England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT COUNTY COURT
(His Honour Judge Thompson)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 8th February 2001

POTTER LJ:

INTRODUCTION

1. This is the appeal of the defendant in a personal injury action from the decision of His Honour Judge Thompson in the Aldershot County Court on 3 January 2001 dismissing the defendant's appeal from the Case Management Decision of District Judge Fuller dated 13 December 2000. Thus, it is a second tier appeal. However, we granted the defendant permission to appeal at the outset of the hearing on 17 January 2001on the grounds that it raises an important point of practice so far as the reliance upon video evidence in personal injury actions is concerned. Having heard the appeal, we then indicated our decision and the order which we would make, so that the trial might proceed on 22 January 2001, stating that we would give our reasons later. They appear below.

THE PROCEDURAL HISTORY

2. The action concerns an injury caused to the claimant in a road accident in August 1996 in respect of which liability is admitted. The claimant is a young mother. She was aged 31 at the time of the accident, since when she has had two children. On 6 December 1999 she obtained judgment for damages to be assessed. At the same time an order was made that the case be listed before a District Judge on 2 May 2000 for Disposal/Directions.
3. As pleaded in the particulars of personal injury in Particulars of Claim dated 15 July 1999, as a result of the accident the claimant suffered an injury to her neck, left shoulder and lower back causing immediate pain and stiffness. However, contemporary x-rays were normal. For a time after the accident the pain increased and the claimant suffered a number of unpleasant symptoms which then diminished to an extent but affected her sleep. She required physiotherapy for her physical symptoms and counselling from a psychologist to deal with travel anxiety and depression. She had to give up her active hobbies and had considerable difficulties in the tasks involved in caring for her baby following her pregnancy. It is said that she continues to suffer physical and psychological symptoms and that, having moved to Australia with her husband, it was necessary to return to Britain to live so that she could have the support of her family in various domestic tasks necessary to look after a young family. The original claim for damages was limited to £50,000. However, the claimant's schedule of damages dated 30 July 1999, in addition to special damages of £6,750 claimed future losses in the sum of £68,283 on the basis that the claimant would need permanent additional domestic assistance from her husband for 10 hours per week claimed at £4.50 per hour and applying a multiplier of 28.
4. So far as general damages are concerned, the claimant's medical condition has gradually improved from that described in an orthopaedic report dated 16 March 1998 and reports of a clinical psychologist dated 11 and 23 February 1998 served with the particulars of claim. Her progress appears from the orthopaedic report of Mr E.J. Smith dated 12 April 2000 and a psychiatric report from Doctor G Bennet dated 17 August 2000 upon which the claimant proposes to rely at trial. In the latter report, it is stated that:

"She has been much isolated by the limitations placed on her by not being able to participate in sports and in getting around generally. She has also commented on the considerable extra burden which has fallen on her husband."

"… many tasks are made more difficult with her neck and back pain, in particular … picking up small children."

". . she only drives locally around Chepstow along familiar roads."

"She regards her difficulty in driving, and the limitations it places on her life, as a 'major problem' .."

