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Fresh High Court guidance on surveillance practice and procedure

Hayden v Maidstone & Tunbridge Wells NHS Trust
High Court
12 May 2016

Last month, in the case of Hayden v Maidstone & Tunbridge Wells NHS Trust, the High Court allowed the defendant to rely on surveillance evidence notwithstanding that it had been served shortly before trial and amounted to an ambush. The rationale behind allowing the appeal was that surveillance footage will be allowed if the overall interests of justice favour its admission, even if this necessitates a trial date to be vacated. But in this case, it came at a cost. Dan Clegg reviews the decision.

Background

The circumstances of case were that the claimant’s claim for damages arising out of a work place injury was pleaded at around £850,000. Surveillance evidence was obtained in February and March 2016 and the defendant sent it to the claimant’s solicitor on Maundy Thursday. Consequently it was received on Tuesday 29 March, 9 working days before the trial was due to commence on 11 April. The hearing of the application began on 8 April but the judge found that more measured consideration of the application was required, such that the trial had to be vacated. Following the resumed hearing he went on to find that if he’d had the ‘full picture’ at the first hearing, he would have dismissed the application. That said, Foskett J accepted with great reluctance that because the ‘genie’ was now ‘out of bottle’, the surveillance evidence would be admitted but with the defendant to be penalised by way of costs consequences.

Foskett J provided interesting comments upon practice and procedure relating to the commissioning of surveillance evidence. Whilst he acknowledged that it was for the Civil Justice Rules Committee to amend the application of rules if they are considered inadequate, he advocated courts making orders at case management stage specifying dates by when surveillance evidence should be served, as had been the case in O’Leary v Tunnelcraft (2009) HC. At the case management stage there should therefore be a record of each party’s position on the issue, which may be referred to at any later application for reliance on such evidence. As Foskett J neatly summarised:

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.

Comment

This decision is likely to lead to claimant firms pushing for an early direction for disclosure of surveillance, before their client’s case has been fully articulated. Defendants may feel disadvantaged as in such a scenario the defendant is prevented from comparing the claimant’s presentation with the fully pleaded claim. Early directions for disclosure of surveillance evidence are likely to continue to be resisted as Master Fontaine had explained to Foskett J when he was considering his judgment. An alternative solution would be to seek a direction for surveillance to be disclosed at a point after service of the final schedule of loss and before the trial window building in time to revert to the experts.

Where defendants find themselves ordered to disclose surveillance early in the court timetable, there remains an option not to do so: the 2011 High Court decision in Douglas v O’Neill remains good law in that a defendant is entitled to wait until the claimant has served a statement with a declaration of truth before serving surveillance evidence. However, if an order with a “date by which” provision is disobeyed defendants will be facing a Denton type application to try to adduce it. Ultimately where suspicions arise early, but commissioning of the footage is delayed until close to the trial, there will have to be compelling justification if the application is to succeed. 

Contact

For further information, please contact Dan Clegg, Senior Associate on 0161 604 1747.

By Daniel Clegg

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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