Insurer’s increasing use of secret surveillance in personal injury cases

The fast moving development of digital technology means that it is getting easier and cheaper to gather secret surveillance evidence in personal injury cases, writes Chris Bolton, serious and catastrophic injury specialist solicitor with Birchall Blackburn Law.

Whilst the use of surveillance by insurers to record the lives of injured claimants was once reserved for serious and complex cases – when compensation could potentially be very high – it is becoming a common practice in any significant compensation claim.

Of course, such surveillance is important to prevent fraud but in some cases surveillance evidence is simply being used to cast doubt on the claimant’s credibility and reduce the value of their compensation.

It is not unusual for the secret surveillance of the claimant to last for many years and during this time the person will have no idea their everyday life is being watched and recorded. The surveillance is used to catch the claimant out and record them doing something that they have said they could not do. The secret surveillance is gathered in the hope that it establishes that the claimant is exaggerating the impact of their injuries.

An experienced personal injury solicitor will thoroughly challenge surveillance evidence because even a video clip is open to interpretation and can be seen in a totally different way if put into context.

An experienced personal injury solicitor will do a number things when faced with surveillance evidence from the defending insurance firm:

Warn you of surveillance

When you first talk to a solicitor about your case, an experienced serious injury solicitor will warn you there is a chance that the defence will try to secure surveillance evidence over the course of the claims process. It can be unnerving but nowadays it seems to be a regular practice in many cases. It is important to remember that whilst surveillance is undertaken frequently most will fails to secure anything useful because the surveillance professionals will see a genuine claimant struggling to cope with their life changing injuries.

Secure the unedited footage

If the defence does put forward surveillance evidence, your solicitor should ask for all the unedited footage, corresponding logs and reports made during the surveillance. The solicitor will then review all of the evidence in detail to cross reference the footage with the time logs and make sure the footage has not been cleverly edited to benefit the defendant’s case. Reviewing the footage against the written logs may indicate what is missing and if anything has ‘conveniently’ not been filmed.
Review all footage with you

You solicitor should sit and go through all the footage (edited and unedited) with you. It will be time consuming but it is a chance for you to put your recorded actions into context and identify what the footage doesn’t show before and after the filmed activities.

Video evidence expert

In some cases an experienced personal injury solicitor will instruct a video evidence expert to look at the edited and unedited footage. The expert will have in-depth knowledge of filming and editing methods. He or she will be able to identify discrepancies, irregularities and ‘tricks of the trade’, which can be used to question the credibility of the evidence.

Request further information

If your solicitor suspects that the defence is withholding surveillance information then they should make a formal request to the other party to either clarify or give additional information in relation to the surveillance evidence. If the defence does not respond to the request or your solicitor is not satisfied with the further information supplied then an application to Court should be considered.

Medical expert

An experienced serious and catastrophic injury solicitor will not ask a medical expert witness to look at the surveillance evidence until all the edited and unedited footage has been reviewed by the solicitor, you and the video evidence expert. It is really important for medical experts to be informed of any discrepancies and the context of the surveillance evidence so they don’t start to doubt their own diagnosis and the claimant’s credibility, which can significantly reduce the value of the claim.

Challenge admissibility

You can challenge the admissibility of the evidence if the surveillance experts trespass on to the claimant’s property while trying to secure video evidence. Your solicitor should challenge this as inadmissible. However, any video evidence secured away from your property will remain admissible in the case.

You can also challenge the admissibility of surveillance evidence if it is revealed by the defence at a very late stage in the claims process. The defence cannot ‘sit on’ the video evidence and then ‘surprise’ or ‘ambush’ the claimant just weeks before the trial starts. The claimant must be given the time to review and address the evidence presented within the surveillance footage.

The importance and weight that courts are giving to video surveillance evidence is illustrated in the recent case of Grant v Newport City Council . In the case a High Court judge criticised a defendant who sat on surveillance footage until just weeks before the trial was due to begin. The claimant’s solicitor would have had little time to review the footage and prepare a rebuttal with expert witnesses. The judge stated this type of evidence could only be admitted if it could be done fairly.

However, the judge declined to throw out the evidence altogether, even if there was no good reason for the defence to delay the disclosure of the video footage. The judge said that the procedural unfairness he identified would be ‘wholly mitigated’ because the trial was in fact adjourned anyway. The delayed trial meant that the claimant now had enough opportunity to deal with the surveillance evidence. In the light of this, it is worth noting that the video surveillance evidence in the case was very significant and showed exaggeration by the claimant.

From the outset an experienced personal injury solicitor should warn you about the use of surveillance evidence by insurance companies to reduce the value of compensation claims. In the vast majority of cases such surveillance will only succeed in recording the genuine struggles of a person trying to cope with a life changing injury.