Mark Noble v Martin Raymond Owens  EWHC 534 (QB)
In 2008 Mr Noble received damages totalling £3,397,000 for personal injuries sustained in a road traffic accident in 2003. The bulk of the damages arose from the severe impairment of his mobility, which was not expected to improve. This was supported by medical evidence.
Following settlement of his claim Mr Noble purchased a property with adjoining land. Not long after moving into his property a dispute arose with his neighbour. His neighbour did some ‘research’ on Mr Noble and found out about his ‘pay out’. The neighbour doubted the validity of Mr Noble’s claim and reported him to the Insurance Fraud Bureau.
Acting on this ‘tip off’ insurers arranged for surveillance of Mr Noble. He was seen undertaking a variety of activities on his land including walking unaided, using a wheelbarrow to carry a tyre, operating a dumper truck and working on the construction of a shed.
Insurers applied for a Freezing Order on Mr Noble’s damages pending an Appeal of the original judgment.
The Court of Appeal judgment
The Court of Appeal was asked to determine if any significant part of the damages had been fraudulently obtained by Mr Noble.
It was the defendant’s case that the only credible explanation for Mr Noble’s mobility as seen in the surveillance footage was that he had dishonestly reported the extent of his disabilities to the medical experts and given false evidence in court. In addition to the surveillance the Court of Appeal heard evidence from experts and lay witnesses called by both parties.
On consideration of the totality of evidence it was held that Mr Noble had not misled the court at the quantum trial. The defendant’s appeal was dismissed.
There were a number of factors which influenced the Court of Appeal decision which were specific to this claim. A full copy of the judgment can be found here.
This case provides a harsh reminder to insurers that surveillance alone cannot tell the “whole story” and it will be considered in conjunction with both lay and expert evidence. For example, in Mr Noble’s claim the judge accepted lay evidence that he had ‘good and bad days’. Expert medical evidence also supported a credible medical explanation for Mr Noble’s improvement.
The burden of proof when alleging fraud in a personal injury claim falls on the defendant. As illustrated by this case, insurers should be aware that the court will require very strong evidence when fraud on the part of a claimant is alleged.
Surveillance – A summary of factors to consider
- The claimant has a right to privacy. Footage should only be taken in a public place and not in the claimant’s home
- Surveillance footage is a ‘document’ – not a piece of witness evidence – and subject to the rules of disclosure and inspection (CPR 31)
- Such footage is a privileged document and has to be disclosed in its entirety if it is to be relied upon
- Permission to rely on surveillance must be obtained from the court. A party intending to rely on surveillance at trial will need to advise the court in advance so that the relevant viewing equipment will be available
- Surveillance evidence should be of good quality and supported by a witness statement from the enquiry agent