England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/08/2016

Mr Justice Edis:

1. This is a claim for damages for personal injury consequent upon an accident at work. The claimant was employed as a Cardiac Physiologist by the defendant and suffered a back injury when attempting to help in the transfer of a patient from a trolley on to a cardiac investigation table on the 23^rd March 2007. Liability was admitted in April 2009. Proceedings appear to have been issued just before the expiry of the primary limitation period. Judgment in default of acknowledgement of service was entered on 15^th July 2010. After a prompt start, half a decade passed before the case was fixed for trial in April 2016. The history of events that month is fully set out by Foskett J in his judgment at [2016] EWHC 1121 (QB). I gratefully adopt his account of the facts which I do not repeat here. Paragraphs 27-47 set out the law and practice relevant to the application before him, and some general observations.
2. The trial date was vacated by Foskett J and the defendant was given permission to rely on covertly recorded video surveillance evidence after a hotly disputed application. I now deal with further consequences of that decision.
3. There are two applications before the court.

i) The defendant applies for permission to serve a Defence which pleads that the claimant has consciously exaggerated the consequences of her accident. The Defence also deals with causation issues which had not previously been the subject of any pleading. This is because there is no provision for the service of a Defence after a default judgment, and issues relevant to quantum are generally set out in the Schedule and Counter-Schedule. The defendant was not in breach of any rule by not pleading its case in a Defence before now.

ii) The claimant applies for an order that she has permission to rely on the evidence of Mr. Jeffrey A. Simm, Video Evidence Analysis Consultant, in the form of a Witness Statement dated 18^th July 2016, or in the alternative permission to rely on his evidence in an expert capacity in the form of the report attached to his witness statement, also dated 18 July 2016.

4. Both applications are hotly disputed, as is the way of this litigation at least in the recent past. It appears to me that this is a case where the parties are not co-operating effectively. Foskett J was rightly critical of the conduct of the defendant's solicitors in his judgment and underlined the need for proper professional cooperation at [48]. It appears to me that on this occasion, for reasons which I will explain, the lack of co-operation is at least shared and that a large slice of the fault lies on the claimant for taking wholly unmeritorious points and making unfounded allegations of bad faith against the defendant's lawyers. I express the hope that in the final pre-trial preparation the parties are able to agree what can be agreed in the usual way. The trial judge may be able to deal with any failures in this regard by appropriate costs orders. I regret to say that a great deal of time and money has been spent by solicitors on both sides attacking the conduct of the opposing party in witness statements which simply generates yet further statements in response. It appears to me that the case has been bogged down in attritional warfare of a kind which used to be far more common than it is now. The issues before me were all capable of resolution by agreement by parties sensibly co-operating towards a trial. This is especially so since a detailed Order for directions has been recently made by Foskett J after another long and contentious hearing.

The Defence

5. In his judgment at [61] Foskett J said

"Mr. Mendoza [counsel for the claimant] has submitted that if what the defendant is alleging against the claimant is some fraudulent attempt to obtain increased damages on a false basis, this should be pleaded or otherwise made clear. Mr. Mooney [counsel for the defendant] accepts that if that is the defendant's case it would need to be spelt out clearly. However he has said that at least until the defendant's psychiatric expert has considered the surveillance footage, he is not in a position to say whether that will necessarily be the defendant's case. A provision in the order concerning this must be made."

6. When the order was drawn up by counsel and approved by the judge for sealing, this had become paragraphs 11 and 15:-

"11. Any application by the defendant to serve a Defence to plead a positive case of fraud shall be served and filed by 4.00pm on 24^th June 2016, with any Application Notice to have attached to it a copy of the proposed statement of case.

"15. The defendant shall serve a final Counter Schedule of Loss (limited to the updating of the Counter Schedule previously served to take account of the further evidenced now available from the experts in relation to the surveillance evidence and the new date of trial) by 4.00pm on 30^th September 2016."

