Candid camera

A key weapon for those representing defendants and their insurers in personal injury claims is the use of covert video surveillance.

At one end of the scale, surveillance is useful in providing an objective indication of the level of disability of an individual who has perhaps sustained comparatively serious injuries and whose recovery has been slow. Here there is no suggestion of malingering or dishonesty on the claimant's part; the surveillance simply demonstrates that a picture is worth a hundred words in a claimant's witness statement.

At the other end is the suspicious claimant. Such individuals tend to stand out from the outset. The classic example is the individual who alleges soft tissue injuries in an accident, perhaps develops an alleged pain syndrome, but in whom there is no obvious organic injury and a lack of objective physical consequence such as muscle wasting around the allegedly injured area.

In such a case surveillance can be critical in establishing whether the claimant is genuine or not. But this benefit can come at the cost of a claimant who, having sustained injury in an accident, feels upset by their privacy being invaded and their bona fides seemingly questioned.

Eyes wide shut

Certain cases suggest a mistrust and dislike of the concept of surveillance by judges. In Kirk v Walton [2009] EWHC 703 QB, CoulsonJ said: 'In recent years it has regrettably become more common for defendants (and their insurers) in personal injury litigation to subject the claimant to secret surveillance, so as to verify for themselves the honesty of the claims put forward.'

In this case the claimant was found in contempt of court for knowingly and wrongly filling out claims for state benefits and then verifying the content of those forms in subsequent litigation. Here, the surveillance had been crucial in establishing the falseness of the content of those forms and proving the claimant's contempt, and yet the judge's language nevertheless shows a clear dislike for the method by which the evidence was obtained.

In other cases, judicial mistrust of surveillance is suggested by the fact that the evidence of a claimant may still be preferred, even when apparently contradicted by clear surveillance to the contrary. For example, in Rogers v Little Haven Day Nursery (30 July 1999, unreported), the claimant sustained a wrist injury that she suggested effectively rendered the hand useless. The defendant obtained surveillance showing the claimant using his hand without obvious pain.

Bell J accepted that there had been a measure of exaggeration by the claimant, but explained this away on the basis that 'the exaggeration which I have described falls within the bounds of familiar and understandable attempts to make sure that doctors and lawyers do not underestimate a genuine condition, rather than indicating an outright attempt to mislead'.

Similarly, Ford v GKR Construction (22 October 1999) involved a case where there was apparent discrepancy between the level of symptoms reported by the claimant and the level of disability shown on covert surveillance. The Court of Appeal endorsed the view of the judge at first instance, who said: 'I do not think that the plaintiff was deliberately lying. I think there is a failure on her part to recognise that there are times when she can do more than she does.'

When to disclose?

The Court of Appeal in Rall v Hume [2001] EWCA Civ 146 held that surveillance is a discloseable document and therefore falls to be disclosed with the defendant's list of documents as part of standard disclosure. If there is a judicial dislike for surveillance, then a defendant would be well served in complying with Rall.

The difficulty with such an approach, however, lies in those cases involving suspected, dishonest litigants. In such a case if the surveillance is served following standard disclosure the claimant will not routinely at that point have served his witness statement, which will follow later in the proceedings. In these circumstances the dishonest litigant is given the opportunity to explain away the surveillance.

The standard response in these circumstances is the 'good days/bad days' argument; that the claimant has been subject to surveillance on a good day only, when his symptoms were less intrusive and he was capable of doing more. Such a claimant will routinely argue that the following day was a 'bad' one and that they were laid up in bed for the rest of the week.

Clearly from the point of service onwards, the claimant clearly becomes 'surveillance aware' and the chances of securing any further objective surveillance diminishes.

There has been some judicial recognition of this problem and attempts to cater for it. For example, in Uttley v Uttley [2002] PIQR 2001, the claimant alleged that he had hurt his back in a road traffic accident and indicated that this precluded him from undertaking heavy manual work. Covert surveillance was obtained showing the claimant lifting a heavy cooker. In this case the court accepted that the defendant was entitled to withhold disclosure of the surveillance until after the claimant had served his updated witness statement.

