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 application before her, there remained only 31 days to the trial.
Swift J said: ‘There was no reason, in my judgment, why the footage which had been taken in August 2009, should not have been disclosed earlier.’ and ‘Once all the material of the best quality available has been obtained, it will be necessary to obtain statements from the claimant and his witnesses. In addition, the experts (i.e. care, employment, psychiatrist, urologist and orthopaedic experts) will need to see and comment on the footage. Mr. Weir has submitted that it is necessary for the experts to see the claimant’s comments on the footage at the same time.
Mr. Audland said that that is not necessary. In my judgment, it would only be right for the expert witnesses to see all the additional material together. Quite apart from anything else, this would mean that they would only have to deal with the papers on one occasion rather than on two separate occasions. Addendum reports would then have to be obtained, any discussions would have to take place and any necessary amendments to joint reports: all this within the 31 days left before trial.
It seems to me that to fit all this work into the time available before trial would be extremely difficult, even without the problems which have been described by Mr. Marks. They would, in my view, render the exercise completely impossible. Even if the exercise were capable of being done, it would be a distraction from the ordinary preparations from trial and from considerations of the Part 36 offers and possible settlement of the case.’
Judges:
Swift J
Citations:
[2009] EWHC 3438 (QB)
Jurisdiction:
England and Wales
Citing:
Cited – Sally 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 . .
Cited by:
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Litigation Practice
Updated: 08 May 2022; Ref: scu.440069