By Peter Yates
In Stewart v Kelly Blake J dealt with an application, made by a Defendant in a personal injury claim, to adduce surveillance evidence. The ex tempore judgment – currently available only in summary form – deals with the principles to be applied in relation to ambushes and surveillance.
The Claimant alleged that a road traffic accident had caused him to suffer neck and back pain. The Defendant admitted liability but quantum was disputed, and a trial date had been fixed for November 2016. The Claimant served a final witness statement in May 2016, in which he described his pain and claimed to be unable to do housework, bathe his children or wash his car.
Between 2013 and 2015 the Defendant had already obtained surveillance footage of the Claimant. Following receipt of his latest witness statement, the Defendant sought further video surveillance. This appears to have been done in July 2016. Then, in August 2016, the Defendant served on the Claimant seven hours of unedited footage and invited him to consent to the evidence being admitted and assessed by an expert. When the Claimant refused to agree, the Defendant submitted its application.
Blake J proceeded on the basis that the applicable principles regarding ambush and surveillance evidence are those set out in Hayden v Maidstone and Tunbridge Wells NHS Trust  EWHC 1121 (QB), notwithstanding the observation made by Foskett J in that case that “It is certainly not for me, in one isolated case, to make pronouncements about how best to deal with this issue generally”.
In Hayden Foskett J stated that:
It appears to be 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 or collection of symptoms (through a witness statement and/or schedule of loss, accompanied by a statement of truth) before the defendant needs to undertake the relevant surveillance.
Foskett J went on to set out some general principles both for prior case management and for dealing with applications when they arise:
… more liberal use might be made of the kind of order made by Master Fontaine in Leary v Tunnelcraft Ltd such that the court would be given even greater control than it currently possesses over preventing the unjustifiably late deployment of surveillance footage. [This is a reference to an order made by the Master at a directions hearing to the effect that any application by the defendants to rely on the evidence of private enquiry agents or video evidence at trial should be made by a given date.] An order with a “date by which” provision will, if disobeyed, bring into focus the relief from sanctions jurisdiction and any application to deploy the evidence will fall to be assessed by reference to the approach in Denton. The making of such an order would also focus the minds of the defendant’s representatives on the need to address the issue in a timely way so that, whether justifiably or not, they are not accused of simply trying to ambush the claimant.
45 Whilst preparing this judgment, I have discussed the matter with Master Fontaine, now the Senior Master. She tells me that the issue of making such an order is usually raised on behalf of a claimant and, in her experience, the making of such an order is often resisted by the defendant. Whether it is or is not made is determined in the circumstances of each case.
46 As it seems to me, whilst it may be sensible for a claimant’s advisers, who perceive that there may be a risk of this kind of evidence being relied upon, particularly if there are expressed reservations by the medical experts about the claimant’s presentation, to raise the issue with the court, it may be appropriate for the court itself at the case management stage to raise the question. To do so will enable a record to be made of the position of both parties (possibly to be incorporated into a preamble to the overall order), so that a court facing a late application for reliance upon such evidence will have available that recorded position to assess the application being made. Where no order is made, the reason for making no order can be recorded. Where an order specifying that any application by the defendant to rely on surveillance evidence should be made by a certain date, the reason for making that order can also be recorded.
47 A very significant factor in deciding whether to accede to a late application, in my judgment, is the time when a defendant ought reasonably to commission such evidence. Once the claimant’s case, both in relation to the disabilities relied upon and their consequences, is clearly articulated and the defendant is possessed of an opinion from an expert upon whom it relies that the claim is “suspect”, it seems to me that the obligation actively to obtain surveillance evidence arises if it is considered a proportionate approach to adopt in the particular case. The longer it is left and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable.
In Stewart v Kelly, it was agreed that the surveillance evidence had been lawfully obtained and appeared relevant to the issues at trial. The Claimant’s position was that the application should have been made sooner and was not “prefigured in the case management directions”. The Claimant further submitted that it had not been necessary or appropriate for the Defendant to wait until the Claimant’s final witness statement to serve its further evidence. Finally, it was said that the late service of the evidence imperilled the trial date.
The application turned on whether these were good reasons in principle for objecting to the admission of the evidence. Foskett J held that the Claimant had “nailed his colours to the mast” in his final witness statement, which described his alleged loss of amenity. Applying the guidance set out in paragraph 47 of Hayden, Foskett J noted that the Defendant had had a duty to act quickly in deciding whether to add to the surveillance evidence it had already obtained in 2013-2015. He concluded that in light of the Claimant’s final statement it had been reasonable to update the surveillance evidence, and that the addition of the new material could not therefore be said to have been a tactic intended to describe previous delay.
The case summary does not indicate any reasons for the delay between the Defendant having obtained the new surveillance evidence in July and served it in August. Instead, it indicates that Foskett J concluded that the delay had no material impact on the Claimant’s capacity to respond within the three-month pre-trial period. This was not an ambush case, and the Claimant’s expert had three months in which to analyse the new evidence.
The Claimant’s objections to the new evidence were rejected. The fact that the trial date could not now be met was the fault of the Claimant, who had objected to the new evidence without a principled reason. The Claimant should, instead, have worked promptly to agree new directions to enable the trial date to be kept.
Unsurprisingly, then, one of the main points to be taken from the judgment is the need for a speedy response to the Claimant’s “final” position (by Defendants), and an equally prompt response to any surveillance evidence (by Claimants). The longer the delay, the more likely the surveillance evidence is to be regarded as an ambush.