DISCLOSURE OF SURVEILLANCE EVIDENCE LATE: THE FACT THAT THE GENIE IS OUT OF THE BOTTLE IS NOT ENOUGH: AN INTERESTING HIGH COURT DECISION

  Angus Fergusson  has kindly sent me a copy of the judgment of Mr Justice Birss in  Grant -v- Newport City Council [2018] EWHC 3813, it is an interesting case where the judge, on appeal, upheld a decision to refuse to allow a defendant to use surveillance evidence served late. However (and this is a big however) because the trial had been adjourned anyway went on to grant permission to the defendant to rely on that evidence.

“… an application to adduce this sort of video evidence is not a unique procedural situation. There are a number of situations in litigation in which a party can generate evidence which is privileged at the time it is generated and then deploy it, waiving the privilege whereby that material is then immediately discoverable and disclosable.  In my judgment, that principle is not a way around the court’s case management powers”

KEY POINTS

The key point here is for defendants considering disclosing video evidence to do it promptly and make an application to admit the evidence equally promptly. The evidence here was obtained in “tranches” several months apart.  The judgment makes it clear that there was no justification in waiting for the second tranche of evidence before disclosing the first.  Further there was delay in making the application even after the evidence was disclosed.  The defendants were very fortunate in that the trial was adjourned, otherwise they would not have been allowed to rely on the evidence.

THE CASE

The claimant brought an action for damages for personal injury.  The trial was due to take place on the 26th and 27th July 2018.   The defendant had video evidence of the claimant taken. This was disclosed on the 14th May 2018. No application was made by the defendant in relation to the video evidence until the 13th June 2018, this was heard (with a half hour time estimate) on the 13th June.

A copy of the judgment is available here. Jacqueline Grant – Cardiff CJC – Judgment – 20181211 – V FINAL

THE DEFENDANT’S APPLICATION WAS UNSUCCESSFUL BEFORE THE DISTRICT JUDGE

The District Judge refused the defendant’s application.  The defendant appealed.  In the interim period the trial was adjourned.

NOT AN APPLICATION FOR RELIEF FROM SANCTIONS

Birss J held that this was not an application for relief from sanctions.

“16. A curiosity is that the application was put as an application for relief against sanction under CPR Rule 3.9 in relation to the permission to rely on the video evidence. Also, permission was sought to use the Part 35 replies of Mr Pemberton and to amend the Defence.  On appeal Mr Compton submitted that it would not have been right for the defendant to have treated the application as an application for relief from sanctions.  On the facts of this case I agree.  The directions gave the parties permission to apply to rely on further evidence, but importantly for this appeal the judge did not treat this as an application for relief from sanction anyway.  He treated it as a case management application governed by the Overriding Objective generally.

THE GENIE IS OUT OF THE BOTTLE: NOT A GOOD ARGUMENT

Mr Justice Birss rejected the argument that since the evidence was now available it should be admitted.

17. Mr Compton also submitted that an important factor was the artificiality of having a trial without this evidence, that since now it has been disclosed and the expert has looked at it. I do not accept that.  This is the same “Genie is now out of the bottle” argument that was addressed and rejected by Foskett J in Hayden v. Maidstone [2016] EWHC 1121 QB at paragraphs 40 – 42:
“40.  I will return to this submission in due course, but I would make the following observation about what Judge Collender QC said in [71]. I agree that it would be difficult for an expert who has seen the surveillance evidence to put it out of his or her mind and to make no reference to it, but I do not think that that can be a reason for a court to feel obliged to admit the evidence. Experts are familiar with the need not to refer to the content of any “without prejudice” discussions with their counterparts and the same applies, albeit doubtless with less familiarity, to lay parties who have to be advised by their lawyers not to make reference when giving their evidence to what was said during “without prejudice” negotiations. When, inadvertently, some forbidden material “slips out” during the course of giving evidence, all judges are familiar with the need simply to put such material out of their mind. Where some obviously deliberate attempt is made to refer to such material, it will weigh heavily in the evaluation of the witness who makes such an attempt.
  1. It follows that, for my part, I do not see this consideration as a determinative consideration when conducting any balancing exercise that is necessary when deciding on an application of this nature.
42.       Mr Mooney also submitted, when the matter came before me on the second occasion, that, in the events which have happened, to use his expression, “the genie is out of the bottle” in this case and, accordingly, the court should regard that as a weighty factor. The factor is not irrelevant, but its weight should not be over-stated: to do otherwise would simply enable a party wishing to rely upon surveillance evidence to produce it at the last minute and assert that now it is on the playing field between the parties it is something that must remain in play. That cannot be right

