Michele Perrin v Jackie Walsh - Neutral Citation Number [2025] EWHC 2536 (KB)

The central issue before the Court in this application is how the surveillance evidence has been obtained, processed and disclosed and whether there are such significant flaws in the processes adopted by the Defendant’s agents that the Court should refuse permission for the Defendant to rely on such evidence.

The law relating to surveillance evidence and the exclusion of such evidence- 9

I am told by counsel that they have not been able to identify any authorities that specifically deal with the issues raised in this case. The Court is therefore required to consider some of the authorities relating to surveillance evidence. - 10

The use of surveillance evidence within personal injury litigation was recognised in Douglas v O’Neill [2011] EWHC 601, where HHJ Collender QC, sitting as a Judge of the High Court, stated at [42]:

“Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a court that may demonstrate that a claimant's evidence is false. Such evidence may show inconsistencies that are inexplicable by a claimant. Its production may lead to the end in one way or another to a claim or a part of a claim. It may be a powerful tool in preventing the successful advancement of a case which is based on untruth.” - 11

Whilst a potentially powerful weapon, the Court has the power to prevent the Defendant from relying on such evidence. The power to control and exclude evidence is found in CPR 32.1:

“(1)

The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible.” - 12

The issue of fairness, in the context of ambush, was considered in Rall v Hume [2001] EWCA Civ 146, where Potter LJ said, at [19]:

“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.” - 13

HHJ Collender QC considered the issue of ambush and said, at [46] to [47] of Douglas:

“46.

In my judgment the issue of ambush comes to this – are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the Defendant from relying upon it.

47.

The latter type of order would be one that used the penalty of preventing the use of relevant evidence against a defendant for failing to act in a manner consistent with effective and fair case management.” - 14

At a previous hearing, I referred myself to the decision of Jones v University of Warwick [2003] EWCA Civ 151, a case in which surveillance evidence was obtained by gaining access to the claimant’s home by deception. Lord Woolf LCJ cited the judgment of HHJ Harris QC, sitting as a Deputy High Court Judge, and went on to uphold his decision. Paragraph 15 of Lord Woolf’s judgment reads as follows:

“[HHJ Harris QC] continued by saying that:

‘The primary question for the court is not whether or not to give approval to the method whereby evidence was obtained. It is whether justice and fairness require that this highly material evidence, which contradicts the evidence which she has given to others, should be put to her before the trial judge to enable him to reach a sound conclusion about the true extent of any disability. True, the claimant was herself deceived but there is strong prima facie evidence that she herself is deceiving or misleading the defendants to enrich herself thereby. It is not easy for the defendants to protect themselves against exaggerated claims. Anyone with much experience of personal injury litigation will know that the defendants and their insurers are frequently faced by claimants who suggest that their disabilities are far greater than they are, and large sums of money may be unjustifiably sought. Though such people are rarely, if ever prosecuted, in many cases what they do or seek to do must amount to the crime of obtaining property or pecuniary advantage by deception. In these circumstances I do not believe that the courts should be too astute to prevent effective investigation by the defendants of claimants against them. Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified, dishonest and fraudulent claims. In the instant case I have no doubt that the latter considerations do and should outweigh the former.” - 15

Whilst I may not entirely agree with HHJ Harris QC that defendants and insurers are “frequently faced by claimants who suggest that their disabilities are far greater than they are”, there is a clear public interest in discouraging and unearthing cases where such fraudulent claims are advanced. - 16

The Court of Appeal went on to make clear that there is public concern in ensuring that the law is observed and that the types of practice adopted in that case did not go uncensured. Lord Woolf went on to say at [28]:

“That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge's decision not to exclude the evidence.” - 17

One must understand the limitations of surveillance evidence, however. As was stated in Cullen v Henniker-Major [2024] EWHC 2809 (KB):

“…I accept that if something is shown on the footage, that is determinative of it happening. However I do not accept that the absence of something on the footage is determinative of it not happening.” - 18

