The judgment today of Mr Justice Edis in  Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation.   In addition to criticism of the parties conduct it  deals with important issues in relation to (i) filing a defence after a default judgment; (ii) the extent to which a defendant can raise issues of causation after a default judgment; (iii) the extent to which a statement which deals with the accuracy of video evidence is “expert” evidence and whether opinion evidence should be allowed.


  • The parties in this case were not co-operating. The general attitude (of both sides) was unhelpful.
  • The defendant was given permission to file a defence that disputed causation. Judgment had been entered in default. The court had made an order that the defendant file a defence so that the issues could be clarified.
  • The default judgment did not mean that the defendant could not argue matters relating to causation. The case law on this was clear.
  • The claimant was given permission to rely on a statement in relation to the defendant’s video evidence. However certain “opinion” elements in that statement were excluded. This was not a report from an expert.


The claimant was bringing an action for damages for personal injury. Judgment had been entered into 2010. In an  application  earlier this year the trial date was adjourned and the defendant given permission to rely upon surveillance evidence.

  1. The defendant applied for permission to serve a Defence.  There is no provision for the filing of a Defence after a default judgment and the defendant wanted to plead that the claimant had consciously exaggerated her case and to certain matters relating to causation.
  2. The claimant wanted permission to rely on a “Video Evidence Analysis Consultant” in the form of a witness statement or as an expert.


  1. Both applications are hotly disputed, as is the way of this litigation at least in the recent past. It appears to me that this is a case where the parties are not co-operating effectively. Foskett J was rightly critical of the conduct of the defendant’s solicitors in his judgment and underlined the need for proper professional cooperation at [48]. It appears to me that on this occasion, for reasons which I will explain, the lack of co-operation is at least shared and that a large slice of the fault lies on the claimant for taking wholly unmeritorious points and making unfounded allegations of bad faith against the defendant’s lawyers. I express the hope that in the final pre-trial preparation the parties are able to agree what can be agreed in the usual way. The trial judge may be able to deal with any failures in this regard by appropriate costs orders. I regret to say that a great deal of time and money has been spent by solicitors on both sides attacking the conduct of the opposing party in witness statements which simply generates yet further statements in response. It appears to me that the case has been bogged down in attritional warfare of a kind which used to be far more common than it is now. The issues before me were all capable of resolution by agreement by parties sensibly co-operating towards a trial. This is especially so since a detailed Order for directions has been recently made by Foskett J after another long and contentious hearing.


  1. Finally, on the question of the Defence, I turn to the issue raised in relation to the way in which the defendant’s solicitors instructed their experts without sending them the latest statement of the claimant. It is submitted that I should reject the explanation which is that in hindsight the defendant’s solicitor accepts that it would have been better practice to send the witness statement. Mr. Mendoza submitted that he could not say if this was “just another bad day at the office” or whether there is some more malign explanation. This refers to evidence contained in a witness statement by the claimant’s solicitor, the effect of which I have summarised at 8(ii) above. The claimant does not accept that it was an oversight because of the number of other oversights which have happened in this case. This is a submission which involves an allegation that the defendant’s solicitor has sought to mislead me. There is no proper basis for it and it ought not to have been made.
i) The effect of the acknowledged failure by the defendant’s solicitor is to undermine, potentially, the evidence which he was seeking to obtain from the experts. They will now have to reconsider their opinions in the light of the material which they had not seen and may perhaps be criticised for forming an opinion on incomplete material.
ii) When I enquired of Mr. Mendoza what benefit may accrue to the defendant by the failure to show the statement to the experts, as against the detriment which I have just identified, I received no satisfactory answer. It would seem that this is very incompetent sharp practice if that is what it was.”


The claimant objected to the Defendant’s proposed defence. Paragraphs 3 and 4 of that defence related to causation.  The claimant argued that the default judgment prevented the claimant from arguing issues relation to causation.

