Khan (Avrangzeb) v Armaguard Ltd

Pre-trial disclosure is strongly favoured in personal injury litigation. An allegation that a claimant is malingering or grossly exaggerating symptoms may justify withholding a video under Ord. 38 r. 5, but it is only a threshold consideration. The court must exercise its discretion having regard to the interests of justice, early settlement, costs, legal aid, efficient case management and the risk of unfair surprise at trial. Non-disclosure should therefore be very rare. Even where malingering is alleged, disclosure will almost always be appropriate. The risk that the claimant may tailor evidence is weakest where the film is said clearly to prove malingering, because the opportunity to adapt evidence is then most limited.

The claimant sought damages from his employers for injuries sustained as a passenger in a security van which overturned in a road traffic accident. Primary liability was admitted, subject to a seat-belt issue. The claimant alleged serious physical and psychological injuries, loss of earning capacity and substantial symptoms. The defendants’ medical experts considered him a malingerer and the defendants obtained a video which they said was inconsistent with his case.

The District Judge refused an application under Ord. 38 r. 5 to dispense with inspection of the video. Mr Justice Holland dismissed the defendants’ appeal. The defendants appealed to the Court of Appeal, arguing that the alleged lack of bona fides and risk of tailored evidence justified non-disclosure. The central issue was how the discretion under Ord. 38 r. 5 should be exercised in the modern, open approach to civil litigation.

The Court of Appeal unanimously dismissed the appeal, with costs, and ordered legal aid taxation of the claimant’s costs.

1. Starting point. The interests of justice generally favour early disclosure of relevant material. The modern practice of conducting litigation with the cards on the table, together with the exchange of witness statements and automatic discovery in personal injury cases, reinforces that approach.
2. Scope of the discretion. A clear and unequivocal allegation that a claimant is malingering or grossly exaggerating symptoms is a ground on which the court may exercise its discretion against disclosure. It is not an automatic direction against disclosure. A convincing case is required before the ordinary obligation is displaced.
3. Relevant considerations. Disclosure may promote realistic valuation and early settlement, reduce costs, assist legal advisers and medical experts, and avoid unfair pressure to settle because of an undisclosed film. Non-disclosure may give the defendant a forensic and negotiation advantage and may cause adjournments when the material emerges at trial.
4. Application. In a personal injury case, non-disclosure of surveillance video should be very rare. Almost always the video should be disclosed, including where the defendant alleges that the claimant is a malingerer. The risk of tailoring evidence is least persuasive where the film is said clearly to demonstrate malingering, since the claimant’s opportunity to adapt evidence is then most remote.
5. Rose LJ considered that the changes in the rules and the development of open litigation since McGuinness v Kellogg Co of Great Britain Ltd [1988] 1 WLR 913 made the modern approach particularly important. The approach was consistent with the reasoning in Digby v Essex County Council. Steyn LJ and the Master of the Rolls agreed.

1. Court of Appeal: dismissed the defendants’ appeal with costs and ordered legal aid taxation of the claimant’s costs.
2. High Court, Queen’s Bench Division: Mr Justice Holland dismissed the defendants’ appeal from the District Judge’s refusal to dispense with inspection of the video.
3. District Judge: refused the defendants’ application under Ord. 38 r. 5.