suggestion that the Claimant did not lift the scooter into the vehicle.

Another example relates to 16 June 2022 where there are short periods of time where no footage is obtained, despite two operatives being present. No specific explanation is provided for this date. However, my observations above apply, namely that I cannot see the benefit of deliberately not filming the Claimant for a period as there would be a risk of the operative missing helpful evidence. Insofar as it is implied that the Court should be suspicious that such footage has been deliberately deleted or a decision made not to upload it, there is no evidence before the Court to substantiate such an implication.

I therefore reject the contention that this demonstrates a dishonest attempt to selectively film the Claimant, nor does it give a reason why permission to rely on the surveillance evidence ought to be refused. Where the Claimant alleges that there are gaps in filming, or the filming on a particular day was not representative, she can explain the same within her witness evidence in response.

There is reference to surveillance having been obtained on 11 May 2024, in that the date is listed within the relevant surveillance pack, yet there is no unedited footage served for this date nor any signed statements from any operatives. The explanation appears to be that this footage is not sent to TSG’s clients when footage of the subject is not included. As I stated above, every single second of footage of the Claimant must be disclosed and sent to the Claimant within 7 days of the handing down of this judgment. It is not for TSG to decide whether unedited footage is sent to a claimant once it has been requested. I also direct that statements are provided by the surveillance operatives responsible for filming on that day.