Latest News

Surveillance
  • Published:
    08 June
  • Area of Law:
    Motor claims

Dealing with surveillance evidence

Mrs Barbara Elaine Jones v. Mr John Duncan

The decision to disclose surveillance evidence in insurance litigation proceedings is not one which should be taken lightly. The saying ‘you only have one chance to make a good first impression’ rings true here; once disclosed, the playing field changes dramatically and you must be sure that the evidence you bring to the table has the ‘killer impact’ you desire.

The claimant fraternity will rarely simply agree to the introduction of surveillance evidence as it will inevitably be damaging to their client’s claim. For this reason, the claimant will often invite the defendant to seek permission from the court to rely on such evidence. This requirement is misguided and wholly unnecessary because surveillance evidence is by its very nature privileged unless that privilege is waived, i.e. upon disclosure.

Another common objection is that the evidence was not disclosed promptly. The recent High Court case of Lorna Catherine Hayden v. Maidstone & Tunbridge Wells NHS Trust [2016] is useful in this regard. In this case it was held that although there is an expectation that surveillance evidence should be disclosed in good time, if it is disclosed late, even to the detriment of a trial date, it will be allowed into proceedings if the overall interests of justice require its inclusion.

Another recent seemingly preferred method of attacking such evidence is the attempt to discredit the surveillance evidence and call in to question the methods used by surveillance operatives, often enlisting ‘expert evidence’ in doing so.

The Defendant Insurance Team at Shakespeare Martineau has been at the forefront in combatting such attempts and the recent case of Jones v Duncan is a useful example.

Background

In the case of Mrs Barbara Elaine Jones v. Mr John Duncan, the Claimant, a 67 year old retired lady, was a rear seat passenger in the Defendant’s motor vehicle and was wearing a seatbelt. The Defendant had attempted to make a right hand turn across a dual carriageway into a pub car park, however, in doing so, crossed the path of an oncoming vehicle causing a collision. As a result of the accident the Claimant sustained a moderate concussive injury, increased migraine attacks, permanent double vision when looking down, and a mild depressive disorder with mood disturbance.

The Claimant’s most significant ongoing complaint was in respect to the double vision, which she alleged had a major impact upon her daily life, to the extent that she would require four hours of private future care and assistance per day, amounting to a claim in excess of £350,000. Given the Claimant’s allegations, the Defendant undertook a course of surveillance. This evidence was compelling, illustrating that the Claimant had a high degree of independence including undertaking volunteer work in a local hospital café. 

The Defendant therefore disclosed the surveillance evidence at an early stage in the proceedings. The Claimant responded indicating that she had grave concerns as to the integrity of the surveillance evidence and intended to instruct an expert to provide an opinion.

That evidence was subsequently served from Jeffrey Simm, a video evidence analysis consultant and covert video surveillance expert, together with a 16 minute ‘day in the life’ DVD of the Claimant, showing what activities she could and could not do.

Mr Simm’s report consisted of 21 pages, in which he opined that that the surveillance evidence had been manipulated, there were unexplained cuts in filming, missing film not disclosed, selective filming, biased reporting and breach of the ABI Guidelines. The Claimant contended that Mr Simm’s report and the ‘day in the life’ DVD should therefore be allowed into proceedings in order to redress the balance before the trial judge. As a consequence, the Claimant applied to the Court for permission to introduce Mr Simm’s report and her own video footage.

In opposing the Claimant’s application we put before His Honour Judge Keyser QC the following points,

• Expert evidence was unnecessary for trial judge to properly determine the issues in dispute;

• Mr Simm was holding himself out as an expert when no industry specific qualifications had been provided;

• The additional cost and time required by the Claimant having leave for such expert evidence was disproportionate. The Defendant would equally require leave to obtain their own expert evidence. The Defendant would also seek permission to rely on witness evidence from the surveillance operatives, specifically refuting the allegations advanced by the Claimant;

• The trial Judge would be capable of watching the surveillance evidence and assessing for him or herself what it shows;

• The arguments now being advanced by the Claimant were spurious and unfounded

• The inclusion of such additional evidence would be contrary to the overriding
objective;

• The video footage of the Claimant was unnecessary on the grounds it merely
reasserted what the Claimant had already set out in her witness evidence. Sitting at Wrexham County Court His Honour Judge Keyser QC, having been persuaded by the Defendant’s submissions, dismissed the Claimant’s application in its entirety and permission to appeal was refused.

Counsel for the Defendant, Marcus Dignum of 12 Kings Bench Walk Chambers, commented, 

“Mr Simm was not an ‘expert’ at all and brings nothing to the table that any careful viewer could not determine - as His Honour Judge Keyser QC said, ‘It is not a trial of the competency or professionalism of the surveillance operatives’. If the Judge asks himself the right questions, namely what are the issues to be determined at trial, then he should not admit Mr Simm’s reports.”

Mr Simm and like individuals are increasingly being instructed by claimant firms in an attempt to counter head-on surveillance evidence gathered by defendants and their insurers. This case is evidence that well reasoned counter arguments put before the court will prevail.

For further information, please do not hesitate to contact Paul White.

"We're excited about working with Shakespeare Martineau to show
how integral teamwork is in both sporting and business
environments. We also share similar beliefs when it comes to
fostering upcoming talent."

Paul Blanchard, Chief Executive, Commonwealth Games England