Responding Effectively to Video Surveillance Evidence: A Fairweathers’ Case Study

5th March 2021

In brief

Steve Evans discusses the use of video surveillance evidence by Defendants and reflects on his success in roundly defeating the tactic in the recent case of Kilby where the defence was ordered to pay indemnity costs

In detail

When a claim is made for significant damages after an accident, Defendant insurance companies often obtain video surveillance of the Claimant to use in evidence.

The following extract from the leading case of Rall v Hume [2001] EWCA Civ146 succinctly explains its purpose:-
“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”.

In other words, it is the Defendant’s ‘nuclear option’ when faced with a claim they feel to be based on false pretences.

The first point to make is that video surveillance will normally flush out a dishonest claim and bring it to an end. However the vast majority of claims are brought by honest litigants and so the pertinent question is: what needs to be done when surveillance evidence potentially undermines a good claim?

The first task for the Claimant lawyer is to provide the necessary emotional support to his/her client who will be distressed and shocked by what has happened. In fact, nowadays it is sensible to inform the client at the beginning of a case that he/she might be the subject of covert surveillance in order to minimise any impact later in the case.

But more importantly it is essential that the lawyer retains control of the process.

After the footage has been served, it will be necessary to report to the ATE insurers backing the case exactly what has happened. This is because a finding of dishonesty at trial will usually result in insurance indemnity being withdrawn so it is essential to bring the insurer up to date as soon as possible and work with them. In addition, the Claimant must be fully advised of the risks and potentially disastrous consequences of indemnity being withdrawn.

Sometimes the correct decision will be to ask the Court not to allow the Defendant to rely on the surveillance. This will result in time consuming satellite litigation but it is the right approach if the surveillance has been deliberately served close to trial leaving the claimant insufficient time to respond and the trial itself is put in jeopardy. In other words, the claimant is ambushed.

In Rall the judge said:
“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”.

In the case of Tunnelcraft [2009], EWHC 3438 (QB) video evidence served 31 days before trial amounted to an ambush.

Ambush aside, judges generally want to be able to consider all available evidence at trial and will usually give permission for surveillance to be admitted.

The Judge stated in Rall:-
“In principle, as it seems to me, the starting point on any application of this type 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 be permitted to cross examine the Claimant and the medical advisors upon it, so as long as this does not amount to Trial by ambush”.

Therefore, there is a low admissibility threshold for the Defendant.

So the best approach for a Claimant is to focus on robustly responding to the surveillance thereby sending a message that he/she remains confident despite the attack on his/her credibility.

From a procedural point of view, the solicitor must apply to the court for various orders to enable the claimant to properly respond to the evidence.

The usual order would be:
1. Defendant to disclose the entire footage not just an edited version.
2. Permission for the Claimant to serve a further witness statement (s)
3. Claimant and defendant to exchange updated expert evidence
4. Revised cost budgets.

This will achieve a level playing field in terms of the evidence but, in practical terms, it means a painstaking review of the footage with the client and then further instructions to medical experts to review the material.

This requires thorough and meticulous work but it is the only way for an honest claimant to get his/her claim back on track.

Then, at the end of the process, there can potentially be a reward at trial for responding properly to the Defendant’s tactics: an order for indemnity costs. In Kilbey v Arien Contractors Limited (Queen’s Bench Division – Judgment dated 13 th December 2019) HHJ Yelton ordered the defendant to pay indemnity costs from the date unfounded dishonesty allegations were made within the claim. HHJ Yelton said: “I have already said that there are grave difficulties in relation to the allegation of malingering properly so called, and having listened carefully to all the evidence I am satisfied that it is not only not made out but it should have never been advanced”.

Mr Kilbey was entirely vindicated for persevering against baseless malingering allegations and awarded a six figure sum in damages.

More information about this case can be found at the following link.

The Kilbey judgment shows that by responding to surveillance evidence properly Claimants can take back control of their claims and ultimately succeed at trial.

And for trigger happy defendant lawyers and insurance companies the message is simple: it is very dangerous to build high walls on low foundations!

If you or your family need the assistance of our experienced specialist team of Clinical Negligence Solicitors then please submit your case details for our consideration.