How to challenge surveillance evidence served by a Defendant
One of the tools often used by Defendants is to instruct private investigators to obtain surveillance evidence of a Claimant going about their business. They hope, of course, that the footage will show the Claimant doing something that they have said to experts or in witness evidence that they cannot do.
This evidence can often be misleading to a court, as often Claimants’ symptoms will vary; they will have good days and bad days, and their condition may improve, before they have had the chance to detail every stage of their recovery in witness evidence. Surveillance evidence is often just a snapshot of a Claimant’s condition and can often paint a different picture to the reality of the situation. That is not to say that surveillance evidence never identifies fraudulent claims, but in my experience they are by far the very exceptional situations.
It is therefore important that as Claimant solicitors, we understand the rules governing surveillance evidence so that we may challenge the same, where appropriate.
Association of British Insurers’ (ABI) Guidance
What many Claimant solicitors may be unaware of is that the ABI have prepared guidance as to when and how this evidence should be obtained. Whilst this guidance will not always be relied upon and any breach of the guidance will not be decisive, it is a useful tool to use when challenging surveillance evidence. After all, it will be difficult for an insurer to defend their actions when they are in breach of their own guidance.
In summary, the guidance does address the following:
- When an investigator should be instructed
- Due diligence checks
- Entering into a relationship with the investigator and how the relationship should be governed
- Instructing the investigator
- Accessing data obtained by the investigator
- Retaining the data obtained by the investigator
The guide recognises that surveillance evidence is likely to be an intrusion of an individual’s privacy. They state that this evidence should only be obtained where there is reasonable suspicion that the claim might be fraudulent or there are reasonable grounds for requiring validation of a claim and the information they can obtain using surveillance evidence is both reasonable and proportionate. The guide also states that surveillance should be the last resort, when other means of validating the claim have been exhausted.
Surveillance evidence should not therefore be employed as a fishing exercise in the hope that they may find something.
Keeping this in mind, where a Defendant obtains surveillance evidence, they must be doing so on the basis that they have reasonable grounds for suspecting fraud or there are reasonable grounds for requiring validation of the claim. In circumstances where a Defendant is alleging fraud, this should form part of their statements of case. It is not appropriate for the Defendant to infer or suggest fraud. If such an allegation is made, then this should feature in their Defence and if it doesn’t already, then an application should be made for them to amend their Defence.
Should a Defendant dispute that they are alleging fraud and seek to avoid going quite so far as that, then, in that situation, they have obtained surveillance evidence in breach of their own guide. Either way, this is a useful argument to have in your arsenal.
Directions and relief from sanctions
In theory, any surveillance evidence should be disclosed at the disclosure stage of proceedings or at the very latest, when witness statements are served. As we all know, if evidence is served late/out of time, then the party in breach must apply to the court for relief from sanctions under CPR 3.9.
When considering whether or not to allow relief from sanctions, the court, following the case of Denton, will:
- Identify and assess the seriousness of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1)
- Consider why the default occurred
- Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including factors a) and b) (which are the need for litigation to be conducted efficiently and at proportionate cost and b) to enforce compliance with rules, practice directions and orders)
The difficulty in considering late disclosure of surveillance evidence is that whether or not relief from sanctions will be granted will largely depend upon the contents of the evidence. If the evidence is particularly damning, then it is likely that it will be admitted. The reason for this may be that whilst the breach will likely be serious and significant, the reason for the breach is usually to serve the evidence at a more tactically advantageous time, when considering the third stage of the test, and the persuasiveness of the evidence and the Defendants right to a fair trial will likely win out, meaning that the evidence is admitted.
However, in the more common cases where the evidence isn’t particularly damning, but it does raise queries, it would be important to highlight any delay in serving the evidence, whether disclosure has been full (or if documents such as unedited footage have been retained), whether that delay will jeopardise the current court timetable, and, in particular, any trial date and the likely cost of dealing with that evidence, keeping in mind the need to deal with claims proportionately.
Where an investigator obtains evidence about a potential Claimant, this evidence will be classed as data for the purposes of the Data Protection Act 1998. This means that the Defendant/Investigator will be holding this information as a ‘data controller’.
You should always request copies of the unedited footage, as, in my experience, this often provides a completely different view of the Claimant than the carefully edited version. The edited version may show them walking around a shopping centre with little difficulty, but the unedited version may show the difficulties they had later that day because they had pushed themselves too far.
I have encountered situations where the Defendant/Investigator either refuses to disclose the unedited recording, or they disclose what is labelled the unedited footage, but on close inspection it is still an edited version. One way of forcing this disclosure, without a costly application for specific disclosure, is to confirm that if they do not provide the information requested you will report them to the Information Commissioner.
As a data controller, they have an obligation to retain information for no longer than is necessary and to maintain the integrity of that information. In a situation where that information is to be used for the purposes of an ongoing claim, it would be reasonable for that information to be retained. A breach of data protection rules as a data controller can result in a number of penalties including, monetary penalty notices, prosecutions and enforcement notices.
I did not imagine that I would hear myself say this, but costs budgeting may actually be a good thing for Claimants in this area.
Costs budgets should be scrutinized for any suggestion that an investigator may be employed. This could provide a Claimant with early notification of such tactics.
Further, where an allegation of fraud is made and is proven to be false, the court may be mindful to order indemnity costs. On the basis of the ABI guidance, even where fraud isn’t actually pleaded, this may be something to raise with the costs judge. Obviously the impact of the allegations made will be relevant here.
As a Claimant solicitor representing individuals who have suffered serious injury in an accident caused by someone else’s negligence, I am confident in the clients that I represent, but I am all too aware of how things can seem to appear and come across in a three minute video taken using a covert camera. In some cases, even the most detailed witness statements cannot compete with the inferences drawn from a video.
But, as Claimant solicitors, we need not worry. There are a number of different tools that we can use to challenge the way in which this evidence is obtained, how it is presented to the court (if at all) and the inferences that can be drawn from it.