Surveillance Evidence in Aviation Claims

Surveillance evidence can be used by defendants to challenge personal injury claims they suspect to be fraudulent or exaggerated.

It can prove a powerful tool for exposing fundamentally dishonest or fraudulent claimants; however, its use is not without risk. Surveying a claimant, who may be vulnerable, poses an obvious threat to their privacy, and defendants seeking to commission footage must proceed with caution. Failure to take appropriate steps may have procedural consequences when the defendant seeks to rely on any evidence in court. Surveillance is not only risky but also an expensive option, so insurers may need compelling reasons and a degree of reassurance to justify obtaining such evidence.

This article aims to:

1. outline the legal rules governing surveillance evidence, 
2. explain how it can be used to defeat fraudulent claims, and 
3. highlight the main risks to be aware of for those seeking to deploy it.

What are the legal rules applying to surveillance evidence? 

The Civil Procedure Rules are silent as to surveillance evidence, so there is no specific section which deals with it.

Surveillance evidence falls into the broad definition of a “document” for the purposes of CPR 31.4. This means it is subject to the normal rules of disclosure and is privileged unless the defendant seeks to rely upon it (Douglas v O’Neill).¹ 

If the defendant does wish to disclose surveillance footage, they should generally disclose the entirety of the footage, rather than just a section of it, as this could be perceived as editing which could mislead the court (Hicks v Rostas & MIB).²

Once the defendant has disclosed the footage, the claimant is deemed to admit the authenticity of the footage unless they serve a notice that they wish it to be proved at trial (CPR 32.19). In these circumstances the defendant will be required to file and serve a witness statement from the person/agency who they instructed to film the claimant, testifying to the veracity of the material. 

Can the defendant maintain an air of secrecy? 

In litigation, the general rule is that parties should be open and reasonable with each other to ensure that parties are on an equal footing. Attempts to deceive or cheat your opposite number are  treated unfavourably by the Courts. However, applying this rule, (which is enshrined in the overriding objective ), to surveillance evidence seems paradoxical. A claimant who is put on notice that they will be surveyed is of course more likely to behave unnaturally. 

Courts have accepted that it is generally in the interests of justice for defendants to obtain and rely on surveillance evidence, despite its covert nature. They have also acknowledged that defendants may need to act with some degree of secrecy in these circumstances.

For example, the Courts have offered protection to defendants by allowing recovery of surveillance costs which were not set out in a costs budget on the basis that there is a good reason for their doing so, acknowledging that “some degree of cunning is required in the administration of surveillance” (Gemma Purser v Robert Hibbs & Anor)³ at paragraph 17(D)). The position recently adopted in Yelland v Space Engineering Services Ltd⁴ is that defendants are permitted to seek to vary cost budgets retrospectively, because a claimant should not be absolved of paying for the costs of obtaining surveillance on the basis that it was not referenced in the costs budget, which would clearly alert them to the prospect of surveillance. Defendants are also excused from including surveillance in their standard disclosure list. 

In terms of timing, defendants can disclose surveillance even after a judgment has been handed down on appeal. However, a high threshold applies to any retrial being ordered. A judge will only allow the appeal if the claimant admits fraud, or if the evidence is incontrovertible. Otherwise, the allegation of fraud will need to be decided before the established judgment can be set aside. 

Avoiding a “Trial by Ambush”

Notwithstanding the above, the defendant must carefully balance the need for secrecy with fairness. They must ensure that the surveillance does not amount to a "trial by ambush." In Douglas v O’Neill⁵, it was held that an "ambush case" is one where the claimant is not given a fair opportunity to address the evidence. The court will consider the timing and circumstances of the disclosure to determine if it was deliberately delayed to achieve surprise. This test is conducted objectively. Once the claimant has committed to their allegations and the nature of their injuries/symptoms, the defendant is expected to commission the material promptly and disclose the surveillance evidence without undue delay.

