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.
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.
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:
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.
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.
Ewen Gardiner
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