Personal injury law

Admissibility of video evidence obtained by deception

Jones v University of Warwick: CA (Lord Chief Justice, Lords Justice Hale and Latham): 4 February 2003

Claimant solicitors have probably all had cases in which a video is produced showing their client standing on the doorstep of their home being interviewed by a bogus market researcher.

The questions usually involve a new product such as a washing powder, how often the claimant does the washing, where he goes to buy the washing power, how he gets there and whether he has to carry large bags of shopping all the way from the local supermarket up the 1:10 incline to the client's home.

However, it is rare that the 'market researcher' enters the claimant's home.

In the instance case, that is exactly what happened.

Video evidence was shot without the claimant's knowledge.

This, in the defendant's expert's view, showed that the claimant's injury to her right hand had settled to the extent that the function was now 'entirely satisfactory'.

The claimant sought to prevent the defendant calling such evidence because it had been obtained through deception, and trespass onto the claimant's property.

Previously, in Rall v Hume, CA: 8 February 2001, Lord Justice Potter had provided a judgment which set out in clear terms the Court of Appeal's attitude to the admissibility of video evidence post the Civil Procedure Rules (CPR).

In weighing up the overriding objective under CPR, the judge stated 'In principle, as it seems to me, the starting point in 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 which 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 defendants should be permitted to cross-examine the claimant and her medical advisers upon it, so long as this does not amount to trial by ambush.'

This decision, built on the approach adopted by Lord Justice Judge in Ford v G K R Construction Limited [2000] 1 WLR 1397, in which the judge stated that 'civil litigation is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage, and at the lowest practicable cost, so that they may make informed decisions about their prospects and the sensible conduct of their cases', and has resulted in the inadmissibility of video evidence becoming a very rare event indeed.

In Ms Jones's case, the Lord Chief Justice, in giving the lead and only judgment, had to balance the conflicting public interests of the truth versus the court's acquiescence in the unlawful acquisition of evidence.

The claimant added to the court's difficulty in making this decision by attempting to introduce article 8(1) of the Human Rights Act, alleging interference by a public authority with her right to privacy.

This argument was quickly dismissed by the court in that it was the insurance company which had interfered with the right to privacy and not the court.

There was, therefore, no public authority interference in this case.

In attempting to 'square the circle', the Lord Chief Justice relied on Lord Justice Potter's judgment in Rall to maintain the Court of Appeal's historical attitude towards admissibility of video evidence.

However, in doing so he commented on the importance of the court's management of civil proceedings concerning itself not only with the individual piece of litigation before it, but also with 'litigation as a whole'.

The court was concerned to ensure that what it clearly viewed as an underhand practice should not be encouraged.

That said, the conduct of the defendant's insurers was held to be not so outrageous that the defence should be struck out.

Instead, the penalty was one of costs in that, despite being successful in the appeal, the defendants were held responsible for the costs at the Appeal Court and of the previous hearings.

The judge who would eventually hear the trial was also encouraged to look to the 'defendants' conduct' when assessing the costs at the conclusion of the case.

Their judges were left with a very difficult decision.

As was stated, if a claimant is attempting to obtain money by exaggerating her condition, should evidence obtained through infringing her privacy be disallowed? They accepted that the decision 'is not a perfect reconciliation of the conflicting public interest'.

What we must glean is that video evidence is only likely to be suppressed if its late introduction amounts to a trial by ambush.

From recent case law, it is difficult to assess what amounts to an ambush as evidence disclosed a matter of weeks before trial is still permitted.

One suspects, therefore, that claimants will struggle to prevent such evidence being produced unless the circumstances in which it is obtained are 'outrageous' or it is disclosed in a matter of days before trial.

By Simon Allen, Russell, Jones & Walker, Sheffield