THE DEFENDANT SHOULD HAVE DISCLOSED THE VIDEO EVIDENCE EARLIER

Mr Justice Birss held that a defendant in this situation should act with speed.
20. Nevertheless, important though it is, that significance does not mean that a party seeking to rely on evidence of this kind is free to deploy it at any stage without heed to the procedural consequences. The defendant emphasises that justice demands the court should get the right answer.  Of course, that is so, but a more balanced way of putting that matter, bearing in mind procedural fairness, is, as Mr Crowther put it for the claimant, that the court strives to get the right answer in the right way.  That, in my judgment, is encapsulated by the principle enunciated in Rall v Hume, which I have already cited.
21. I will add this, in the passage from Rall v Hume there is a reference to ambush. It is a referred to as a deliberate attempt to surprise the claimant.  In my judgment the principle underlying what the Court of Appeal were saying in Rall v Hume is that this sort of evidence should be admitted if it can be done fairly.  HHJ Collender said much the same thing in Douglas v. O’Neill [2011] EWHC 601 QB at paragraph 46 and following.  I will save my voice rather than read it out and simply say at this stage that I agree with what is said there.
22. Putting it another way, an application to adduce this sort of video evidence is not a unique procedural situation. There are a number of situations in litigation in which a party can generate evidence which is privileged at the time it is generated and then deploy it, waiving the privilege whereby that material is then immediately discoverable and disclosable.  In my judgment, that principle is not a way around the court’s case management powers.  So, to take an extreme example, if the claimant chose to waive the privilege on the day before the trial, the court’s case management powers must mean that it has the power to exclude the evidence and also the issue that would be raised by that evidence.  I say that only because part of the defendant’s case on this appeal seemed to be that because this material was not disclosable whilst it was privileged, once the privilege was waived it was entitled to use it regardless of matters of case management.  In fairness, I think Mr Compton did row back on that extreme form of his submission and rightly so, in my judgment.  It is no doubt another factor to take into account, but it is not a trump card.
23. Getting to the specifics, there are two key factors in this case. The first is whether it is fair to say that the defendant delayed in producing this evidence, particularly in the February video evidence.  Was the defendant entitled to wait to carry out the second surveillance without disclosing the first surveillance video and second, was the judge right to consider that the trial would have to be adjourned?  Taking the first point, the suggestion was that the defendant was entitled to wait and conduct the second surveillance exercise because at that stage, the first video did not show that the claimant was in fact working.  The defendant had some evidence from social media that she was working and wanted to catch her in a lie and for her to nail her colours to the mast relating to work and so, the defendant submitted, they were entitled to wait for the schedule of loss on 23rd April and then do the surveillance on 29th April which proves (it is assumed) that she was working.
24. I do not accept this analysis for two reasons. First, in the Part 18 response in March the claimant had already nailed her colours to the mast and made it clear that her case was that she was not able to work due to injury.  Second, the February video was clearly very significant.  It falsified what the claimant had told Mr Pemberton.  That can be seen from Mr Pemberton’s Part 35 replies, which are all focused on the February video.  The important thing is that in March the defendant decided not to disclose the February video at that stage.  That was despite the fact that the trial was impending.  It was due to be heard in July.  Time was beginning to get short.  The defendant plainly could have disclosed the February video in March.  It decided not to because it wanted to get further evidence on a different point about the claimant working rather than her symptoms. 
25. In my judgment it is fair to say that the defendant could and should have disclosed the February video at that stage. It should have, in the sense that if it wanted to ensure there was no risk of procedural unfairness to the claimant, that is what it should have done.  The defendant took a calculated risk, balancing the risks and consequences of litigation.  The risk of later disclosure of the video evidence was that the disclosure would be so late that the claimant could not fairly deal with it. 
26. Having taken that stance, once the defendant got the later video evidence, I simply cannot understand how it took a whole month to make the application to use it, that is from 14th May to the 19th June application notice. There was a suggestion that the defendant had to ask questions of the doctor and so on.  That will not do.  Given that on 14th May, the trial was then only nine weeks away, the defendant should have applied immediately for permission.  Having taken a calculated risk in March and then not moved expeditiously, the court’s sympathy for the defendant, even recognising the importance of this evidence, is inevitably reduced.