7. The application was issued in time and is now before me. The Defence is attached to it and includes the following controversial paragraphs:-

"4. As to paragraph 5 of the Particulars of Claim the defendant puts the claimant to strict proof in relation to the causation and extent of her alleged injuries. In particular the defendant relies on the medical evidence of Michael Cass, Consultant Spinal & Orthopaedic Surgeon. Mr. Cass summarises his view in his report of 14^th June 2016 that

"It is firmly my opinion, and one that I have maintained all along, that these positions of the neck and the muscles [those taken during the transfer of the patient by the claimant] are commonplace in everyday activities and positions, i.e. I opine that nothing special went on at the time of the transfer that doesn't occur in Mrs. Hayden's everyday life. The disc was "primed" to go (which is something I believe Mr. Patterson concurs with in his several reports and opinions) and it was by unfortunate coincidence it happened at that point.

5. In the circumstances it is the defendant's primary case, as set out in the Preamble to the Counter Schedule of Loss, that the claimant was going to sustain her disc injury in her neck in any event within 12 months of it happening on 23^rd March 2007.

6. Further, the defendant relies upon the said surveillance footage… [the Defence then sets out extracts from the expert medical evidence about the footage and pleads conscious exaggeration of symptoms for the purposes of financial gain within the proceedings]

……………..

11. The defendant will further set out its case in detail in relation to the claimant's claim for Damages in an updated Counter Schedule of Loss to be served in accordance with paragraph 15 of the Order of Mr. Justice Foskett by 30^th September 2016."

8. The claimant objects to this Defence being served on two bases:-

i) It is submitted that the defendant is seeking to abuse the process of the court by "slipping in" a defence on causation opportunistically taking advantage of the provision which allows only a pleading of fraud if so advised.

ii) It is submitted that the defendant's solicitor deliberately decided not to send the 7^th witness statement of the claimant to the expert witnesses when instructing them to comment on the footage. This sets out her response to the footage which Foskett J described as "certainly at face value a strong one", see [24]. This was a breach of best practice for the instruction of expert witnesses. The Guidance for instruction of Experts in Civil Claims was published on the Civil Justice Council website in August 2014, see 35.39 on page 1061 of Volume 1 of the White Book where its status is explained. 35.20 on page 1054 sets out paragraph 20. This requires relevant witness statements to be sent to the expert when instructions are sent. It is submitted that I should reject the explanation that this was an error on the basis that so many errors have been made that I should instead find that this was a deliberate ruse. The suggestion is that since no-one could make so many innocent errors there must be a malign motive in play.

The acceleration issue

9. Mr. Cass's evidence has not always been consistent. In 2012 and 2013 I am told that he was not functioning as well as usual because of the very grave illness of his wife. However he said in his first report in March 2011 that he felt that the event was probably the precipitating cause of the prolapse but that there was a high likelihood of the injury occurring within a fairly short time frame regardless of the index incident. He later expressed the view that she would have suffered a prolapse within less than 12 months whether the index incident had happened or not.
10. In the Counter Schedule served in November 2014 the defendant said this

"The orthopaedic experts do not dispute that the claimant developed a disc prolapse, the timing of that prolapse but for the index incident is in dispute. Mr. Patterson the claimant's orthopaedic expert states that a prolapsed disc could have occurred "after a long time". Mr. Cass, the claimant's [sic] Spial and Orthopaedic expert feels that the claimant would have suffered a prolapse within 12 months of the index incident in any event."

11. The defendant then set out its valuation of the claim on the basis of a 12 month acceleration of the onset of a condition which would have happened anyway.
12. On 26^th January 2016 the defendant set out its case in an updated Counter Schedule for the trial which was then fixed for April 2016. This quoted the opinion of Mr. Cass expressed in his first report of 2011 and said "In the circumstances it is the defendant's case that the claimant would have sustained a disc prolapse within 12 months of the accident in any event and hence this accident has only brought forward the symptoms that the claimant alleges by a period of between 0 and 12 months. Taking the mid-point the defendant will allows a period of 6 months". The calculations in that document follow this approach.
13. In a lengthy Skeleton Argument/Opening Note prepared on behalf of the claimant, Mr. Mendoza summarised the issue for the judge at the April trial in this way, after summarising the opinions of Mr. Patterson (no prolapse if no accident) and Mr. Cass (prolapse within 12 months with or without accident)

"It is this fundamental difference of medical expert opinion that is the critical issue to be decided by the court. Would the claimant on the balance of probabilities have suffered a disc prolapse within 12 months of the accident in any event?"

