Hayden v Maidstone & Tunbridge Wells NHS Trust

Permission to rely on late surveillance evidence in a personal injury claim depends on the objective effect of its disclosure on trial fairness and case management. The court should ask whether the claimant has had a fair opportunity to deal with the material and whether the timing has jeopardised trial preparations or the fixed trial date. A defendant should commission surveillance as soon as reasonably possible after the claimant’s case is clearly stated and an expert’s opinion makes the claim suspect. Culpable delay may justify exclusion, but the evidence may still be admitted where the claimant can respond adequately and the overall interests of justice require its reception. Late disclosure does not become acceptable merely because the material has already been seen by an expert.

The claimant brought a substantial personal injury claim against the defendant NHS Trust arising from an admitted workplace injury. The quantum trial had been fixed for five days in April 2016. Shortly before trial, the defendant disclosed edited surveillance footage and applied for permission to rely on it. One defendant expert had already considered the footage, while the claimant’s legal team and experts had not had a fair opportunity to do so. The application required the trial date to be vacated. The central issue was whether the surveillance evidence should be admitted despite the defendant’s delay and the resulting disruption to trial preparations.

1. The application was granted, subject to conditions. The surveillance evidence could be considered at the quantum trial, but the decision did not determine its evidential weight or the merits of the parties’ medical evidence.
2. A surveillance video is a document for the purposes of the Civil Procedure Rules and is ordinarily litigation-privileged material. Its admission depends on the court’s case-management powers and the interests of justice.
3. The relevant question in an alleged ambush is objective. The court must consider whether the circumstances of disclosure gave the claimant a fair opportunity to deal with the evidence, or whether the timing and circumstances made exclusion necessary. It is unnecessary to establish sinister motive or deliberate bad faith.
4. A defendant should decide whether to rely on surveillance and disclose it as soon as reasonably possible after receiving a properly stated case on the claimant’s disabilities and their consequences. Once an expert relied on by the defendant considers the claim suspect, the obligation actively to obtain surveillance arises if surveillance is a proportionate course. Delay becomes increasingly culpable as trial approaches.
5. The defendant’s delay was unreasonable and culpable. The trial had to be vacated and the defendant’s litigation behaviour was objectively unreasonable. Nevertheless, the claimant and one principal expert had been able to respond strongly to the footage and the related expert report. The playing field therefore remained level, and the overall interests of justice favoured admission.
6. The defendant was ordered to pay, on the indemnity basis, the costs thrown away by vacating the trial and the costs of both hearings. It was also liable for additional costs incurred by the claimant’s experts in considering and reporting on the surveillance material, with those costs to be assessed at trial.