TAVENOR JOE DOUGLAS (A Protected Party By his Litigation Friend WILLIAM ROBERTSON) v MATTHEW JAMES O'NEILL [2011] EWHC 601 (QB)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
[2011] EWHC 601 (QB)Case No Case No: HQ07X04460Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
TAVENOR JOE DOUGLAS (A Protected Party By his Litigation Friend WILLIAM ROBERTSON)ClaimantMATTHEW JAMES O'NEILLDefendant
Before
His Honour Judge Andrew CollenderMR FORDE QC (Instructed by solicitors) appeared on behalf of the ClaimantMR VINCENT (Instructed by solicitors) appeared on behalf of the DefendantDate 9 February 2011
[1]HHJ COLLENDER QC: INTRODUCTION This is the Defendant's application dated 1 st February 2011 for leave for the Defendant to adduce at the trial of this action scheduled to take place on 14 th March 2011 with a time estimate of eight days, DVD surveillance evidence which has recently been disclosed by the Defendant to the Claimant. Further consequential orders are sought by the Defendant namely, leave for the parties to serve supplemental reports from the expert witnesses dealing with the surveillance evidence and for an order that the experts provide joint statements and/or supplemental joint statements dealing with the surveillance evidence. THE HISTORY[2]The claim arises out of a serious road accident which took place on 8th January 2005 when the Claimant was knocked down by a car driven by the Defendant, then drunk, as the Claimant was crossing the road. The Claimant suffered very serious injuries, including a severe head injury, multiple fractures, including multiple facial fractures, a fracture to the palate, to the base of the skull, a fracture to the right superior pubic ramus, a fracture to the right tibia and a wedge fracture of the seventh thoracic vertebra. He suffered an infarct on the right frontal lobe, diffuse cerebral oedema, severe injury to the right eye, right-sided neurological symptoms, loss or damage to the majority of his teeth, and lacerations, bruising, abrasions and oedema to the right side of his abdomen.[3]He was in a coma in hospital for a period of seven days, in intensive care for several weeks and thereafter in hospital for a further month. Since his discharge from hospital he has had numerous further operations requiring hospital admission.[4]The Claimant's case is that he has suffered loss of taste and smell, memory, cognitive and executive problems, 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 chord palsy, right-sided weakness, pain, fatigue and depression. An intensive three week in-patient neurological assessment in October 2006 found him to be suffering from the effects of severe traumatic brain injury resulting in loss of memory and problems with executive and cognitive skills. My understanding is that the broad thrust of that case as to the Claimant's injuries and the effects thereof is not disputed by the Defendant. The medical disputes in this case centre on the degree of severity of the long term effects of the Claimant's brain damage and the degree to which his mobility has been reduced. The Claimant asserts that he is much restricted in his ability to walk and drive; the Defendants dispute that assertion. There is a dispute as to the Claimant's capacity.[5]The Letter of Claim was served on 8 th February 2008 and Particulars of Claim were served on 17 th April 2008 together with a preliminary schedule of loss that asserted that the Claimant had sustained extremely severe multiple injuries; that he had ongoing personal and domestic care needs and that he was unlikely ever to work again. The schedule consisted solely of narrative and contained no figures in respect of the claim.[6]Liability was compromised in the autumn of 2009 and judgment was entered for the Claimant with a 12.5% reduction for his own contributory negligence on 6 th November 2009.[7]I continue the history of the litigation with particular reference to a witness statement of Mr Brown, a solicitor acting for the Defendant in the autumn of last year, and signed by him on 11 th November 2010 in support of an application for specific orders from the Master in respect of the claim, and in particular evidential matters outstanding from the Claimant.[8]Directions in the case were made by an order of Master Foster on 1 st May 2009, requiring disclosure of documents in relation to quantum by 30 th June 2009, service of witness statements in relation to quantum by 30 th September 2009, permission for oral expert evidence from experts in 15 different fields relevant to the Claimant's injuries, service of experts' reports by the Claimant by 30 th September 2009 and by the Defendant by 30 th November 2009, questions to experts by 21 st December, answers by 18 th January 2010, joint statement by 31 st January 2010, updated schedule of loss by 8 th February 2010 (that, as I understand it, would be the first schedule of loss to have figures within it) counter-schedule by 1 st March 2010, trial period of two weeks commencing 14 th June.[9]On 26 th June 2009, the Claimant's solicitors sought an extension to 31 st July 2009, and a consequential extension of time for exchanging experts' reports to 30 th October 2009, and that was agreed by a letter from the Defendants of 14 th July 2009. No disclosure was given by the Claimant. The second request for an extension of time in respect of disclosure was made by letter dated 22 nd October 2009 advising that disclosure of medical records would be given in seven days, with a further consequential extension of time for exchanging experts' reports to 29 th January 2010. Mr Brown, wrote to the Claimant's solicitors on 23rd October 2009 seeking clarification as to when documents relating to quantum would be disclosed and seeking clarification as to when the Claimant was due to see his appointed experts.