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Douglas v O'Neill, High Court, 9 February 2011

8 April 2011
The issues

Surveillance – surveillance evidence – time for disclosure

The facts

On the 8th January 2005, as he was crossing the road, the Claimant was knocked down by a car driven by a drunk driver. The Claimant suffered very serious multiple injuries, including a severe head injury. He was in a coma in hospital for 7 days and in intensive care for several weeks. He claimed that he had suffered loss of taste and smell, memory, cognitive function, including loss of some high level skills, permanent loss of vision in his right eye, right sided weakness, facial damage, disfigurement and scarring, loss of hearing in his left ear, right sided vocal cord palsy, pain, fatigue and depression. The medical dispute centred on the degree of severity of the long term effects of the Claimant’s brain damage and the degree to which his mobility had been reduced.

Judgment was entered for the Claimant on the 6th November 2009 with a 12.5% reduction for contributory negligence. Directions were given on the 1st May 2009 requiring disclosure in relation to quantum by 30th June 2009; service of witness statements in relation to quantum by 30th September 2009; permission for oral expert evidence from experts in 15 different fields by 30th September and 30th November 2009 in respect of Claimant and Defendant’s experts respectively; an updated Schedule by 8th February 2010 and a Trial window commencing on 14th June 2010.

There were significant delays in respect of disclosure and witness statements on behalf of the Claimant.

By February 2010 the parties had agreed to adjourn the Trial window. By April disclosure had still not been completed by the Claimant. Some disclosure as made in May. In the same month the Claimant’s solicitors suggested witness statements, the remainder of disclosure and expert evidence be served together on the 31st July 2010, but that date was not met by the Claimant.

Meanwhile, the Trial had been fixed for 8 days commencing 14th March 2011. Disclosure was the subject of an Order and witness statements were served on the 21st December 2010, just before a settlement meeting was scheduled for the 8th February 2011.

Between April 2008 and October 2010 the Defendant had obtained surveillance evidence on the Claimant. There were some 5 to 6 hours of video footage in total. Particular footage relied upon by the Defendant showed the Claimant driving a conventional sports motorcar, in a bank dealing with the cashier, and a continuous sequence showing him driving a car at night, stopping to take cash from an ATM machine, shopping in a supermarket, paying at a checkout and then returning to the car.

On the 13th January 2011 the video film was served together with a Part 36 offer and a letter withdrawing from the settlement meeting. By the time the footage had been served all the experts had exchanged their reports. The Claimant objected to the Defendant relying upon the evidence.

On the 1st February 2011 the Defendants made an Application for leave to adduce at Trial the surveillance evidence.

The decision

A surveillance video or DVD was a document and not witness evidence. CPR 31.6 provided that standard disclosure required a party to disclose documents on which he relied or which adversely affected his case or which supported or adversely affected another party’s case.

The duty was a continuing duty until the proceedings were concluded. The Court had a discretion under CPR 32.1 to control evidence and the Court’s discretion included the power to exclude evidence that would otherwise be admissible. The Defendant’s conduct was a relevant factor in determining how to exercise that discretion.

Witness evidence might be necessary from those who created the DVD, but this would be rare. The evidence obtained was privileged material until such time as the party which obtained it chose to waive that privilege by disclosing it. Rall v Hume set out the position. If disclosure was made of a video, film or recording the Claimant would be deemed to admit the authenticity of it unless notice was served that the Claimant wished the document to be proved. If the Claimant did so, the Defendant would be obliged to serve a witness statement by the person who took the film in order to prove its authenticity. If that was done the Defendant would be obliged to serve a witness statement by the person who took the film to prove its authenticity. If the Claimant did not challenge the authenticity of the film, it would be available to the Defendant for the purposes of cross-examining the Claimant and / or the Claimant’s experts.

Rall v Hume also made it clear that in the interest of proper case management, once a Defendant had disclosed video evidence, the matter should be ventilated with the Trial Judge at the first practicable opportunity. Generally speaking, following Rall v Hume, it would be in the interest of justice to allow the Defendant to cross-examine the Claimant provided it did not amount to Trial by ambush. That issue amounted to deciding whether the evidence had been disclosed in such time that the Claimant had a fair opportunity to deal with it.

If a Defendant failed to make the decision to rely upon surveillance evidence and disclose it as soon as reasonably possible after receiving sufficient material setting out the Claimant’s case, endorsed with a statement of truth, failure to do so would have unacceptable case management implications and the Defendant would risk being unable to rely upon the material. In this case it was clear that the DVD evidence was relevant to issues in the case. There had been a delay in disclosing that evidence but the Defendant had not been responsible for it. The Defendant was entitled to wait until the Claimant had produced a witness statement with a declaration of truth before the DVD was disclosed. The service of the DVD on the 13th January 2011 was the first reasonable opportunity for the Defendant to serve the evidence after the exchange of the Claimant’s witness evidence bearing in mind the Christmas period.

A further case management Hearing would be appointed for a stock take as to how many of the directions could be complied with and whether the Trial date needed to be adjourned.

Application granted.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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