PI Brief Update

Smile, you’re on camera! Surveillance footage and the perils of defendants sitting on their hands for too long - Michael Brooks Reid, Temple Garden Chambers

24/04/26. Michael Brooks Reid comments on the recent High Court decision in Silverdale Tours (Nottingham) Ltd v Daniels [2026] 3 WLUK 160, in which the defendant was not permitted to rely on surveillance footage served late.

Facts

The claimant suffered spinal and neck injuries in a road traffic accident. Liability was admitted by the defendant, but quantum remained in dispute.

The case had reached joint statement phase, and the spinal, pain management and psychiatric experts agreed that the claimant had sustained significant injuries to his neck and lower back, that improvements were expected within a year, and that his injuries would not affect light physical work. 

The defendant obtained covert footage of the claimant at the gym lifting dumbbells above his head, but it did not serve the footage, instead requesting further information from the claimant under CPR Part 18.  The final schedules of loss were significantly apart with the Claimant seeking around £500,000 and the Defendant contending for damages of £47,000.

During the trial window but before a trial date was set, the Defendant made an application to rely on the surveillance evidence that it had secured six months earlier, on the basis that it was relevant to issues at trial.

First instance decision

The judge refused the Defendant’s application on the grounds that the surveillance evidence was not inconsistent with the Claimant’s case and was therefore of very limited relevance, and that the application had been made too late.

The Law

In the King’s Bench Division, Tipples J set out the relevant principles of law:

1. Where surveillance evidence genuinely undermines a claimant’s case to the extent that it would substantially reduce the award of damages, it is usually in the overall interests of justice to admit it and allow the defendant to cross-examine by reference to it, as long as it does not amount to trial by ambush: Rall v Hume [2001] EWCA Civ 146, [2001] 3 All E.R. 248, [2001] 2 WLUK 239 applied.
2. When considering whether it would be an ambush, the question is whether the circumstances in which the evidence was disclosed were such that a claimant had a fair opportunity to deal with it, Douglas v O'Neill [2011] EWHC 601 (QB), [2011] 2 WLUK 337

The Decision

Tipples J dismissed the appeal, finding that the decision to refuse permission to rely on the surveillance evidence was a case management decision within the generous ambit in which reasonable decision makes may disagree.

Tipples J agreed with the judge that the footage added little, and that introducing it at the stage of proceedings after joint statements were prepared, particularly when the footage had been available six months earlier, was not justifiable. There had been no explanation offered for that delay, with Tipples J finding that it was “telling”.

The judge was entitled to decide that it would not be in accordance with the overriding objective to admit the evidence, and that it was irrelevant that the application had been made before the trial date was set. 

Comment

Surveillance footage can be an important weapon for defendants in high value personal injury claims, allowing them to cross-examine claimants and their medical advisors by reference to incontrovertible evidence. Where footage shows that a claimant has significantly exaggerated their symptoms, it can be hugely damaging to their credibility.

Where footage is not truly inconsistent with the claimant’s case, however, it is likely to be of less evidential value, and defendants need to decide how and whether to deploy it. Where a defendant sits on such evidence for too long (perhaps in the hope of encouraging under-settlement by making the claimant fear the existence of footage worse than it actually is), they risk not being permitted to rely on it at all.

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