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

This article was co-authored by George Emery, Litigation Assistant.

Surveillance can make or break a case, as His Honour Judge Collendar said, it is a “legitimate weapon and a powerful tool in preventing the successful advancement of a case which is based on untruth".

The use of surveillance and when to disclose has always been the subject of contention, as defendants have legitimate reasons for delaying disclosure, but equally claimants must be given sufficient opportunity to review the evidence.

In England and Wales the law in this area has been developing to make it clear that defendants need to tread a careful line between legitimate delays or risk the evidence not being allowed if the courts consider it an ambush. Interestingly, north of the border, the law has also been developing in this area but has been moving in a very different direction which suggests there is no issue of ‘ambush’ as the pursuer (claimant) is fully aware of how they acted.

England and Wales

In England and Wales, the obvious starting place is the Court of Appeal decision of Rall v Hume [2001]. This case suggests that in the interest of justice, the defendant can cross-examine the claimant and their medical experts on the surveillance, so long as this does not amount to ‘trial by ambush’. There was also a suggestion that whilst the surveillance footage on its own is technically sufficient for the purpose of cross examination, a defendant should serve a statement from the person that carried out the surveillance.

The issue of an ambush was further discussed in O’Leary v Tunnelcraft Ltd [2009]. In this case, it was confirmed that the defendant’s actions did amount to an ambush as they had failed to disclose surveillance until 31 days before trial with no good reason why it could not have been disclosed earlier.

In Douglas v O’Neill [2011], the court allowed the disclosure of the defendant’s surveillance which had been obtained over a period of two years preceding service. Although the defendant had not served the surveillance ‘promptly’ after obtaining it, the court believed the delay was caused by the claimant’s failure to comply with the directions set by the court and the defendant was entitled to wait until the claimant produced a witness statement with a signed statement of truth before disclosing the surveillance.

This decision was upheld in Hayden v Maidstone [2016], which found that a defendant is entitled to wait until the claimant has served their witness evidence before sharing or even undertaking relevant surveillance. However, the court also confirmed that when disclosing surveillance late, ensure you have the court’s permission to rely upon it.

In Grant v Newport [2018], the court again needed to decide whether the defendant had delayed producing their surveillance evidence. In this case, the court confirmed the defendants delayed disclosing because they wanted to obtain further evidence on a different aspect and had taken a calculated risk with the outcome being the claimant could not fairly deal with disclosure of the evidence.

Scotland

In AB v Inverurie Skip Hire Limited [2019], the pursuer accepted a Minute of Tender (Part 36 Offer) ten months after it had been lodged but shortly after the disclosure of surveillance evidence. The defender sought expenses from the date of Tender on the basis that the pursuer had unreasonably delayed in accepting the offer and as such had prolonged the litigation unnecessarily. The pursuer suggested the defender had held on to the surveillance documentation rather than disclosing earlier which would have prompted a speedier settlement.

In this case the court, in stark contrast to what we have seen in England, found in favour of the defender. The judge made no criticism of the defender’s approach in holding off on disclosing the surveillance until investigations were completed and made three findings of note, as follows:

1. Surveillance evidence cannot be ‘disclosed’ in the traditional meaning of the term, as the pursuer is aware of their own actions at the time of the surveillance
2. In order for surveillance to be effective, it must be carried out on a number of occasions and over a material time period
3. If piecemeal disclosure of surveillance was required, i.e. after each period of surveillance, this would undermine the fundamental purpose of its covert nature and subsequently the valid defence of the action.

The court confirmed that there was no issue of ‘ambush’ or absence of fair notice. The pursuer was aware of how he acted and his agents were deemed to have knowledge accordingly. The defender had set out their case in their pleadings and was challenging the pursuer’s presentation of the case in all aspects. The court went further in endorsing an approach where surveillance evidence could be withheld until shortly prior to Proof (trial), to remove the possibility that the pursuer could argue that it did not represent the current position.

This decision has been subsequently followed by Gladys Miller v Fimm Potatoes Ltd [2019] (unreported) with the court taking the exact same approach.

The Surveillance Golden Rules – it’s all about being SMART

In light of the court’s approach to surveillance evidence north and south of the border, here are our top tips.