VIDEO EVIDENCE NOT ALLOWED AT TRIAL: APPEAL AGAINST REFUSAL DISMISSED: A “STORM IN A TEACUP”

In  Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB) Mrs Justice Lambert dismissed an appeal against a refusal by a defendant to allow video evidence to be adduced at trial.  The evidence was not relevant and the application should have failed at the first hurdle.

“Whether the care claim was in due course to be valued at £1,000 or over £500,000 would make no difference to the outcome of the application if, having reviewed the footage and cross-referenced it with the Claimant’s own evidence there was no significant inconsistency.”

THE CASE

The claimant brings an action for clinical negligence. Liability is admitted, however issues in relation to causation remain. The claimant’s evidence that he suffered severe restrictions in his day to day activities.  The defendant arranged for the claimant to be secretly filmed between July and December 2019.

 

THE APPLICATION BEFORE THE MASTER

The defendant made an application to rely on the video evidence it had obtained.  The Master granted relief from sanctions (an earlier order had stated that surveillance evidence should be adduced by 31st October 2019). The claimant argued that the video evidence made no difference to the case, this was a “storm in a teacup”.  The Master refused the defendant permission to rely on the evidence on the ground that it was marginal to the issues relating to the damages.

 

THE DEFENDANT’S UNSUCCESSFUL APPEAL

The defendant appealed, arguing that there was no evidence before the Master because there was no evidence in relation to the potential value of the claim.  “This argument was dismissed on appeal.
  1. First, there is no challenge to the finding that the video footage was of only marginal relevance to the issues to be resolved at trial. The Deputy Master found that there was no dispute between the parties that the footage showed the Claimant driving and walking with sticks and negotiating stairs, albeit with difficulty. He also found that there were really no significant inconsistencies between what the Claimant was shown to be doing on the footage and what he had said concerning his disabilities, and the impact of his disabilities upon his everyday function, in his witness statement. These findings in conjunction with the further (and, again, unchallenged) finding that the admission of the evidence would increase the costs of, and the length of, the trial justifies the Deputy Master’s decision to refuse the application. Indeed, having reached those conclusions, it is difficult to see how he could have done other than refuse permission. The admission of the evidence falls at the first hurdle of relevance. Whether the care claim was in due course to be valued at £1,000 or over £500,000 would make no difference to the outcome of the application if, having reviewed the footage and cross-referenced it with the Claimant’s own evidence there was no significant inconsistency. That is not to say that there may not be other valid grounds upon which the Defendant may yet, at trial, challenge a very high care claim (or housing or travel claim). But deploying evidence which has not “much substance” would be no more than an expensive distraction and wholly inconsistent with the overriding objective.
  2. This conclusion is sufficient to dispose of the appeal. Given the simplicity of the analysis, I remain perplexed by the fact that the Deputy Master granted permission in the first place, even taking into account the low threshold for the grant of permission. I see some force in the possibility (ventured by Mr Ritchie upon my inquiry) that, following a long and at times rather heated hearing, Ms Presland’s impassioned submissions on permission must have persuaded him that he had failed to take sufficiently into account the possibility that an overblown and exaggerated Schedule of Loss was about to be deployed by the Claimant’s solicitors. But, as I have already remarked, this possibility makes no difference to the outcome of the application. There may be other lines of attack to be deployed by the Defendant at trial if it is faced with an exaggerated Schedule, but a video which does not significantly undermine the Claimant’s own account of what he can or cannot do by reason of his injury is unlikely to assist either the Defendant or the Court at trial in resolving the true position of the Claimant’s current and future level of amenity.
  3. I also dismiss the appeal on the ground advanced by the Defendant. Although the Defendant submits that the Deputy Master failed to consider adequately the likely value of the care claim and failed to seek or hear submissions on the value of the claim, these omissions lie at the door of the Defendant. I take into account that, to an extent, the Defendant’s hands were tied because, by the time of the hearing of the application, there had been a (confidential) mediation during the course of which the value of the claim had been discussed in some detail and a without prejudice Schedule served. However, even without trespassing into the forbidden territory of those confidential discussions, it would have been possible for Ms Presland (had she thought it necessary) or her solicitor to give the Deputy Master a broad indication of the value of a care claim based upon a buddy regime by advancing a bracket of hourly rates and the appropriate multiplier. Alternatively, there could have been some discussion before the hearing between Ms Presland and Mr Ritchie concerning whether the valuation of the claim as forecast at mediation could be revealed to the Deputy Master. Neither of these steps were taken.
  4. If for any reason my conclusion above is wrong, both parties agree that it would be open to me to make the decision afresh taking into account the likely value of the care claim and other elements of loss. Adopting the appropriate discount rate for a man of the Claimant’s age and applying an hourly rate for 24 hours per week for 60 weeks per year, I acknowledge that a care claim based upon a buddy regime may be £500,000. Even higher. However, given the unchallenged finding of the Deputy Master concerning the marginal relevance of the evidence, in conjunction with the need to allocate resources fairly across the cohort of all court users, together with the increase of litigation costs, I would have no difficult in refusing permission. The video evidence is not admissible simply because it is not relevant. Even therefore if I were making the decision afresh, the outcome would be the same.