Cases alleging fabrication, exaggeration, or malingering in personal injury claims are not uncommon and often result in suspicion amongst the parties. An important tool used by Defendants is covert surveillance. Applications to admit such evidence are invariably vigorously contested.
Background
In Perrin v Walsh [2025] EWHC 2536 (KB), a personal injury claim following a road traffic accident, the High Court considered, amongst other applications, an application for surveillance evidence.
The Defendant accepted that the Claimant sustained some injury as a result of a road traffic accident, but believed that the extent of the Claimant’s injuries had been exaggerated. The Claimant claimed to have suffered significant physical injuries in addition to chronic widespread pain, functional neurological disorder and somatic symptom disorder. Over the course of two years, from June 2022 to June 2024, the Defendant had commissioned a company (TSG) to carry out covert surveillance.
Unlike many cases, the timing of the surveillance disclosure was not the focus of the argument. The central issue before the Court was how the surveillance evidence was obtained, processed, and disclosed, and whether there were sufficiently significant flaws in the processes adopted by the Defendant’s agents that the Court should refuse permission for the Defendant to rely on such evidence. The Claimant alleged a “deliberate and cynical” manipulation of the footage and dishonesty on the part of the Defendant’s agents, TSG.
The criticisms were broadly categorised into four allegations:
“i) Editing the footage obtained such that footage of the Claimant was removed from the edited footage served, where such footage was supportive of the injuries and disabilities complained of by the Claimant.
ii) Failing to obtain footage appropriately, both in terms of gaps in filming, but also deliberately stopping filming at times when the Claimant could be seen to be manifesting consequences of her injuries.
iii) Completely removing (or failing to include) reference to one of the surveillance operatives from the surveillance logs and failing to provide their footage when unedited footage was requested from the Defendant.
iv) Failing to retain the SD cards used to record the original footage and thus preventing the Claimant from being able to have those SD cards forensically examined.”
The matter had first come before the Court at a CMC, where directions for the application hearing were given, including the service of witness evidence from the surveillance company. This included statements from seven employees from TSG.
The Law
The admission of surveillance evidence invariably involves a Claimant being covertly filmed without their consent. In addition, Defendants often undertake this over a long period but withhold disclosure until after certain points in any claim, most often the exchange of witness evidence, so that the Claimant will have “pinned their colours to the mast”. The Court accordingly has to balance the Claimant’s right to privacy and any prejudice arising from the (normally out-of-time) disclosure of the footage with the interests of achieving a just result in the claim, where the footage is shown to be of probative value.
The issue of fairness, in the context of ambush, was considered in Rall v Hume [2001] EWCA Civ 146, where Potter LJ said, at [19]:
“In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush.”
However, in this matter, neither party had been able to identify any authorities where the central issue was allegations of dishonesty and deliberate manipulation of the footage by the surveillance company. HHJ Grimshaw, sitting as a deputy master, referred to Jones v University of Warwick [2003] EWCA Civ 151.
In Jones, surveillance evidence was obtained by gaining access to the claimant’s home by deception. Lord Woolf LCJ cited the judgment of HHJ Harris QC, sitting as a Deputy High Court Judge, and went on to uphold his decision. Paragraph 15 of Lord Woolf’s judgment reads as follows:
“The primary question for the court is not whether or not to give approval to the method whereby evidence was obtained. It is whether justice and fairness require that this highly material evidence, which contradicts the evidence which she has given to others, should be put to her before the trial judge to enable him to reach a sound conclusion about the true extent of any disability….
In these circumstances, I do not believe that the courts should be too astute to prevent effective investigation by the defendants of claims against them. Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified, dishonest and fraudulent claims. In the instant case, I have no doubt that the latter considerations do and should outweigh the former.”
Lord Woolf went on to emphasise that the decision is ultimately one of discretion whereby the Court considers the competing interests of the probative value of the evidence when weighed against the criticisms of how it was obtained and/or the prejudice suffered by the Claimant.
Did the Surveillance Have Probative Value?
The Defendant identified multiple examples where the footage contradicted the Claimant’s reported symptoms. Whilst the Claimant did not accept that the footage was of probative value, HHJ Grimshaw found that it was clearly of probative value, stating “on the face of it, the surveillance evidence calls for an explanation by the Claimant” and “the trial judge would be assisted by seeing such footage.”
The Manner in Which the Footage Was Obtained and Edited
HHJ Grimshaw made express findings that a number of the witness statements from the surveillance company were “untrue” and he rejected important parts of their explanations.
He found that the process of editing the surveillance in this case had been flawed, stating at [48]:
“The Defendant accepts that there have been errors, but, in my view, the errors are fundamental and repeated. TSG employees have provided witness statements to the Court, endorsed by statements of truth, that are manifestly untrue; this is clearly of great concern to the Court.”
However, importantly, he rejected “the contention that the failures on the part of TSG were part of a deliberate and dishonest attempt to provide a misleading picture of the Claimant’s (dis)abilities.” The reasons supporting this conclusion were:
i) The unedited footage was available when TSG could have deleted it.
ii) The parts removed were deemed neutral or, on occasions, supportive of the Defendant rather than clearly beneficial to the Claimant.
iii) Negligence of the editors was more likely than malicious intent.
iv) The evidence had not yet been before the experts and so could be re-edited in an agreed form.
v) Commentary on footage is appropriate where it is something only discernible to the operative, rather than commentary on elements which a trial judge could ascertain from watching the footage.
Ultimately, despite the significant findings and flaws, the surveillance was admitted. The overarching reason is that at [76] “it would be artificial and undesirable for the evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case” especially where the unedited footage remained available. The ability to re-edit any footage would largely, in his view, remove any perceived prejudice in the footage being seen.