14. Paragraphs 26-40 of the Opening Note then proceed to argue the claimant's case on the issue with detailed reference to the medical evidence and its development over the years. No submission is made that the claimant is disadvantaged in any way in dealing with the issue. Rather, it is submitted that she should succeed on it.
15. I am not able to discern any difference between the defendant's case as set out in paragraphs 4 and 5 of the Defence and that which it was proposing to advance at the trial which was vacated for other reasons in April 2016. In one sense it does not matter, therefore, whether those paragraphs are or are not in the Defence. Either way, the defendant is entitled to run its case on this issue exactly as it wishes. Mr. Mendoza accepted that in the course of his oral submissions saying "They can argue what they like at the trial." Mr. Mooney articulated my own thoughts in the course of his reply when he asked, rhetorically, "What are we doing here?"
16. A technical argument about what should, and what should not, appear in a Defence in a case where there is a default judgment is misconceived. There is, of course, no provision for a Defence in the Rules in such a situation. The decision to allow the defendant to apply for permission to serve a Defence alleging fraudulent exaggeration was a bespoke solution to a particular problem, as advocated by Mr. Picken QC as he then was when sitting as a Deputy High Court Judge in Symes v. St George's Healthcare NHS Trust [2014] EWHC 2505 (QB) [87]. The claimant had asked for the procedural protection against ambush which a pleading provides and the Order granted that request. It could have directed an Amended Counter Schedule instead which would have been a perfectly satisfactory way of giving the claimant notice of the defendant's case on quantum. Given that a new Counter Schedule will be required in any event, the costs of serving a Defence could have been saved by requiring the advance notice of the defendant's case to be given there, and only there. Instead, the Order did both. The new Counter Schedule required by paragraph 15 will only be amended to cover the consequences of the expert evidence about the surveillance, and the original form about the acceleration of the prolapse by 6 months will remain.
17. It appears to me that it is marginally preferable to have the Defence in the present form than in a form which lacked paragraphs 4 and 5. These make it clear how the new defence of fraud relates to the old defence of acceleration. Simply pleading fraud without that explanation might (just possibly) cause confusion. The pleading as drafted makes it clear that the defendant's case is that with effect from 6 months after the accident the symptoms in the claimant's neck, whatever they are, are not related to the accident. The defendant then goes on to say that if that is wrong and there is liability for symptoms after that date, they have been consciously exaggerated.
18. I was taken back to a hearing when this case was still in the Tunbridge Wells County Court in May 2014 when the defendant's application for permission to call an ergonomist was refused by the District Judge. In the course of submissions counsel then appearing for the claimant observed that it was not necessary for the claimant to prove causation, given the default judgment on liability. That reflected the witness statement served by the claimant's solicitor resisting the application. That was correct in that the judgment means that the claimant was injured in an accident at work which was entirely the fault of the defendant and that she suffered some damage as a result of that injury. She is therefore entitled to recover all the loss which she can show to have been caused by the accident. There is something unsatisfactory in a Judge being required to spell out elementary propositions of law and procedure in answer to legal submissions on an issue of such little importance.
19. Although the law on the effect of a default judgment on the assessment of damages in personal injury actions has seemed clear to me for some years, I was also taken to authorities. I was referred to the decision of Carr J in New Century Media v. Makhlay [2013] EWHC 3556 (QB) and that of Simon Picken QC in Symes v. St George's Healthcare NHS Trust [2014] EWHC 2505 (QB) to which I have already referred. I agree with both of these decisions, but they do not in truth add anything relevant to the legal position which is as I have stated it in paragraph 18. Authority is scarcely required for the proposition that a party cannot raise defences at a quantum hearing which were relevant to the issue of breach of contract, when there is a default judgment resolving the issue of breach. Authority is even less necessary when deciding the effect of a default judgment in a personal injury claim on the subsequent conduct of those proceedings. I do not consider it necessary to delve into the different question of what estoppel may arise from a default judgment in other subsequent proceedings which is the subject of analysis in both of these decisions.
20. Mr. Mendoza submits that Mr. Picken QC in Symes v. St George's NHS Trust was wrong and that I should not follow that decision. Given that Mr. Picken held himself bound by Lunnun v. Singh [1999] CPLR 587 which is a decision of the Court of Appeal directly on point, this is a surprising submission. Lunnun itself followed two other decisions of the Court of Appeal Civil Division in John Turner v. PE Toleman (1999) unreported 15^th January and Maes Finance Limited and another v. A Phillips & Co (1997) The Times 25^th March. The only one of these decisions which is a personal injury claim is Turner where Simon Brown LJ rejected a submission that a default judgment in a personal injury action meant that the claimant was entitled to recover for "the injuries pleaded in consequence of the defendant's negligence." He held that "what loss and damage was caused by this defendant's negligence must be part of the exercise of assessing damages". He said that this accorded with his own experience in these cases over very many years:-