  1. A technical argument about what should, and what should not, appear in a Defence in a case where there is a default judgment is misconceived. There is, of course, no provision for a Defence in the Rules in such a situation. The decision to allow the defendant to apply for permission to serve a Defence alleging fraudulent exaggeration was a bespoke solution to a particular problem, as advocated by Mr. Picken QC as he then was when sitting as a Deputy High Court Judge in Symes v. St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB) [87]. The claimant had asked for the procedural protection against ambush which a pleading provides and the Order granted that request. It could have directed an Amended Counter Schedule instead which would have been a perfectly satisfactory way of giving the claimant notice of the defendant’s case on quantum. Given that a new Counter Schedule will be required in any event, the costs of serving a Defence could have been saved by requiring the advance notice of the defendant’s case to be given there, and only there. Instead, the Order did both. The new Counter Schedule required by paragraph 15 will only be amended to cover the consequences of the expert evidence about the surveillance, and the original form about the acceleration of the prolapse by 6 months will remain.
  2. It appears to me that it is marginally preferable to have the Defence in the present form than in a form which lacked paragraphs 4 and 5. These make it clear how the new defence of fraud relates to the old defence of acceleration. Simply pleading fraud without that explanation might (just possibly) cause confusion. The pleading as drafted makes it clear that the defendant’s case is that with effect from 6 months after the accident the symptoms in the claimant’s neck, whatever they are, are not related to the accident. The defendant then goes on to say that if that is wrong and there is liability for symptoms after that date, they have been consciously exaggerated.
  3. I was taken back to a hearing when this case was still in the Tunbridge Wells County Court in May 2014 when the defendant’s application for permission to call an ergonomist was refused by the District Judge. In the course of submissions counsel then appearing for the claimant observed that it was not necessary for the claimant to prove causation, given the default judgment on liability. That reflected the witness statement served by the claimant’s solicitor resisting the application. That was correct in that the judgment means that the claimant was injured in an accident at work which was entirely the fault of the defendant and that she suffered some damage as a result of that injury. She is therefore entitled to recover all the loss which she can show to have been caused by the accident. There is something unsatisfactory in a Judge being required to spell out elementary propositions of law and procedure in answer to legal submissions on an issue of such little importance.
  4. Although the law on the effect of a default judgment on the assessment of damages in personal injury actions has seemed clear to me for some years, I was also taken to authorities. I was referred to the decision of Carr J in New Century Media v. Makhlay [2013] EWHC 3556 (QB) and that of Simon Picken QC in Symes v. St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB) to which I have already referred. I agree with both of these decisions, but they do not in truth add anything relevant to the legal position which is as I have stated it in paragraph 18. Authority is scarcely required for the proposition that a party cannot raise defences at a quantum hearing which were relevant to the issue of breach of contract, when there is a default judgment resolving the issue of breach. Authority is even less necessary when deciding the effect of a default judgment in a personal injury claim on the subsequent conduct of those proceedings. I do not consider it necessary to delve into the different question of what estoppel may arise from a default judgment in other subsequent proceedings which is the subject of analysis in both of these decisions.
  5. Mr. Mendoza submits that Mr. Picken QC in Symes v. St George’s NHS Trust was wrong and that I should not follow that decision. Given that Mr. Picken held himself bound by Lunnun v. Singh [1999] CPLR 587 which is a decision of the Court of Appeal directly on point, this is a surprising submission. Lunnun itself followed two other decisions of the Court of Appeal Civil Division in John Turner v. PE Toleman (1999) unreported 15thJanuary and Maes Finance Limited and another v. A Phillips & Co (1997) The Times 25th March. The only one of these decisions which is a personal injury claim is Turner where Simon Brown LJ rejected a submission that a default judgment in a personal injury action meant that the claimant was entitled to recover for “the injuries pleaded in consequence of the defendant’s negligence.” He held that “what loss and damage was caused by this defendant’s negligence must be part of the exercise of assessing damages”. He said that this accorded with his own experience in these cases over very many years:-
“No doubt defendants must acknowledge some injury to a plaintiff before judgment could properly be entered against them….That is a far cry from saying that they are necessarily liable for each and every aspect of loss and injury which the plaintiff in his pleaded claim asserts he suffered.”
