![]() Rather than ruling on whether the evidence should be admitted, he vacated the trial and adjourned the application for 14 days to enable the claimant’s advisers to consider what position they wished to take. The application came before Foskett J on 8 April 2016, the last working day before the start of the trial. Although they suggested that the claimant’s experts should be shown the evidence, the claimant’s solicitors declined to be “bounced” into doing so. On 30 March 2016 the defendant applied for permission to rely on the evidence, intending that it be dealt with on the first day of the trial, and on 5 April 2016 they disclosed a supplementary report from their pain expert dealing in detail with the surveillance evidence. It was received by the claimant’s solicitors on 29 March 2016, the first working day after the Easter weekend. Edited surveillance footage was received by the defendant’s solicitors on 24 March 2016 (Maundy Thursday) and was sent to their experts and to the claimant’s solicitors by registered post on the same date, but without any email warning them to anticipate its arrival. Surveillance was undertaken between February and March 2016, when it should have been obvious that the trial date might be imperilled. Authority to obtain surveillance evidence was sought from the NHSLA on 19 January 2016 and, no settlement having been achieved at a JSM on 29 January 2016, was granted on 17 February 2016, a delay of 4 weeks. Thereafter, there was no real urgency shown in pursuing it. ![]() Surprisingly, it was not until a conference with counsel on 15 January 2016 that the possibility of obtaining video surveillance evidence was first discussed (a delay which the judge found to be unexplained and unreasonable). In response to questions, he expressed the view on that it was possible that she was “grossly exaggerating for the purposes of financial gain”. The defendant’s pain management expert examined the claimant on 10 February 2015, and expressed the view in a report dated 8 March 2015 that he was concerned that she may actually be much better than she made out. The trial on quantum was subsequently listed on 11 April 2016 for 5 days. ![]() The defendant suggested that the symptoms were not as significant as claimed, and that her ability to work was not materially affected.Ĭase management directions were issued on 24 November 2014, providing a trial window between 1 February 2016 and. The schedule of loss set out a claim not far short of £1.5 million. The claimant alleged that they interfered significantly with her normal daily life and were likely to impede her ability to return to work as a cardiac physiologist. There was, however, a dispute about the extent of her continuing symptoms. The claimant in Hayden had suffered a neck injury in a lifting accident at work on 23 March 2007, for which liability was not in dispute. ![]() The question which is likely to arise is this: what amounts to an ambush? Is it sufficient that the evidence is disclosed at such a late stage that it would be unfair to permit the defendant to rely upon it, or does there have to be evidence of some bad faith or improper motive on the part of the defendant? This issue was helpfully addressed by Foskett J in Hayden v Maidstone and Tunbridge Wells NHS Trust EWHC 1121 (QB). Rall v Hume EWCA Civ 146 establishes that, where video evidence is available which potentially undermines the claimant’s case to an extent that would substantially reduce the award of damages, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the claimant and her medical advisers upon it, so long as this does not amount to trial by ambush. On the other hand, the deliberate tactic once employed by many defendants to withhold such evidence until the last minute with a view to wrong-footing the claimant is no longer acceptable. It is well recognised that a defendant is entitled to wait until a claimant has pinned his sail to the mast of a particular level of disability, through a witness statement and/or schedule of loss, accompanied by a statement of truth, before the defendant undertakes or discloses relevant surveillance. There are, however, understandable tensions as to how such evidence may be deployed. ![]() If the claim proceeds to trial, such evidence can be of considerable assistance in the judge’s assessment of credibility. It may prompt the claimant or his advisers to abandon a claim which appears tainted by fraud, or at least encourage reappraisal and early settlement of a claim which appears to have been overstated. There is no doubt that video surveillance evidence demonstrating that a claimant is exaggerating the extent of his injuries or financial losses is a devastating forensic tool in the hands of the defendant. Video surveillance ambush… and how to avoid it ![]()
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