References: Unreported, 18 July 2001
Coram: Hallett J
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’ approach, the court found in favour of the Defendant.
Hallett J said: ‘In my judgment, in the circumstances of this case -and I emphasise in the circumstances of this case -the defendant’s solicitors were entitled to hold on to the video recording for a reasonable period of time. This was not simply a case of trying to ambush the claimant at trial. The defendant’s insurers not surprisingly wished to assess the evidence in their possession with the claimant’s up-to-date account before disclosing it. I say not surprisingly in the light of the history of the litigation as I have outlined it. They wanted to use it effectively as cross-examination material. I accept therefore the explanation from Mr Curtis to which I have already referred.
What therefore is a reasonable time in the circumstances of this litigation?
Mr Curtis made it plain in August 2000 that although the defendant’s insurers were prepared to wait for the witness statement until the report from the doctor was available, they wished to have the claimant’s up-to-date witness statement at the same time. They were operating on the basis the medical report would be available within a reasonable time.
They also indicated they had no objection to there being an interim statement from the claimant which could be updated if necessary. They wished to have this material, as they said in their letter, to assess their position when it came to possible negotiations and attempts at settlement. They continued to press for the witness statement and up-to-date schedule, but the claimant’s solicitors seemed to indicate that one would be available as soon as possible. Despite that fact, no up-to-date witness statement or schedule was produced until December.
In my judgment the defendant’s solicitors were entitled to press for an up-to-date witness statement and schedule, and to press for documents of that kind in the summer of 2000. They were entitled to know what the claimant was saying himself, not merely what he had reported to Dr Supramamian. It is right to say that on receipt of the doctor’s report in October the defendant’s insurers would know what the claimant had told him, but it is not unknown in my experience for a claimant to say that a doctor has misunderstood what he or she has said or has failed to record other significant matters that have been said. I entirely understand and sympathise therefore with Mr Curtis’ attitude that he wished to know what the claimant himself was saying.
In any event, it became clear in October that the doctor had to reconsider the question of how the accident occurred yet the trial date was looming in January 2001. I agree entirely with the Master that the claimant’s solicitors should and could have served an up-to-date witness statement from the claimant long before the time that they did. Once served, I have no doubt the video recording would have been served upon them.’
This case is cited by:
- Cited – Douglas -v- O’ Neill QBD (Bailii, [2011] EWHC 601 (QB))
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 . .
