Applications to rely on surveillance evidence and trial by ‘Ambush’
News | Thu 19th May, 2016
On 12th May 2016 Mr Justice Foskett handed down judgment in an application for permission to rely on surveillance evidence by the Defendant in the case of Hayden v Maidstone & Tunbridge Wells NHS Trust  EWHC 1121 (QB).
The Defendant’s wish to rely upon surveillance evidence was perhaps unsurprising given that the claim was pleaded at nearly £1.5 million and given that the orthopaedic and pain specialist evidence adduced by the parties was wholly at odds. Indeed the Defendant’s pain specialist had raised doubts about whether the Claimant’s symptoms were genuine. When the Defendant served surveillance evidence, which on its case at least, appeared to show the Claimant living a normal life and which the Defendant’s pain expert claimed illustrated that she was able to work, it would be thought that such evidence would be crucial to the trial and hence would be admitted as evidence by the Court on application by the Defendant.
However, the difficulty in this case is that the evidence had been obtained only a matter of weeks before the matter was listed for trial and the application was made just 11 days before the trial was due to start. Finally the application was listed for hearing on the Friday before the trial started on the Monday. In the circumstances the Claimant claimed that she was being ambushed and objected to the evidence being admitted. Further the Claimant submitted that the Defendant had prejudiced its own expert pain specialist by showing him the material before permission had been granted to rely on the footage and hence the Defendant should be disbarred from relying on that expert. The Claimant further submitted that the Defendant had acted in bad faith.
The Judge initially adjourned the application for two weeks for the Defendant to consider the material further and decide whether it really wanted to oppose the application. He also vacated the trial. When the application came back in front of the Judge the Claimant continued its opposition to the admission of the footage.
The case therefore highlights important issues as to (a) whether bad faith was required for an “ambush”, (b) whether or not it was appropriate for the Defendant to show the footage to its expert prior to obtaining permission to rely upon it, (c) whether experts could continue to act having seen video surveillance which was not admitted as evidence.
The starting point in considering applications to rely on surveillance evidence remains the case of Rall v Hume  EWCA Civ 146. In short where the Defendant asserts that the video evidence undermines the Claimant’s case to an extent that would substantially reduce the award of damages, such evidence should be admitted unless it amounts to a trial by ambush.
In the course of arguments the Claimant attempted to show that the Defendant had acted with bad faith to bolster it argument that there had been an ambush. The Judge held that there had been no bad faith on the part of the Defendant but did find that there had been fault in failing to obtain the surveillance evidence as soon as its expert had raised concerns about the genuineness of the Claimant. The unexplained delay from receiving that evidence (at the latest about 9 months before the surveillance was commenced) was fault on the part of the Defendant. The Judge held that there was no necessity to show “sinister motives” on the part of the Defendant, merely culpability for the delay.
In the circumstances it is clear that late applications to rely on surveillance evidence may well amount to “ambushes” even where the Defendant has not deliberately held onto the material for tactical advantage.
The Judge went further and suggested that more liberal use might be made in case management of orders requiring any surveillance footage to be served by a certain date. Any attempt to serve such footage after the date would require relief from sanction. It remains to be seen whether this suggestion is adopted by Claimants and/or Judges case managing claims.
In relation the Claimant’s submission that the Defendant should not have shown the material to their expert until permission was granted, the Defendant argued that Defence experts had to see the material before the Defendant could make a judgment on whether to use the material. Further, unless the footage was so obviously damaging to the Claimant (which it was not in this case), the Defendant would not be able to satisfy the first limb of the Rall v Hume test, that the material did undermine the Claimant’s case.
The Judge did not directly deal with this argument (to some extent it had been overtaken by the adjournment during which period the Claimant had been given permission to show the material to her pain expert) but he did make the point that just because an expert had seen the material it did not mean that the material had to be admitted in evidence. Further he commented that “experts are familiar with the need not to refer to the content of any “without prejudice” discussions…”. In short it seems that Defendants are able to show the material to their experts but that the experts must be ready to put it out their mind if an application to rely on the footage is subsequently unsuccessful. There is some tension between this Judgment and that of Judge Collender QC in Douglas v O’Neil  EWHC 601 (QB) at paragraph 71.
In the end in this case the Defendant was given permission (“with considerable misgivings”) to rely upon the surveillance footage, however the Judge severely penalised the Defendant in costs. Further it is perhaps doubtful whether the Defendant would have got permission to rely upon the evidence had the application had gone ahead on the Friday before the trial rather than being adjourned for two weeks.
Giles Mooney was Counsel for the Defendant in this case.
Click here to read the judment.