  1. I will not analyse Mr. Picken’s decision further, although I have already said that I agree with it. Like him I am bound by the Court of Appeal and that is an end of it.
  2. I reject the submission of Mr. Mendoza that if the defendant’s case on acceleration is set out in the Defence as well as in the November 2014 and January 2016 Counter Schedules he will need to serve a Reply and a Part 18 Request and the trial date will be threatened. The trial date will not be threatened. It will take place when it is fixed, at the end of November 2016. There is no provision in the Rules for a Defence in these circumstances and certainly no provision for a Reply. There is provision for a Defence in the Order of Foskett J but not for a Reply. If the claimant wishes to change her case on this issue from that which Mr. Mendoza was planning to open in April 2016, it is she who will need to persuade the court that it is proportionate to allow her to do so at this very late stage in the proceedings. A Reply raising new matters would have to be justified, as would any Part 18 Request.
  3. For these reasons I grant the defendant’s application to serve a Defence which includes paragraphs 4 and 5. Mr. Mendoza’s submissions on this issue are quite unarguable.


  1. By paragraph 6 of the Order of Foskett J he gave the claimant permission to rely on further lay witness evidence restricted to dealing with the video evidence and the Defence provided such statements are served by 29th July 2016.
  2. On 18th July 2016 a witness statement producing a Report dated the same date was made by Mr. Jeffery A. Simm, a Video Evidence Analysis Consultant was produced and subsequently served. An application was made on that day for permission to rely on his witness statement or, in the alternative, on his report as expert evidence. The Application Notice seeks to rely on the opinion of Mr. Simm which is said to be that the DVD evidence “cannot be taken at face value”. He says that parts of what the surveillance operative has reported are fabricated, in his opinion. He says that there is a high number of cuts in the filming and that there has been selective filming.
  3. The defendant is “relaxed about” the application but resists it on the ground of relevance. I asked whether being “relaxed about” an application was the same as consenting to it and Mr. Mooney said that it was not. I therefore have to rule on another issue which at least one party considers unimportant.
  4. The Report of Mr. Simm is 7 pages long plus Appendices which set out what can be seen during 5 periods when filming took place. He starts by explaining his experience in the freelance covert surveillance industry and that he has conducted over 500 surveillance operations over 5 years, predominantly for insurers. He says that since 2007 he has concurrently acted as a video surveillance evidence consultant being called to give an opinion on the way video evidence has been gathered and presented. He describes himself as a “1st Tier APIL expert 2011-Present”. APIL is the Association of Personal Injury Lawyers. I think that this means that he is listed in its directory of expert witnesses and that he was recommended by at least one member of APIL. He refers to a decision of Stadlen J in Samson v. Mohammed Ali [2012] EWHC 4146 (QB) in which his evidence was admitted after an argument. He describes this as a “landmark case”. He attaches a copy of that and of another more recent decision in the County Court. He has written articles and delivered lectures. He does not refer to any qualifications which would enable him to give technical evidence about how recording apparatus works or how inappropriate editing may be detected on an expert examination of recordings or the equipment which made them.
  5. Mr. Simm has examined the video surveillance logs compiled by the investigators and found four occasions when the letters “VF” appear on the log but no footage has been disclosed. He has found a reference to a piece of film in a report of Dr, Munglani which has not been shown to him. He has found two descriptions of events by the investigators which were not filmed. He has identified occasions when filming of the claimant would have been possible, but no film has been disclosed.
  6. Mr. Simm has identified 23 occasions when the film cuts when the claimant is in view and that on some occasions the film starts again from the same position. He says that he thinks that this may mean that the “unedited film” has in fact been edited. He has asked for sight of the original recordings which would show whether editing has taken place.
  7. There are 2 occasions when the date and time stamp disappear from the film, which Mr. Simm says is highly irregular. He does not say why this is, or what it might mean. Neither does he set out any basis for this expression of opinion. I conclude that he does not know how it happened or what it might mean, otherwise he would have said so. This fits my understanding of his lack of any technical expertise.
