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Rall v Hume, Court of Appeal

19 February 2001
The issues

Reliance Upon Video Evidence – Human Rights Act

The facts

The Claimant suffered a road traffic accident. Liability was not in issue. The Claimant suffered depression and continuing neck, shoulder and lower back symptoms. Substantial claim for care and assistance from the husband was made. On 2nd May a directions hearing took place when directions were given in relation to timings and agreement of future medical reports and a re-listing for a further directions hearing on 9th October 2000. The Defendant’s solicitors were then in possession of video surveillance evidence showing the Claimant going about daily tasks without any apparent difficulty. On 21st June 2000 the video was disclosed to the Claimant’s solicitors. A second video was obtained on 11th September 2000 containing further surveillance evidence. It was disclosed to the Claimant’s solicitors on 10th October 2000. In fact neither party had appeared on 9th October possibly because the date appeared on the following page and consequently the claim had been struck out by the District Judge.

The Claimant’s solicitors applied to have the claim reinstated and the Defendant’s solicitors consented. The hearing that came before the District Judge on 6th November 2000 and was attended only by the Claimant’s solicitors. Reinstatement was ordered and Case Management listed for 13th December 2000.

It was also listed for Trial on 22nd January 2001 with a time estimate of 4 hours. On 13th December the Defendant’s solicitors applied to rely upon the video evidence at the Case Management Conference. At the Case Management Conference the District Judge refused the Defendant’s Application on the grounds that the Application was made too late and that in respect of the first video, application should have been made on 2nd May 2000 and in respect of the second at the hearing with the re-instatement application before the District Judge. The District Judge indicated that he would have allowed the application if it had been made in time save for footage showing the Claimant within her own home and inside a nursery with a child on the basis that that was an intrusion to her privacy. However, if the videos were now to be shown to the Trial Judge the case could not be disposed of within the 4-hour period.

The matter came before the District Judge and the District Judge’s decision was affirmed.

The decision

This was the second tier appeal against a Case Management decision. As such, it was an appeal in respect of which the Court would not ordinarily grant permission. It was granted however to clarify the issue of reliance upon video evidence.

1. A video film was a document within the meaning of CPR 31.4. It is therefore subject to the rules as to disclosure contained in CPR 31.

2. The showing of a video requires facilities to be made and extends the time for the Trial. The duty is therefore upon the party seeking to rely upon the video to help the Court to further the overriding objective and therefore to ventilate the matter at the first practicable opportunity.

The starting point of any application to rely upon video evidence where the evidence according to the Defendant undermines the case of the Claimant to an extent that would substantially reduce the award of damages. Is that it must be in the overall interest of justice to allow the Claimant to be cross-examined by the Defendant and her medical advisors “so long as this does not amount to Trial by ambush”

There had been no deliberate delay in this case in order to achieve surprise not was the delay otherwise culpable.

The Defendant’s error in failing to apply at the earliest possible opportunity was not a sufficient ground for shutting the Defendant out from all opportunity to cross examine the Claimant on the contents of the video. There was no reason why the Judge in exercise of his powers to control evidence at Trial should not have limited cross examination by means of an order ordering the Defendant to give notice in advance for those parts of the video footage relied upon coupled with a limitation on the time permitted for cross-examination at Trial.

Significant weight should not have been attached to the Claimant’s Counsel assertion that the video assertion that the video “does not add up to much”.

Those elements of the video which amount to an invasion of privacy had been abandoned by the Defendant and it was not therefore necessary for the Court to consider further argument in that respect.

The Order therefore would be made that copies of the video be viewed by the Claimant and her medical experts with permission that the Defendant cross examine the contents of footage totalling not more than 20 minutes running time, such footage to exclude footage of the Claimant within her own home or within the nursery visited by her child and to be identified in communication to the Claimant’s solicitors. The costs of the appeal be borne by the Defendant’s solicitors.

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