This case highlights the importance, both from a claimant and defendant perspective, that if video evidence is to be used, then not only must the film be able to withstand legal scrutiny but also that the contemporaneous and post surveillance expert reports will too.
It remains difficult for defendants to determine whether or not a claim has been exaggerated to the extent of being dishonest. Such difficulties not only risk the need for a court hearing so as to explore and test the evidence, but also make reaching settlement more challenging.
If defendants are to avoid the associated escalation of costs and risks of proceeding to trial, then it would seem any Part 36 offer put forward in such cases would need to be at the higher end, if not over and above the level that would usually be put forward. The aim being to have in place increased costs protection should there be an exaggeration which is not deemed to be at a level amounting to an attempt to mislead.
The claimant was employed as a cardiac physiologist by the defendant and suffered a back injury when assisting with the manual transfer of a patient on 23 March 2007. Liability was admitted in April 2009. Judgment was entered on 15 July 2010.
The case had been listed for trial in April 2016, but was subsequently vacated by Mr Justice Foskett in a disputed application as he granted the defendant permission to rely on covertly recorded video surveillance. The claimant had a substantial future loss of earnings claim and the defendant wished to argue that the claimant had exaggerated the consequences of her accident. In the overall interest of justice the application was granted.
The claimant applied for permission to rely on the evidence of a Mr Jeffrey A Simm, a video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report.
Whilst Mr Justice Lay acknowledged a degree of inconsistency between the claimant’s level of functioning and the pleaded claim, he did not consider this to amount to an attempt to mislead.
Mr Justice Lay commented:
“Surveillance evidence is capable of being very compelling but in less clear-cut situations requires carefully parsing and assessment.”