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Pre-action disclosure application for Dash-cam footage is dismissed

An application for the pre-action disclosure of footage taken by a camera fitted to a dashboard, where the accident circumstances were suspicious was refused. There was a danger if the footage was disclosed that the Claimants would tailor their claims to fit what was seen in the footage that the camera had captured.

As the use of dash-cameras becomes more common, DWF Solicitor, Craig Budworth, who defended the application on behalf of the insurers, looks at the criteria that must be satisfied if a pre-action disclosure application is to be successful.

Background

On 9th March 2015 Soheel Ahmed was in collision with a vehicle driven by Mr Dominic Flanagan. Ahmed contended that the collision occurred as a result of Mr Flanagan’s negligence, when he drove into the rear of his vehicle. Ahmed intimated a claim for personal injury to Mr Flanagan’s insurers following the incident. The Claimant submitted a Claim Notification Form stating that he was slowing down on the roundabout at the A47 Fort Parkway, Birmingham when Mr Flanagan failed to maintain braking distance and collided with the rear of the Claimant’s vehicle.

Mr Flanagan’s vehicle was fitted with a “dash-cam” which had recorded the whole incident. Ahmed (the applicant), issued an application for pre-action disclosure, for disclosure of the footage on the camera. The Claimant’s solicitors argued that they required disclosure of the dash-cam footage to advise their client on prospects of success prior to issuing proceedings. The Respondent to the application, the insurers, had concerns that the accident had been deliberately induced and did not want the Applicant to have sight of the footage for fear that Ahmed and his passengers (who had also advanced claims for personal injury) might tailor their evidence, so that it might be consistent with the what had been captured by the camera.

Pre-action Disclosure

To be successful in an application for pre-action disclosure, the applicant must demonstrate that all of the following criteria outlined within CPR r.31.16 have been met and those criteria are:

  • The applicant and the respondent are likely to be parties to subsequent proceedings

  • Where proceedings had started, the respondent would be required to disclose those documents, or classes of documents now sought by way of standard disclosure under CPR r.31. 6 (per CPR 31.16(3)(c))

  • Pre-action disclosure is desirable in order to (and per CPR r.31.16(3)(d)):

    • Dispose fairly of the anticipated proceedings;

    • Assist the dispute to be resolved without proceedings; or

    • Save costs

The hearing

Deputy District Judge Parker sitting at Birmingham County Court on the 11th February 2016, having considered himself satisfied that the respondent could be a party to proceedings and that the footage was not covered by litigation privilege, asked the parties to focus their submissions around CPR r.31.16(3)(d).

DWF advocate, Nicholas Truelove for the respondent, submitted that in pre-action disclosure applications, there was case authority that the courts had had regard to allegations of fraud, when considering these types of application and whether a claimant could plead his case without pre-action disclosure.

Reference was made in particular to the case of XL London Market Ltd v Zenith Syndicate Management [2004] EWHC 1182where the Respondent submitted that it was their main concern that the Applicant would tailor his pleadings to match the footage held by them. In Zenith (where there defendant also had fraud concerns) it was deemed unnecessary to order pre-action disclosure, as the Claimant was able to plead their case, without pre-action disclosure.

In the case before DDJ Parker, the applicant was a witness to the accident and had essentially already pleaded his case in the Claim Notification Form (which had already been sent to the Respondent) and therefore the Applicant was in a position to plead his case, without the pre-action disclosure of the footage.

Held

DDJ Parker found that the Applicant’s suggestion that providing pre-action disclosure may mean that the claims were no longer pursued and therefore save costs was:

(i) a false economy for the Respondent: if the Claimant and his passengers were to utilise the footage to doctor their pleadings in support of their false claim (making the claims more difficult to refute); and

(ii) irrelevant as the Claimant and his passengers would still bring proceedings if their claims were genuine and, if they are, they have nothing to fear from whatever the dash-cam footage shows.

Accordingly, DDJ Parker dismissed the application and awarded the Respondent their costs to be assessed if not agreed. As Qualified One-way Costs Shifting does not apply to pre-action disclosure applications, a QOCS exemption was not required for the Respondent to be able to enforce the costs order.

Comment

With the increased use of dashboard cameras, both in private and commercial vehicles and the proliferation of telematics in road vehicles, in the future insurers can expect to receive more applications for pre-action disclosure of data that these devices store.

In this case the Judge decided that it was not desirable to allow pre-action disclosure of the footage as this would potentially enable the Applicant to tailor their evidence and make their claims more difficult to defend.

An important element when assessing whether any claim might be fraudulent is evidential consistency.  Where Claimants have information available to them that is beyond their own recollections, such as the output of a dashboard camera, then any inconsistencies are likely to be minimal and the opportunity to disprove the claim maybe lost.

When defending applications in these scenarios, it will be important to make clear to the court the respondent’s concern about fraud and then outline the reasoning why the footage could lead to the Claimant tailoring their evidence and strengthening their case.

In this case, Deputy District Judge Parker stated that to allow such an application on the grounds that it might save costs would be a ‘false economy’, if the footage was used to assist in the preparation of false claims and this observation may be worth making when defending  applications of this nature.

Contact

For further information about this case and pre-action disclosure applications generally, please contact Craig Budworth on 0151 907 3198 or by email craig.budworth@dwf.law

By Craig Budworth

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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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