Surveillance of injured persons pursuing a personal injury claim is very common. Insurance companies dealing with claims often instruct third parties, such as private detectives, to carry out covert surveillance with the objective of undermining the injured person's complaints of the injuries sustained and the impact of those injuries on their day to day lives and activities and their credibility.

This surveillance can range from covert video recording (often over a number of days) to searching online social networking sites. Many individuals are not aware how much of their personal information is freely accessible on the internet and how easy it is for third parties to obtain it. There is very little that the law can do to stop an insurance company from carrying out such surveillance.

The reasons for surveillance are simple – for the insurance company to avoid having to pay or to reduce the amount of compensation to be paid. It is unclear how often this occurs because, if the investigations reveal nothing suspicious or are consistent with the injured person’s evidence on the extent of their ongoing symptoms and restrictions, the injured party and their representatives may never know such investigations were ever carried out.

However, in the minority of cases, if the defendant believes that the surveillance evidence contradicts the injured person's evidence, it is likely to be disclosed. The first the injured person or their representative knows about this is when that evidence is served. A defendant who wishes to rely on such evidence is under an obligation to disclose that evidence as soon as possible to prevent an ambush on the injured party shortly before trial. Despite this, our experience is that it is often used too late in the day for the claimant to respond effectively.

It is important to point out that the insurers will not adopt this tactic in all cases but only in those where they suspect that the claim is either fraudulent or being deliberately exaggerated for financial gain. While these are a minority, there are injured persons who malinger, exaggerate or lie about the effects of their injury. These are the people the insurance companies are trying to catch out and few would disagree that fraudulent claimants should be identified.

However, there are concerns about the use of surveillance as it can be extremely upsetting for a genuine claimant to find that they have been followed and/or investigated – particularly if this happens at night or includes filming them with their family. Philippa Luscombe, clinical negligence partner at Penningtons, says: “On occasions, we have had evidence served that has shown a minute or two of an injured claimant who appears to be quite active or pain-free. However, the video logs evidence that there have been many days of surveillance just to get this brief moment.

“This usually means the evidence carries no weight but can be very upsetting for the person concerned to realise how much they have been followed. Selective extraction of comments from social media can also be used to paint a very different picture from the reality and currently there seems to be no restriction on doing this.

“There have been concerns raised recently regarding the use of private investigators and we feel that, while there are occasions where this intrusion is justified, there need to be clear boundaries as to how it is done. Sadly, it is a case of a few – both fraudulent claimants and inappropriate private investigators – spoiling it for the many.”