WHEN A DEFENDANT FAILS TO PRESERVE DATA ON SURVILLANCE EVIDENCE IT IS IN BREACH AND THE COURT REQUIRES AN EXPLANATION

An earlier post looked at the judgment of HHJ Walden-Smith in Stannard -v- Euro Garages Ltd [2022] EW Misc 3 (CC). There is another aspect of that judgment which is of interest.  The defendant were relying on surveillance evidence.  However the defendant had failed to preserve the SD cards, despite there being a court order that these be preserved.  The defendant was in breach and it will be interesting to see whether they will be allowed to rely on this evidence at trial. At the time of the hearing the defendant does not appear to have made any application to vary the order.

“When it was realised by Kennedys that they were not in a position to comply with the court Order then an application ought to have been made to vary that Order with an explanation as to why the position had changed and why they were unable to comply with the earlier court Order.    Without making that application and obtaining a variation to the Order, Euro Garages are currently in breach.”

THE JUDGMENT ON THIS ISSUE

 Euro Garages relied upon the surveillance evidence disclosed to the Claimant’s  representatives.  Contrary to the Order of  Ms Recorder McAllister, Euro Garages failed to disclose the original recording data/SD cards.   The reason given for that failure was that the SD Cards had been destroyed or overwritten by the surveillance agents and were therefore not in the possession or control of Euro Garages.   While I understand why Euro Garages contend that they could not disclose that which no longer existed, as it had been destroyed, the SD Cards had once been in their control (through their agents) and the explanation does not deal with the failure to comply with a very clear Order of the court made in the presence of Euro Garages and/or their legal representatives.   The Order of the court was not an Order for standard disclosure.   It was a specifically worded Order made for the purpose of ensuring that Mr Stannard and his representatives could check whether the edited surveillance was consistent with the unedited surveillance and in order that there was not an unfairness between the parties and their ability to present their respective cases.  When it was realised by Kennedys that they were not in a position to comply with the court Order then an application ought to have been made to vary that Order with an explanation as to why the position had changed and why they were unable to comply with the earlier court Order.    Without making that application and obtaining a variation to the Order, Euro Garages are currently in breach.