06/16/2020

Surveil-less. Survey more.

Just three months ago we were all going about our daily lives with a freedom that we perhaps took for granted. 

The global pandemic took us by surprise and we’ve had to adjust quickly to new ways of working and living. However, whilst the rest of us were adapting to the “new norm” others were using the opportunity to continue to advance dishonest claims.

One of the best tools available to fraud practitioners is surveillance; a tool that was sadly put out of commission during lockdown as operatives were not considered key workers. This was perhaps not a huge loss given the increase in remote medical examinations and the limited use of footage showing a claimant queuing outside a supermarket for an hour or two. 

As lockdown restrictions are now starting to lift we are beginning to see claimants rediscover their freedom. This rediscovery is allowing covert surveillance operatives the opportunity to capture better quality footage than previously anticipated as walks are extended, trips taken further afield and the urge to engage with family and friends becomes overwhelming.

A small note of caution: although restrictions have eased, many businesses and services remain closed and movement outside the home is still limited. In light of this, some strategic analysis on the potential benefit of a period of surveillance ought to be engaged before a period of surveillance is commissioned.

This is perhaps a timely moment to summarise the surveillance golden rules and the importance of being SMART when it comes to surveillance evidence.

S

Serve all the footage

The claimant is entitled to see all the footage. The good, the bad and the ugly. A defendant is not entitled to cherry pick which footage they would like to serve.

M

Make applications promptly

Surveillance evidence is often served late in proceedings and the defendant will require permission to rely on the footage, and witness evidence of the operative who took the footage. Applications must be made promptly. Delay and you will likely face refusal to admit potentially dynamite evidence.

A

Avoid ambush

Despite surveillance evidence often demonstrating that a claimant is being dishonest, surveillance evidence is unlikely to be admitted where it appears to be an ambush. 

R

Right to reply

The court will allow the claimant, and medical experts (where applicable) the opportunity to review and comment on served surveillance.

T

Timing

Timing is the golden rule, as Mr Justice Birss said in Grant “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”.

We anticipate that surveillance will remain an effective tool in a post COVID-19 world but it’s important to ensure it is deployed effectively.

Related item: Avoiding the ambush: admissibility of surveillance north and south of the border

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