Douglas v O’ Neill: QBD 9 Feb 2011

The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
Held: The defendant’s application succeeded. There had been no breach of any court order, and much of the material was recent. A surveillance DVD or videotape is a document, not a piece of witness evidence. The overriding objective to be applied in considering it admission is that of enabling the Court to deal with cases justly: ‘If the fact that a document is video surveillance were to be disclosed in Part 2 that would inevitably alert a fraudulent Claimant to the fact of surveillance and would be likely to deprive a defendant of the privileged opportunity to continue surveillance and to obtain evidence of the kind sought, namely evidence to demonstrate inconsistencies between the truth and the evidence being given by a Claimant . . the issue of ambush comes to this –are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the defendant from relying upon it?’

Collender QC J
[2011] EWHC 601 (QB)
England and Wales
CitedSally Rall v Ross Hume CA 8-Feb-2001
A surveillance film of a claimant was a document within the rules. The rules make no specific provision for the admission of such material for the purposes of cross examination of a claimant. A party proposing to use such material was under all the . .
CitedUttley v Uttley 18-Jul-2001
The Claimant complained about the late disclosure of surveillance evidence.
Held: Balancing the Defendant’s entitlement to use surveillance evidence effectively, against the general case management goal of openness and a ‘cards on the table’ . .
CitedO’Leary v Tunnelcraft Ltd 2009
Surveillance took place over a long period of time but was not disclosed until a short time before a settlement meeting and trial. The claimant objected.
Held: The court identified this as a form of trial by ambush. From the time of the . .
CitedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 01 November 2021; Ref: scu.439673