5. On the basis of that evidence the substantial claim for future loss is maintained.
6. Reverting to the history, the directions hearing duly took place on 2 May 2000 when directions were given in relation to the timings and agreement of future medical reports and the service of updated statements and schedules of damage, and a direction was made that the matter be re-listed before District Judge Fuller for further Directions/Disposal on 9 October 2000. No trial date was fixed.
7. By 2 May 2000 the solicitors for the defendant were in possession of a covertly taken video film containing footage relating to the claimant's movements on 8 February 2000 and 15 February 2000. The video evidence showed her going about her daily tasks with her child, including journeys in her car without any apparent difficulty. The video evidence was not disclosed at that stage as it was clear from the medical reports previously relied on that the claimant was going through a continuing process of improvement and it would not be clear before the up-to-date reports were available whether what was shown on the video was at odds with her case as it would be advanced at trial. However, when the updated medical evidence was obtained from Mr Smith on 12 April 2000, the defendant's insurers instructed his solicitors to disclose the video to the claimant's solicitors, which they did on 21 June 2000.
8. A second video was obtained by the defendant's solicitor on 11 September 2000 containing footage of the claimant in the course of her shopping and child caring activities on 21 and 24 August 2000. Again it appeared to show her having a normally active life without difficulty and on one occasion making a lengthy (rather than local) car journey. Instructions were obtained that the video should be disclosed and it was disclosed to the claimant's solicitors on 10 October 2000. If (as was by then intended by the defendant) the videos were to be relied upon at trial, the second video should plainly have been disclosed prior to the Directions hearing set for 9 October so that any directions relating to or consequent upon the proposed use of the videos could be dealt with by the court. However, the need for disclosure before that date was not appreciated at the time; both sides had in fact overlooked the provision in the order of 2 May for the 9 October appointment (it appeared on the second page of the order, the text of which apparently ended on the first page). Consequently, neither party appeared before District Judge Fuller on 9 October and the claim was struck out. Both sides were still not aware of the position on 10 October, when the second video film was disclosed.
9. The claimant's solicitors quickly applied to have the claim reinstated and that the case be re-listed for further Directions/Disposal. That application was supported by a statement of the solicitor with conduct of the claimant's case which explained and apologised for the error and ended: "I respectfully request that this case be re-instated and listed for Further Directions/Disposal hearing". Since the defendant's solicitors did not wish to take advantage of the claimant's solicitors error, and because no further directions were apparently being sought by the claimant at that stage, they simply wrote a letter to the court consenting to reinstatement.
10. The reinstatement hearing before District Judge Caron on 6 November 2000 was attended only by the claimant's solicitor. District Judge Caron ordered that the case be re-instated and that it be listed for a Case Management Conference on 13 December 2000 with a time estimate of one hour. He also took the opportunity, on the basis of the case as described to him, to list the case for disposal, i.e. trial, on 22 January 2001 with an estimate of four hours.
11. On receipt of the order, the defendant's solicitors resolved that they would apply to rely upon the video evidence at the Case Management Conference on 13 December, and did so.

THE DISTRICT JUDGE'S DECISION

12. At the Case Management Conference, a transcript of which is before us, District Judge Fuller refused the defendant's application. He stated that the application was made too late. He said that, if the defendant wished to adduce the video evidence, he should have made application to that effect at the first Directions hearing on 2 May 2000 in relation to the first video and that, in relation to the second video, further application could have been made at the hearing of the reinstatement application before District Judge Caron, who was likely then to take the opportunity to give Directions for trial. The District Judge indicated that, in principle, he would have allowed the application for video evidence to be introduced (save for certain footage showing the claimant within her own home and inside a nursery with her child, on the basis that it was an intrusion into her privacy). However, as a result of the delays of the defendant, the position had been reached whereby a date for trial had been fixed with an estimate of four hours. That was already a tight estimate and, if the videos were shown, it was a certainty that the case would not be disposed of within the four-hour period. The claimant was anxious and entitled to have her case disposed of expeditiously and she did not want the delay and anxiety which would be involved if a new date were fixed. Furthermore, it would be unfair and an inconvenience to the claimant for rushed arrangements to have to be made over the Christmas period for the claimant and her experts to view the video and make their comments upon it. Accordingly the balance of justice fell in favour of excluding the video evidence. District Judge Fuller gave leave to appeal.

THE JUDGE'S DECISION

13. At the appeal before His Honour Judge Thompson on 3 January 2001, the decision of the District Judge was confirmed. The judge took the view that, if application to adduce the video evidence had been made in time, it would have been appropriate to allow the application (subject to excision from the video of the intrusive footage). However, he said:

"… if the total video which runs to 2 hours is to be put in evidence, the consequence is that the hearing on 21 January 2001 will be lost, as it is not possible within the time allowed to show 2 hours of video. Furthermore, the video may need to be shown again in order to cross-examine the claimant on it. In my judgment the application was far too late. If you want to call evidence you must give an indication early on. Once the video had been taken it should have been disclosed promptly and if the intention was to rely upon video evidence an application should also be made promptly to do so. I can see no justification for saying that the District Judge was plainly wrong in reaching the decision that he did and I cannot therefore allow the appeal. The district Judge was right and I dismiss this appeal."