THE JUDGE COULD HAVE ADJOURNED THE TRIAL

Mr Justice Birss was
27. Turning to the second issue, did the trial have to be adjourned? This is the critical issue.
28. As I think I have mentioned, there was a suggestion on the appeal that, even if it had to go, the judge could have adjourned the case with the defendant to pay the costs of adjournment. I reject that.  It was not put to the judge on that basis.  In the modern era trial dates are there to be kept and costs are no substitute.  Another relevant element to that consideration is another aspect of litigation risk.  I do not know why the matter was not put to the judge in that way, but perhaps it was not mentioned because the defendant did not then want to pay the costs of the adjournment.  Maybe, if the defendant had made that submission, the judge would have adjourned the case, but made the defendant pay.  Now on appeal, having lost the previous application, the defendant has nothing to lose by making such a submission, but it did have something to lose at the hearing below.  So, for those reasons I do not accept that this appeal should be allowed on the footing that the judge should have adjourned the case with the defendant to pay the costs.
29. Now turning to the adjournment itself, Mr Compton makes two fundamental submissions. First, he says that the judge erred in approaching the decision on the necessity to adjourn on the basis that there were four weeks between the application and the trial.  (There was also a problem that the claimant was at a family funeral abroad and would not be back until 3rd July, which only left three weeks.)  The defendant says that actually the judge ought to have looked at the matter on the basis that there was nine weeks between 14th May and the trial at the end of July.  The claimant’s advisors had not done things which could have been done, such as putting the video to the claimant herself or putting questions to the claimant’s medical experts.  The absence of that should count against the claimant and nine weeks was enough time for all the matters to be dealt with.
30. Second, Mr Compton submits that in any event four weeks was enough time to be dealt with fairly. I do not accept the latter point.  As the claimant submitted, the work which had to be done included getting further evidence from the claimant and the claimant may well have needed to try and find corroborative evidence to support her case, if that is what she wanted to do and to refer the matter to experts.  The timing was very tight.  The judge was an experienced judge and, in my judgment, he was entitled to reach the conclusion that if only four weeks was left the trial would have had to have been adjourned if the evidence was allowed in.
31. What about the nine weeks issue? Mr Crowther for the claimant submitted that the claimant’s advisors were right to do nothing about this evidence until the defendant had obtained permission to rely on it.  At one stage the claimant suggested that cost budgeting was a reason why it was legitimate to do no work on this until permission had been given and the matter re-budgeted.  I do not accept that budgeting is a reason.  Things happen in budgeting cases which had not been budgeted for.  The correct approach from the point of view of budgeting when something unexpected occurs is to do what needs to be done and apply to have the budget amended.  A party is not entitled to use budgeting itself as a reason not to act.
32. However, on the general point about whether the claimant was entitled to wait for the application to rely on the material, I refer to what Foskett J said in the Hayden case at paragraph 21:
“21.  By the time of the hearing before me, the Claimant’s legal team had copies of the edited surveillance evidence, but not of the unedited footage. In accordance with their perception of what was correct practice they had not invited the attention of any of the experts instructed on behalf of the Claimant to view and comment upon the footage. That was indeed a proper course to take: there was no reason in the circumstances why they should have been “bounced” into simply beginning the process of engaging the Claimant’s experts with this new material at that time.”
33. Mr Crowther submitted that the principle there applies just as much to the claimant herself as to the claimant’s medical experts. I agree with that up to this point.  There is nothing to stop a party engaging with evidence of this kind as soon as it has been disclosed, but the onus is on the party producing material of that kind to bring an application on proper grounds.  I cannot criticise the claimant in this case for waiting to see what the defendant does.  A defendant who waits from 14th May to 19th June to even bring the application at all, when the trial is so close, only has itself to blame.  The fact that the Part 35 answers in the Amended Defence were not ready on 14th May or shortly afterwards is no reason not to come to court urgently given the impending trial.
34. In my judgment, what has happened here is that last year the defendant approached the surveillance evidence as a whole as if the matter was not urgent and as if this evidence, given its importance, was always going to be admitted irrespective of procedural fairness to the claimant. That is not the right approach.  The judge was right to consider that the relevant period was from the hearing on to trial.  He was not required to place weight on the period prior to the application notice. 

