Kerry Middleton v Carnival PLC t/a P&O Cruises

Surveillance evidence is ordinarily admissible where relevant, but may be excluded under Civil Procedure Rules 1998, r 32.1 if disclosure denies the claimant a fair opportunity to deal with it or reflects ineffective and unfair case management. The assessment is objective and focuses on the real effect of disclosure on trial preparation and any fixed trial date. A defendant may generally wait until the claimant has committed to the asserted level of disability before obtaining or disclosing surveillance. Both parties must raise promptly any concern that the evidence threatens the trial timetable. Wider conduct and the overriding objective may also be considered.

The defendant applied under Civil Procedure Rules 1998, r 32.1 for permission to rely on surveillance footage in a high-value personal injury claim. Liability had been admitted. The remaining issues concerned the claimant’s disability, causation of functional neurological disorder and damages. The footage was disclosed more than three months before the listed eight-day trial, after further medical evidence had been exchanged. The claimant alleged that reliance on it would amount to trial by ambush, require an adjournment and cause substantial prejudice and cost. The parties agreed that admission would require the trial to be adjourned. The central issue was whether the timing and circumstances of disclosure justified exclusion of otherwise admissible evidence.

1. Application granted. The surveillance footage was admitted under Civil Procedure Rules 1998, r 32.1, although the listed trial had to be adjourned.

2. The starting point was that relevant surveillance evidence which could substantially affect damages should generally be admitted, provided reliance on it would not amount to trial by ambush. The court’s discretion required an objective assessment of whether the claimant had a fair opportunity to deal with the evidence and whether the timing or circumstances of disclosure were inconsistent with effective and fair case management.

3. A defendant may wait until the claimant has committed to a particular level of disability through witness evidence or a schedule of loss before undertaking or disclosing surveillance. Here, disclosure more than three months before trial was reasonable.

4. Both parties had a responsibility to confront promptly any issue which might affect a fixed trial or settlement meeting. With prompt cooperation, supplemental expert reports could have been prepared in time.

5. The parties’ wider conduct and the circumstances in which the footage was obtained were relevant. Filming into the claimant’s kitchen from the highway was insufficient, in the circumstances, to justify exclusion.

6. The defendant’s application succeeded.