I too would accept that proposition. I would also add that the value of surveillance evidence is in what is seen, not what might have been seen on another day or at another time or place. One must be particularly cautious when, as is alleged in the present case and in Cullen, the footage obtained appears incomplete and where there are gaps in what was recorded. Surveillance footage cannot definitively show what the subject is feeling or how much pain they are in. It is merely a snapshot in time. I also accept that an individual’s condition may vary throughout the course of a day, week, month or year, and maybe in response to activity that had occurred prior to the obtaining of such footage. It is therefore only a piece of evidence in the jigsaw. Medical expert witnesses, like the Court, must understand the utility and limitations of such evidence and thus the weight that it should be given. Questions of honesty, dishonesty and exaggeration are matters for the trial judge, not for medical expert witnesses to decide upon, noting that the role of medical expert witnesses is to assist the Court. - 19

As I stated within the ex tempore judgment that I gave at a previous hearing of this case, the Court has a power to restrict evidence and, in particular, refuse permission for the Defendant to rely on surveillance evidence, where it is appropriate to do so. This is an exercise of judicial discretion having made an evaluative judgment considering the competing public interests outlined by the Court in Jones. Having reached that conclusion, the parties agree that the Court needs to consider the probative value of the surveillance evidence and how that is weighed against the prejudice created by the failings alleged by the Claimant. - 23

The Claimant was unable to point to any examples where it could be said that there is any evidence that the video footage itself has been tampered with to show something that did not in reality happen. Whilst Ms Ashworth did not feel able to make a concession that the Claimant accepts that everything depicted in the footage indeed happened, there was no positive averment to the contrary. - 24

There can be no real dispute in this case that the surveillance evidence is of probative value as to the Claimant’s level of functioning and disability and thus to central disputed issues in the case. The Claimant’s claim is based upon her having suffered significant injuries that continue to have a disabling effect on her. As set out above, on the face of it, the surveillance evidence calls for an explanation by the Claimant. Like the situation in Rall, it is the contention of the Defendant that the actions portrayed exhibit an overall level and freedom of activity which is inconsistent with the overall picture presented in the medical reports, medical records and the witness statement of Claimant. Subject to the limitations that generally apply to surveillance evidence, the trial judge would be assisted by seeing such footage. - 45

In my judgment, it is not for the surveillance operatives to provide commentary that could be seen to be usurping the role of the trial judge. Whether an item being carried is heavy or large is something that the surveillance operatives will be no better able to comment on than the trial judge; it will be a finding that can be made from watching the footage. Where there is knowledge unique to the surveillance operative and which is not immediately apparent from the footage, such as a short distance having been driven or the like, it is appropriate for the surveillance operatives to comment to give the appropriate context as to what the footage shows. That knowledge is unique to the surveillance operatives and may not be readily ascertainable to someone simply watching the footage given that the footage is not being constantly recorded. It is not clear to me whether there has been selective editing out of certain aspects of commentary as I have not seen all the footage or listened to all the commentary available. As I have referred to above, some commentary has been edited out that was arguably helpful to the Defendant. There do appear to be instances where commentary that the Claimant might have wanted in the footage has been edited out. I am not convinced that there has been a deliberate targeting of that commentary, and in any event, it has been served in the unedited footage.

I accept that the relevance of any piece of surveillance may not be known at the time that it is obtained or at the time it is edited. The parties may disagree as to the relevance of any piece of surveillance. That is why the unedited footage should be disclosed and then the parties should work collaboratively to provide a single set of agreed edited footage that can be provided to the witnesses and the court. Fundamentally, incorrect editing, whether deliberate or erroneous, can be remedied. - 56

I can understand how there would be a risk of compromise of a covert surveillance operative obtaining footage in a supermarket setting where the subject of the surveillance is moving slowly through the supermarket for the reasons that Mr Finnigan and Mr Wittering explain. I can also appreciate that this risk would be heightened where close surveillance was obtained around one shopping outlet, followed by a further one, particularly where the subject is accompanied by another individual throughout. I can therefore see why constant surveillance would not be undertaken and I reject the suggestion by the Claimant’s Solicitor that, pursuant to the overriding objective, surveillance undertaken should be constant; that is unrealistic in a supermarket setting in circumstances such as these. - 58

In my judgment, I cannot see what the surveillance operative would have to gain by stopping the recording for a short period of time whilst the mobility scooter is loaded into the rear of the vehicle. I reach that view because the recording may have demonstrated that this was a difficult manoeuvre for the Claimant but equally, she may have been seen to lift the scooter with ease. The surveillance operative would not have known that before the event. The recording of the lifting of the scooter into the rear of the car, whether difficult or not, may have assisted the Defendant just as much as the Claimant. Furthermore, I accept that surveillance operatives would have to be cautious about being detected, not only by the Claimant but also by members of the public who may be milling around. I accordingly reject Ms Ashworth’s submission that “the clear inference as to why Mr Finnigan did not tape this or has deleted it, is that this would be of assistance to the Claimant”. I also reject the submission that a misleading impression is created. There is no suggestion that the Claimant did not lift the scooter into the vehicle.

