Secret surveillance in personal injury cases

The use of surveillance by insurers to record the lives of injured claimants in personal injury claims is becoming increasingly common. It was once reserved for the most serious and complex cases and cases where compensation could potentially be very high. However over recent years claimant solicitors have noticed the increased use of surveillance in lower value claims.

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 which could have a serious impact on the value of a compensation claim.

What is the purpose of surveillance?

Surveillance is used to try to catch the claimant out and record them doing something that they have said they could not do. It is not unusual for secret surveillance to be performed on a claimant over several years hoping to get that one piece of footage to catch the claimant out. The secret surveillance is gathered in the hope that it establishes that the claimant is exaggerating the impact of their injuries.

Like most personal injury solicitors who represent people with serious injuries, we have been served with surveillance evidence on many occasions over the years. The majority of this evidence hasn’t had an impact on the value of the claim because the claimants have been genuine, and 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

At the outset of a personal injury case, an experienced solicitor will warn their client there is a chance that the defendant will try to secure surveillance evidence over the course of the claims process. It is important to remember that whilst surveillance is undertaken frequently most will fail to secure anything useful because the surveillance professionals will see a genuine claimant struggling to cope with their life changing injuries.

Go through the surveillance with you in detail

If a solicitor has been served with surveillance evidence it is paramount that they go through this with their client. This can be time consuming, but it is worth it. Often the client will have an explanation for why they were seen doing something or can explain what happened just before that footage or just afterwards and create the full picture.

Secure the unedited footage

Your solicitor should ask for all the unedited footage, corresponding logs and records made during the surveillance operation. The solicitor should 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. It can often alert the solicitor to underhand tactics.

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.

Instruct a 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 and report on any irregularities. 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.

Having a report from an expert is very useful to cast doubt on the authenticity of the surveillance evidence.

Request further information/Part 18 questions

If your solicitor suspects that the defendant 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 defendant 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.
If your solicitor suspects selective filming methods have been used, he or she can ask Part 18 questions as to why a particular event has not been filmed.

Don’t instruct a medical expert to review the footage until you have the unedited footage

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 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.
Joint statements between experts should be postponed until the issues of irregularities of the surveillance have been explored.

Challenging admissibility

Your solicitor can challenge the admissibility of the evidence if the surveillance experts trespass on to the claimant’s property while trying to secure video evidence. 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 served at a very late stage in the claims process. The defendant cannot ‘sit on’ the video evidence and then 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.

It is often thought that we have a right to privacy but unfortunately that isn’t the case. Under Article 8 of the Human Rights Act 1998, there is a right to a private life. This doesn’t mean that surveillance is in itself unlawful. The Human Rights Act 1998 only applies to public authorities and so in the majority of personal injury claims, such as road traffic accidents or injury at work, the Human Rights Act gives no protection.

As the use of surveillance in personal injury cases continues to rise, the best thing solicitors can do for their clients is to warn them at the outset of the case of the possibility of surveillance during the claim and if served with surveillance evidence ensure they are thorough when analysing the evidence and of course challenge the evidence when appropriate.