[10]A letter was received from the Claimant's solicitors on 5 th November 2009. It purported to disclose medical records but in fact failed to do so. The letter also indicated that additional disclosure in relation to quantum would be provided within ten to fourteen days, although my understanding is there had been no disclosure by then and in fact that deadline was not met by the Claimant.[11]By a letter dated 10 th November 2009, the Defendant's solicitor notified them that, if disclosure was not completed by 4pm on 20 November 2009, he expected to receive instructions to make the appropriate application. There was an extension of time granted for the Claimant's Ear Nose and Throat report, but requiring exchange of all other reports by 27 th November 2009.[12]On 18 th November 2009, the Claimant's solicitors replied indicating the medical records would now be disclosed and further disclosure in relation to quantum would be provided "by early next week at the very latest". In the same letter, proposed extensions of time in respect of witness statements as to quantum to 14 th December 2009, an extension of time in respect of all medical records, save care and physiotherapy to 8 th January 2010, and an extension of time in respect of care and physiotherapy reports to the end of January 2010. By a letter dated 27 th November 2009, those extensions of time were granted by the Defendant. The Claimant sought a further extension in respect of statements as to quantum by a letter dated 11 th December to the second week of January 2010. That extension of time was granted by a letter of 16 th December, although Mr Brown expressed his concern at that time that disclosure had still not been given. This was the third request for an extension of time in relation to witness statements and he was worried that the trial window might be jeopardised.[13]The Claimant's solicitors wrote again on 13 th January 2010 stating they were not in a position to disclose witness statements, but advising that disclosure, including medical notes, would be completed soon. The Defendant's solicitor replied on 19 th January 2010 advising that the time had come to approach the court for a new timetable and by letter of 29 th January 2010, the Claimant's solicitors suggested that the parties apply to the court to have the trial re-listed in a window from 15 th November to 3 rd December 2010, and suggesting various new dates for the outstanding directions, service of the Claimant's witness statements and experts reports by 19 th March 2010, service of the Defendant's report by 30 th June 2010 and consequential directions thereafter.[14]On 1 st February 2010, Mr Brown wrote to the Claimant's solicitor asking why disclosure was still outstanding. There was a reply on 16 th February but it did not deal with the question of disclosure. The adjournment of the trial window was agreed to by the Defendant's solicitor on 15 th March 2010, the adjournment to be to the week of the 6 th or the week of 13 th December 2010. There was a Consent Order sent on 31 st March 2010, which was returned on the same day by Defendant. On 14 th April 2010, the Defendant's solicitor wrote again about disclosure and advised unless disclosure was completed by 23 rd April 2010, he would issue an application.[15]By an exchange of emails, Mr Brown attests to the fact that various informal extensions of time were granted. A trial was fixed to start in the trial window commencing 14 th March 2011, with a time estimate of eight days. That is the trial date and time estimate that remains in force.[16]The Claimant's medical records were disclosed under cover of a letter dated 19 th May 2010. That was almost twelve months after the originally ordered date. On 27 th May 2010, the Claimant's solicitors wrote to the Defendant suggesting that disclosure should be completed, witness statements and expert evidence served altogether on 31 st July 2010, but that date was not met by the Claimant. On 12 th August Mr Brown wrote to the Claimant's solicitors advising unless disclosure was completed by 20 th August 2010, he would issue an application. On 18 th August 2010 there was a reply saying that that would not be necessary because there was a meeting on 20 th August 2010 to finalise disclosure. However, nothing more was heard by the Defendant from the Claimant and on 7 th September 2010 the Defendant, understandably, issued an application. There was a letter on 13 th September 2010 from the Claimant's solicitors advising that counsel for the Claimant was still reviewing disclosure and indicating that general administrative orders could be dealt with by consent.[17]On 6 th October 2010, the Claimant's solicitors wrote again, setting out their view that the Defendant's application should be stood out of the list and steps would be taken to appoint a Litigation Friend. Further observations were made in relation to specific directions, but the sealed application for the order (to which I am just about to come) was served on the Claimant's solicitors by letter of 29 th October 2010. The order that was sought was as follows: "1. The Claimant having failed to give standard disclosure as required by paragraph 2 of the Order of Master Foster dated 1 st May 2009, his claim shall stand struck out unless he gives such disclosure by 4pm on 30 th September 2010. 2. The Claimant shall give specific disclosure of the following documents by 4pm on 30 th September 2010:(a) All earnings records for the period to 1995;(b) All documents relating to the Claimant's road traffic accident in 1993;(c) All documents relating to the Claimant's road traffic accident in 1995;(d) All documents, including any resulting from a claim to the CICA or CICB in respect of the Claimant's assaults;(e) The Claimant's DWP records.(f) The Claimant's Inland Revenue records and other tax records;(g) The Claimant's Social Services records;(h) The Claimant's benefits records, including (but not limited to) housing benefit and counsel tax records;(i) The Claimant's curriculum vitae;(j) Documents and invoices in relation to the care provided to the Claimant;(k) Documents relating to the Claimant's trip to the United States of America in February 2009.