A leading insurance company has reported that in the last two years GPs have seen a rise in the number of patients exaggerating their injuries.

Ninety two per cent of the 250 GPs who took part in a survey conducted by the insurer said whiplash was the most commonly exaggerated injury.

Who's at risk?

Where there's a potential for fraud in a high value personal injury claim, or cause to suspect the nature and extent of injuries during a claims process, the defendant's representatives may seek targeted covert surveillance videos and employ an enquiry agent to track claimants going about their daily routine. They may then use this evidence in court to expose   malingering, exaggerating, or fraudulent claimants.

Is there a place for surveillance evidence?

It's the duty of the claimant's and defendant's lawyers to ensure every claim is genuine and that the court is not mislead or its resources wasted. The court will consider the extent to which the parties would be prejudiced when deciding whether to allow surveillance evidence.

What protection is there for the claimant?

All cases are assessed individually, but there are some general guidelines flowing from the civil procedure rules (CPR), case law, convention and legislation:

Right to Privacy

Surveillance can be in a public place, but not in the claimant's own home.

This was confirmed in Rall v Hume [2001] and in Jones v University of Warwick [2003], where the enquiry agent posed as a market researcher and entered the home, trespassing through deception.

On the circumstances as a whole, the defendant was permitted to rely on the surveillance evidence, although the Court of Appeal, taking into account the European Convention on Human Rights (ECHR) Article 8 Right to Respect for Private and Family Life criticised the defendant's conduct as improper and unjust, and imposed a cost penalty to protect the right to privacy at home.

Right to fair trial

Protection is afforded under ECHR Article 6 Right to a Fair Trial and CPR 32.

In Rall, Lord Justice Potter said the starting point is that where such evidence undermines the claimant's case and would substantially reduce the award for damages then 'it will usually be in the overall interests of justice to require that the defendant should be permitted to cross examine the claimant and her medical advisors upon it, so long as this does not amount to trial by ambush'.

Ensure full disclosure

The Rall case confirmed that a video or film recording is a document and is subject to the rules as to disclosure and inspection of documents contained in CPR 31.

Claimants, suspecting they are being filmed, should put the defendant on notice and request all film evidence (even if unedited), surveillance logs, and statements of the enquiry agent, so that it's all taken account of and considered by the claimant's own experts. Ask for copies of all invoices raised for taking the footage, and check these against the clock on the video.

Application to the court to rely on surveillance evidence: CPR PD 23

In O'Leary v Tunnelcraft Ltd [2009] Justice Swift confirmed that the defendant wishing to rely on surveillance evidence needs to apply to the court for permission.

In considering the application, the disclosure of the evidence must be timely to allow the claimant's solicitors enough time to take a statement from their own client, lay, and medical expert witnesses, within a time frame that doesn't lead to an adjournment or have a substantial bearing on the length of a trial window or date.

Quality of surveillance evidence

In O'Leary, Justice Swift considered the quality of the evidence and the need for it to be in chronological order and of good visibility, supported by a witness statement from the enquiry agent reconciling the video with the surveillance log.

What should a Claimant do?

• make sure all facts submitted on the claim form and on the schedule of your loss are accurate and true
• don't say you can't do something when you can; instead set out the extent to which you are debilitated
• be clear about when you require assistance to do things and then only do it assisted unless medically advised otherwise
• keep your solicitor updated about changes in your ability or symptoms

Comply with legal boundaries

Defendants need to comply with legal boundaries for making surveillance films.

Failure to do so could lead to evidence being inadmissible and have cost implications, with the courts likely to impose cost sanctions on claimants who've been dishonest about their injuries, and reducing the award for compensation.

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