AWARE

Keoghs Insight

Author

Ewen Gardiner

Ewen Gardiner

Partner

T:01204 677310

Challenges to surveillance evidence

AWARE15/09/2015
Fraud Aware Issue 4

Surveillance film is powerful evidence. There is nothing more persuasive for a court than film of a claimant engaged in activity that he or she says they cannot do.

Claimants have always been able to challenge what surveillance film shows in terms of their claimed disability and the effect on damages claimed particularly where the film is less clear about what it shows than might otherwise be the case.

In the last two years or so defendants have experienced claimants challenging surveillance film in terms of how it was obtained and whether it is admissible in the claim process. Surveillance film is always inconvenient for a claimant. That inconvenience can be removed by removing the evidence from the claim process.

There has been a well thought out counter surveillance strategy pursued by certain areas of the claimant community involving the use of an “expert witness” to examine and critique the defendant’s surveillance evidence. Use of this strategy appears to have proliferated by word of mouth as cases have developed, on the blog sites of certain claimants’ counsel and the self-promotion of an “expert witness” deployed in these cases.

Surveillance operatives

The role of a surveillance operative is not straightforward. The operative requires skill and experience, patience, nerve and discipline.

It is an obvious statement that the first objective of a surveillance operative is to avoid detection by the surveillance subject which would otherwise lead to compromise of the existing and subsequent surveillance operations.

Surveillance operatives are engaged in stationary observations and follow observations by car and by foot. At all times there is the unpredictability of the claimant’s actions and other multiple external factors that influence observations. Surveillance agents have to make many on the ground decisions during the course of a day about when to follow and when to film a claimant. It is not a realistic proposition that a surveillance subject can be filmed for every minute of every surveillance day.

All of this should be borne in mind in what follows.

Case example

In B-v- E the defendant and Aviva experienced a full on attempt by the claimant to deploy a counter surveillance strategy to exclude the defendant’s surveillance evidence and secure substantial damages that he was not entitled to.

The claim involved a low speed RTA in which liability was disputed. The claimant sustained a modest lower back injury and went on to develop a myriad of symptoms that were not readily capable of explanation. The parties instructed spinal, pain and psychiatric evidence. The claimant claimed that he could not work and served a schedule of loss approaching £2 million.

The defendant had obtained surveillance film of the claimant on several days as part of a wide ranging evidential investigation of his claim. Following service of surveillance evidence the defendants were served with the report of a surveillance “expert witness” challenging the evidence. Examples of the challenges and some of the responses are listed below:

Challenge: The surveillance operatives failed to park their car directly outside the claimant’s property so that all comings and goings from the claimant’s house could be monitored and filmed.

Response: The claimant lived on a short cul-de-sac and parking a surveillance vehicle on it outside the claimant’s house risked obvious compromise.

Challenge: The surveillance operatives used a vehicle tracking device to be able to follow the claimant’s vehicle. The claimant was not viewed leaving his house but was subsequently filmed in his vehicle.

Response: The surveillance agent did not (and does not) use vehicle tracking devices. The claimant lived on a cul-de-sac on a housing estate with two means of road access. Standard surveillance techniques determined the people and vehicles associated with the claimant’s address. A surveillance operative was positioned at each road entrance so that when the claimant’s vehicle passed a follow could ensue.

Challenge: Surveillance operatives filmed the claimant selectively, failing to record the claimant’s full movements and activities.

Response: The surveillance operatives have to do the best they can to film the claimant in variable circumstances and avoid detection (see above).

Challenge: The surveillance operatives “botched” opportunities to film the claimant. The surveillance operatives followed the claimant to an address but failed to film him leaving his car and entering the address. They were later able to film the claimant leaving the address and getting back into his car.

Response: The surveillance operative was following by car. He cannot readily anticipate where the claimant is going. When the claimant stops, the surveillance operative has to park his car and find a safe place to film from and avoid detection. There is a time taken to do this and what appears to be an obvious filming opportunity can be lost.

Challenge: The surveillance operative on occasions deliberately blurred or obscured the claimant’s facial features on film (it was suggested that the film did not show the claimant’s facial features contorted in pain).

Response: Filming was carried out from a vehicle hide across more than the width of a rugby pitch. This was at the extent of the range of the camera lens being used and some film distortion occurred.

Challenge: Surveillance operatives changed their logs to suit the film.

Response: Surveillance operatives write their logs (a narrative of the surveillance activity) as soon as they are able to do so. Occasional mistakes are made and a correction by striking through a word and replacing it with another is acceptable and understandable.

Challenge: There were differences in the edited film and the unedited film disclosed by the defendant.

Response: There were some differences in the edited film compared to the unedited film including that the editing process had distorted the date and time clock on the edited film which was corrected by the surveillance agent. However at all times the unedited film in its original format was available for inspection.

It can be appreciated that the claimant’s challenges involve serious allegations, including potentially a conspiracy against the claimant, which, if true, might affect the admissibility of some or all of the evidence. The allegations also suggest that the surveillance agent and its operatives have not acted within the law and that by implication there is the risk of reputational damage to the defendant and its insurer who has instructed them.

