Samson v Ali

Expert or factual evidence concerning the collection, editing and presentation of surveillance footage may be admitted where the witness has sufficient practical experience and the evidence may assist the court. The absence of statutory regulation, formal qualifications or membership of a recognised professional body is relevant to weight, but does not by itself make the evidence inadmissible. Evidence challenging surveillance as selective, misleading or incomplete concerns a central issue where the footage is relied on to prove exaggeration of injury. Potential criticism, alleged bias, additional cross-examination and possible effects on settlement generally concern weight or case management, rather than admissibility.

The claimant sought permission to rely on a report and witness statement from Mr Simm concerning surveillance footage obtained after a road accident. The defendant relied on the footage to challenge the claimant’s account of continuing knee disability. Mr Simm criticised the footage as incomplete and selectively filmed, and expressed opinions on matters including gaps, missing recordings and possible alteration of speed.

The defendant argued that Mr Simm lacked recognised expertise, that his criticisms could be made by lawyers, that the evidence would create collateral issues, and that he was biased. The central issue was whether his evidence should be admitted under section 3 of the Civil Evidence Act 1972, or otherwise as factual evidence.

1. The application was allowed. The claimant was permitted to deploy Mr Simm’s evidence at trial, whether characterised strictly as expert evidence or as evidence of fact.

2. Applying the approach in Barings plc v Coopers & Lybrand [2001] PNLR 22, the court considered whether the evidence constituted admissible expert evidence under section 3 of the Civil Evidence Act 1972 and whether it would be relevant and helpful in resolving an issue justly.

3. A recognised expertise does not necessarily depend on formal qualifications, statutory regulation or membership of an established professional body. Mr Simm’s extensive practical experience in covert surveillance and video analysis could give him expertise beyond that ordinarily available to the court.

4. Some matters, such as identifying gaps or measuring periods of filming, could be established by lawyers through painstaking analysis. His experience could nevertheless save time. Other matters, including whether footage had been speeded up or selectively presented to create a one-sided impression, might assist the court in assessing the validity and weight of the surveillance evidence.

5. The fact that the criticisms could be explored in cross-examination did not make the report inadmissible. Nor did possible criticism of particular conclusions. Those matters went to the strength and weight of the evidence.

6. The challenge to the surveillance footage was not collateral. Where insurers relied on surveillance to suggest that a claimant had exaggerated or fabricated disability, whether the footage was selective, misleading or incomplete was central to the trial.

7. The alleged claimant-orientation of Mr Simm’s business did not establish disqualifying bias. Any relevant criticism could be tested at trial. Possible delay, the defendant’s wish to obtain rebuttal evidence and any effect on settlement were not material prejudice justifying exclusion.