A High Court judge has criticised a defendant who sat on surveillance footage of the claimant until weeks before the trial was due to begin.

Mr Justice Birss said in Grant v Newport City Council that parties were not free to deploy evidence at any stage without heed to the procedural consequences.

But in what the judge accepted to be a highly unusual situation, he said the evidence could be used nonetheless at trial, because the original hearing date had been adjourned and there was no longer any practical reason to disregard the footage.

The case raises issues not just about the application of secret surveillance of claimants, but also whether delays in revealing such evidence are acceptable, and whether the court should automatically refuse to hear evidence produced late.

The court heard the defendant had applied to use video surveillance evidence collected in relation to a personal injury claim worth £310,000 from former council worker Jacqueline Grant. This application was rejected on first instance, resulting in this appeal before the High Court.

The defendant submitted the evidence in the case was very significant, showing exaggeration by the claimant. The two-day trial date was set for July 2018, but the court heard that footage taken the previous February contradicted what the claimant had said to medical experts about her mobility. In April 2018, after the final schedule of losses had been served with the claim, the defendant took further video footage of the claimant, which showed her working as a wedding planner.

It was not until mid-May that the defendant’s solicitors disclosed all the surveillance evidence, but even then no application was immediately made to the court to have it admitted. This only came in mid-June, with the medical experts having already viewed the evidence collected.

Birss declined to accept the defendant’s argument that this evidence was effectively the ‘genie out of the bottle’, as the experts who would give evidence at trial had looked at the footage.

The judge said other courts had already ruled against parties thought to have made a deliberate attempt to ‘surprise’ the claimant, and stated this type of evidence could only be admitted if it could be done fairly.

Birss added: ‘What has happened here is that last year the defendant approached the surveillance evidence as a whole as if the matter was not urgent and as if this evidence, given its importance, was always going to be admitted irrespective of procedural fairness to the claimant. That is not the right approach.

‘The defendant took a calculated risk, balancing the risks and consequences of litigation… having taken [that risk] and then moved expeditiously, the court’s sympathy for the defendant, even recognising the importance of this evidence, is inevitably reduced.’

But in a twist, the judge declined to throw out the evidence altogether, even if he found the lower court had been entitled to rule there was no good reason for the disclosure delay.

The trial was in fact adjourned in any case, so Birss said the procedural unfairness he identified could now be ‘wholly mitigated’. He said that because of the delay, the claimant now had enough opportunity to deal with the surveillance evidence with no hardship to her. The evidence was therefore admitted ahead of a re-fixed trial, with the defendant – despite in reality winning its appeal – ordered to pay costs.

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