SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)

I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of  HHJ Yelton (sitting in the High Court) in Kilbey -v- Arien Contractors Ltd (13/12/2019) is an example of surveillance evidence in a personal injury case being of no use and, indeed rebounding against the party who used it.  A copy of the judgment is available here KilbeyJudgment.

“I have already said that there grave difficulties in relation to the allegation of malingering properly so called, and having listened carefully to all the evidence I am satisfied that it is not only not made out but it should never have been advanced.”

THE CASE

The claimant brought an action for damages for personal injuries against his former employers. Liability was admitted.

THE ALLEGATIONS OF MALINGERING AND FAILING TO MITIGATE LOSS

The judge observed that the allegations of failure to mitigate loss and malingering should have been pleaded. The malingering allegation was not put until a counter-schedule was served on the 28th October 2019 (the trial took place between 2 – 6 December 2019).

THE DEFENDANT’S EXPERT VIEWS ON THE SURVEILLANCE EVIDENCE

One interesting aspect of the case was that the defendant’s  expert saw that video and said “that he did not believe that the claimant was exaggerating purposefully for gain.”  The judge observed:

“It seems to me that makes an allegation of malingering, the burden of which lies on the defendant, very difficult to sustain. In fact, it went further than that because none of the medical experts who had seen the claimant supported such a proposition.”

THE VIDEO EVIDENCE GENERALLY

The judge observed

“28. In my judgment neither the social media nor the surveillance evidence has the value placed upon it by the defendants. I do not consider that either is incompatible with the claimant’s general case…. The social media shots show that on occasion the claimant goes out (and has been abroad) and enjoys himself.  Again, I do not see that as incompatible with his case that he suffers pain and is not able to carry out manual work.”

THE ALLEGATION OF MALINGERING SHOULD “NEVER HAVE BEEN ADVANCED”

The judge stated:

“The defendant’s counsel was critical of the claimant, both during cross-examination and in his final submissions. I have already said that there grave difficulties in relation to the allegation of malingering properly so called, and having listened carefully to all the evidence I am satisfied that it is not only not made out but it should never have been advanced.”

THE CONSEQUENCE IN COSTS: INDEMNITY COSTS PAID BY THE DEFENDANT

Steve Evans,  who was the solicitor for the claimant, informs me that Judge Yelton ordered the defendant in that case to pay indemnity costs from 29 October 2018 , the day after the defendant  made dishonesty allegations within the counter-schedule.

*Steve had been watching the webinar. This shows how interactive and useful webinars can be.