Tricky Tactics: Judge allows surveillance evidence despite delay

March 12, 2020


2 min read

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What's going on here?

A High Court judge has criticised a defendant who delayed submitting surveillance footage of the claimant until weeks before a trial was due to begin. The defendant argued the evidence was extremely significant and should be admitted in spite of any possible procedural unfairness. Ultimately, the judge allowed the evidence to be heard at trial because the hearing date of the case had been adjourned, allowing the claimant time to respond.

What does this mean?

In England and Wales, how parties must conduct themselves is governed by the Civil Procedure Rules (CPR). The rules on disclosing evidence encourage parties to disclose the information that comprises their case prior to the trial commencing. 

In this case, the claimant sought a significant amount of compensation for a work accident. In the build-up to the trial, the claimant informed medical experts that she was still unable to work. The defendant later acquired surveillance footage showing her walking normally, and even working as a wedding planner, contradicting the claimant’s statements. However, the defendant did not immediately disclose the footage, instead waiting until later in the proceedings in what is known as an “ambush tactic”.  

The defendant argued that the significance of the evidence outweighed any concerns regarding its late disclosure. The trial was adjourned for the defendant to appeal against the evidence being ruled inadmissible.

What's the big picture effect?

The main issues raised by the conduct of the defendant are whether delays in revealing secret surveillance of claimants as evidence is acceptable and whether the court should automatically refuse to hear evidence produced late. In this case, the judge criticised the approach of the defendant and emphasised the procedural unfairness caused by submitting evidence to the court late. He disavowed the approach of the defendant, who was said to have taken a calculated risk by assuming that the importance of the surveillance footage to the case meant that it was always going to be admitted, irrespective of procedural fairness.

The judge recognised that other courts have in the past ruled against parties who have made deliberate attempts to surprise the other side. He also rejected the argument of the defendant that the evidence was impossible to ignore now that “the genie was out of the bottle”. Nevertheless, he allowed the evidence to be admitted because the trial had already been adjourned. The delay meant that the claimant now had sufficient time to deal with the surveillance evidence ahead of the re-fixed trial. The judge emphasised that this was an exceptional situation, and it follows that courts will remain reluctant to admit delayed evidence  in cases where the trial date remains fixed.

Now that this evidence is admissible, at trial the claimant can expect to have to defend that they did not act in a “fundamentally dishonest” manner. If this is proven, their primary claim for damages may be dismissed and they could face potential criminal proceedings under section 57 of the Criminal Justice and Courts Act 2015.

Report written by Jasmine Kobewka

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