14. The judge made clear earlier in his judgment that, in addition to the principal objection of lateness, he had been told by the claimant's counsel, who had seen the video, that it did not 'add up to much', showing as it did the claimant generally going about her business, but not dealing with the aches and pains which she says she experiences when doing so. Furthermore, he considered that the part of the video taken through the window of the claimant's home was a clear invasion of privacy which should be excluded, and probably the same argument applied to some footage which he was told had been taken through the window of the local nursery.
15. While at first sight this is no more than a second tier appeal against a case management decision and, as such, is an appeal in respect of which the Court of Appeal does not ordinarily grant permission, we did so because it is clear that neither the Civil Procedure Rules nor the Practice Directions contain any rule or particular direction as to the use of video evidence for the purpose intended in this case i.e. as material for cross-examination of the claimant in a personal injury action so as to cast doubt upon the claim.

THE APPLICATION OF THE CPR

16. For the purposes of disclosure, a video film or recording is a document within the extended meaning contained in CPR 31.4. A defendant who proposes to use such a film to attack a claimant's case is therefore subject to all the rules as to disclosure and inspection of documents contained in CPR 31. Equally, if disclosure is made in accordance with CPR 31, whether as part of standard disclosure under CPR 31.6 or the duty of continuing disclosure under CPR 31.11, the claimant will be deemed to admit the authenticity of the film unless notice is served that the claimant wishes the document to be proved at trial. If the claimant does so, the defendant will be obliged to serve a witness statement by the person who took the film in order to prove its authenticity. If the claimant does not challenge the authenticity of the film, however, it is, in the absence of any ruling by the court to the contrary, available to the defendant for the purposes of cross-examining the claimant and/or the claimant's expert medical witnesses at court.
17. So stated, the position appears to be straightforward. However, the practical constraints upon such a procedure in terms of Case Management are (1) that showing of a video, or part of it, in court for the purposes of cross-examination requires arrangements to be made for the availability of video equipment in any court where it is not normally to be found and (2) that the whole procedure extends trial time. Hence, when fixing a trial date with an estimate of time, it is necessary for the managing judge to make proper allowance for this. It is therefore necessary in the interests of proper case management and the avoidance of wasted court time that the matter be ventilated with the judge managing the case at the first practicable opportunity once a decision has been made by a defendant to rely on video evidence obtained. Such a duty lies upon the defendant under CPR 1.3 which requires the parties to help the court to further the overriding objective under CPR 1.1(2), in furtherance of which, under CPR 1.4, the court's duty of active case management includes giving directions to ensure that the trial proceeds quickly and efficiently.
18. While it was plainly these later considerations which were decisive so far as the District Judge and the Judge were concerned and led each of them to the conclusion that the defendant's application was made too late, it appears to me matters may well have proceeded, and were in any event decided, on the basis of a misunderstanding. I say this because it is apparent from the terms of their judgments, that the District Judge and the Judge throughout proceeded upon the assumption that the application was an application by the defendant to adduce the video evidence as part of his own case, in respect of which leave was required under the CPR, and that the entire video would need to be played for the purposes of admission in evidence and (it might well be) again for the purposes of cross-examination, whereas, the authenticity of the video not having been challenged, the issue was whether or not the defendant should be prevented from exercising what prima facie was his right to cross-examine the plaintiff by putting to her for her comment such parts of the video as the defendant thought appropriate for the purposes of undermining her case. Had the matter been dealt with on that basis, it seems to me that a different result might have followed and that justice could have been done by a form of order tailored to the realities of the position (see paragraph 23 below).
19. In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush. This was not an 'ambush' case: there had been no deliberate delay in disclosure by the defendant so as to achieve surprise, nor was the delay otherwise culpable, bearing in mind the mutual muddle over the 9 October hearing date. Nor is this the comparatively rare kind of case in which the film has to be independently adduced because what it shows goes beyond what can be established by cross-examination, and where different directions may be needed.
20. It is true that the defendant's solicitors were at fault for not attending at the application for reinstatement of the claimant's claim and apprising the court of the intention of the defendant to use the video evidence for purposes of cross-examination at trial. It appears they had overlooked the provisions of CPR PD 23 which provides that:

