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 obligations which would apply to other documents as to disclosure and inspection. Application for the use of such material must be made at the first practicable opportunity. Where video evidence is available which, according to one party substantially undermines the case of the other, it should be admitted to allow cross examination on it.
Potter LJ said: ‘For the purposes of disclosure, a video film or recording is a document within the extended meaning contained in CPR 31.4. A defendant who proposes to use such a film to attack a claimant’s case is therefore subject to all the rules as to disclosure and inspection of documents contained in CPR 31. Equally, if disclosure is made in accordance with CPR 31, whether as part of standard disclosure under CPR 31.6 or the duty of continuing disclosure under CPR 31.11, the claimant will be deemed to admit the authenticity of the film unless notice is served that the claimant wishes the document to be proved at trial. If the claimant does so, the defendant will be obliged to serve a witness statement by the person who took the film in order to prove its authenticity. If the claimant does not challenge the authenticity of the film, however, it is, in the absence of any ruling by the court to the contrary, available to the defendant for the purposes of cross-examining the claimant and/or the claimant’s expert medical witnesses at court.’
and ‘It is therefore necessary in the interests of proper case management and the avoidance of wasted court time that the matter be ventilated with the judge managing the case at the first practicable opportunity once a decision has been made by a defendant to rely on video evidence obtained.’
Where the authenticity of such evidence is not challenged: ‘the issue was whether or not the defendant should be prevented from exercising what prima facie was his right to cross-examine the plaintiff by putting to her for her comment such parts of the video as the defendant thought appropriate for the purposes of undermining her case . . In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush.’
Judges:
Potter LJ
Citations:
Gazette 08-Mar-2001, Times 14-Mar-2001, [2001] EWCA Civ 146, [2001] 3 All ER 248, [2001] CPLR 239, [2001] CP Rep 58
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Jones 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 . .
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 . .
Cited – O’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 . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Litigation Practice, Civil Procedure Rules
Updated: 23 May 2022; Ref: scu.135585