This is not a carte blanche that all probative evidence will be admitted, HHJ Grimshaw stated at [79]:
“There will be circumstances where the conduct of a defendant, or its agents, is so egregious that probative and otherwise admissible surveillance material should be excluded from consideration utilising the Court’s power pursuant to CPR 32.1. Whilst the conduct of TSG in this case is/was extremely poor, I am not satisfied that the threshold has quite been reached such that the surveillance evidence in this case should be excluded, but it was not far away.”
It is perhaps difficult to imagine many cases where conduct would be more egregious than negligent editing, failing to disclose parts of the footage, and providing untrue statements addressing the issues. Accordingly, it appears that it will be rare that the manner in which the surveillance is obtained will provide a meaningful bar to the inclusion of the evidence. This approach echoes that in Jones, whereby the probative value of the evidence carries more weight than the methods of obtaining it.
On a practical level, and as noted by the Judge, it will be rare that the level of scrutiny into the methods, policies and editing of surveillance footage is as detailed as in this case. Ordinarily, defects in the procedures are likely to be difficult to find in any event. Accordingly, short of an express finding that footage has been deliberately tampered with to the detriment of the Claimant, or where it is not possible to provide unedited footage, surveillance of probative value is likely to be admissible despite inadequacies or inappropriate methods being employed.
Finally, a reminder of the obligations owed by those obtaining surveillance evidence was given at [79]:
“It is incumbent on defendants, insurers and those they engage to obtain covert surveillance evidence to uphold the highest standards of integrity and propriety. In my judgment, TSG have fallen far short in this case.”
Failures to meet these standards are ultimately more likely to result in costs implications than the exclusion of important evidence.
There were, in addition, some important observations about elements of surveillance evidence which practitioners may need to consider.
Unedited Footage – This should always be retained. The fact that this was available was ultimately pivotal to the decision. Erroneously edited footage can be deleted and reedited to the satisfaction of the Court and/or parties if the original material remains. The Court in this case invited the parties to do so and issued a costs warning to parties adopting an unreasonable stance in this regard. The same was said of the commentary to be retained on the footage.
Importantly, “every single second of unedited surveillance footage ever taken by, or on behalf of the Defendant in this case” was required to be disclosed to the Claimant.
Deliberate Non-recording – The suggestion that the surveillance operatives had deliberately not filmed the Claimant undertaking activities demonstrating her limitations was rejected. Inevitably, a decision not to film is taken before the specific event or activity takes place, and thus an operative is unlikely to know whether the footage will be supportive or detrimental to a particular party. In addition, reasons such as fear of detection would explain breaks in footage.
Additionally, the court was keen to stress the limitations of “missing” surveillance evidence, at [17] as stated in Cullen v Henniker-Major [2024] EWHC 2809 (KB):
“…I accept that if something is shown on the footage, that is determinative of it happening. However, I do not accept that the absence of something on the footage is determinative of it not happening.”
The Claimant remains able to comment upon uncaptured events, allowing the Court to make findings in the normal way.
Removal of Certain Footage
Filming of other individuals, such as the Claimant’s husband, was not included in the edited footage, which was again the subject of criticism from the Claimant. The Court at [42-45] considered this and took into account the stage at which the footage had been taken. This was early in proceedings and before the Claimant’s case had been set out in detail, indicating that issues in cases such as this “evolve and may crystallise later”. The Judge was again reassured that this was not deliberate, as the footage of the husband was retained in unedited format and remained available to the parties, suggesting it was not deliberately concealed or omitted. Considering his own individual rights, it was perhaps unsurprising that the Judge concluded at [43]:
“Given that the Claimant’s husband was not the subject of surveillance, I can see why footage obtained of him was not served with the edited footage.”
Commentary on the Footage
In a similar vein, the footage was criticised by the Claimant for the removal of commentary, especially where it referred to elements beneficial to the Claimant, such as items being “small” or journeys being “short”. This was relied upon by the Claimant to support allegations of impropriety and manipulation of the footage by the surveillance company. The question of commentary on surveillance footage often arises. There are times when it is said to be inappropriate for the operatives to provide commentary and times when the removal of such commentary is criticised.
HHJ Grimshaw set out at [45] that commentary by operatives is inappropriate where it “could be seen to be usurping the role of the trial judge.” Examples of this included observations that items were large or heavy, which the operatives would be in no better position to assess than the Judge considering the footage. Conversely, commentary is appropriate where:
“there is knowledge unique to the surveillance operative and which is not immediately apparent from the footage, such as a short distance having been driven or the like, it is appropriate for the surveillance operatives to comment to give the appropriate context as to what the footage shows.”
Storing the Footage
The Judge did not have concerns about the fact that the SD cards were not retained and that the footage was backed up on the Defendant’s systems. He cited the decision in Noble v Owens [2011] EWHC 534 (QB), “where Field J concluded that the unavailability of the original footage on the SD card(s) used was not a bar to the defendant relying on the surveillance evidence and, in that case, the procedure adopted of transferring the footage to DVDs was adopted because SD cards were considered an ‘unstable medium compared with DVDs’”.
There was no evidence to support a suggestion that forensic investigations that could have been carried out on the SD cards could not be undertaken on the servers storing the footage, and no basis to suggest evidence was missing.
Conclusions
The case continues the approach of Jones to the admission of surveillance evidence obtained or produced in ways that are considered inappropriate. Provided that it is of probative value, the Court appears likely to allow its admission notwithstanding the methods utilised to obtain and/or edit it. Whilst leaving open the possibility of evidence being excluded, it would appear that the threshold for such exclusion is very high where the evidence is of probative value.
The case does highlight the need for Defendants and their agents to be alert to the requirements in respect of retention, disclosure and editing when obtaining such evidence; otherwise costs implications are likely to follow even if the evidence is admitted.
