Issues raised by late service of surveillance evidence in PI/Clin Neg cases continue to trouble the Courts.
Foskett J recently observed that there were two such cases being heard on the same day in the RCJ. He heard one of these: Hayden v Maidstone & Tunbridge Wells NHS Trust  EWHC 1121 and allowed in late-disclosed evidence shortly before trial even though there was “culpable” delay in obtaining the surveillance. He did so with marked reluctance, and an order for indemnity costs, and stated he would probably not have allowed it in at all save for the fact that he had already adjourned the trial to allow the Claimant properly to consider the surveillance evidence and the Defendant's application! In his judgement, however, he highlighted one practical but maybe underused measure that claimant solicitors, and the courts, can employ to limit the risk of an ambush by reference to O’Leary v Tunnelcraft Ltd  EWHC 3438 (QB) -still one of the few cases where surveillance evidence has been refused.
“In O’Leary..there was a directions hearing when Master Fontaine ordered, amongst other things, that any application by the defendants to rely on the evidence of private enquiry agents or video evidence at trial should be made no later than 1 July 2008. No surveillance evidence was disclosed prior to that date or thereafter because, it was said, that no such evidence had been obtained at that stage. It has...occurred to me....that more liberal use might be made of the kind of order made by Master Fontaine..such that the court would be given even greater control than it currently possesses over preventing the unjustifiably late deployment of surveillance footage. An order with a “date by which” provision will, if disobeyed, bring into focus the relief from sanctions jurisdiction and any application to deploy the evidence will fall to be assessed by reference to the approach in Denton. The making of such an order would also focus the minds of the defendant’s representatives on the need to address the issue in a timely way so that, whether justifiably or not, they are not accused of simply trying to ambush the claimant”.
Napier Miles / 6th Jun 2016
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