The claimant’s strategy to this claim resulted in the following course of conduct:

  • The claimant objected to the defendant having permission to rely on its surveillance evidence. The claimant served a 181 paragraph witness statement responding to issues in the surveillance film and the report of a surveillance “expert witness” which responded in detail to the surveillance evidence using a schedule analysis for each day of surveillance.
  • The defendant’s application to rely on the surveillance film was subsequently compromised by the defendant having permission to rely on its surveillance evidence but with permission for the claimant to rely on the report of his “expert witness” (but not as an expert witness) and the defendant to serve witness statements of its surveillance operatives. This evidential process was duly completed with the defendant having to serve substantial witness evidence from its surveillance operatives responding line by line to the claimant’s allegations.
  • Joint statements of the medical experts were completed with substantial disagreement of opinion.
  • The defendant pleaded fraud in its counter schedule and later an amended defence.
  • The parties attended a JSM at which the claimant offered to settle his claim for about 15% of his pleaded schedule, still a substantial six figure amount. This was rejected by the defendant.
  • The claimant applied for a separate trial of the surveillance evidence or alternatively for permission for the surveillance evidence to be fully considered at trial. The court rejected the application for a separate trial but extended the ELH of the full trial from five days to 10 days to accommodate the surveillance evidence issue and the number of witnesses involved.
  • The claimant made a series of further substantially reduced offers to settle his claim, all of which were rejected by the defendant.
  • A week prior to the listed trial in October 2014 the claimant indicated that he intended to accept the defendant’s Part 36 offer of £15,000 made in December 2010. The claimant indicated that his ATE Insurer was not prepared to fund a trial. As the Certificate of Recoverable Benefits had increased from £3,500 to £39,000 these are circumstances under Part 36.9 in which a party has to apply to accept a Part 36 offer out of time. At the hearing of the claimant’s application the claimant was permitted to accept the offer but his damages were reduced to nil under Rule 36.15(9).
  • The defendant has since successfully appealed the Certificate of Recoverable Benefit and recovered the full amount of the benefits repaid to the CRU.

Although surveillance evidence was not the only issue in this claim it can be seen that the claimant has used a strategy involving a blunt challenge to the defendant’s surveillance evidence and by doing so attempted to secure a damages outcome that the defendants will say he was not entitled to. It is clear that the claimant saw the potential exclusion of the surveillance evidence, or the challenge to it, as a means for forcing the defendant into settlement negotiations.

Expert evidence?

Rule 35.1 provides that “expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. The definition and role of an expert witness is considered in many cases prior to and since the CPR.

The same “expert” surveillance witness has appeared in multiple claims where the claimant has deployed a strategy to challenge the defendant’s surveillance evidence.

The “expert’s” claimed expertise is that he has previously conducted surveillance operations on behalf of defendant insurers and is otherwise involved in surveillance matters as a consultant. The “expert” also relies heavily on the decision in Samson v- Ali 2012 EWHC 4146(QB) when he was permitted to provide evidence for the claimant albeit without being confirmed as an expert witness in the case.

Defendants may continue to take the view that this “expert’s” credentials as an expert witness (or that he is otherwise a witness able to properly assist the court with evidence in this type of case) is open to serious challenge.

It is a matter of conjecture as to what influence the claimant’s “expert” evidence may have had with the court in B v E. It is a matter of fact that the claimant’s decision to run a counter surveillance evidence strategy, incorporating the “expert’s” evidence, caused a very substantial increase in the timescale and cost of this litigation prior to his eleventh hour capitulation.

Guidance

  • Defendants are experiencing claimants’ strategies to challenge surveillance film which remains important evidence with which to challenge fraudulent or exaggerated claims.
  • Aviva and other insurers have already addressed with their surveillance agents how surveillance operations must be risk assessed and managed consistent with legislative demands and in order to avoid reputational risk.
  • Defendants must take a decision whether surveillance evidence should be disclosed at all. Generally speaking, in situations where the film provides none or marginal assistance this evidence should not be relied on.
  • Defendants should invest the necessary amount of time to carefully assess and understand its surveillance evidence prior to disclosure and to obtain explanations from the surveillance agent where necessary.
  • Defendants are able to take decisions about how surveillance evidence is disclosed. Historically surveillance agents have provided their defendant clients with edited film, usually being all film taken showing the claimant. However this has always been film intended for the client’s consumption and not necessarily suitable for disclosure as a stand alone document. Defendants could choose to avoid serving edited film at all which will immediately remove the issue of any inconsistencies caused by the editing process. Alternatively, defendants could just give an explanation of any anomalies with the edited and / or unedited film at the time of disclosure.
  • Defendants may want to continue to oppose claimants’ attempts to introduce “expert surveillance witnesses” notwithstanding previous decisions i.e. the claimed expert witness is not so and the Judiciary has demonstrated that it is well able to assess surveillance evidence and apply the applicable law following submissions by counsel. Defendants should also vigorously oppose any situation which might lead to an initial trial of surveillance evidence becoming an issue in higher value claims.
  • Where a challenge is made to surveillance evidence the defendant will need to obtain witness statements from its surveillance operatives to respond to the claimant’s critique on a line by line basis.
  • Do not send your surveillance evidence to medical experts for comment until the surveillance evidence is admitted in the process to avoid compromise to your medical evidence.
  • Defendants will need to consider all the circumstances of their case in terms of adopting a settlement strategy that faces down the claimant’s financial demands based on a challenge to the admissibility of surveillance evidence.