[3]Paragraph 4(2) of the Order of Master Foster dated 1 st May 2009 shall be varied, such that each party shall serve on every other party, witness statements by 4pm on 30 th September 2010.[4]Paragraph 4 of the Order of Master Foster dated 1 st May 2009 shall be varied as follows:(a) The Claimant shall serve his reports in the disciplines identified by no later than 4pm on 8 th October 2010 and the Defendant shall serve his experts' reports by no later than 4pm on 26 th November 2010;(b) All questions for the experts to be served by 4pm on 10 th December 2010 and answered by 31 st December 2010;(c) The experts shall prepare joint statements setting out those issues upon which they are agreed and those issues upon which they are not agreed by no later than 4pm on 14 th January 2011.[5]Paragraph 6 of the Order of Master Foster dated 1 st May 2009 shall be varied as follows:(a) The Claimant do file and serve a final Schedule of Loss by 4pm on 28 th January 2011;(b) The Defendant do file and serve a Counter-Schedule by 4pm on 11 th February 2011."[18]There was a Consent Order made by the Master on 22 nd November 2010 in which the provisions of the Order sought were incorporated, with a few variations to which I will allude. The "unless" part of paragraph 1 was deleted; the Claimant simply was required to serve a signed disclosure list by 4pm on 1 st December 2010. Specific disclosure was required of all the documents listed but by 4pm on 1 st December 2010. Paragraph 3 was as I have just recited, save that witness statements were to be exchanged by 13 th December 2010. Paragraph 4 was as I have already recited. Paragraph 5 as recited, save that the final Schedule of Loss was to be served by 14 th January.[19]Most of the experts' reports were disclosed in December 2010 (the Defendant served two reports late; and the Claimant one). The Claimant's first and only statement in this case was finally served, together with other lay or quantum witness statements, not on the appointed dated of 13 th December, but on 21 st December 2010. The schedule of loss was served on 13 th January 2011. A settlement meeting was scheduled by the parties to take place on 8 February 2011.[20]I have rehearsed in some detail that history. It is one which does not redound to the credit of the Claimant. It is a history which demonstrates some six breaches of Order in relation to witness evidence to be served by the Claimant. THE VIDEO EVIDENCE[21]It seems that for a very considerable time the Defendant has had concerns about the extent to which the Claimant's mobility has, in the long term, been affected by the accident. Between April 2008 and October 2010 the Defendant has, via an enquiry agent or surveillance company, taken video film of the Claimant going about his everyday activities.[22]I have viewed what the Defendant considers to be the most material parts of that video film. That takes a little over an hour. There are, I have been told in the course of this hearing, between five and six hours of video footage in total of the Claimant. The Defendant places particular reliance on footage taken on 1 st July 2009, 1 st September 2009, 9 th and 10 th October 2009, and 29 th October 2010. There are two sequences that show the Claimant driving a conventional sports motorcar, one showing him in a bank dealing with a cashier, and another (and the last sequence in the video that I have seen) being a continuous sequence showing him driving a car at night, stopping to take cash from an ATM machine, showing him for a period in the order of 15 minutes in a supermarket, apparently in the company of a young woman going about a normal shopping expedition, paying at the checkout with the young woman and then returning to the car, getting into the driver's seat and driving away. He then stops at a service station, it seems connected with the supermarket apparently to refuel his car.[23]On 13 th January 2011 the Defendant served that video film on the Claimant, together with a letter that contained a Part 36 Offer and notifying the Claimant that the Defendant would not participate in a settlement meeting.[24]Upon a request being made by the Claimant for "a complete set of the surveillance materials", further video material in the form of DVDs was served on 17 th January 2011. I was told in the course of the hearing that all film that has been taken of the Claimant has now been served, save some taken after 13 th January 2011, footage which, I am told by counsel, is not of interest or significance, at least to the Defendant. No witness statements have been served from the surveillance agents who took the footage.[25]The video footage was served after all of the experts had exchanged their reports. All experts have reported therefore without having seen that footage, but the Defendant's letter of 13 th January 2011 stated that the footage had been released to the Defendant's experts.[26]The Claimant has always maintained since the footage was disclosed to them that no reliance could or should be placed on that footage without the Court giving permission for their use in evidence. It is fair to infer that that position prompted the Defendant to make this application some three weeks after 13 th January 2011.[27]I note comments in evidence before me, made by the Defendant's medical experts having viewed and reported on the surveillance evidence. The Defendant's neurologist, Professor Swash, says this about the video:
"These video images are incompatible with the disability Mr Douglas presented, or sought to present at the time of my assessment. In my report I expressed misgivings about his claimed symptoms and disabilities, and it is now evidence that there is little if anything wrong with this man. One can only conclude that he was intending to deceive me at the time of his visit to my consulting rooms."
