SURVEILLANCE EVIDENCE IN FRAUDULENT

AND EXAGGERATED CLAIMS

By Tim Kevan, 1 Temple Gardens and Duncan McNair, Equity House Chambers)

With a growing number of cases going through the courts where insurers are either explicitly or implicitly questioning either the veracity of the claim or at least its’ credibility, it is a useful exercise to review a few of the authorities on the admissibility and use of surveillance evidence, in particular since the introduction of the European Convention of Human Rights (ECHR) into English Law.  This chapter merely provides an introduction to this issue.  For a more in depth analysis see the new book, Fraudulent and Exaggerated Claims (xpl Publishing, www.xplpublishing.com) by Tim Kevan, Damian Ward, James heath and Stratos Gatzouris.

ADMISSIBILITY

Jones v University of Warwick

In the case of Jones v University of Warwick[1] the Court of Appeal reviewed the admission of surveillance evidence obtained contrary to Article 8 of the ECHR.  The claim was in respect of a hand injury and for damages in excess of £135,000.  On two occasions an enquiry agent obtained access to the claimant’s home by posing as a market researcher and secretly filmed the claimant.  The defendant’s doctor concluded the video showed the function of the claimant’s hand as normal, contrary to the impression she gave in examination.  There were two sets of videos, one recorded in the claimant’s home after the enquiry agent gained admission claiming to be a market researcher, and the other, recorded much later, in public places.  The latter two videos were not very helpful and their admission in evidence was not in dispute.  A District Judge held the first two videos should be excluded and that was overturned on appeal by a Circuit Judge.  In the Court of Appeal Lord Woolf, giving the judgement of the Court, observed:

“It is not in dispute that: (i) the enquiry agent was guilty of trespass and that she would not have been given permission to enter had she not misled the claimant as to her identity; (ii) as the medical experts have now seen what was recorded in the films taken in the claimant’s home, if the film was not to be admitted in evidence, those experts would not be able to give evidence.  New medical experts would have to be instructed and the existence of the recordings would have to be concealed from the court and the new experts.”[2]

He also quoted HHJ Harris who observed that the real question is whether it is fair to allow the evidence in the interests of justice and not the method by which it was obtained.  HHJ Harris had also observed that despite the fact the evidence was obtained by deception it may be that the claimant herself is guilty of deception in her claim, going on to say:

“Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations  are on the one side the claimant’s privacy and on the other the legitimate need and public interest that the defendants or their insurers should be able o prevent and uncover unjustified, dishonest and fraudulent claims.”[3]

Lord Woolf summarised the reason why the Court of Appeal upheld the decision of Judge Harris with:

“The court must try to give effect to what are here two conflicting public interests.  The weight to be attached to each will vary according to the circumstances.  The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case.  The decision will depend on the circumstances.  Here, the court cannot ignore the reality of the situation.  This is not a case where the conduct of the defendant’s insurers is so outrageous that the defence should be struck out.  The case, therefore, has to be tried.  It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case.  We accept Mr Owen’s submission that to exclude the use of the evidence would create a wholly undesirable situation.  Fresh medical experts would have to be instructed on both sides.  Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately.  For these reasons we do not consider it would be right to interfere with the judge’s decision not to exclude the evidence.”[4]

Lord Woolf also quoted from the judgment of Potter LJ in the case of Rall v Hume[5], where the defendant also had two videos. The first video was disclosed to the claimant on 21 June 2000 and the second on 10 October 2000.  Unfortunately both sides had overlooked a hearing for directions on 9 October 2000 and failed to attend, with the result that the claim was struck out.  The claimant applied for it to be reinstated and succeeded at a hearing on 6 November 2000, at which a Case Management Conference was ordered for 13 December 2000 and the trial listed for 22 January 2001, with a 4 hour time estimate.  The defendant did not attend on 6 November and decided to apply for permission to use the video evidence on 13 December.  The District Judge refused permission for the videos to be given in evidence because the applications were too late and the time estimate for the disposal hearing was completely inadequate if the videos were to be shown.  On appeal a Circuit Judge upheld that decision.  The Court of Appeal, at a hearing on 17 January 2001 reversed the ruling with an order that restricted the use of the video and the time allowed for cross examination on it so that the a substantial part of the disposal hearing could take place on 22 January, even if it took more than 4 hours.  Potter LJ, giving the only judgment, said:

“In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, 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 advisors on it, so long as this does not amount to trial by ambush.”[6]

After consideration of CPR PD 23, which requires applications to be made as soon as it becomes apparent it is necessary and utilising dates already fixed for hearings where possible, especially Case Management hearings, Potter LJ also said:

“However, it does not seem to me that the solicitor’s error was a sufficient ground for shutting out the defendant from all opportunity to cross-examine the claimant on the contents of the videos.  The claimant had already had an opportunity to view and comment upon the contents of the videos following their disclosure (an opportunity of which she had availed herself, as we were informed on this appeal), and there was no reason to suppose that her medical witnesses would not themselves be able to view the videos in the three weeks remaining between the appeal before the judge and the date fixed for hearing.  Further, there was no reason why the judge, in exercise of his powers to control the evidence given at trial (see CPR 32.1) and, in particular, to limit cross-examination under CPR 32.1(3), should not have made appropriate directions for the defendant to give notice in advance of those parts of the video footage relied on, coupled with a limitation on the time permitted for cross-examination at trial.  By such means, even if the 4-hour time estimate for the trial was exceeded, all the evidence and cross-examination of the plaintiff and the medical witnesses could be completed upon the day fixed, thus ensuring that the claimant’s part in the trial (and her consequent anxiety) would be over and unnecessary experts’ costs avoided.”[7]

Rall also included an issue over privacy.  Part of the video evidence was recording of the claimant inside her home and in her children’s nursery, each obtained through a window.  Both the District Judge and the Circuit Judge concluded that those images were an invasion of privacy and should be excluded in any event from the evidence even if the videos were to be used in the disposal hearing[8].  The order of the Court of Appeal included that those images should be edited out of the video, only 20 minutes of running time being allowed to be used in any event.[9]  The issue of privacy was not apparently argued before the Court of Appeal and it may be that the defendant was not particularly relying upon those images.  Clearly the test in Jones, which is a more recent case and where the issue of breach of privacy was fully considered, will prevail.