  8. Mr. Simm has deduced that a vehicle tracking device may have been used so that the investigators could know where the claimant was when she was out and about. No-one has explained to me why this is relevant.
  9. Perhaps the most obviously important matter contained in Mr. Simm’ Report is that Richard Fullerton, an investigator, says in his log that he saw the claimant drive away from her home at 15:07 on 22nd February 2016 and arrived at Montargis Way at 15:17. The log is marked “VF” but no footage has been disclosed showing this. The footage taken at that time does not show the claimant at all. It shows the surveillance operative driving down the road. According to a witness statement from Nick Heasman, who is a massage and acupuncture therapist, the claimant was being treated at his treatment rooms in Crowborough until 15:00hrs on that day. This is a few minutes’ drive from where the claimant lives according to an observation of her doing that journey on 10th March 2016. The claimant also gives evidence in her April statement that she did not drive from home to Montargis way at the time recorded by Mr. Fullerton. Mr. Simm says that this means that the log has been fabricated.
  10. Mr. Simm is plainly not entitled to give evidence that Mr. Fullerton has fabricated his log in reliance on the statements of the claimant and Mr. Heasman. That is a pure matter of fact for the court and his opinion is not a matter of expert evidence. This does not prevent the claimant from deploying the relevant primary evidence and inviting the court to draw the conclusion that Mr. Simm drew. I am surprised that Mr. Simm understands the role of an expert witness so poorly and that he was not asked to excise this passage by the claimant’s lawyers before it was served. The claimant relies on an “alibi” for a period when she is said to have been at observed at home, but was apparently somewhere else. Mr. Simm’s opinion about the significance of that is of absolutely no consequence.
  11. The other opinions contained in Mr. Simm’s Report are
i) That film was not taken when it would have been possible to do so, and therefore the unfilmed events described by the investigators should not be accepted. This may also mean that some film was taken but has not been disclosed, see (ii) below.
ii) That the high number of cuts leads him to think that there may have been editing of the film which has not been fully disclosed.
iii) The absence of the date and time stamp on two occasions is “highly irregular”.
iv) The use of the tracking device on the vehicle.
  1. Everything else which Mr. Simm says is either simply setting out the contents of the recordings and other documents and identifying areas where they do not correlate. This is work which could be done by anybody.
  2. I have considered Liddell v. Middleton [1996] PIQR P36 and reminded myself of the time when every road traffic accident trial featured two accident reconstruction experts and every factory accident trial two consulting engineers. This was widely perceived to be adding to the cost and complexity of such cases without improving their outcomes. This was one of the factors which led to the stricter approach to expert evidence which was developing in the common law and the Rules of the Supreme Court before finding a reflection in CPR Part 35:-
“Expert evidence shall be restricted to that which is reasonably required to that which is reasonably required to resolve the proceedings.”
  1. s.3 of the Civil Evidence Act 1972 says this:
“3.— Admissibility of expert opinion and certain expressions of non-expert opinion.
(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.
(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.
(3) In this section “relevant matter” includes an issue in the proceedings in question.”
  1. With these considerations in mind, I turn to the decision of Stadlen J in Samson v. Ali. He was considering an application in the same form as that made to me and in respect of the same witness. The Report in that case contained some evidence about normal industry practice and the use of “a direct line of sight covert trigger”, see [5]. Otherwise his evidence was very similar to that which he proposes to give in this case. He apparently said that “the manipulation of the time indicator is also routinely deployed”, see [8]. The use of a tracking device was said to be relevant because it constitutes a breach of the claimant’s article 8 rights and is indicative of bad practice suggestive of people who are unscrupulous and who would be prepared to prepare a footage which is designed to be misleading, see [10]. In so far as these pieces of evidence identified abuses which occur in the covert surveillance industry I consider that they could amount to admissible evidence. This is subject to a proper basis for admissibility being established. How does Mr. Simm know of such practices and how widespread are they? No such evidence is contained in the Report for this case. In particular, the suggestion that the use of a tracker is “bad practice” has not been repeated and no “practice” or Code of Conduct has been produced to support such a suggestion. I am not concerned here to rule on the lawfulness of the use of trackers in these circumstances but only with the admissibility of the evidence contained in the Report in this case.