[28]Dr. Brooks, the Defendant's neuropsychologist said this:
"The overall impression from the surveillance DVD is that Mr Douglas is well able to leave the house, to drive himself around, to go shopping, is not mentally slow, and has no impairment in mobility. That is very different indeed from the apparent picture which he presented to me when I examined him."
[29]Professor Lynne Turner-Stokes, the Defendant's rehabilitation expert said this:
"It is quite clear from the DVD evidence that there is a marked discrepancy in his disability behaviour between that which he presents to doctors and other medico-legal experts in the course of his claim for compensation, and that which he demonstrates when going about his normal day-to-day activities. I do not consider it likely that this differential behaviour is unconscious on his part, or presumably on that of the young woman, if the clips do indeed show the same person."
[30]Professor Tom Fahy, Defendant's psychiatrist said this:
"The DVD surveillance footage raises significant questions about the reliability of Mr Douglas' account of his symptoms and level of functional disability. The man depicted in the October 2010 footage bears little resemblance to the apathetic, unresponsive, uninformative and immobilised man who attended an interview with me on 29 September 2010. It is implausible that the difference in demeanour and the various inconsistencies outlined above can be attributed to abrupt improvements in mood or in underlying neuropsychological functioning."
[31]My understanding is that at least some of the Claimant's experts have seen the DVDs but I know not whether or not they have reported on them. VIDEO EVIDENCE AND THE LAW[32]I accept the Defendant's submission that a surveillance DVD or videotape is a document, not a piece of witness evidence. The overriding objective that I must apply in considering this application is that of enabling the Court to deal with cases justly.[33]CPR Part 1.3 provides that the parties are required to help the Court in furthering that overriding objective and CPR Part 1.4 provides that the Court must further the overriding objective by actively managing cases.[34]CPR Part 31.6 that provides that standard disclosure requires a party to disclose documents on which he relies; documents which adversely affect the case; and documents which support or adversely affect another party's case, such duty under CPR Part 31.11 providing that any duty of disclosure continues until the proceedings are concluded.[35]However, the Claimant accepts the Defendant's contention that the DVDs are privileged documents only discloseable in their entirety if and when a Defendant chooses to waive privilege in respect of them. I think it would be hard for a Defendant, having decided to disclose some video footage taken, to argue that all the footage was not discloseable on the basis that it is essentially a continuous document, to which the Claimant would be entitled to look, if reliance is to be placed on any part of the video footage, in line with well known authority in respect of paper-based documents.[36]CPR Part 32.1 sets out the power of the Court to control evidence. It provides:
"(1) The court may control the evidence by giving directions as to (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is placed before the court. (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible."
[37]The Defendant's conduct (including any failure to comply with the duty under CPR 1.3) is a relevant factor in determining how to exercise the discretion under CPR 32.1.[38]Witness evidence may, as necessary, be given by those who created the DVD but, in most cases, the preparation or production of such witness evidence is not necessary for the reason that rarely is there an issue that the person on a videotape or DVD is or is not a Claimant; the issue is usually the significance to the case of what is shown in the video.[39]In Rall v Hume [2001] EWCA Civ 146 at paragraph 12, Potter LJ clearly set out the legal position in respect of this sort of evidence:
"For the purposes of disclosure, a video film or recording is a document within the extended meaning contained in CPR 31.4. A defendant who proposes to use such a film to attack a claimant's case is therefore subject to all the rules as to disclosure and inspection of documents contained in CPR 31. Equally, if disclosure is made in accordance with CPR 31, whether as part of standard disclosure under CPR 31.6 or the duty of continuing disclosure under CPR 31.11, the claimant will be deemed to admit the authenticity of the film unless notice is served that the claimant wishes the document to be proved at trial. If the claimant does so, the defendant will be obliged to serve a witness statement by the person who took the film in order to prove its authenticity. If the claimant does not challenge the authenticity of the film, however, it is, in the absence of any ruling by the court to the contrary, available to the defendant for the purposes of cross-examining the claimant and/or the claimant's expert medical witnesses at court."
