FREE CHAPTER from ‘A Practical Guide to Surveillance Evidence in Personal Injury Claims in England and Wales’ by Andrew Cousins

CHAPTER ONE – THE ADMISSIBILITY OF SURVEILLANCE EVIDENCE


For practitioners who must advise clients on cases involving surveillance evidence, there can be many issues to consider. Questions over how to obtain surveillance evidence, when to deploy it and its effect on the case are some of the most significant practical points that can be considered in a claim. Before these issues are considered, there are important points that need to be contemplated concerning the rules of evidence and whether the courts will allow such evidence to be admitted and relied upon in the litigation process.

As will be discussed in subsequent chapters, surveillance evidence is often disclosed after much of the evidence in a claim has been exchanged. It is evidence that needs to be kept secret for some time in order that the claimant is not made aware of the fact that they are being observed, and it is evidence that needs to be served as a surprise to the claimant. This is because the whole purpose of such evidence is that it is designed to capture the claimant undertaking activities that undermine the fabric of the claim. For these reasons, surveillance evidence is case managed in a different manner by the courts.

Whilst the above practical considerations are important for litigants, they do not affect the fundamental principle that surveillance footage, like anything else a litigant discloses, serves, or relies upon in a case is evidence, and just like all evidence it is subject to evidential rules. This chapter looks at the evidential rules, how surveillance evidence relates to those evidential principles, its admissibility, relevance, weight, and how the civil procedure rules (‘CPR’) address surveillance evidence.

Admissibility

The admissibility of evidence and the relevance of evidence are two different concepts that overlap in some regard. Not all evidence that is relevant is admissible, as we will see in chapter two, evidence may be relevant, but it may be inadmissible for example, on the grounds of public policy or because it has been obtained through unlawful means. The courts have a variety of powers to control evidence, these powers do not derive only from the court’s case management powers under CPR 3, but through further sections of the CPR and additionally through the common law. In Kuruma v The Queen [1955] A.C. 197, [1955] 1 WLUK 425, Lord Goddard CJ held that:

the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle. However, the court retains a wide discretion to exclude evidence.

As can be seen, the court, at that time considered that evidence would be admissible regardless of how it is obtained. This is an example of how the law has developed over time, now the court’s discretion to exclude evidence can extend to considering the manner in which the evidence was obtained. The CPR has given the court a range of powers to address the admissibility of evidence. The court has an inherent power under the court’s case management powers to exclude an issue from consideration and CPR 3.1(2)(k) provides:

(2) Except where these Rules provide otherwise, the court may –

(k) exclude an issue from consideration

In addition to this the court has a power under CPR 32.1 to control the evidence in a case, the rule provides:

(1) The court may control the evidence by giving directions as to –

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

If a court is to exercise its powers under this rule to exclude evidence, then, as set out in Grobbelaar v Sun Newspapers Ltd, The Times, 12 August 1999 CA, such a step must be taken with the overriding objective in mind and with a view to dealing with cases justly.

Therefore, even if a party obtains surveillance evidence that they disclose and is of relevance to the case, it can be excluded by the court under its provision to control evidence. When considering the admissibility of relevant evidence, and whether or not it should be excluded, the court has to consider the weight of the evidence, this is sometimes referred to as the probative value of the evidence. The less probative value the evidence has to the issues in the case, the more likely a court would be to exercise its powers to exclude the evidence. There is therefore some overlap between the evidential rules of admissibility and relevance.

Relevance

In order to determine if the surveillance evidence is relevant to the issues in the case, the footage must be carefully reviewed, and cross referenced to the statements of case. How relevant the footage will be is a factual issue that will vary from case to case, for example surveillance footage that shows a claimant able to walk a great distance unaided will be of little assistance if the claimant’s witness statement alleges that he can mobilise without difficulty. Conversely surveillance evidence showing the claimant driving a vehicle for work will be of great assistance if the claimant’s claim is founded on the premise that the accident has left them physically incapable of work and driving.

It is only through a close scrutiny of the claimant’s evidence and statements of case that the relevance of the surveillance evidence can be determined. Relevance cannot be a static concept, what will be relevant to one case and one set of facts will of course not relate to a different claim. For this reason, the parties and the courts have to identify the facts in issue in the claim and how the surveillance evidence assists the court with determining those facts. As set out in Vernon v Bosley [1994] P.I.Q.R.337, by Hoffman LJ:

The degree of relevance needed for admissibility is not some fixed point on a scale, but will vary according to the nature of the evidence and in particular the inconvenience, expense, delay or oppression which would attend its reception.