UPHOLDING THE JUDGMENT

Mr Justice Birss upheld the decision of the District Judge.
35. Standing back, the judgment is very brief. It is too brief, given the significance of the issue to be decided; all the same, I note that the defendants had estimated that the entire matter was to be done in a half hour hearing. However, despite its brevity it does just cover the important matters. The judge did recognise the significance of the evidence, that it falsifies the claimant’s case. Just because he did not go into any more detail is not an indication that the judge did not comprehend its significance. The judgment does not cite Rall v. Hume or the other principles I have referred to, but the principle the judge applied was clearly the Overriding Objective, weighing the importance of the evidence against the fact that the trial might have to be adjourned and the absence of good reasons why the February video evidence was not disclosed until May.
36. As I have concluded, the judge was entitled to find that the trial would have to be adjourned and was entitled to take the view that there was no good reason for the delay in disclosure of the February video evidence. Although he did not spell it out, the point is that that means that if the evidence was adduced and the trial had been kept the claimant would not have been able, fairly, to deal with it. He was entitled to reach that conclusion. I therefore will dismiss this appeal.

BUT, AND THIS IS A BIG BUT…

Having dismissed the appeal the judge noted that the trial had been adjourned in any event. The trial was no longer imminent and the claimant had sufficient time to prepare a response. In those circumstances he was prepared to allow the evidence to be admissible in any event.
41. In the judgment I have just given, I decided to dismiss this appeal. I will not rehearse the background any further, it is in my previous judgment.  However, at the end I raised the question of whether the appropriate thing to do today now, in the circumstances as they now are with the trial having been adjourned as a result of the events after HHJ Jarman QC’s decision, would be to make an order now admitting the evidence into the case and taking the matter forward in that way.
42. The submission from the claimant, the respondent to the appeal, was that for such an application to be made would be an abuse of the process having regard to the fact that the defendants had failed to get the evidence adduced before, had lost the appeal and this was all matters to be laid at the door of the defendant.
43. Mr Crowther for the claimant submitted that the principle is the Overriding Objective, to deal with matters justly and at proportionate cost and take into account all the various familiar factors, equal footing, saving expense, proportionality, to deal with things expeditiously. He particularly drew my attention to a couple of matters: in particular the share of the court’s resources, noting how much of the court’s resources have already been spent on this litigation; and ensuring procedural compliance, noting what had happened here was that the defendants have not complied with the appropriate rules and procedures before the court and were now effectively having a second bite of the cherry.
44. I must say I sympathise to some extent with Mr Crowther’s submissions in that, it is certainly a very unusual situation for a respondent to an appeal to find that they have succeeded in the appeal, succeeded therefore in the court upholding the decision of the judge below to exclude evidence, only to be told at the end of the matter that the court is contemplating allowing in the very evidence which the whole matter had been there to fight to resist. But, in my judgment, this is a highly unusual situation.  The only reason, as far as I am aware, why this evidence might not be admitted into these proceedings was then and remains a matter of procedural fairness to the claimant in the sense that she has a proper opportunity to deal with it.
45. Entirely as a result of the way in which this matter has been dealt with and the fact the trial has been adjourned, it is in my judgment plain that the claimant now has as much of an opportunity as she could ever need to deal with this evidence and it will be no hardship to her at all for this evidence to now be admitted. The only reason why this evidence might not be admitted at this stage would be as some form of punishment to the defendant for the manner in which it has conducted this matter. 
46. I do accept that it would be possible for the court to take that line, but it seems to me that in the circumstances, particularly given the nature of this evidence, which does, on the face of it, falsify the evidence the claimant is advancing in these proceedings, it would be a strong thing indeed for the court to refuse to admit such evidence when, and this is the critical point in my judgment, the claimant can now deal with it. That is nothing to do with the appeal, it is simply to do with the fact that the position is today the trial was adjourned and has not been refixed and there is more than sufficient time for the claimant to deal with this evidence. 
47. I have given this matter a lot of thought and I have taken Mr Crowther’s submissions carefully into account and I will repeat, I do understand how it might appear from the point of view of a successful respondent, to feel that the defendant is getting a second bite of the cherry.
48. But in my judgment the most efficient and, critically, the fairest way of dealing with this matter overall, is that I should allow this evidence to be admitted into these proceedings. I do not need to make any more detailed directions, they can be dealt with by the court below.  That is the appropriate way forward.  The claimant can have a complete opportunity to deal with this evidence and to take whatever steps she needs to take. She will need to be given enough time to do that, but I am quite sure that when a trial is re-fixed it will be fixed in such a way that all of that time will be available to the claimant.  That is my decision.