[40]Such evidence obtained by a party for the purposes of litigation is plainly privileged material. As such it is not discloseable in Part 1 of the standard disclosure form.[41]This may be slightly discursive, but I ask the question: should such evidence be identified in Part 2 as "video evidence"? It is the essence of such evidence that it is obtained clandestinely in those cases where a Defendant has suspicions that a claimant is not as badly injured as he or she maintains. Often that surveillance is fruitless and often what it shows can be explained satisfactorily. In line with the commonality of mankind, fortunately most personal injury claimants advance fair, and honest claims, for which compensation is paid by agreement or court order. Sadly, there are a minority of claimants who seek to advance false claims. The law has weapons to punish the minority who advance fraudulent claims – I refer, for example, to criminal sanctions available against perjury and the courts will not sanction or assist those who seek, or may be seeking, to hide their fraudulent activities. Of course, such sanctions are only applied in those cases where the evidence clearly proves to the requisite standard that fraud has taken place.[42]Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a court that may demonstrate that a claimant's evidence is false. Such evidence may show inconsistencies that are inexplicable by a claimant. Its production may lead to the end in one way or another to a claim or a part of a claim. It may be a powerful tool in preventing the successful advancement of a case which is based on untruth.[43]If the fact that a document is video surveillance were to be disclosed in Part 2 that would inevitably alert a fraudulent Claimant to the fact of surveillance and would be likely to deprive a defendant of the privileged opportunity to continue surveillance and to obtain evidence of the kind sought, namely evidence to demonstrate inconsistencies between the truth and the evidence being given by a Claimant.[44]That is not to say that in modern litigation a Defendant can and should be allowed by a court carte blanche, as in past days, to deal with such evidence. As Potter LJ said at paragraph 17 in Rall v Hume :
"It is therefore necessary in the interests of proper case management and the avoidance of wasted court time that the matter be ventilated with the judge managing the case at the first practicable opportunity once a decision has been made by a defendant to rely on video evidence obtained."
[45]Potter LJ went on to set out the approach if the material's authenticity is not challenged at paragraphs 18 and 19 of his judgment:
"…the issue was whether or not the defendant should be prevented from exercising what prima facie was his right to cross-examine the plaintiff by putting to her for her comment such parts of the video as the defendant thought appropriate for the purposes of undermining her case… "
In principle, as it seems to me, the starting point on any application of this kind must be 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 plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush."[46]In my judgment the issue of ambush comes to this --are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the defendant from relying upon it?[47]The latter type of order would be one that used the penalty of preventing the use of relevant evidence against a defendant for failing to act in a manner consistent with effective and fair case management.[48]In Uttley v Uttley (18 th July 2001) the Claimant complained about the late disclosure of surveillance evidence. Hallett J (as she then was) said:
"In my judgment, in the circumstances of this case -and I emphasise in the circumstances of this case -the defendant's solicitors were entitled to hold on to the video recording for a reasonable period of time. This was not simply a case of trying to ambush the claimant at trial. The defendant's insurers not surprisingly wished to assess the evidence in their possession with the claimant's up-to-date account before disclosing it. I say not surprisingly in the light of the history of the litigation as I have outlined it. They wanted to use it effectively as cross-examination material. I accept therefore the explanation from Mr Curtis to which I have already referred. What therefore is a reasonable time in the circumstances of this litigation? Mr Curtis made it plain in August 2000 that although the defendant's insurers were prepared to wait for the witness statement until the report from the doctor was available, they wished to have the claimant's up-to-date witness statement at the same time. They were operating on the basis the medical report would be available within a reasonable time. They also indicated they had no objection to there being an interim statement from the claimant which could be updated if necessary. They wished to have this material, as they said in their letter, to assess their position when it came to possible negotiations and attempts at settlement. They continued to press for the witness statement and up-to-date schedule, but the claimant's solicitors seemed to indicate that one would be available as soon as possible. Despite that fact, no up-to-date witness statement or schedule was produced until December. In my judgment the defendant's solicitors were entitled to press for an up-to-date witness statement and schedule, and to press for documents of that kind in the summer of 2000. They were entitled to know what the claimant was saying himself, not merely what he had reported to Dr Supramamian. It is right to say that on receipt of the doctor's report in October the defendant's insurers would know what the claimant had told him, but it is not unknown in my experience for a claimant to say that a doctor has misunderstood what he or she has said or has failed to record other significant matters that have been said. I entirely understand and sympathise therefore with Mr Curtis' attitude that he wished to know what the claimant himself was saying. In any event, it became clear in October that the doctor had to reconsider the question of how the accident occurred yet the trial date was looming in January 2001. I agree entirely with the Master that the claimant's solicitors should and could have served an up-to-date witness statement from the claimant long before the time that they did. Once served, I have no doubt the video recording would have been served upon them."
[49]In that case, the judge, balancing the Defendant's entitlement to use surveillance evidence effectively, against the general case management goal of openness and a "cards on the table" approach, found in favour of the Defendant.[50]In O'Leary v Tunnelcraft Ltd [2009] EWHC 3438 (QB) surveillance took place over a long period of time but was not disclosed until a short time before a settlement meeting and trial. Swift J identified the case as a case which fell within the "trial by ambush" exception identified in Rall v Hume . She noted that:
"There was no reason, in my judgment, why the footage which had been taken in August 2009, should not have been disclosed earlier."
