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Admissibility of surveillance evidence

Chadwick v Lewis & Aviva Insurance Ltd
Cardiff County Court – HHJ Keyser QC
1 August 2016

Earlier this month HHJ Keyser QC sitting at Cardiff County Court allowed the defendant’s appeal for permission to rely on surveillance evidence. In doing so he rejected an argument that the absence of the original SD cards containing the video footage rendered the evidence inadmissible. The judge warned against making mountains out of molehills when the evidence raises genuine issues which could have a significant impact on the claim. He also questioned the value and status of the evidence of the “Video Evidence Analysis Consultant”, Mr Simm, who coincidentally came under scrutiny in another judgment this month in the High Court. Philip D’Netto and Katie Ellis who were instructed to act on behalf of the defendant, explains the issues.

Background

The claimant was a pillion passenger who sustained multiple injuries including fractures of her spine on 19 May 2011. She was aged 29 at the date of the accident and 34 at the appeal.

Proceedings were issued in May 2014 and the matter was listed for a CMC on 24 November 2015. By the time of the CMC the defendant had obtained surveillance which they had sent to their orthopaedic expert. The defendant did not raise the existence of the surveillance at the CMC because they were awaiting their expert's comments which they received two days after the hearing. The district judge gave directions for expert evidence and for the matter to be warned for trial between August and October 2016.

On 30 November the defendant disclosed to the claimant the surveillance evidence in the form of DVD containing redacted footage and a letter from their orthopaedic expert. Mr Foy, commenting on this. The expert noted the claimant had either improved since he examined her or ‘certainly appeared significantly less disabled and more active than she led him to believe with the conclusion that she was exaggerating her symptoms 6-8 months before the DVD footage’.

The court subsequently listed the matter for trial on 5 and 6 September 2016.

In January 2016 the claimant's solicitors responded to the defendant’s disclosure of the surveillance by arguing it was incomplete and they requested further disclosure of the unedited DVDs as well as the SD cards and any metadata. The claimant’s solicitors awaited an application for permission to rely upon the surveillance evidence, at which point they intended to apply for permission to rely on the evidence of a “Video Evidence Analysis Consultant”, Mr Simm. The claimant argued that it would be speculative to assess the footage without the SD cards. The claimant also asked for amendments to the defence to plead fraud or fundamental dishonesty.

The defendant duly applied for permission to rely on the surveillance evidence. Prior to the hearing of the application the defendant disclosed the unedited footage but the SD cards were unavailable as it had become apparent that they had been wiped by the surveillance company in accordance with their standard procedures. On receipt of the unedited footage the claimant instructed their video consultant, Mr Simm, who suggested there had been post capture manipulation of the footage but that it was impossible for him to check without the original SD card. On this basis, and bearing in mind the case was listed for trial in three months, the claimant objected to the admissibility of the surveillance.

The claimant argued that the wiping of the SD card was in breach of the ABI guidelines which stated the original DVD/CD/memory stick should be from virgin stock (i.e. new and unused); that the original media should never be edited under any circumstances, but copied to provide working copies, and that the original media should be labelled, sealed and numbered as an exhibit and retained securely for production in court or forensic examination as necessary. The claimant argued that the defendant's representatives should have been aware of these guidelines and instructed enquiry agents to retain the SD card.

The hearing took place on 20 June 2016. Whilst the district judge expressed concern that the trial date would almost certainly be lost if at that stage he allowed the application to rely on the surveillance, his primary reason for refusing permission was the absence of the original SD cards. In his judgment he said “If (a claimant) is not able to see the original documents and satisfy himself or herself as their efficacy, so that they are available, and what the content shows, then it seems to me that the effect of a video which may or may not show the complete picture is going to not have a great deal of assistance for the Court because cross-examination is not going to assist.   He also said as an obiter part of his judgment that when surveillance evidence is disclosed to a medical expert then privilege in respect of that document is waived.

The defendants appealed and the matter became before His Honour Judge Keyser QC on 1 August 2016. The defendant submitted the surveillance was admissible and the fact the SD card had been wiped did not justify an exclusionary approach. The wiping of the card may raise questions about the reliability/weight of the evidence which the trial judge could weigh up as appropriate. The defendant had acted properly in sending the surveillance to their expert before deciding to rely on it.

