James Pretsell successfully represented the Defendant in an application to rely on surveillance evidence in the High Court

Published: 02/11/2016 | News

James Pretsell acted for the defendant in the case of Stewart v Kelly, where it was held a claimant had had no principled reason to object to the admission of video surveillance evidence served by the defendant.


The case concerned a personal injury claim in which the defendant had admitted liability for the accident but disputed damages. The claimant stated he had suffered back and neck pain as a result of the accident and the defendant commissioned video surveillance of the claimant in order to gauge the extent of his injuries. The date of the trial was set for November and the claimant served a final witness statement in May 2016, which set out further particulars about his pain. The defendant commissioned further surveillance and submitted these in August along with an invitation to the claimant to agree to introduction and an assessment by an expert. The claimant objected to the evidence and the defendant submitted the instant application. The claimant then submitted there had been principled reasons for objecting to the evidence including that the application should have been made sooner and that waiting until the claimant’s final witness statement to respond with further evidence was not appropriate.  The claimant also stated the submission of evidence meant the original trial date could not be maintained.


Agreeing with James’s submissions, Blake J set out in a succinct judgment that the three month period between disclosure and trial was sufficient to enable the Claimant to deal with the evidence.  There was no ambush.  The Defendant was entitled to see and consider the greater detail in the witness statement before commissioning further surveillance.  There had been no culpable delay in the disclosure of the evidence once it had been completed.  The Claimant could and should have forwarded the evidence to his expert in the absence of any good objection to its admissibility.  Given the circumstances of disclosure there was no question of the Claimant being ‘bounced into’ sending the evidence to his expert.  The need to amend costs budgets was not a good reason not to take the necessary steps to prepare for trial.

This case will be helpful to those Defendants who are faced with the argument that Hayden is authority for the proposition that a Claimant can simply wait for the Court to determine an application by the Defendant to rely on surveillance evidence before taking any steps such as forwarding to their expert(s) and producing witness statements in response. In Stewart, Blake J did not consider this to be a legitimate approach.

The decision is also particularly helpful since it deals with various issues thrown up in practice since the decision of Foskett J in Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] 3 Cost L.R. 547.

The Claimant in Stewart argued unsuccessfully that:

  • the Defendant should have not waited until receipt of the witness statement to commission further surveillance evidence and/or disclose the evidence already obtained;
  • the Claimant was entitled to wait for the decision of the Court before forwarding the evidence to his medical expert.  The Claimant should not be, to adopt the phrase used by Foskett J in Hayden, ‘bounced into’ sending the evidence to his expert; and
  • in the absence of an agreement from the Defendant for the parties’ costs budgets to be amended, the Claimant was entitled to wait for the decision of the Court.

The Claimant was ordered to pay the Defendant’s costs of the application and was refused permission to appeal.

James is part of the Personal Injury Team.