Michele Perrin v Jackie Walsh

Surveillance evidence may be excluded under Civil Procedure Rules 1998, rule 32.1 where the circumstances of its creation or disclosure make admission unfair. The court must balance its probative value against prejudice caused by the defendant’s conduct, bearing in mind the parties’ competing public interests. Surveillance is a snapshot of what was seen. The absence of footage does not prove that an event did not occur, and the evidence cannot establish what a person was feeling or the extent of pain. Serious flaws, including incomplete editing and inaccurate witness statements, may affect weight and costs without necessarily requiring exclusion. Draft expert reports remain ordinarily protected by litigation privilege. Inspection may be ordered where the draft was deployed or where the expert’s statement of material instructions is inaccurate or incomplete.

The claimant brought a personal injury claim arising from a motorcycle accident. Liability was admitted, but the defendant disputed the extent of the claimant’s injuries and alleged exaggeration.

The court determined two interlocutory applications. The first concerned whether the defendant could rely on covert surveillance footage despite alleged editing, missing footage, inaccurate timestamps, non-disclosure and destruction of SD-card data. The second concerned inspection of an August 2024 draft report prepared by the defendant’s neuropsychologist, which had been referred to in another expert’s report.

1. Surveillance evidence. The evidence had real probative value on the claimant’s level of functioning and was relevant to issues for trial. Its limitations had to be recognised: it showed only what was recorded, was a snapshot in time, and could not establish pain, symptoms or the absence of unrecorded activity.
2. The court found serious and repeated failings in the surveillance process. Footage had been omitted from edited compilations, some witness statements were manifestly untrue, one operative’s material had initially been omitted, and at least one timestamp was inaccurate. Nevertheless, the court rejected the allegation of deliberate dishonest manipulation. The unedited material remained available, the omitted footage was not materially favourable to the claimant, and the defects could be addressed by disclosure, an agreed compilation and cross-examination.
3. Applying Rall v Hume and Jones v University of Warwick, the court held that the flaws did not reach the threshold requiring exclusion under rule 32.1. The defendant was permitted to rely on the surveillance material. The trial judge would determine its weight, and the defendant’s conduct could be reflected in costs.
4. The parties were directed to agree a new edited compilation. All unedited footage was to be served within seven days. The claimant could file responsive evidence, after which the medical experts could provide supplemental reports.
5. Draft expert report. The defendant no longer relied on the pleading that quoted the draft, so rule 31.14(1) was not engaged. Although Dr Jarman had referred to the draft, his report set out the substance of his material instructions, satisfying rule 35.10(3). There were no reasonable grounds to find that his statement of instructions was inaccurate or incomplete under rule 35.10(4). The draft had not been deployed as a foundation for Dr Jarman’s opinion, so privilege had not been waived. The application for inspection was refused.
6. The court expressly left open whether the claimant could question Dr Mullin at trial about the apparent change in opinion.