"No doubt defendants must acknowledge some injury to a plaintiff before judgment could properly be entered against them….That is a far cry from saying that they are necessarily liable for each and every aspect of loss and injury which the plaintiff in his pleaded claim asserts he suffered."

21. I will not analyse Mr. Picken's decision further, although I have already said that I agree with it. Like him I am bound by the Court of Appeal and that is an end of it.
22. I reject the submission of Mr. Mendoza that if the defendant's case on acceleration is set out in the Defence as well as in the November 2014 and January 2016 Counter Schedules he will need to serve a Reply and a Part 18 Request and the trial date will be threatened. The trial date will not be threatened. It will take place when it is fixed, at the end of November 2016. There is no provision in the Rules for a Defence in these circumstances and certainly no provision for a Reply. There is provision for a Defence in the Order of Foskett J but not for a Reply. If the claimant wishes to change her case on this issue from that which Mr. Mendoza was planning to open in April 2016, it is she who will need to persuade the court that it is proportionate to allow her to do so at this very late stage in the proceedings. A Reply raising new matters would have to be justified, as would any Part 18 Request.
23. For these reasons I grant the defendant's application to serve a Defence which includes paragraphs 4 and 5. Mr. Mendoza's submissions on this issue are quite unarguable.

Paragraph 11 of the Defence

24. I now turn to paragraph 11 of the proposed Defence (see [7] above). This says that the defendant intends to serve a Counter Schedule in compliance with the Order of Foskett J. Mr. Mendoza submits that this is a further subterfuge by which the defendant seeks some surreptitious advantage. I am afraid that this is another quite unarguable submission. If the defendant serves something for which it does not have leave already, it will have to apply for leave. All the Defence says is that it intends to do that which has already been permitted. It is entirely unimportant whether this paragraph remains in the Defence or not. It is a matter of regret that the time of the court has been expended on something which does not matter in the slightest, one way or the other. I propose to allow the application to serve the Defence as drafted because it can do no harm to do so. The protection against that which the claimant fears is in the Order of Foskett J.

The way in which the experts were instructed

25. Finally, on the question of the Defence, I turn to the issue raised in relation to the way in which the defendant's solicitors instructed their experts without sending them the latest statement of the claimant. It is submitted that I should reject the explanation which is that in hindsight the defendant's solicitor accepts that it would have been better practice to send the witness statement. Mr. Mendoza submitted that he could not say if this was "just another bad day at the office" or whether there is some more malign explanation. This refers to evidence contained in a witness statement by the claimant's solicitor, the effect of which I have summarised at 8(ii) above. The claimant does not accept that it was an oversight because of the number of other oversights which have happened in this case. This is a submission which involves an allegation that the defendant's solicitor has sought to mislead me. There is no proper basis for it and it ought not to have been made.

i) The effect of the acknowledged failure by the defendant's solicitor is to undermine, potentially, the evidence which he was seeking to obtain from the experts. They will now have to reconsider their opinions in the light of the material which they had not seen and may perhaps be criticised for forming an opinion on incomplete material.

ii) When I enquired of Mr. Mendoza what benefit may accrue to the defendant by the failure to show the statement to the experts, as against the detriment which I have just identified, I received no satisfactory answer. It would seem that this is very incompetent sharp practice if that is what it was.

iii) In any event, the defendant's solicitor did send the report of Dr. Jon Valentine dated 21^st April 2016 to Mr. Cass and Professor Fahy when seeking their opinions about the surveillance footage, and to Dr. Mungali when seeking his further opinion. This lists the claimant's statements of 21^st December 2015 and 12^th April 2016 among the "New Evidence Considered in this Report" on page 4, and summarises the contents of those two documents on page 8. The suggestion that the defendant's solicitor sought to conceal their existence from those experts is therefore unfounded.