  2. Further, the Judge identified only one area where the evidence of Mr. Simm could actually pass the test in s.3 of the 1972 Act, namely “the suggestion that there is one aspect where the footage has been speeded up”, at [22]. That appears to be technical evidence of a kind which does not appear in the Report which I am considering and the Judge makes no finding that Mr. Simm had any expertise which could render his opinion admissible on the subject. That may be because the answer was obvious from the Report in that case, which I have not seen.
  3. I do not think that the judgment of Stadlen J should be read as allowing the admissibility of anything Mr. Simm chooses to put into a report. The Judge does not appear to have approached the issue purely as a matter of admissibility in law. At the start of his analysis of the law, the Judge records at [18] that he asked counsel for the defendant how he would be prejudiced by the admission of the evidence. This suggests he was considering the procedural fairness of admitting the evidence, rather than its admissibility as a matter of law. Prejudice is not relevant to admissibility, although it may well be relevant to whether the evidence is actually admitted. Secondly, at [22] it seems to me that the Judge may have conflated the task of preparing cross-examination which may be assisted by someone like Mr. Simm with the proper way of deploying the results of that work on the documents. It may perhaps save time to ask Mr. Simm to produce his analysis rather than counsel or solicitors (whose charging rate in this case is £300 per hour). This does not mean that his work should be deployed as evidence, as opposed to assisting cross-examination and submissions, any more than the solicitor would be able to take to the witness box and explain the conclusions as to fact which she had drawn from the documents. Whether Mr. Simm’s fees for doing that kind of work could be recoverable as legal costs is another issue, which I do not propose to resolve. If preparatory work of this kind is to be admissible as evidence some proper basis must be found.
  4. Stadlen J did not decide whether the evidence was expert evidence or factual evidence but did conclude that he would find it helpful if he were trying the case and admitted it on that basis. Although this is a relevant matter, “assisting the court” has the meaning attributed to it in Kennedy v. Cordia (Services) LLP [2016] UKSC 6; 1 WLR 597 at [45], see further below. It is actually a test of necessity, not preference. He compared the position with that of an accountant who analyses documents and financial records to produce a distillation of the meaning of large quantities of disparate material. A pathologist who describes the depth of a stab wound seen first externally and then after the body is dissected internally, gives factual evidence which is the product of particular skills. The difference between Mr. Simms and an accountant or pathologist in this type of exercise is that the latter two use internationally recognised skills in carrying out their work. Those techniques can be tested against the acknowledged methods of their profession to ensure that the conclusions have been drawn in a proper and reliable way. The work can, in effect, be peer reviewed and assessed for quality.
  5. The law has recently been re-visited by the Supreme Court in Kennedy v. Cordia. This was a Scottish case and the phrase “skilled witnesses” is used rather than “expert witnesses”. The court grapples with the definition of such evidence and what threshold conditions apply to its admissibility. Underlying the analysis is the insight that the ultimate aim of almost all evidence is to prove facts, even if that must be done by adducing the opinion of a witness who thinks that a particular fact was probably true, as opposed to knowing it to be so from personal observation. At [40] Lords Reed and Hodge JJSC said
“Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue.”
  1. The Supreme Court then goes on to define expert or skilled evidence at [41] and to adopt authoritatively into the law of the United Kingdom the test in R v. Bonython (19840 38 SASR 45. The dictum is well known and involves two questions, (a) necessity and the existence of a reliable body of opinion; and (b) whether the witness is a member of that reliable body of opinion.
