AMBUSH TACTICS? LATE APPLICATION TO RELY ON SURVEILLANCE EVIDENCE GRANTED BUT AT HIGH COST.
An application to rely upon surveillance evidence made within 2 weeks of the fixed trial period was eventually granted – but only after the trial date had been vacated; an order for summarily assessed costs of nearly £40,000 was made; with a further cancellation fee of £11,700 to be determined upon written submissions and finally the additional cost of the experts reporting upon the footage and discussing it with opponents all payable by the Defendant on the indemnity basis.
In a recent decision of Foskett J in the Queen’s Bench Division of the High Court, in the matter of Hayden v Maidstone & Tunbridge Wells NHS Trust  EWHC 1121(QB), the Defendant was roundly criticised for the delay in taking the decision to obtain surveillance evidence. Once that decision was taken, the delay in procuring and then disclosing it was subject to somewhat less criticism and indeed the Defendant’s Solicitors were found not to have acted improperly or in bad faith.
The case involved an employer’s liability claim for personal injury sustained at work in a case where liability was admitted and in which the Claimant put the value of the claim at around £1.5 million. In the early part of 2015, the Defendant had obtained medical evidence which was suggestive of the Claimant exaggerating her claim. However, it appeared that the first time surveillance evidence was seriously considered was in January 2016, at which time it was decided to await the outcome of a joint settlement meeting at the end of that month. As early as November 2014 the case had been subject to directions through to trial, with the trial window from the beginning of February to the beginning of May 2016. The trial date was subsequently fixed for the middle of April 2016.
When the JSM failed to lead to a settlement, surveillance was undertaken in February 2016. The Defendant’s representatives felt that the evidence obtained was inconclusive and therefore a further day of surveillance was undertaken in March. No mention was made in the Directions Questionnaire, submitted the day after the surveillance had been undertaken, of an intention to rely upon such evidence although a somewhat vague indication that further directions might be required was included. An edited version of the footage was received on 24 March (Maundy Thursday) and was sent to the Defendant’s experts and the Claimant’s Solicitors that day. The footage was sent via registered post and given the intervening Easter break, not received by the Claimant’s Solicitors until 29 March.
The Defendant solicitors made an application the following day suggesting that their application be heard on the first day of trial. On 5 April, some 4 working days prior to the trial, the Defendant served its expert’s comments on the footage, which were supportive of the Defendant’s case. The Claimant issued an application for the Defendant’s application to be heard prior to the trial rather than at its first day and, as the Judge in charge of the Queen’s Bench list, Foskett J agreed that the application should be heard earlier. Therefore, the matter was first heard just 3 days prior to the date listed for the trial and at that point the Claimant’s representatives were somewhat unsure as to the approach which they wished to adopt. The Judge felt that this was a reasonable stance and therefore vacated the trial date and adjourned the application hearing to 29 April.
The Judge reviewed the law and practice in relation to this issue at some length. He noted that such footage was a document for the purposes of the CPR and that it was privileged, but that it would usually be admissible provided disclosure did not amount to trial by ambush. The authorities suggested that provided the opponent had the opportunity to deal with the evidence then it would not be treated as trial by ambush. An objective test was required as to the real effect of the late application.
The Judge was sympathetic with the Claimant’s view that this was an attempt at trial by ambush and was critical of the lack of detail in the Defendant’s application notice and supporting witness statement as to the chronology of events. A second witness statement, submitted prior to the hearing on 29 April, clarified what had gone on and it was on the basis of that witness statement that the Judge accepted that there was no element of acting improperly or bad faith on the part of the Defendant’s Solicitors. They had taken over conduct from other Solicitors relatively late in the day. As noted earlier in this article, it was the delay between obtaining medical evidence suggestive of potential exaggeration by the Claimant and obtaining the surveillance evidence which caused the Judge most concern.
Interestingly, it was the Judge’s view that if the Defendant’s application had been made on the first day of trial (as intended by them) it was unlikely that the application would have succeeded. Further, he had a strong dislike for the Defendant’s argument that because the surveillance evidence had now been seen by the Defendant’s experts and the Claimant’s representatives that the “genie was out of the bottle” and therefore the evidence should be allowed in. It was only with considerable misgivings that the Judge felt that it was overall in the interests of justice, now that the trial date had been vacated and there was time for the evidence to be considered, that the footage would be received in evidence.
The Judge did not accede to the Defendant’s request that the question of costs be deferred to the trial Judge. He felt that this was a clear issue and that the Defendant would have to pay the costs of the vacated trial on the indemnity basis. He found that there was objectively unreasonable litigation behaviour. He also found that the 2 hearing should be subject to costs in favour of the Claimant, again on the indemnity basis. Also all of the costs involved in the experts considering the evidence, reporting upon it and discussing it with like experts on the other side would all have to be paid by the Defendant on the indemnity basis.
With only some fairly light trimming on the claims for costs, he allowed £15,000 inclusive of VAT for the first hearing on 8 April, £20,000 inclusive of VAT for the hearing on 29 April and 3 sets of experts cancellation fees (£1800, £2400 and £667.20) due to the vacated trial. A hefty cancellation fee for one of the experts in the sum of £11,700 was deferred off to be adjudicated upon following written submissions.
It may be that in a case with a potential value of one half million pounds that such adverse costs were sustainable by the Defendant, but on any view the delayed decision to seek surveillance evidence proved very costly. The Judge also noted that the same issue had arisen on another Queen’s Bench case on the same day (8thApril) as this matter and he wondered whether this was becoming a general issue once again. He reminisced about the pre-CPR days when trial by ambush was far from uncommon and clearly hoped that by setting out the relevant law in such detail (and expressly without trying to give absolute guidance which would be the province of a higher court) he might give some assistance as to the approach to be adopted more generally.