"2.7 Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

2.8 Applications should wherever possible be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to Case Management Conferences, allocation and listing hearings and pre-trial reviews fixed by the court.

2.9 The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary Case Management Directions. They should be ready to assist the court in doing so and to answer questions the court may ask for this purpose.

21. However, it does not seem to me that the solicitor's error was a sufficient ground for shutting out the defendant from all opportunity to cross-examine the claimant on the contents of the videos. The claimant had already had an opportunity to view and comment upon the contents of the videos following their disclosure (an opportunity of which she had availed herself, as we were informed on this appeal), and there was no reason to suppose that her medical witnesses would not themselves be able to view the videos in the three weeks remaining between the appeal before the judge and the date fixed for hearing. Further, there was no reason why the judge, in exercise of his powers to control the evidence given at trial (see CPR 32.1) and, in particular, to limit cross-examination under CPR 32.1(3), should not have made appropriate directions for the defendant to give notice in advance of those parts of the video footage relied on, coupled with a limitation on the time permitted for cross-examination at trial. By such means, even if the 4-hour estimate for the trial was exceeded, all the evidence and cross-examination of the plaintiff and the medical witnesses could be completed upon the day fixed, thus ensuring that the claimant's part in the trial (and her consequent anxiety) would be over and unnecessary experts' costs avoided.
22. So far as concerns the first of the two subsidiary reasons given by the judge for his decision, it does not seem to me that significant weight should have been attached to the assertion of the claimant's counsel that the video did not add up to much, in the face of the defendant's submissions to the contrary. From what we have been told on this appeal, it is true that none of the individual activities of the claimant portrayed on the video is one which, according to the medical reports, it would be impossible for her to carry out; it is equally the case that the video cannot in itself attest to the genuiness of such pain or discomfort as the claimant may say that she felt. However, it is the contention of the defendant that the actions portrayed exhibit an overall level and freedom of activity which is inconsistent with the overall picture presented in the reports and the statement of claimant. In my view, in the circumstances described above, justice to the defendant requires that an opportunity to cross-examine on the content of the videos be afforded. Finally, so far as concerns those parts of the video which the claimant's counsel argued amounted to an invasion of her privacy, the parties have agreed before us that it is unnecessary for us to consider further argument in that respect because the defendant is content to abandon reliance upon the footage complained of.

CONCLUSION

23. In those circumstances, I would resolve this appeal by an order (which the Court has already made) that the trial date fixed for 22 January 2001 should stand. I would direct that copies of the videos be viewed by the claimant and her medical experts prior to trial, with permission to the defendant to cross-examine upon the content of footage totalling not more than 20 minutes running time, such footage (which should not include any footage of the claimant within her own home or within the nursery visited with her child) to be identified and communicated to the claimant's solicitors by 1 p.m. on 19 January 2001.

COSTS

24. So far as costs are concerned, it seems to me that the need for this appeal would have been avoided had the defendant's solicitors not delayed in raising the question of reliance upon the videos for the purposes of cross-examination, in time for their consideration at the reinstatement hearing on 6 November 2000. Their failure to do so involved a breach of their duty under the CPR at least in the respects described in paragraph 20 above. Further, the form of order which I have proposed only emerged during argument upon this appeal. It was certainly never articulated as a solution before the judge. Accordingly I would order that the defendant pay the costs of this appeal.

SEDLEY LJ: I agree

Order: Appeal dismissed. Defendant to pay costs of appeal.
(This order does not form part of approved judgment)