Potter LJ also appeared to accept that there were exceptions to the general principle that surveillance should take place with standard disclosure in Rall when he said: 'In principle, it seems to me, the starting point on any application of this kind must be 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 be permitted to cross-examine the claimant and her medical advisers upon it, so long as that does not amount to an ambush.'

It therefore appears that where surveillance fundamentally undermines the credibility of the claimant's claim and would have the effect of 'substantially reducing' the award, later disclosure of it will be permitted as long as this does not ambush the claimant.

Ambushing a claimant might be regarded as having taken place if the claimant is deprived of the opportunity of adequately considering and responding to the surveillance ahead of trial. Thus, if the surveillance is served in sufficient time to allow the claimant to respond to it in a witness statement and to allow her medical advisers to consider it and advice upon its implications, it is suggested that there can be no question of ambush.

The point was considered in O'Leary v Tunnelcraft Ltd [2009] EWHC 3438. In this case, Swift J concluded that an attempt by the defendant to rely upon surveillance that had only been disclosed 31 days before trial did amount to an ambush of the claimant and consequently the defendant was deprived of the right to rely upon it.

Arguably, if the surveillance shows that a claimant is fraudulent, the court may even allow a defendant to rely upon it, even if to do so would amount to an ambush of the claimant.

Ford LJ, obiter, in Ford, commented: 'In this case, if the judge had concluded that the claimant had been demonstrated by the video evidence to be a malingerer, dishonestly exaggerating her symptoms, I have little doubt that he would have taken the view that, even if the video evidence had arrived late, the claimant should not be permitted to escape the consequences of the revelation, even late, of her attempted fraud.'

It is suggested that in a case of outright fraud being demonstrated by surveillance, a court will permit the service of the surveillance at any point up to trial. The dicta of Ford LJ appears to suggest that the attempt to interfere with the administration of justice will outweigh any argument by the claimant that he has been ambushed.

However, as the case of Rogers demonstrates, the line between what a judge might regard as fraudulent behaviour on the one hand, and merely exaggerated on the other, is not always clear.

What to disclose?

In Rall, the court held that if surveillance was included within a list of documents then that constitutes a notice to admit under CPR 32.19. In these circumstances the claimant's advisers are deemed to admit the authenticity of the surveillance unless they serve a notice of non-admission within the time limit laid down under CPR 32.19.

Assuming that the surveillance is challenged, witness statements will need to be served from the surveillance operatives in support of the surveillance and those operatives conceivably may be called to trial to prove the content of the surveillance.

Some surveillance companies will prepare a surveillance log (detailing timings when surveillance was undertaken) in support of the surveillance and this is often requested by claimant's advisers when the surveillance is served. Must this be disclosed?

It is suggested that much depends upon the way that the document came to be created and is subsequently delivered by the surveillance operatives to the defendant's advisers. Some logs appear within the report to the defendant's advisers and seem to have been created as an integral part of that report.

In these circumstances it is suggested that the log is subject to litigation privilege, in that it is part of a written communication made in contemplation of litigation and its dominant purpose was to prepare for that litigation. Alternatively, however, if the log was created as a free-standing document, then the log is probably subject to disclosure.

A final point to consider is the position when more than one set of surveillance has been obtained. Frequently in larger value cases, surveillance operatives will be instructed on a number of occasions and will produce a number of separate surveillance discs. The content of some discs may well be more helpful to a defendant's advisers than others. Must all be disclosed?

It is suggested that there is an obligation to disclose all the surveillance discs that have been obtained once the decision is taken to serve any part of the surveillance. CPR 31.6 makes it plain that the burden of disclosure includes documents that might be detrimental to a party's case and which might support an opponent's case. It cannot therefore be appropriate to cherry pick the best surveillance, from a defendant's perspective, and only serve that.

It is also suggested that although surveillance might be comprised of several surveillance discs, the surveillance is in reality all part of the same document and to serve only extracts of it would be to mislead the court.