[51]She was concerned that from the time of the application before her there remained only 31 days to the trial. She continued:
"Once all the material of the best quality available has been obtained, it will be necessary to obtain statements from the claimant and his witnesses. In addition, the experts (i.e. care, employment, psychiatrist, urologist and orthopaedic experts) will need to see and comment on the footage. Mr. Weir has submitted that it is necessary for the experts to see the claimant's comments on the footage at the same time. Mr. Audland said that that is not necessary. In my judgment, it would only be right for the expert witnesses to see all the additional material together. Quite apart from anything else, this would mean that they would only have to deal with the papers on one occasion rather than on two separate occasions. Addendum reports would then have to be obtained, any discussions would have to take place and any necessary amendments to joint reports: all this within the 31 days left before trial. It seems to me that to fit all this work into the time available before trial would be extremely difficult, even without the problems which have been described by Mr. Marks. They would, in my view, render the exercise completely impossible. Even if the exercise were capable of being done, it would be a distraction from the ordinary preparations from trial and from considerations of the Part 36 offers and possible settlement of the case."
[52]Finally, in this review of the law, I should make reference to the case of Jones v University of Warwick [2003] 1 WLR 954 . In that case surveillance evidence had been improperly obtained (although it was properly disclosed). The evidence was admitted. The facts of the case were different from the present circumstances, in particular by reason of the impropriety of the obtaining of the evidence. But some of Lord Woolf MR's comments are relevant to the present case. At paragraph 21 he said:
"21. It is not possible to reconcile in a totally satisfactory manner, the conflicting public policies which the district judge and the judge had to try and balance in this case. The approach of Judge Harris was consistent with the approach which would have been adopted in both criminal and civil proceedings prior to the coming into force of the Civil Procedure Rules and the Human Rights Act 1998. The achieving of justice in the particular case which was before the court was then the paramount consideration for the judge trying the case. If evidence was available, the court did not concern itself with how it was obtained. While this approach will help to achieve justice in a particular case, it will do nothing to promote the observance of the law by those engaged or about to be engaged in legal proceedings. This is also a matter of real public concern."
[53]At paragraph 25 Lord Woolf approved Potter LJ's dictum in Rall that the starting point does not apply, that is the admissibility of relevant evidence, if the conduct of the Defendant amounts to "trial by ambush". He went on:
"A judge's responsibility today in the course of properly managing litigation requires him, when exercising his discretion in accordance with the overriding objective contained in CPR Pt 1, to consider the effect of his decision upon litigation generally. An example of the wider approach is that the judges are required to ensure that a case only uses its appropriate share of the resources of the court: CPR r 1.1(2)(e). Proactive management of civil proceedings, which is at the heart of the Civil Procedure Rules, is not only concerned with an individual piece of litigation which is before the court, it is also concerned with litigation as a whole. So the fact that in this case the defendant's insurers, as was accepted by Mr Owen, have been responsible for the trespass involved in entering the claimant's house and infringing her privacy contrary to article 8(1) is a relevant circumstance for the court to weigh in the balance when coming to a decision as to how it should properly exercise its discretion in making orders as to the management of the proceedings."
[54]The Claimant relies upon those passages as demonstrating the powers of the Court to regulate how evidence is dealt with by the Court in response to how the parties have dealt with such evidence and, as appropriate in this case, disclosed that evidence and, in particular, the timing of such disclosure.[55]I turn in more detail to the parties' respective cases, and as this is the Defendant's application, I will deal firstly with their case. THE DEFENDANT'S CASE[56]The Defendant accepts that my decision today is a matter of properly exercised judicial discretion. The Defendant accepts that a defendant in possession of surveillance evidence should make the decision to rely upon it and disclose it as soon as reasonably possible after receiving sufficient material setting out the Claimant's case, which has been endorsed with a statement of truth so as to enable the surveillance material to be used effectively. If a defendant fails to do so, and the failure to do so, has unacceptable case management implications, then that defendant risks being unable to rely upon the material. It would be unfair if a case went to trial in circumstances where the claimant was unable to meet the surveillance material with explanatory evidence from himself or herself and his or her experts and in such a circumstance the court may well exercise its discretion against a defendant as happened in O'Leary v Tunnelcraft .[57]On the facts of this case, the Defendant disclosed the DVD evidence as soon as it was appropriate to do so within the framework just noted. The Defendant contends that the timetable and circumstances in this case are quite different to those in O'Leary v Tunnelcraft , which is not truly analogous. The Defendant rejects the suggestion that the Claimant was ambushed in this case; that word carrying with it a connotation of unfairness. It is not "unfair" for a claimant who has signed a statement of truth saying that he has severely restricted mobility and does not as a matter of habit drive a car, to be presented with a DVD film showing him driving and walking about a supermarket. The statement of truth required to be attached to a witness statement under the CPR is to be taken seriously.[58]The Defendant's decision to rely upon and disclose the surveillance material was taken at a reasonable time i.e. shortly after the Claimant delivered his signed statements and properly particularised his case. Although the trial is imminent, that is a circumstance created by the Claimant himself. The Defendant sought that particularisation over a sustained period of time before it was given. The short period between service of the signed statements and the trial is the result of the Claimant being in default of court directions.[59]The Defendant refutes the Claimant's argument that they knew the general thrust of the Claimant's case because that is what he told the Defendant's experts. The Defendant contends that falls far short of knowing what his case is and what evidence, endorsed with a statement of truth, he intends to put before the trial judge.