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Top Five Tips for... Video Surveillance - Sarah Venn, Hardwick

Watch all of the surveillance 

As Barabara Fari discovered, surveillance evidence can be powerful and turn a case upside down. However, both sides need to carefully and methodically review surveillance evidence before drawing conclusions about its impact on a claim. Surveillance companies typically adopt the "Match of the Day" approach – they send edited footage, depicting the highlights of the surveillance, often accompanied by a log and report with their emphatic analysis. But, continuing the football analogy, the number of goals scored does not always reflect the performance overall. Context is of paramount importance and the viewer must (amongst other things) consider what the claimant has stated they can do; what the medical experts have been told; what the claimant says about the footage; and, whether what is shown on the footage is consistent.  That necessitates watching the whole 90 minutes to see what happens either side of the highlights: five minutes of activity may be accompanied by complete inactivity and recuperation for the rest of the day; a claimant may tire as the day goes on and show signs of pain which were not apparent at the start of the day; a carer may attend and offer assistance.  The unedited footage is crucial and can further or undermine either sides' case.

The procedure to challenge video evidence

In Tavenor Joe Douglas v Matthew James O’Neill [2011] EWHC 601 (QB) HHJ Collender QC reviewed authorities on video evidence and the law.  He re-stated that video evidence is a document, not a piece of witness evidence.  Pursuant to CPR 32.19, a party is deemed to admit the authenticity of a document disclosed to him unless he serves notice that he wishes the document to be proved at trial; that will then necessitate witness evidence from the surveillance operative. If the claimant is going to challenge the authenticity of the surveillance evidence (whether by instructing an expert or by this own evidence), it is important that he does so promptly, by the latest date for serving witness evidence, or within 7 days of disclosure, whichever is later.

When to raise surveillance evidence

The Courts view surveillance evidence as a legitimate weapon to undermine a claimant’s evidence and prevent the successful advancement of a case based on untruths.  However, defendants do not have a carte blanche.  In Rall v Hume[2001] EWCA Civ 145, Potter LJ said that it is necessary that the matter be ventilated with the judge managing the case at the first practicable opportunity once a decision has been made by a defendant to rely on video evidence obtained.  Claimants often complain of ambush when surveillance evidence is obtained; defendants will want to wait until the claimant has nailed his colours to the mast before revealing their hand, but leaving it too late (and not raising it at the first practicable opportunity) can result in the evidence being excluded; however, the more powerful and persuasive the evidence, the more difficult it will be to persuade the Court that it should not be admitted. In Douglas v O’Neill the judge thought that the defendant was entitled to wait until the Claimant had produced a witness statement with a statement of truth. 

Carefully manage experts
 

Some experts will quickly espouse opinions on surveillance evidence which the evidence does not sustain, undermining otherwise good expert evidence; you may have strong arguments on causation, but if your expert expresses unsustainable views on credibility, it may undermine all of his evidence.  You will normally want experts to view unedited footage and it can be beneficial to meet them in conference to explore their views.

Step by step disclosure

A defendant does not need to serve all of their surveillance evidence in one go; relevant surveillance can be obtained throughout the life of a claim and contrasted against the contemporaneous accounts of a claimant’s injuries and recovery.

Sarah Venn
Hardwicke

Image ©iStockphoto.com/Kuzma

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