26. I am not directly concerned with the issue raised by the claimant on this aspect of the application. Foskett J has given (to his later regret, see [53]) permission to rely on the surveillance footage. He allowed time for the defendant to consider whether they wished to allege fraud and gave a direction designed to require them to make their case clear. They have complied with that direction by making this application in time. It is not submitted that I should refuse to allow it because the allegation of fraud has no prospect of success. In these circumstances it would be wrong to refuse to allow the defendant to raise the issue at the assessment hearing. It would frustrate the purpose of the vacation of the trial and the Order made by Foskett J. This is an application about the pleadings, not the management of the expert evidence. Counsel for the defendant has carefully assessed his professional obligation when deciding whether to plead fraud and has decided to do so.
27. It is rightly said that the defendant's solicitor did not help the conduct of the case by refusing to secure and disclose the opinions of the experts on the new statements of the claimant in writing before the joint meetings. He did send them the material once the point was raised by the claimant's solicitors and did so at the end of June. He said that the experts could sort it out at the joint meetings and deal with it in the joint statement. They were due by 8^th July 2016 and are now late for this reason. The claimant's solicitor reasonably considered that the defence experts should set out their reaction to the claimant's evidence in writing before the joint meetings so that the claimant's experts could reflect on what they had to say. The defendant's solicitor has only recently relented and it is now agreed that this is the way forward. I will dispense with the need for an application to vary the timetable in this respect and will give a direction that the defendant has permission to serve one further report from each of its medical experts dealing only with the content of the claimant's statements of December 2015 and April 2016 statements and extending time for the joint statements accordingly. The need for such an alteration is not a valid reason for objecting to the Defence. It is a valid reason for applying for a direction such as I am about to give. Accordingly, I allow the defendant's application for permission to serve its Defence.

