There are times when a defendant receives valuable video surveillance footage of a claimant late in the proceedings. How can it then be introduced as evidence?
The starting point is that a party has a continuing duty of disclosure to the other under CPR Part 31.11 which only concludes when proceedings end. If privilege is waived and evidence is then disclosed late, the Court has a discretion under CPR Part 32.1(2) as to whether that evidence, regardless of its admissibility, should be allowed at trial or not.
This situation arose in Watson –v- Ministry of Defence , when the MOD applied to admit video surveillance evidence of the claimant – a former employee – whilst denying liability in a clinical negligence claim.
The claimant suffered from a hip problem. She alleged that the MOD had received images of her hip back in 2005 but failed to act promptly at that time and as a result, her hip deteriorated prior to the problem eventually being diagnosed in 2010. She claimed that she was unable to work as she was permanently crippled and in severe pain. In 2012, she was discharged from the Army.
The trial was listed for May 2016. The MOD made an application to adjourn the trial but this was dismissed and medical evidence was ordered to be disclosed.
The claimant’s expert examined the claimant and then prepared a report in November 2015. The expert found that the degree of restriction she showed was disproportionate to what he had found. Although he agreed that she was suffering from pain, her disability was seen as being mild. He formed the view that her movement during the examination was out of keeping with her actual ability.
The defendant’s expert concluded in his February 2016 report that the claimant’s inability to bend over and pick things up was either through fear or conscious exaggeration.
Based on this medical evidence, the MOD decided that it needed to obtain video surveillance evidence of the claimant. The surveillance filmed her picking things up from the floor contrary to her presentation during the medical examinations. The footage was sent to the MOD in March 2016 and disclosed it to the claimant the following week.
The MOD successfully applied to admit the surveillance evidence. The Application was heard in April 2016, where the Court held that the surveillance evidence was of clear significance and that it was in the interests of justice to admit it, as it challenged the range of movement in the claimant’s hip.
The Court did not watch the surveillance evidence, as that ran the risk of half trying the case by stating whether it would affect the trial or not. The surveillance evidence had to be viewed in context with the rest of the evidence and this was the role of the trial judge.
The claimant tried to argue that the MOD should have obtained surveillance evidence in November 2015 following the claimant’s expert’s report but this was rejected, as the MOD was entitled to obtain its own expert report first. The trial judge would be in an impossible position if the defendant’s expert were to state that he could not tell if the claimant’s restricted movement was because of fear or conscious exaggeration but could not show conscious exaggeration.
The application was not an ambush of the claim, even though that evidence was to be admitted only weeks before the trial was due to commence in May. There was no reason to adjourn the trial to allow the parties to deal with the surveillance evidence, especially as the previous application to adjourn had been dismissed.
This case is useful to defendant’s and their insurers when considering their prospects of successfully introducing surveillance evidence at a later stage in proceedings. Here, the medical evidence from both experts clearly questioned the claimant’s range of disability and the surveillance was of significance in assisting the trial judges determine this point.