Douglas v O’Neill 09.02.11

On 1 February 2011 the Defendant sought permission to use surveillance evidence at a trial due to commence on 14 March 2011, only six weeks later. The claim arose out of a road traffic accident in 2005, in which the issue of liability had been resolved. The medical disputes in the case centred on the long term effects of the Claimant’s brain damage and the degree to which his mobility had been reduced. The Claimant’s witness statement was not served until 21 December 2010. In the meantime, between April 2008 and October 2010, the Defendant had obtained surveillance evidence. The surveillance evidence was disclosed to the Claimant’s solicitors in January 2011. The Defendant’s medical experts considered the evidence to be incompatible with the Claimant’s disability as presented to them.


His Honour Judge Collender QC referred to the decision in Rall v Hume [2001]. In Rall, the Court of Appeal held that where surveillance evidence is available which, according to the defendant, would substantially reduce the level of damages to which the claimant is entitled, it will usually be in the interests of justice to allow the defendant to cross examine the claimant and his medical experts on it, so long as this does not amount to trial by ambush. The Court should balance the Defendant’s entitlement to use surveillance evidence effectively against the general case management goal of openness and a “cards on the table” approach. On the facts of this case, the Judge was clear that the Defendant was entitled to wait until the Claimant had disclosed his witness statement before disclosing the surveillance evidence. The interests of justice were in favour of allowing the Defendant to rely on it. The trial date should go ahead as planned.


The Judge commented that “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.”

In many cases, defendants and their insurers will be in possession of surveillance evidence and will have to decide on the best time to disclose this. This judgment provides reassurance that defendants should be able to wait until the claimant’s witness statement has been disclosed. It is noteworthy that, whilst the surveillance evidence was disclosed very close to trial, the Judge considered that, in the circumstances, it had been disclosed at the first reasonable opportunity, as the Claimant’s solicitors had been guilty of significant delay in providing their witness evidence. Going forward, defendants will need to be in a position to show disclosure was made appropriately and defend themselves against any argument that they have sought to ambush the claimant.