Wilcox v King's College Hospital NHS Foundation Trust

Permission to rely on surveillance evidence may be refused where the footage has only marginal relevance, does not materially contradict the claimant’s evidence, and would add disproportionate cost and court time. The value of the claim does not alter that conclusion where the evidence fails at the threshold question of relevance. Evidence that lacks substantial probative value is an expensive distraction and inconsistent with the overriding objective. A party challenging the proportionality assessment should provide, where possible, a broad indication of the claim’s value, but an absence of valuation evidence will not require reconsideration where the evidence is substantively irrelevant. The court may make the decision afresh on appeal, but should reach the same result where relevance remains insufficient.

The defendant appealed against an order of Deputy Master Bard dated 10 March 2020 refusing permission to rely on covert surveillance footage at the trial of a clinical negligence claim. Liability for delay in diagnosing and treating cauda equina compression had been admitted, but causation and the extent of the claimant’s continuing disability remained disputed.

The footage showed the claimant driving, shopping, walking with sticks and negotiating stairs. The Deputy Master found that it contained little substance, did not significantly contradict the claimant’s account, and would increase trial length and costs. The appeal concerned whether the decision was flawed because the parties had not provided evidence or submissions about the possible value of the care claim.

1. The appeal was dismissed. The Deputy Master’s unchallenged findings justified refusal of permission. The surveillance footage was of marginal relevance, showed no significant inconsistency with the claimant’s witness statement, and would increase the duration and cost of the trial.
2. The application failed at the first hurdle of relevance. Whether the care claim was worth £1,000 or more than £500,000 could not affect the outcome where the footage did not materially undermine the claimant’s evidence. Evidence without substantial probative value would be an expensive distraction, contrary to the overriding objective.
3. The defendant’s complaint that the Deputy Master had not adequately considered the value of the care claim did not assist. The defendant could have provided a broad valuation based on proposed hourly rates and an appropriate multiplier, or discussed with the claimant whether a valuation previously considered in mediation could be disclosed. Neither step had been taken.
4. Even if the court reconsidered the application afresh and assumed that the care claim might be £500,000 or more, permission would still be refused. The footage remained insufficiently relevant, and its admission would use court resources and increase litigation costs without assisting determination of the claimant’s true level of amenity.
5. The defendant remained free to challenge an exaggerated care, housing or travel claim at trial by other appropriate means.

• High Court (Queen’s Bench Division): appeal from the order of Deputy Master Bard dated 10 March 2020. The appeal was dismissed.