Judgment of His Honour Judge Keyser QC

Admissibility of surveillance evidence

Allowing the defendant’s appeal, the judge held that in focusing on the wiped SD cards the district judge had taken a mistaken approach. The defendant was not seeking permission to rely on the SD card but rather on the edited and unedited surveillance. While there had been a delay in their application for permission to rely on the surveillance, they had disclosed it back in November 2015. The defendant's orthopaedic expert, Mr Foy, and the claimant's surveillance expert, Mr Simm, had responded to the surveillance fairly promptly and there was no reason why, notwithstanding the problems surrounding the unedited footage the claimant could not have addressed the substantive issues.

The district judge had fallen into fundamental error in his reaction to the wiping of the SD card. The idea that the loss of original SD cards is an overwhelming or strong point of prejudice because someone or an expert states that an ability to check is lost was in his judgment remarkable. The trial judge is involved in a fact finding exercise and quite often the evidence is imperfect.

Judge Keyser QC also found that the district judge could have given directions to preserve the trial date although admittedly these would have been difficult to comply with.

Status of Mr Simm as a “surveillance expert”

Although the defendant had not raised any issue over Mr Simm's status as an expert the judge commented:

I say “expert” on the basis that his status as such has not been challenged before me. I make that point because it is not free from a degree of controversy. In one case - trotted out around the courts - Samson v Ali - Stadlen J accepted the status of Mr Simm as an expert. An aspect capable of argument is whether Mr Simm does have a recognised area of expertise. Another point is whether the present case gives rise to any issue properly to be considered as one for expert evidence. I am prepared to accept in the absence of a position to the contrary that it is capable of being a case in which there is an issue for an expert in surveillance. Mr Simm produced a preliminary report (as it has been described) although the extent to which it is proper to describe it as “preliminary” is open to some question. It is dated 07/06/16. It refers to the video footage as reviewed fully. It expresses the view that there is evidence that the footage presented as unedited has been edited post-capture. In fact the basis on which that conclusion is expressed seems questionable or limited - the report does not identify technical matters of expertise indicating “cuts” upon a technical basis but it says “look at the films and the stop-start nature of them and infer that filming at times was not included within the unedited footage”. If a point had been taken I might have asked whether there is a genuine expert point here at all.

Ultimately, Mr Foy’s comments on the surveillance evidence could potentially have a significant impact on certain heads of claim.  When standing back and looking at the case seriously, there was therefore a danger, of “making mountains out of molehills” and the judge warned of “a cottage industry in making these issues relating to surveillance more horrendous than they need to be."

Comment

This was a case of some importance because the surveillance company’s policy at the time was to wipe the SD cards after downloading to a DVD although in fact their processes have since changed and they are now preserved.

In many respects the case demonstrates the difficulty of reconciling disclosure of covert surveillance evidence which is commissioned in the course of litigation with the rules on disclosure which are not written in anticipation of deployment of that type of evidence. Although the media holding the surveillance falls within the wide description of what constitutes a document, it is privileged until that privilege is waived by the disclosure of the surveillance to the claimant within the proceedings.

The question of Mr Simm’s status as an expert remains not without controversy. The judge's comments about making "mountains out of molehills" and a "cottage industry" regarding surveillance will resonate with insurers. Indeed his credentials have come under further scrutiny in another judgment this month (2 August) of Edis J in Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB). The evidence of Mr Simm in Hayden displays a number of similar features to his evidence in this case.  Edis J allowed Mr Simm’s factual evidence on the surveillance to be adduced but rejected the claimant’s application for permission to adduce the rest of his report, i.e. his opinion evidence.

Following Rall v Hume [2001] EWCA Civ 146 it is in the interests of case management to ventilate issues with the case managing Judge at the first practicable opportunity after the defendant decides to rely upon the evidence. Here, Judge Keyser QC stressed the importance of making applications to rely on surveillance promptly although he also accepted the claimant could by making of his or her own application apply to exclude it.

Contact

For further information please contact Philip D'Netto, Partner, on 0161 603 4966 or at Philip.D'Netto@dwf.law or Katie Ellis, Senior Solicitor, on 0161 604 1812 or at Katie.Ellis@dwf.law

By Philip D'Netto

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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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