Taylor v Ashwood Residential Developments Ltd

Another first instance case which, although it was decided before Jones, provides an illustration of the possible attitude of Circuit Judges is Taylor v Ashwood Residential Developments Ltd[10].  This was another case with two lots of video evidence.  The first recording the claimant answering questions as to his lifestyle on his doorstep, the enquiry agent posing as a market researcher, and the second on a neighbour’s property, which included images of the claimant working on his car in the neighbour’s garage. The judge concluded that the first video did not invade the claimant’s privacy and should be admitted.  The second video contained sound recording of matters which were not relevant to the claim at all and to that extent was not admissible.  Those parts of it which were relevant to the claim were admitted in evidence.

Hesketh v Courts

These issues will not necessarily always be decided in favour of the defendant.  In Hesketh v Courts, Weymouth County Court, 14 May 2001, HHJ Thompson QC refused to allow video evidence to be used in court because of a breach of article 8.  However, it should be noted that this was before the decision in Jones .

Progl v Greenstein

In another unreported case of Progl v Greenstein[11], the claimant claimed that, on learning that he had been under surveillance, his psychiatric condition worsened.  He applied for an order preventing any further surveillance but his application did not succeed.  In cases where the claimant is or may be vulnerable psychologically, which is quite possible where exaggeration is in issue, there may be a risk that a claimant with a genuine psychological condition is made worse by the knowledge that he has been under surveillance.  That is something that may have to be weighed up as a possibility in making the decision as to whether to embark on surveillance at all, much will depend on the evidence available which raises questions as to whether the condition(s) complained of are in fact genuine or as disabling as claimed.

HOW EVIDENCE SHOULD BE TREATED

A video showing images that are relevant to any litigation is evidence and subject to the rules of evidence on privilege, disclosure and admission at the trial. In Rall v Hume[12] the Court of Appeal endorsed the principle that a video must be treated as a document.  Potter LJ considered the application of the CPR to admissibility but added:

“However, the practical constraints upon such a procedure in terms of Case Management are (1) that showing of a video, or part of it, in court for the purposes of cross-examination requires arrangements to be made for the availability of video equipment in any court where it is not normally to be found and (2) that the whole procedure extends trial time.  Hence, when fixing a trial date with an estimate of time, it is necessary for the managing judge to make proper allowance for this.  It is therefore necessary in the interests of proper case management and the avoidance of wasted court time 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.”[13]

This may arguably be seen as tacit approval for the practical position that a defendant will possibly have a video until after disclosure of documents and exchange of other evidence before deciding to put it in evidence.  Undue delay in making a decision may be criticised, and possibly penalised by the refusal to admit the evidence, but it is arguable that waiting until the claimant is committed in his witness statement, a medical examination or, perhaps, his schedule of damages may be a reasonable explanation for not deciding that the evidence will be used, providing the decision is taken promptly after the disclosure that is awaited[14].  The defendant must be aware of the risks and in particular should endeavour to beware applications to introduce surveillance evidence after arrangements for a trial have been made, although in Rall it was eventually allowed[15].  This whole issue should be approached with great caution.

Videos should generally be disclosed in any list that is served.  Disclosure is merely stating that it exists[16], inspection and admission in evidence are separate questions.  The disclosure list must identify the documents, but as concisely as possible[17].  It must also indicate those documents of which you claim a right or duty to withhold inspection.

The claimant will assume that the video is harmful to his case if it appears on the list of documents and inspection is refused, and his further behaviour may be adjusted accordingly.  If taken as part of the evidence gathering process the video is highly likely to be the subject of litigation privilege.  A claimant will therefore probably be unable to see a video without the agreement of the defendant, as long as there is no intention to rely upon it in evidence.

In a list of documents the usual practice is to include those documents that are claimed to be the subject of litigation privilege with some generic phrase such as:

“Correspondence, statements, notes, advices and similar documents created by and passing between the defendant, its legal advisors, witnesses, agents, counsel and similar persons brought into being for the purpose of this litigation.”

There may be a duty to be more specific although it is arguable that custom and practice would justify such a description.  It may then be arguable that video evidence comes within the generic description.  That will not assist once the decision is made to rely upon the video evidence and at that point not only must its existence be disclosed specifically but also its content.[18]

Once disclosed, and inspection is allowed, a document is admissible in evidence.  The authenticity of the document is deemed to be admitted by the other party unless that party serves notice that he wishes the document to be proved at trial.[19]  In that event the notice must be served at the latest by the date for service of witness statements or within 7 days of disclosure, whichever is later.[20]  This would apply to a video either from the date of the list or, more probably, from the date of disclosure, although strictly it may be necessary to serve a supplemental list for the rule to operate.

CONCLUSION

The use of surveillance evidence contains numerous pitfalls along the way for the unwary and litigators should proceed with caution at all stages.