Finding out that you are under surveillance can be very unsettling for injured people seeking compensation. It can also be a concern for their solicitors who may receive the surveillance evidence very late in the litigation process, as it can appear to be a deliberate attempt by the defendant to ambush the claimant’s case.

In the recent case of Hayden v Maidstone & Tunbridge Wells NHS Trust, Mr. Justice Foskett heard the defendant’s late application admit surveillance evidence. In this instance, the claimant suffered an injury to her neck at work in 2007 and the defendant had admitted liability in April 2009. The extent to which the claimant’s continuing symptoms were affecting her daily life and ability to work were still in dispute and the matter was listed for a 5 day trial with the trial window starting on 11 April 2016.

One of the defendant’s medical experts in his report dated May 2015 stated that there was a possibility the claimant was “grossly exaggerating for the purposes of financial gain”

The judge said that it was fairly obvious that this raised at least the real possibility of this being an appropriate case for obtaining surveillance evidence at that stage. It was also observed that even at that stage a substantial future loss of earnings claim was being advanced, but nothing was done about surveillance evidence.

The defendant first considered surveillance during a conference with counsel on 15 January 2016 where they concluded that it would be pursued should no settlement be achieved at the joint settlement meeting scheduled on 29 January 2016. No settlement was achieved, and whilst authority was sought from the NHS Litigation Authority for obtaining surveillance evidence on 19 January, this was not granted until 17 February.

Surveillance was then carried out on 18, 22, 23, 24 February and 10 March. On 18 March the NSLSA gave authority to rely upon and disclose the surveillance evidence providing that it was favourable to the defendant and on 24 March edited surveillance evidence was received by the defendant’s solicitors. On the same day, it was sent to the defendant’s experts and to the claimant’s solicitors by registered post, that being the last working day before the Easter weekend.

On 30 March the defendant issued an application to have the surveillance evidence admitted in evidence, and requested that it be heard on the morning of 11 April, the first day of the trial period, prior to the claimant giving evidence. On 5 April the defendant disclosed the third report of their pain medicine expert commenting on the surveillance evidence. On 5 April the claimant issued an application seeking an order that the defendant’s application notice dated 30 March should be listed before the commencement of the trial. This was heard on 10 April 2016.

Against this background, the claimant’s solicitors considered their client to be the victim of an ambush and, in principle, wished to object to the reliance by the defendant upon the surveillance evidence. The judge ordered that the trial date is vacated and the matter to be returned to him for further consideration when the claimant had the opportunity to consider their position more fully.

The defendant relied upon the case of Douglas v O’Neill, submitting that it would be wholly unjust for the defendant to be precluded from relying upon the evidence purely because it was obtained close to the trial, and that there had been no apathy nor any attempt to take unfair advantage by the defendant’s solicitor. The defendant also submitted that the “genie was out of the bottle” and that the court should regard that as a weighty factor.

The judge agreed with the reasoning in Douglas v O’Neill that it would be difficult for an expert who had seen the surveillance evidence to put it out of their mind and not to make reference to it. However, he did not see this consideration as determinative and this could not be a reason for a court to admit the evidence, as experts are familiar with the need not to refer to the content of any “without prejudice2 discussions.

The judge accepted in all the circumstances, that the defendant’s solicitor had not acted improperly or in bad faith. However, the unexplained delay in obtaining the surveillance evidence before it was first suggested on 15 January 2016 was unreasonable, coupled with no real urgency being shown in pursuing it thereafter. Such delay was culpable within the way that term was used in Rall v Hume. On this basis, the defendant would have an uphill struggle trying to persuade the court that it should be permitted to rely on the surveillance evidence at a trial scheduled for the original date.

The judge stated that the argument that “the genie is out of the bottle” was deeply unattractive and to accede to the argument might well be seen as a reward for poor litigation behaviour. However with some misgivings, the judge held that the overall interests of justice required that the evidence be considered as part of all the evidence in the case and he granted permission for it to be received at trial. The judge emphasised that he had been influenced by the fact that the claimant and one of her principal experts had been able to answer the surveillance material and the defendant’s expert’s analysis of it in a strong fashion and therefore he felt that the playing field had remained level. He ordered that the defendant should bear the costs thrown away by the vacation of the trial date, and the costs of the two hearings of the defendant’s application.

The judge made some general observations that if there is a problem with the application of the present rules, or the rules are considered to be inadequate, this is a matter for the Civil Procedure Rules Committee to consider. However, it occurred to him, pending any such consideration, that more liberal use might be made of the kind of order made in Leary v Tunnelcraft Ltd. [2009] EWHC 3438 (QB) such that the court would be given even greater control to prevent the unjustifiably late deployment of surveillance footage. He suggested the use of an order with a “date by which” provision which, if disobeyed, would bring in the relief from sanctions jurisdiction. This type of order would also focus in the defendant’s mind on the need to address the issue in a timely way so that they are not accused of trying to ambush the claimant.

He also stated it may be sensible for claimants’ advisers who perceive that there may be a risk of this kind of evidence to raise it with the court, or the court itself may raise the question at a case management stage. In doing so, a record would be made of both parties’ positions which the court can review at a later date and assess if any late application for reliance on surveillance evidence is made.

Foskett J stated that in his judgment the most significant factor in deciding whether to accede to a late application is the time when a defendant ought reasonably to commissioned surveillance evidence. Once the claimant’s case in relation to disability and its consequences is clearly articulated, and the defendant has expert evidence that has raised any suspicions about the claim, there is an obligation to actively consider obtaining surveillance if this is considered a proportionate approach to the particular claim. The longer it is left and the closer to trial it is obtained, is the more likely the court will regard the delay as culpable.

The general observations made in this case may be useful for claimant solicitors resisting applications made at the last minute as they give further guidance on how the court may approach these types of applications in the future.