The evidence of Mr. Simm: the claimant's application

28. By paragraph 6 of the Order of Foskett J he gave the claimant permission to rely on further lay witness evidence restricted to dealing with the video evidence and the Defence provided such statements are served by 29^th July 2016.
29. On 18^th July 2016 a witness statement producing a Report dated the same date was made by Mr. Jeffery A. Simm, a Video Evidence Analysis Consultant was produced and subsequently served. An application was made on that day for permission to rely on his witness statement or, in the alternative, on his report as expert evidence. The Application Notice seeks to rely on the opinion of Mr. Simm which is said to be that the DVD evidence "cannot be taken at face value". He says that parts of what the surveillance operative has reported are fabricated, in his opinion. He says that there is a high number of cuts in the filming and that there has been selective filming.
30. The defendant is "relaxed about" the application but resists it on the ground of relevance. I asked whether being "relaxed about" an application was the same as consenting to it and Mr. Mooney said that it was not. I therefore have to rule on another issue which at least one party considers unimportant.
31. The Report of Mr. Simm is 7 pages long plus Appendices which set out what can be seen during 5 periods when filming took place. He starts by explaining his experience in the freelance covert surveillance industry and that he has conducted over 500 surveillance operations over 5 years, predominantly for insurers. He says that since 2007 he has concurrently acted as a video surveillance evidence consultant being called to give an opinion on the way video evidence has been gathered and presented. He describes himself as a "1^st Tier APIL expert 2011-Present". APIL is the Association of Personal Injury Lawyers. I think that this means that he is listed in its directory of expert witnesses and that he was recommended by at least one member of APIL. He refers to a decision of Stadlen J in Samson v. Mohammed Ali [2012] EWHC 4146 (QB) in which his evidence was admitted after an argument. He describes this as a "landmark case". He attaches a copy of that and of another more recent decision in the County Court. He has written articles and delivered lectures. He does not refer to any qualifications which would enable him to give technical evidence about how recording apparatus works or how inappropriate editing may be detected on an expert examination of recordings or the equipment which made them.
32. Mr. Simm has examined the video surveillance logs compiled by the investigators and found four occasions when the letters "VF" appear on the log but no footage has been disclosed. He has found a reference to a piece of film in a report of Dr, Munglani which has not been shown to him. He has found two descriptions of events by the investigators which were not filmed. He has identified occasions when filming of the claimant would have been possible, but no film has been disclosed.
33. Mr. Simm has identified 23 occasions when the film cuts when the claimant is in view and that on some occasions the film starts again from the same position. He says that he thinks that this may mean that the "unedited film" has in fact been edited. He has asked for sight of the original recordings which would show whether editing has taken place.
34. There are 2 occasions when the date and time stamp disappear from the film, which Mr. Simm says is highly irregular. He does not say why this is, or what it might mean. Neither does he set out any basis for this expression of opinion. I conclude that he does not know how it happened or what it might mean, otherwise he would have said so. This fits my understanding of his lack of any technical expertise.
35. Mr. Simm has deduced that a vehicle tracking device may have been used so that the investigators could know where the claimant was when she was out and about. No-one has explained to me why this is relevant.
36. Perhaps the most obviously important matter contained in Mr. Simm' Report is that Richard Fullerton, an investigator, says in his log that he saw the claimant drive away from her home at 15:07 on 22nd February 2016 and arrived at Montargis Way at 15:17. The log is marked "VF" but no footage has been disclosed showing this. The footage taken at that time does not show the claimant at all. It shows the surveillance operative driving down the road. According to a witness statement from Nick Heasman, who is a massage and acupuncture therapist, the claimant was being treated at his treatment rooms in Crowborough until 15:00hrs on that day. This is a few minutes' drive from where the claimant lives according to an observation of her doing that journey on 10^th March 2016. The claimant also gives evidence in her April statement that she did not drive from home to Montargis way at the time recorded by Mr. Fullerton. Mr. Simm says that this means that the log has been fabricated.
37. Mr. Simm is plainly not entitled to give evidence that Mr. Fullerton has fabricated his log in reliance on the statements of the claimant and Mr. Heasman. That is a pure matter of fact for the court and his opinion is not a matter of expert evidence. This does not prevent the claimant from deploying the relevant primary evidence and inviting the court to draw the conclusion that Mr. Simm drew. I am surprised that Mr. Simm understands the role of an expert witness so poorly and that he was not asked to excise this passage by the claimant's lawyers before it was served. The claimant relies on an "alibi" for a period when she is said to have been at observed at home, but was apparently somewhere else. Mr. Simm's opinion about the significance of that is of absolutely no consequence.
38. The other opinions contained in Mr. Simm's Report are

i) That film was not taken when it would have been possible to do so, and therefore the unfilmed events described by the investigators should not be accepted. This may also mean that some film was taken but has not been disclosed, see (ii) below.

ii) That the high number of cuts leads him to think that there may have been editing of the film which has not been fully disclosed.

iii) The absence of the date and time stamp on two occasions is "highly irregular".

iv) The use of the tracking device on the vehicle.

39. Everything else which Mr. Simm says is either simply setting out the contents of the recordings and other documents and identifying areas where they do not correlate. This is work which could be done by anybody.
40. I have considered Liddell v. Middleton [1996] PIQR P36 and reminded myself of the time when every road traffic accident trial featured two accident reconstruction experts and every factory accident trial two consulting engineers. This was widely perceived to be adding to the cost and complexity of such cases without improving their outcomes. This was one of the factors which led to the stricter approach to expert evidence which was developing in the common law and the Rules of the Supreme Court before finding a reflection in CPR Part 35:-

"Expert evidence shall be restricted to that which is reasonably required to that which is reasonably required to resolve the proceedings."

41. s.3 of the Civil Evidence Act 1972 says this:

"3.— Admissibility of expert opinion and certain expressions of non-expert opinion.

(1) Subject to any rules of court made in pursuance of this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.

(2) It is hereby declared that where a person is called as a witness in any civil proceedings, a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

(3) In this section "relevant matter" includes an issue in the proceedings in question."