Surveillance evidence that does not address the issues in the case (or worse is footage taken of the wrong person), will not be of assistance to the court and may be excluded. This is highlighted by the case of Sebastian James Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB), where Lambert J disallowed the defendant permission to rely upon surveillance evidence. The claimant had alleged that because of a delay in diagnosis of cauda equina, he had limited mobility and needed daily living and care assistance. The defendant sought permission to rely upon surveillance footage that, it alleged addressed the claimant’s position on functional capabilities. At first instance and on appeal, the court considered that the surveillance footage did not highlight any significant inconsistencies in the claimant’s case. The evidence was disallowed on the grounds that it was not relevant to the case advanced by the claimant.

This is an example of how the courts can, and do, exercise their powers to disallow evidence. Even though the evidence was properly obtained, it was excluded as it did not relate to the issues in the case. It also serves to highlight that the analysis of the relevancy of surveillance evidence has to be conducted by reference to the pleaded case advanced by the claimant, and compared with the surveillance footage. Litigants may therefore lose the ability to rely upon surveillance footage should the court exercise its case management powers to exclude the matter from consideration.

Weight

In personal injury litigation there are not often many cases in which a ‘silver bullet’ of evidence proves or destroys a case, parties frequently accumulate a variety of evidence in order to build a picture to support their pleaded position. Surveillance evidence can sometimes be the exception to this rule and at times the ‘silver bullet’ of evidence. In the same way that the relevance of evidence cannot be determined by a static refence, neither can the weight of evidence. As set out by Lord Blackburn in Lord Advocate v Blantyre (1879) 4 App. Cas 770:

The weight of evidence depends on rules of common sense.

If the defendant is permitted to rely upon the surveillance evidence, then the weight that is to be attached to the evidence is a matter for the trial judge having considered the totality of the evidence, and having heard the lay witness and expert evidence and considered the documents in relation to the issues in the case. Key considerations for the court are who bears the burden of proof, are there any risks associated with putting weight on the surveillance evidence and if so, what are they. The court must consider whether the evidence can be thoroughly tested or, is it incomplete and incapable of the same level of interrogation as the remaining evidence in the case.

The best evidence rule

As touched upon above, an issue for many courts is what weight can be placed upon the surveillance evidence. If the evidence cannot be interrogated to the same level as other evidence in the case, then it may cause the court to question what weight it can place upon the evidence. It is a fact of litigation that not all evidence is perfect. Some evidence can be incomplete, for example with surveillance footage the person under surveillance is not always in camera shot and can disappear for lengths of time, can the footage be said to be complete if the claimant cannot always be seen? How this affects what weight the court can place upon the footage must be determined by the quality of the footage compared to the claimant’s statements of case.

The best evidence rule has developed over a considerable amount of time in the course of legal history. As set out in Phipson on Evidence 19th Ed. 7-40:

In the present day, then, it is not true that the best evidence must, or even may, always be given, though its non-production may be a matter for comment, or affect the weight of that which is produced. All admissible evidence is generally equally accepted.

The court of appeal examined the best evidence rule in the case of Masquerade Music Ltd & Ors v Mr Bruce Springsteen [2001] EWCA Civ 563, wherein Parker LJ held that:

a party to whom a document is available will by reason of that very fact be unable to account to the satisfaction of the court for his non-production of it when inviting the court to admit secondary evidence of its contents, with the practical consequence that the court will attach no weight to the secondary evidence.

And:

In my judgment, the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired. In every case where a party seeks to adduce secondary evidence of the contents of a document, it is a matter for the court to decide, in the light of all the circumstances of the case, what (if any) weight to attach to that evidence. Where the party seeking to adduce the secondary evidence could readily produce the document, it may be expected that (absent some special circumstances) the court will decline to admit the secondary evidence on the ground that it is worthless. At the other extreme, where the party seeking to adduce the secondary evidence genuinely cannot produce the document, it may be expected that (absent some special circumstances) the court will admit the secondary evidence and attach such weight to it as it considers appropriate in all the circumstances. In cases falling between those two extremes, it is for the court to make a judgment as to whether in all the circumstances any weight should be attached to the secondary evidence. Thus, the ‘admissibility’ of secondary evidence of the contents of documents is, in my judgment, entirely dependent upon whether or not any weight is to be attached to that evidence. And whether or not any weight is to be attached to such secondary evidence is a matter for the court to decide, taking into account all the circumstances of the particular case.

Imperfect evidence is a situation that parties, and the courts have to face in litigation. Simply because a full and complete video log of surveillance footage is not always available in every case does not automatically mean that all of the surveillance evidence is to be excluded or cannot be relied upon. As set out by Parker LJ, the court may exclude the evidence if no special circumstance can be provided as to why the complete evidence is not available. It is for the court to consider the particular circumstances of each case and decide whether any weight can be placed on the imperfect evidence.

