Hayden V Maidstone & Tunbridge Wells NHS Trust
The facts of the matter are that the Claimant was employed as a cardiac physiologist by the Defendant and in the course of her employment she suffered a back injury when attempting to transfer a patient from a trolley to an investigation table in March 2007. Liability was admitted by the Defendant in April 2009 and Judgment in default was entered on 15 July 2010. The case was fixed for trial in April 2016 but this trial was vacated in a disputed application for the Defendant to have permission to rely on covertly recorded video surveillance. The Defendant applied for permission to serve a defence which pleaded that the claimant had knowingly exaggerated the consequences of her accident and included causation issues not previously seen in the pleadings. The Defendant’s application was granted.
The Claimant applied for permission to rely on the evidence of Mr Jeffrey A Simm, a video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report. In his opinion, the DVD evidence ‘cannot be taken at face value’ and there had been selective filming.
As the Claimant Solicitors had had a chance to review the surveillance and obtain an expert opinion on the same the Court allowed the surveillance evidence to be used. However, the Court was not necessarily happy that the Defendant waited until 9 days before the trail window before obtaining and disclosing this evidence. Due to the trial needing to be vacated, and both sides incurring significant additional costs, the Court ordered that the Defendant pay the costs of vacating the trial, the cost of the two Application hearings, and the Claimant’s additional expert costs of viewing the surveillance footage, on the indemnity basis.
This judgment is an important warning that the Courts will take a dim view of late attempts to rely on surveillance evidence, particularly if this is likely to prejudice trial dates. Notwithstanding that the Defendant’s Application was successful in this instance, the judgment shows that the Court was highly reluctant to allow the evidence, and was ready to impose punitive costs sanctions to reflect the disruption to the Court timetable.
In light of this judgement, it would seem imperative that Defendants ensure that all evidence they wish to rely on is disclosed at the relevant stage to save such cost consequences.