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Ambushed! Late disclosure of surveillance evidence

25 July 2017
Lucy Fazackerley looks at the recently published judgment in Hicks v Rostas & MIB (2017) which contains a helpful and comprehensive review of the authorities on the issue of disclosure of surveillance evidence.

Hicks v Rostas and Motor Insurance Bureau
High Court (QB)
His Honour Judge Reddihough
17 March 2017


In March 2017 His Honour Judge Reddihough heard the defendant's application for permission to rely on surveillance evidence and accompanying witness statements.

The claim arose out of a road traffic accident in April 2013 in which the claimant sustained serious physical and psychological injury. A provisional schedule of loss served in January 2015 claimed past and future lost earnings at c.£845,000 but by March 2017, following the change in the discount rate, the potential of the claim for future lost earnings was estimated at £2 million.

The surveillance evidence was recorded over five days in February 2015 and two days in March 2016. The defendant served the footage on the claimant on 30 June 2016 and made the application for permission to rely on it on 15 July 2016.

The defendant asserted that the surveillance evidence showed the claimant functioning at a much higher level than suggested in his witness statement and than reported to the medical experts. Having reviewed the footage, the defendant's orthopaedic expert, Mr Pearse, found that it undermined the claimant's reports of continuing significant symptoms. He concluded that the claimant had in fact been fit to return to employment from early 2014.

The defendant requested that the application be listed towards the end of August 2016, but counsel for the claimant was not available at that time and the application was ultimately listed in March 2017 with the trial period due to begin on 25 April 2017. It is of note that the judgment contains implied criticism of both the defendant and the claimant for failing to ensure the prompt listing of the application given the potential impact of permission being granted.

Then, in late February 2017, before the hearing of the application, the defendant served further footage taken in December 2013 and June, July and October 2016. No good reason was provided for the delay in serving this further footage and the July 2016 application clearly did not deal with the additional footage. Nonetheless, at the March hearing the defendant requested permission to rely on this further surveillance evidence.

The application, which jeopardised the trial date, was strongly opposed by the claimant who accused the defendant of an ambush, particularly with reference to the additional surveillance footage disclosed in February. 

The law

A video film or recording is a document for the purpose of CPR r.31.4. The parties have a duty to provide standard disclosure under CPR r.31.6 and have an ongoing duty of disclosure under CPR r.31.11.

Potter LJ in Rall v Hume [2001] EWCA Civ 146 stated 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 claimant and her medical advisers upon it, so long as this does not amount to a trial by ambush."

In Uttley v Uttley [2002] PIQR P12, Hallet J concluded that the defendant was entitled to wait for sight of the claimant's witness statement to see what he was saying himself before disclosing surveillance evidence.

The defendant's application in O'Leary v Tunnelcraft Ltd & Ors [2009] EWHC 3438 (QB) to rely on surveillance footage disclosed 31 days before trial was refused, on the basis that it was considered to constitute an ambush. At the time of the hearing the claimant's solicitors were still not certain that they had received full disclosure. It would not be practical for the trial to proceed if the application was successful and to delay would have serious implications for the claimant, whose psychiatric condition was being adversely affected by the proceedings.

In the case of Douglas v O'Neill [2011] EWHC 601 (QB) surveillance evidence was disclosed two months before trial. His Honour Judge Collender QC considered "whether or not the defendant by his advisers has been guilty of delay in producing this DVD film; delay caused by apathy, or worse, through an attempt to take unfair advantage of the claimant such that … he can be said to have been 'ambushed'." He found that the defendant had not been responsible for a delay and stated that "I unhesitatingly consider that in this case the interests of justice militate in favour of the defendants being permitted to use the surveillance DVD they obtained".

The defendant was also permitted to rely on surveillance evidence in Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB). In that case the trial had already been vacated when Foskett J considered the defendant's application. He considered the fact that the defendant's expert had seen the footage would inevitably affect the way he gave his evidence. He cited the reasoning in Douglas v O'Neill and Rall v Hume when considering whether there had been an ambush which eliminated the need to find a "sinister motive" in the actions of the defendant but rather focused on whether the delay in revealing the surveillance was "otherwise culpable". He said that a significant factor will be the time at which the defendant should have reasonably obtained the surveillance. Once the claimant's case has been clearly presented and the defendant's expert has opined that the claim is "suspect" the defendant has an obligation to obtain surveillance if it is proportionate. "The longer it is left and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable".


HHJ Reddihough found that although there was clear fault on the part of the defendant in the delays in disclosing unedited footage relating to the June 2016 disclosure, and particularly in not disclosing the further footage until February 2017, this was not a case of "out and out ambush" where surveillance footage is disclosed for the first time very close to trial.

He permitted the defendant to rely upon the surveillance footage disclosed in June 2016 but not the footage disclosed in February 2017. There was no good reason for the delay in disclosing the further footage which was provided many months later and close to trial.

The claimant however, was permitted to rely on the February 2017 footage if it assisted his case or put the footage relied upon by the defendant into context. 


It remains the case that surveillance footage should be obtained and disclosed at the earliest opportunity. As soon as the claimant has properly particularised his/her case and the defendant has grounds for suspicion, surveillance footage should be obtained and disclosed without delay. This will reduce the chance of the claimant convincing the court that there has been an ambush.

Witness evidence should be scrutinised, together with all medical records. If there is cause for concern, and if the expert is suspicious, surveillance should be undertaken as soon as possible. In this case the defendant's expert had reviewed the footage and provided a supplemental report after the application was made but before the hearing. The judge had regard to the fact that the expert had seen the surveillance footage which would affect his evidence.

Douglas v O'Neill is still good law and confirms that a defendant may wait until the claimant has served witness evidence before disclosing surveillance footage. However, if surveillance footage is only disclosed for the first time just before trial the defendant will have a mountain to climb.

Ultimately, the judge in this case acknowledged that the footage had the potential to significantly reduce the amount of damages payable. It was in the interests of justice and the overriding objective to allow the defendant to rely on some of the surveillance evidence.


For further information please contact Lucy Fazackerley.

Further Reading