  2. Mr. Simm in this case principally seeks to give evidence of what he has seen when viewing the video footage and reading the surveillance logs. All he really says in addition to his factual analysis of what they show is that the operatives chose what to film and had the ability to decide when to film and when not to. Given that they were deployed in the circumstances they were, he says that it is suspicious that there is not more film than there is and this may mean that the film was not only selectively filmed but has also been covertly edited. I do not believe that any knowledge or skill is involved in this exercise such as to subject its admissibility to the expert evidence threshold. It is a routine task of investigation such as is performed by police officers or data analysts in almost every significant criminal case where video footage or telephone data is involved. Whether the suggested inference should be drawn from the raw material is a matter for the Judge, not the witness. The factual analysis can be put before the court and submissions made about what it means after cross-examination of the surveillance operatives. Expert evidence is only necessary to the extent to which it assists the court. In Kennedy v. Cordia (Services) LLP at [45] the Supreme Court quoted with approval a pithy statement of the position by Lawton LJ which reflects the first part of the first question in Bonython.
“If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.”
  1. Evidence of opinion which is not necessary in this sense will be excluded in civil cases under CPR 35.1 as well as in consequence of this rule as to the admissibility of opinion evidence.
  2. I consider that the factual analysis which Mr. Simm has done in drafting his Appendices is useful and that those documents should be before the Judge. They could have been prepared by solicitors or counsel, but have been prepared by Mr. Simm. Their status is the same either way. Ideally they should be agreed and supplemented by any additional material which the defendant wishes to add. This is not expert evidence but factual evidence and the claimant already has permission to adduce factual evidence. I doubt that there is any real prospect of these litigants co-operating to produce agreed schedules for the Judge but this is the right way to go about this task. If that exercise fails, then it may be legitimate for Mr. Simm to be cross-examined about his Appendices where they are said to be incomplete or inaccurate. I propose to leave that question to the trial judge. I would have thought a revised schedule cross-referenced to the underlying material prepared and disclosed in good time before trial accompanied by a Notice to Admit would be far more helpful to the Judge if there is anything in Mr. Simm’s work which is capable of improvement.
  3. I have already dealt with Mr. Simm’s opinion about what I have called the “alibi” point. I am not persuaded that the opinions about the date/time stamp and the tracking device are reasonably required to resolve the proceedings and therefore restrict the evidence under CPR 35.1 to exclude them. Mr. Simm does not have any technical expertise to explain the significance, if any, of the date/time stamp anomaly and has not attempted to do so. Whether or not a tracking device was used is not mentioned in the lengthy reasons in support of the application in part 10 of Form N244 which were adopted by Mr. Mendoza in his Skeleton Submissions on this issue. That document is all about selective filming, editing/non-disclosure of footage and fabrication. The use of the tracker was not mentioned, so far as I recall, in the oral submissions. Restricting the evidence so as to exclude evidence which no-one has asked for permission to adduce is eminently within CPR 35.1.
  4. This does not mean that properly compiled expert evidence about an anomaly such as the disappearance of a date/time stamp for a part of the footage could not be given. If a properly qualified expert identified what had occurred and what it might mean then this would probably be admissible. This ruling relates to the admissibility of the Report under consideration.
  5. I reject the present application, which was unnecessary. The Order of Foskett J permits factual evidence on the surveillance issue to be adduced. It is unlikely that it will be necessary to take advantage of that permission to rely on accurate schedules which summarise the video footage and logs, but if it is then the permission already exists. In so far as the claimant does not have permission to adduce the rest of the Report (because it is opinion evidence) I reject the application for the reasons I have just given.


Observation on costs
  1. I note from the claimant’s 2 Statements of Costs concerning the defendant’s application that the claimant incurred £24,577.56 in relation to the application when it was listed before Foskett J on 18th July 2016 and a further statement has been prepared in the sum of £9,528.00 when it was listed before me on 25th July 2016. I am not yet clear how these two documents relate to each other. There is a third separate Statement of Costs for the claimant’s own application in relation to Mr. Simm. That is in the sum of £4,161.00. The three documents taken together total very nearly £40,000.
  2. I have not yet decided what, if any, costs orders to make. If I make any order in favour of the claimant I will summarily assess the costs when I hand this judgment down. I recite the figures in paragraph 50 above so that the cost of the proceedings before me shall be recorded in the judgment. In view of the lack of importance and complexity of the issues involved, this is a figure which will require justification.


On the effect of judgment on the ability to argue damages