Overview

In civil proceedings, surveillance evidence is most commonly used by Defendants in Personal injury claims. Its aim is to show any difference between the Claimant’s allegations of impairments consequent on the Index accident, and the truth.

The Civil Procedure Rules (CPR) makes no separate provision for surveillance evidence; a recording is considered a document, and CPR 31 applies.

There are three particular features of surveillance evidence that give rise to special considerations:

1. •

   surprise—it is of the essence of surveillance evidence that it captures the claimant undertaking activities when they have no expectation of being observed by or on behalf of the defendant. Prior notice must, therefore, be avoided;

2. •

   secrecy—equally, it is essential that the claimant is not made aware of the fact they are being observed. However, there are limits to the lengths that a defendant should go to obtain such evidence;

3. •

   timing—its forensic value lies in undermining the claimant’s case, and the defendant will therefore want the claimant to pin their factual case to the mast before disclosing the surveillance