[60]The Defendant relies in particular upon the passage in Uttley v Uttley in which Hallett J refers to it not being unknown in her experience for a Claimant to say that a doctor has misunderstood what he or she (the Claimant) has said or failed to record other significant matters that have been said. THE CLAIMANT'S CASE[61]The parties position on the applicable law is the same; the Court has a judicial discretion whether or not to admit the DVD evidence, irrespective of whether it is in law admissible. In deciding how to exercise that discretion, the Court should take into account the overriding objective under the CPR.[62]The Claimant's case is that this is a case of an attempted "trial by ambush", as deprecated by Swift J in Tunnelcraft v O'Leary and the Court of Appeal in Rall v Hume .[63]The Claimant contends that the court should exercise its case management powers to prevent the Defendant using the DVD evidence because, in delaying production of the DVDs, the Defendant has failed to assist the Court to advance the overriding objective. The Claimant contends that the circumstances in this case are very similar to those in Tunnelcraft v O'Leary.[64]The Claimant argues that the Defendant should have disclosed the DVD evidence probably by, at the latest, September 2010, by which time the Claimant had firmly nailed his colours to the mast in his evidence given to the medical experts; alternatively, at the very latest, by 22 nd November 2010 when detailed directions for trial were given.[65]The Claimant asserts that the case on ambush is supported by the fact that it may be fairly inferred that the timing of the service of the evidence was calculated to cause the Claimant as much difficulty as possible, it being served together with a settlement offer and a refusal to attend a settlement meeting.[66]The Claimant contends that, if the court were to condone the Defendant's conduct in this case by granting the application, that would send a message to insurer Defendants that this approach is acceptable, which it should not be within the framework of the CPR.[67]The Claimant asserts that if the DVD evidence were to be admitted his solicitor would have to carry out a formidable list of tasks before the trial. He would need to see a properly signed Disclosure Statement together with all discloseable material (and potentially need to have the opportunity to make an application for specific discovery), see the Claimant (and other factual witnesses) in consultation to take instructions, give the experts an opportunity to review the Claimant in order to produce supplemental reports if necessary, make provision for questions to experts and experts meetings, consider any settlement offers, and take instructions from the litigation friend.[68]If this evidence is to be admitted, the Claimant says the trial date must be vacated as these steps cannot be taken properly in the time available before the present trial date. Further, the Claimant says that the time estimate of eight days is unlikely to hold good, bearing in mind this extra evidence. It would be unfair to the Claimant for the trial to be vacated, leading to a substantial delay. CONCLUSIONS[69]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 have obtained. In the unlikely event that it is not accepted by the Claimant that it is the Claimant who is shown within DVD, the Defendant should be permitted to rely upon such necessary witness evidence to prove the DVD.[70]On the face of it, there can be no doubt that the DVD evidence is relevant to issues in this case. In summary, the Claimant's case is that he has substantial mobility difficulties and, whilst he has driven since the accident, that is something he cannot and does not now routinely undertake. The clear evidence given is that he frequently uses a wheelchair. When walking he uses a crutch. He needs to steady himself on rails. He comes downstairs with difficulty, sometimes on his bottom. Without further explanation, on the assumption that it shows the Claimant, the DVD evidence, renders those contentions suspect. It is clearly relevant evidence and, save for case management considerations, I consider that evidence should be admitted at trial.[71]The DVD evidence exists. Although, the point should not be determinative of the question, I asked myself and asked counsel in the course of this application, how this trial would be conducted if the DVD evidence was not admitted. Would the Defendant be precluded from cross-examining as to the detail of what is in the DVD in the course of the trial? Are the experts who have seen the DVD to be precluded from making references to the evidence? How could they do that without perhaps being unfaithful to their oaths or affirmations?[72]At the heart of my consideration when exercising my discretion, must be a determination as to 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 an unfair advantage of the Claimant such that in popular parlance he can be said to have been "ambushed".[73]I consider that the Defendant has not been responsible for such a delay in this case. I do not consider the case fairly and truly analogous to the Tunnelcraft v O'Leary case. I will not enumerate all the identifiable differences but would note that in this case the Defendant is not in breach of a court order in respect of the DVD evidence and the evidence of the Claimant and the Schedule of Damage were not all obtained by the Defendant many months before the service of the DVD evidence. I consider that all the time that the Defendant was in the position, potentially, to obtain by legal means evidence that was helpful to his case by video surveillance, without jeopardising the proper management of the trial, he was entitled to do so and not to disclose the fact he was doing so to the Claimant. The utility of such a strategy is demonstrated by the fact that, arguably, the most powerful evidence for the Defendant from the DVDs appears to be that obtained on 29 th October 2010. That is the last DVD footage obtained before disclosure.[74]Was the Defendant entitled to wait until the Claimant produced a witness statement with a declaration of truth before disclosing the DVD? I consider he was. Although there is material in the medical reports that is, on its face, damaging to the Claimant's case on the basis that it appears to give a different account to that given by the DVDs, the Courts are well familiar with evidential court discussions with such witnesses as to the possibilities of confusion or omission from such evidence, the very point referred to by Hallett J in Uttley v Uttley . Indeed, it is notable that in his witness statement dated 4 th February 2011 prepared for this application, Mr Reid, the Claimant's solicitor says at paragraph 44:
"Having taken instructions from the Claimant on elements of the highlights DVD, I am satisfied that there is nothing in the DVD inconsistent with his evidence."