Failure to disclose surveillance evidence may result in the evidence being excluded, or the defendant being ordered to pay the claimant’s costs. Rall v Hurne⁶ confirmed that there is a presumption that surveillance evidence should be admitted unless it is disclosed so late as to prejudice the fairness of the final hearing. However, the issue of timing appears to be decided upon a case-by-case basis, with Uttley v Uttley⁷ confirming that it was reasonable for a defendant to withhold surveillance evidence until after the claimant had served a full updated witness statement and schedule of loss. If the delay is caused by the claimant dragging their heels with their own evidence, the court is likely to admit the evidence, whereas any delay which is due to the defendant’s apathy or willingness to take unfair advantage will be considered less favourably (Douglas v O’Neill⁸). The question is whether the timing of disclosure places undue pressure on the claimant’s representatives – have they had an opportunity to formulate a response? Have the claimant’s experts had ample time to watch the footage before the trial? To minimise risk, defendants should obtain surveillance evidence as soon as possible and disclose it without delay, or else be prepared to justify their actions to the court.

Privacy Issues 

One consideration at first glance is the claimant’s right to a private and family life pursuant to Article 8(1) of the European Convention on Human Rights. In Jones v University of Warwick⁹, the defendant relied on two pieces of video evidence obtained by an agent who had filmed inside the claimant’s home by pretending to be a market researcher, thus committing trespass. The evidence was excluded by the District Judge at first instance but admitted by the Court of Appeal on the basis that the defendant’s insurer was not a public authority, meaning Article 8 did not apply, and there was a clear public interest in revealing the evidence. Article 8(2) ECHR clearly states that there shall be “no interference by a public authority,” meaning it is not applicable to insurers. However, this is by no means a loophole for insurers to exploit, as the defendant in this case was forced to pay costs on an indemnity basis (of the admissibility proceedings only) due to their improper conduct. 

There are also enhanced data protection rules in place today under the Data Protection Act 2018 (“DPA”). However, the DPA¹⁰ contains an exception for personal data processed for exercising or defending legal rights. There is therefore a balancing act between the courts administering justice and finding the truth – compared to protecting someone’s privacy.

Fundamental Dishonesty 

While the courts are tolerant to a degree of exaggeration from claimants in injury cases, they also accept that claimants have good days and bad days. However, if surveillance footage shows that the claim is grossly exaggerated, the defendant may be able to utilise the evidence to mount an argument of fundamental dishonesty. The two regimes to do this are through s 57 of the Criminal Justice and Courts Act 2015 or by setting aside Qualified One-Way Costs Shifting (QOCS) protection through CPR 44.16.

To successfully prove fundamental dishonesty under s 57, defendants will need to demonstrate that the claimant has been dishonest on the balance of probabilities and that their dishonesty was “fundamental” in that it went to the root or a substantial part of the claim. If the Court does make a finding of fundamental dishonesty, they must dismiss all of the primary claim, unless they are satisfied that the claimant would suffer substantial injustice. This will require the Court to consider various factors, including the impact that the claim being dismissed would have on the claimant’s life and the level of their genuine disability. 

To find fundamental dishonesty under s 57, there are two tests:

1. the subjective test: actual state of individual’s knowledge or belief as to the facts (belief does not have to be reasonable but must be genuinely held); and
2. the objective test: was the conduct honest or dishonest when applying the standards of ordinary decent people?

There is no requirement for the claimant to have appreciated that what they have done is, by objective standards, dishonest.

If a defendant’s s 57 application is successful, under s 57(5) the claimant will only be ordered to pay the costs over and above the extent of damages that would otherwise have been awarded.

CPR 44.16 enables the court to set aside QOCS protection on claims deemed fundamentally dishonest. This is purely a cost sanction enabling costs recovery where QOCS would otherwise apply. Where an application under CPR 44.16 is successful, then a defendant is entitled to enforce a costs order to the full extent of the costs awarded.

Fundamental dishonesty is by no means an easy hurdle to overcome. Defendants looking to rely upon fundamental dishonesty will need to be armed with an array of evidence exposing inconsistencies in the claimant’s case and may seek to utilise Part 18 questions and/or specific disclosure applications as a means of gathering materials to convey the claimant’s dishonesty. Surveillance evidence alone may not be sufficient, therefore to build a solid case, the defendant’s insurers will need to be willing to incur significant costs and take a risk on running the argument. For these reasons, fundamental dishonesty arguments are more likely to be used in high value cases.

