With the video surveillance industry booming, it seems that the number of claimants in personal injury cases under surveillance by defendant insurance companies, is on the increase.
What is arguably more interesting, however, is that it seems that in only a small proportion of such cases does the insurance company disclose the surveillance. The reason for this is obvious – the footage does not show the claimant able to do anything that they have previously claimed to be unable to do.
Since the Woolf reforms over a decade ago, litigation is now supposed to be a much more open process. There is little, it seems, that is not disclosable to the other party. In light of that, it seems strange, therefore, that the insurance company and their solicitors only have to disclose video footage of the claimant if they are seeking to rely upon it.
Given that such footage is only disclosed if it is felt that it in some way “incriminates” the claimant, and given that in the majority of cases such footage is never disclosed, by definition the footage in the majority of cases where video surveillance is undertaken must be favourable to the claimant.
From an evidential point of view, video surveillance goes to the claimant’s credibility. As things stand, the advantage is all one way. If insurance companies and their solicitors decide to undertake video surveillance of a claimant, then that surveillance should be disclosed, whatever it shows. It can be highly relevant to the claimant’s credibility and not to disclose it is contrary to natural justice.
The defendant should be required to serve their video surveillance as soon as it becomes available. In order to police the system, in both the Allocation Questionnaire and Pre-Trial Checklist, the defendant’s solicitor should be obliged to confirm whether video surveillance has been undertaken, the date that it was undertaken and the date that it was served upon the claimant.
As a solicitor specialising in cases involving chronic pain conditions, I receive a number of surveillance DVD’s each year. It is not uncommon that after watching such footage, it is still unclear as to exactly what it was about the claimant’s activities that was so different from what they had previously claimed to be able to do. The footage is usually accompanied by a medical report from the defendant’s medical expert, who is often clearly struggling to find something incriminating in the footage.
I recently had such a report from a defendant’s consultant claiming that “at 15:32 hours on the video the claimant appears to be able to turn his head to the left with greater ease than when I examined him”. It was interesting to note that the claimant was at least 50 metres away from the camera when the footage was taken and that the footage was blurred, having been taken through a car windscreen with the windscreen wipers on fast due to heavy rain!
I fear that there is a tendency to believe that just because a claimant has been subject to video surveillance, that they must be fraudsters. If all video surveillance, whatever it showed, was required to be disclosed, then this may go some way to overcoming this problem.