[75]In the light of that, the Defendant would be justified in being pleased that they had waited to get the statement from the Claimant before serving the DVD, reminding myself that the statement served on 21 st December 2010 was the result of six court orders for service of such and was itself late by seven days.[76]I am satisfied that the service of the DVDs on 13 th January 2011 was the first reasonable opportunity for the Defendant to serve the DVD evidence after the service of the witness evidence from the Claimant, bearing in mind the Christmas shut down. Thereafter, it was as open to the Claimant as to the Defendant to make the current application; indeed, in the light of the fact that, on the face of matters the Defendant was entitled to cross-examine on the DVDs, it can respectably be argued that the Claimant could and should have made an application to exclude the evidence, if that was the argument that he was going to advance. FURTHER CASE MANAGMENT[77]I am not at the moment persuaded that the trial date must be lost in the light of this decision. With the Claimant's co-operation and proper case management, there is no absolute reason why the trial should not go ahead as planned. I accept that the timetable will be tight, but adjournment of the trial date is not a desirable option.[78]In what follows, I am not seeking to preclude further argument and discussion with Counsel. I emphasise that in giving some preliminary views, I do not have a closed mind, but I do consider that now is the time when this case needs active case management and strong orders. My preference is to give further directions or at least indications now, so as to deal with what will be done by the parties in the next few days. There should be a short hearing before me next week; I envisage a hearing at 10.00 o'clock on a day which is convenient to all parties (I am minded to suggest Wednesday) for some stock taking, to see how many of the directions or indications which I give today have been or can be complied with, and then I can give further directions. If absolutely necessary, I will adjourn the trial to a date in July (possible dates are 11 th or 18 th July 2011) but in saying that I do not wish in any way to encourage the parties to seek an adjournment of the trial at that hearing.[79]I have no doubt that at some time somebody is going to say that there is an issue of costs which is to be decided. My provisional view would be that this is a case where the most appropriate order would be an order that costs are reserved to the trial judge. The present position in respect of the DVD evidence is as follows: it is to be admitted at trial; its effect in the case I cannot judge. In this judgment on this application my comments on the DVD evidence are comments made on the face of the material that I have. They do not preclude a complete explanation by the Claimant in respect of the evidence and a conclusion that this application has been a complete waste of time, and more importantly money, in which case it may be appropriate for the Claimant to have his costs. On the other hand, the position may be that the Defendant is completely vindicated and demonstrates that part of the case has been brought in circumstances which are, to put the matter as neutrally as possibly, "unfortunate" and that it would be unjust that there should be any other order than that the Defendant should have his costs. I do not preclude argument about an alternative order at this stage but those are my preliminary thoughts on the matter.[80]As to directions, and not for a moment deprecating the force, both forensically expressed and in substance, of the difficulties to which Mr Forde QC has adverted in his argument as to why it will be difficult for this matter to come to trial within the present trial window, it seems to me that there are some fairly straightforward questions that can be answered or issues to be dealt with in the next few days which may clear the field so that there is not a difficulty with the trial, or which demonstrate that truly it is not going to be just for the matter to continue to trial on 14 th March 2011.[81]The first of those matters to which I advert, is the question of whether there is going to be an issue as to the DVD evidence in this sense: must it be proved by the Defendants or will it be admitted as a document as being what it purports to be, albeit the significance of it remains to be debated. That is a question to which I have so far not sought to force an answer from the Claimant, but it is a question which I would have thought can be straightforwardly answered within the next seven days. It may require the watching again of the DVD evidence but all that evidence has been disclosed apart from that from January 2011, which I would have thought can be handed over now; if necessary I can make an order about that.[82]The second matter is the question of expert evidence. The position so far, as I understand it, is that all further expert evidence from the Defendant in relation to the DVD evidence has been disclosed. If I am wrong about that I can make an order about that. I know not quite how far the matter has gone with the Claimant's experts, but I would have thought that it need not take very long for those experts to produce supplementary reports dealing with the DVD evidence. This is a large case, as I have already observed, and it is surprising when a little bit of pressure is applied, how quickly medical experts, busy though they may be, can produce what will be, I anticipate, relatively short supplementary reports. Joint meetings can be conducted as necessary by telephone or video conferencing.[83]Subject to anything that anybody says, it does not seem to me that the matters of settlement meeting or the offer which has been made are any concern of mine. I will now hand over to Counsel.

Cited in 5 later judgments