PI Brief Update

Trial by Ambush? - Ella Davis, 1 Chancery Lane

24/06/16. In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) Foskett J, albeit with “considerable misgiving”, allowed a Defendant to rely on surveillance footage that had been disclosed so late that it caused the trial date to be vacated. The decision is not so much of interest because of its outcome but for the judge’s more general comments on the issue of when surveillance evidence might properly be served.

Facts

It was held that from May 2015, when their pain management expert expressed the view that it was possible the Claimant was “grossly exaggerating for the purposes of financial gain”, the Defendant had every reason to commission surveillance evidence. Its failure to do so until January 2016 was unexplained and unreasonable. A series of lengthy but less culpable delays thereafter meant that the edited surveillance was finally served by post on 24 March, Maundy Thursday and received on Tuesday 30March. The Defendant’s application to rely on it came before Foskett J on 8 April who decided that the Claimant should have time to consider her position and that therefore the trial due to commence in the week beginning 11 April had to be vacated.

When it came back before him later that month he considered the events leading to that outcome and decided that the interests of justice required the evidence to be admitted. However, he declined to reserve costs to the trial judge holding that this was the “clearest possible case in which the order should be that the Defendant should bear the costs thrown away by the vacation of the trial date on the indemnity basis”. The Defendant was also ordered to pay the costs of the Claimant’s experts considering the surveillance, again on the indemnity basis...

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