Undertaking chronic pain work as I do, I work on the basis that every single one of my clients will be the subject of covert surveillance by the Defendant. In fact, insurance companies will freely admit that in pretty much every claim involving chronic pain, covert surveillance is commissioned.
The surveillance operatives will usually have a number of outings over what is often a prolonged period of time. However, there are certain stages of the claim when they will always be present, such as when a Claimant attends appointments with the Defendant’s medical experts.
Whilst the thought of being followed is both intrusive and highly unpleasant, I can understand why insurance companies may decide to undertake such investigations. Unlike me, the insurance company and their representatives do not have the privilege and advantage of being able to meet with and talk to the Claimant. In doing so, I am free to discuss their condition with them, to observe them at close quarters and, dare I say, to make my own personal judgement of them. The insurance company, on the other hand, is forced to take stock of the situation and make their judgement at arm’s length.
Whilst I have no particular problem with surveillance evidence per se, I do have major issues with the way that it is often subsequently used.
In my experience surveillance evidence is inevitably served edited; my first reaction then being to request the unedited footage. Even if the footage is stated to be unedited, it is regularly selective. It’s amazing how often the camera is apparently not filming when the Claimant is struggling to climb steps or has stopped for a rest.
This isn’t surprising as this is lucrative work for the surveillance operatives and they will clearly wish to impress the insurance company instructing them by providing footage suggesting that even if the Claimant is not entirely fabricating their symptoms, there is some element of malingering going on.
Even if the footage shows nothing suspicious, incriminating, or in way inconsistent with the Claimant’s evidence, it’s often served anyway. I believe this is purely in an attempt to create an air of suspicion which can unsettle both Claimants and medical experts. It’s surprising just how often I have to calm medical experts, as an air of panic descends upon them when they are asked to review surveillance footage.
So, how should a solicitor deal with surveillance footage?
Well, they should start dealing with it before it’s even been commissioned by the insurance company. I always drum into my clients the importance of keeping me in the loop with the progress of their symptoms. If they have a good day and find that they can walk for an extra 10 minutes, they should tell me about it; pick up the phone or send me an email. If there’s a paper trail, the chances are that will totally take the sting out of any surveillance footage that captures that situation. As a fraudulent Claimant is highly unlikely to volunteer improvements, that simple request to keep me advised has subsequently proved invaluable for a number of my clients in recent years.
Surveillance is always served late in the claim. However, that should not stop the Claimant’s solicitor making regular requests throughout the claim for any surveillance to be disclosed. Of course, the other party will likely refuse or respond in a non-committal fashion, but sometimes such a request will lead to early service of the footage.
Once surveillance evidence is served, the solicitor should immediately request confirmation that this surveillance represents the full, unedited footage. They should request witness statements from all of the surveillance operatives, together with the surveillance logs. It is also a good idea to request the surveillance operatives invoice as further evidence of the extent of the footage, although insurance companies are often more reluctant to disclose that document.
Until this information and documentation is provided, the Claimant’s solicitor should make it clear to the insurance company or their representatives that the authenticity of the footage is not accepted.
The insurance company will have to apply for the Court’s permission to rely upon any surveillance footage. As a result of being served late, surveillance evidence will inevitably cause disruption to the Court’s timetable for the claim, as additional time will have to be factored in for expert witnesses to view the footage and update their report. It may also lead to the need for a further joint statement discussion between the parties’ respective medical experts.
Surveillance operatives will often ‘doorstep’ a Claimant, usually early on in their operations. This may help positive identification of the Claimant and may involve knocking on the door, asking them to confirm their name and sign for a package. The interesting thing is just how often the initial doorstepping incident does not feature in the surveillance footage served, yet Claimant’s often recall this incident, particularly as the package was unsolicited and contains something unlikely such as a magazine or a cheap DVD, with little or no covering information. A specific request should always be made for this footage, but only after the surveillance agents witness statements have been served, confirming to the Court that the footage already served represents the full unedited footage. Subsequently ‘flushing out’ this undisclosed footage can help defeat the Defendant’s application to the Court for permission to rely upon the surveillance.
The Claimant’s solicitor should take a detailed witness statement from the Claimant commenting upon the footage. That witness statement should be sent, along with a copy of the surveillance footage, to the Claimant’s medical experts. Those medical experts should only be instructed to comment upon the footage in writing following a conference with them, at which the footage is discussed. This helps to prevent snap judgements being made and provides an opportunity for the solicitor, and possibly counsel, to put the surveillance in proper context.
Personally, I would like to see the rules changed so that if an insurance company takes the decision to commission surveillance, they must serve it, whatever it shows. As things stand, they are entitled to withhold the footage, even if it goes to support and corroborate the Claimant’s case. A clear case of having their cake and eating it!
Should you wish to discuss issues arising out of this article, please call Richard Lowes on 01225 462871.
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