When used correctly, surveillance can have a powerful impact. In Williams-Henry v Associated British Ports¹¹, surveillance evidence was used to contradict a claimant who alleged symptoms of intolerance to heat, sensitivity to noise and inability to consume alcohol. The claimant concerned was filmed holidaying on various European party islands, drinking alcohol and attending live music concerts. As a result, the claim was dismissed under s 57 of the Criminal Justice and Courts Act 2015. In Avdyli v J O’Doherty Haulage Ltd the claimant exaggerated her injuries and claimed she was unable to walk without crutches or work. Surveillance footage and social media evidence showed the claimant engaging in activities inconsistent with her claims, which led to a finding of fundamental dishonesty and that there was no ‘substantial injustice’ in dismissing the claim.

The reality is that many claimants will discontinue or settle their claims as a result of damning footage being disclosed. This obscures the true effectiveness of surveillance as a tool for defendants.

What are the risks? 

Aside from the risks already discussed, defendants should also consider the following issues when deciding whether surveillance evidence is a suitable option:

• Part 36 Offers: Defendants with Part 36 offers left on the table when disclosing surveillance evidence should be wary of the risk that they may still be required to pay the claimant’s pre-offer costs, unless they can demonstrate to the court that the claimant’s deceit extended into the pre-Part 36 offer period. To protect themselves against this risk, defendants should seek to withdraw any open offers before alerting the claimant to the evidence.
• QOCS: as previously mentioned, QOCS protection can be set aside if fundamental dishonesty is proven, which is appealing for defendants looking to avoid paying the claimant’s costs. However, the Courts view arguments of fundamental dishonesty as belonging at trial and will only hear such arguments in respect of settled cases in “exceptional circumstances.” Settling a claim is seen as surrendering the right to pursue fundamental dishonesty, and a defendant will not be permitted to resurrect it later and attempt to disapply QOCS.¹² However, if the claimant discontinues their claim, it may be possible for a defendant to recover their costs on the grounds of fundamental dishonesty. This was demonstrated in the case of Gosling v Hailo¹³, where surveillance evidence revealed exaggeration of a knee injury. Judge Maloney held that “a claimant who has engaged in such serious and fundamental dishonesty cannot complain if he is required to pay the full amount of the defendant’s costs when he discontinues after his dishonesty has been exposed” (para 60).
• Practical Issues: Surveillance operatives may be instructed on days when the claimant does not leave their house, thereby wasting costs. To maximize the potential of surveillance evidence, defendants should alert insurers that operatives will need to survey the claimant for more than one day.
• Pre-Warning: Claimants are likely to be pre-warned by their solicitors that they may be surveyed on the days they attend examinations by medical experts or attend any hearing. Surveying the claimant on these days alone may be a fruitless exercise.
• Limited Opportunities: Depending on the claimant’s lifestyle and habits, there may be limited surveillance opportunities available. It is good practice to monitor claimants’ social media accounts to gain insight into any potential surveillance opportunities before commissioning any footage.
• Counter-Evidence: Surveillance evidence may not be all that it seems. If the court permits the surveillance evidence, the claimant will have the opportunity to rely on their own evidence in retaliation, such as witness statements from other individuals in the footage or an expert counter-surveillance operative. Defendants should be mindful of this potentially interfering with their arguments.

Overall, surveillance can sometimes be a powerful tool for launching fundamental dishonesty arguments or pressuring claimants to settle or discontinue their claims. However, defendants must remain mindful of the practical and ethical considerations involved, including the timing of disclosure and the necessity of acting with a degree of secrecy, without resorting to a trial by ambush.

¹[2011] EWHC 601 (QB)

²[2017] EWHC 1344 (QB)

³[2015] EWHC 1792 (QB)

⁴[2023] EWHC 2823 (KB)

⁵[2011] EWHC 601 (QB)

⁶[2001] 3 AER 248

⁷[2002] PIQR P 123

⁸[2011] EWHC 601 (QB)

⁹[2003] EWCA Civ 151

¹⁰at Schedule 2, para 5(3)

¹¹[2024] EWHC 806 (KB)

¹²Costs &  Funding  following  the  Civil  Justice Reforms: Questions & Answers (10th Ed.)

¹³[2014] 4 WLUK 770