Civil Procedure Rules

When the CPR was introduced, the question of how surveillance evidence would be handled within the framework of those rules had to be addressed. The CPR promotes a ‘cards on the table’ approach to litigation, parties should make disclosure of evidence at an early stage in order to narrow the issues in a claim. During litigation, the court should make directions to give a structure as to when documentary evidence, expert evidence and witness evidence was to be disclosed. The parties to litigation are supposed to be allowed to know the case that is being advanced so that they can prepare accordingly, narrow issues to avoid complications and encourage settlement.

Whilst the introduction of the CPR streamlined the litigation process, it inevitably led to a number of questions as to how to handle the disclosure of evidence, and in particular surveillance evidence. The surprise disclosure of, potentially, significantly important new evidence did not sit easily within the structured approach to the litigation process. This prompted the question as to where in such a system surveillance evidence should feature, and what notice a litigant who had obtained such evidence needed to give in order to comply with the provisions of the CPR. The issues in relation to the timing of disclosure of surveillance evidence are discussed in more detail in chapter three.

In considering how the CPR addresses the issue of surveillance evidence, the first question that had to be asked, and it may seem odd to ask the question, was what is a ‘document’. CPR 31.4 provides:

In this Part –

document’ means anything in which information of any description is recorded;

For the purposes of disclosure, surveillance footage is a recording of information and is therefore a document within the extended meaning contained in CPR 31.4, as established in Garcin and others v Amerindo Investment Advisors Ltd and others [1991] 4 All ER 655. The next issue to consider is why that document has been brought into existence. Clearly such evidence did not exist prior to the claim being instigated. Surveillance evidence is a document brought into existence for the purposes of the litigation and is therefore privileged. In respect of the standard list of documents, surveillance evidence is not disclosable in part 1 of the list of documents, and the party obtaining the footage will seek to claim privilege over the evidence.

When a party is preparing its list of documents, a party can claim privilege over a document and seek not to disclose the same at the point of disclosure. This is important in relation to surveillance evidence, as the directions concerning disclosure usually take place early in the litigation process, and a party who has obtained surveillance evidence will wish to keep it secret until such time as the claimant has confirmed their case.

Privileged evidence is not disclosable in the first part of the list of documents which parties exchange in order to disclose the documents that they hold. A litigant who proposes to use surveillance evidence to attack another party’s case will waive privilege when they disclose the evidence, and it will therefore be subject to the rules as to disclosure and inspection of documents contained in CPR 31.

Once privilege is waived and the surveillance evidence disclosed, the disclosing party will have waived privilege over the whole of the footage and must therefore disclose the entirety of the footage, they cannot rely upon chosen extracts. Whilst the party placed under surveillance may only be visible in some short sections of the footage, the disclosing party has to be candid about the full footage that has been obtained, this is consistent with the cards on the table approach to litigation. The party placed under surveillance is entitled to see if any of the footage obtained shows evidence that is supportive of their case. Once privilege is waived in part of the document, the whole document must be disclosed. This will mean that not only is the full footage disclosable, but that the video logs kept by the surveillance agents who obtained the footage are disclosable as well.

When the surveillance footage is disclosed, the claimant is deemed to admit the authenticity of the footage, unless a challenge is raised to the evidence. If the claimant wishes to challenge the authenticity of the footage, then it is incumbent upon them to serve notice that they wish it to be proved at trial. Such note is required pursuant to CPR 32.19 which provides:

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

(2) A notice to prove a document must be served –

(a) by the latest date for serving witness statements; or

(b) within 7 days of disclosure of the document, whichever is later.

As such a claimant who wishes to challenge the authenticity of the surveillance footage only has a short period of time to do so pursuant to CPR 32.19(2)(b). If a notice to prove a document is served, then the defendant must serve a witness statement by the surveillance operative who took the film in order to prove its authenticity.

The point as to what standing video surveillance footage has, was considered by the court of appeal in the case of Sally Rall v Ross Hume [2001] EWCA Civ 146. The court held that a video film was a document within the meaning of CPR 31.4. It is therefore subject to the rules as to disclosure contained in CPR 31.

The showing of a video requires facilities to be made available by the court to enable footage to be viewed and it extends the time for the trial. There is a duty upon the party seeking to rely upon the video to help the court to further the overriding objective, and this means that the matter should be raised at the first practicable opportunity. The starting point of any application to rely upon video evidence, where the evidence according to the defendant undermines the case of the claimant, is that it must be in the overall interest of justice to allow the claimant and the claimant’s medical experts, to be cross-examined by the defendant. As will be examined in later chapters, this does not mean that the defendant can conduct a trial by ambush and safeguards must be put into place to ensure that the disclosure of surveillance evidence does not derail the trial timetable.

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