Retention of SD cards

I further note the decision in Noble v Owens [2011] EWHC 534 (QB), to which I was referred, where Field J concluded that the unavailability of the original footage on the SD card(s) used was not a bar to the defendant relying on the surveillance evidence and, in that case, the procedure adopted of transferring the footage to DVDs was adopted because SD cards were considered an “unstable medium compared with DVDs”. - 72

However, three points arise:

i)

I have already outlined above that there are inherent limitations with surveillance evidence and a need to understand that surveillance evidence is only evidence of what it shows. The absence of surveillance does not evidence a negative.

ii)

There will always be concern in cases where surveillance has been obtained as to whether there was possibly more footage obtained or that more footage could or should have been obtained, irrespective of the system of storage and retention. The fact that SD cards have been wiped does not alter that concern. To put matters another way, even if the SD cards were available and, say, 10 were provided to the Claimant so that the Claimant could have them forensically examined, there would likely still be concern on the part of the Claimant that there were more SD cards that had not been provided. Equally, if TSG or the Defendant wanted to dishonestly (and entirely improperly) withhold evidence that would be helpful to the Claimant, it could simply have destroyed an SD card or denied the existence of the relevant SD card. It would present an insurmountable hurdle for defendants to definitively prove that no other footage exists as that would require a defendant to prove a negative. I do accept the proposition, however, that in most cases the conduct of those obtaining surveillance, or relying upon it, may not be questioned like it has been in this case. The issue in this case is that there has been poor conduct on the part of TSG, which creates an unusual situation where the Court must be more careful about accepting the normal starting point that those entrusted with such work have behaved properly and put evidence before the court that is entirely truthful.

iii)

There is no evidence before the Court that, had the SD cards been available, the Claimant would have been able to carry out any further forensic investigations than could now be carried out by analysing TSG’s servers or storage systems. - 73

For the above reasons, in my judgment, the wiping of the raw data from the SD cards was neither wrong nor improper and, subject to being satisfied that TSG/the Defendant has not deliberately withheld (or manipulated) evidence from the Court, I find that this strand of the Claimant’s concerns takes her argument no further forward.

Should the surveillance evidence be excluded?

I take as the starting point, as Potter LJ put it in Rall, that in any application of this kind, 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 claimant and her medical advisors upon it. As Lord Woolf indicated in Jones, that is just the starting point. - 76

Similar to what was said by Lord Woolf in Jones, I am not satisfied that the failings identified by the Claimant, as serious as they are, are such that I should exclude what is otherwise clearly probative evidential material. The conduct of the Defendant’s agents and insurers is not so outrageous that the Defence should be struck out, nor does the Claimant suggest this to be the case. This case will be going to trial, and it would be artificial and undesirable for the evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. In my judgment, it would be manifestly unfair to the Defendant to deprive them of the ability to place the surveillance material before the trial judge. The issue of the weight that the trial judge gives such evidence is an issue for the trial judge. It will be open to the Claimant to cross-examine the surveillance operatives and others form TSG and to submit that the evidence is unreliable for the reasons that have been advanced before me. However, those reasons are not such, in my judgment, that I should order that such evidence should be completely excluded from consideration. - 77

The Claimant has sufficient time to deal with the surveillance evidence and will have an opportunity to provide evidence in response to the surveillance evidence. The experts will have an opportunity to consider and provide comments on the evidence. In all the circumstances of the case, I am content that the Claimant has a fair opportunity to deal with the surveillance evidence. I reject the submission that “the surveillance evidence and the circumstances surrounding its creation and manipulation are such that the Claimant does not have a fair opportunity to deal with the surveillance and could not have a fair trial were it to be admitted”. - 81

As Lord Woolf said in Jones, at [30]:

“Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes...In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant’s control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective and taking into account the wider interests of the administration of justice, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.”