42. With these considerations in mind, I turn to the decision of Stadlen J in Samson v. Ali. He was considering an application in the same form as that made to me and in respect of the same witness. The Report in that case contained some evidence about normal industry practice and the use of "a direct line of sight covert trigger", see [5]. Otherwise his evidence was very similar to that which he proposes to give in this case. He apparently said that "the manipulation of the time indicator is also routinely deployed", see [8]. The use of a tracking device was said to be relevant because it constitutes a breach of the claimant's article 8 rights and is indicative of bad practice suggestive of people who are unscrupulous and who would be prepared to prepare a footage which is designed to be misleading, see [10]. In so far as these pieces of evidence identified abuses which occur in the covert surveillance industry I consider that they could amount to admissible evidence. This is subject to a proper basis for admissibility being established. How does Mr. Simm know of such practices and how widespread are they? No such evidence is contained in the Report for this case. In particular, the suggestion that the use of a tracker is "bad practice" has not been repeated and no "practice" or Code of Conduct has been produced to support such a suggestion. I am not concerned here to rule on the lawfulness of the use of trackers in these circumstances but only with the admissibility of the evidence contained in the Report in this case.
43. Further, the Judge identified only one area where the evidence of Mr. Simm could actually pass the test in s.3 of the 1972 Act, namely "the suggestion that there is one aspect where the footage has been speeded up", at [22]. That appears to be technical evidence of a kind which does not appear in the Report which I am considering and the Judge makes no finding that Mr. Simm had any expertise which could render his opinion admissible on the subject. That may be because the answer was obvious from the Report in that case, which I have not seen.
44. I do not think that the judgment of Stadlen J should be read as allowing the admissibility of anything Mr. Simm chooses to put into a report. The Judge does not appear to have approached the issue purely as a matter of admissibility in law. At the start of his analysis of the law, the Judge records at [18] that he asked counsel for the defendant how he would be prejudiced by the admission of the evidence. This suggests he was considering the procedural fairness of admitting the evidence, rather than its admissibility as a matter of law. Prejudice is not relevant to admissibility, although it may well be relevant to whether the evidence is actually admitted. Secondly, at [22] it seems to me that the Judge may have conflated the task of preparing cross-examination which may be assisted by someone like Mr. Simm with the proper way of deploying the results of that work on the documents. It may perhaps save time to ask Mr. Simm to produce his analysis rather than counsel or solicitors (whose charging rate in this case is £300 per hour). This does not mean that his work should be deployed as evidence, as opposed to assisting cross-examination and submissions, any more than the solicitor would be able to take to the witness box and explain the conclusions as to fact which she had drawn from the documents. Whether Mr. Simm's fees for doing that kind of work could be recoverable as legal costs is another issue, which I do not propose to resolve. If preparatory work of this kind is to be admissible as evidence some proper basis must be found.
45. Stadlen J did not decide whether the evidence was expert evidence or factual evidence but did conclude that he would find it helpful if he were trying the case and admitted it on that basis. Although this is a relevant matter, "assisting the court" has the meaning attributed to it in Kennedy v. Cordia (Services) LLP [2016] UKSC 6; 1 WLR 597 at [45], see further below. It is actually a test of necessity, not preference. He compared the position with that of an accountant who analyses documents and financial records to produce a distillation of the meaning of large quantities of disparate material. A pathologist who describes the depth of a stab wound seen first externally and then after the body is dissected internally, gives factual evidence which is the product of particular skills. The difference between Mr. Simms and an accountant or pathologist in this type of exercise is that the latter two use internationally recognised skills in carrying out their work. Those techniques can be tested against the acknowledged methods of their profession to ensure that the conclusions have been drawn in a proper and reliable way. The work can, in effect, be peer reviewed and assessed for quality.
46. The law has recently been re-visited by the Supreme Court in Kennedy v. Cordia. This was a Scottish case and the phrase "skilled witnesses" is used rather than "expert witnesses". The court grapples with the definition of such evidence and what threshold conditions apply to its admissibility. Underlying the analysis is the insight that the ultimate aim of almost all evidence is to prove facts, even if that must be done by adducing the opinion of a witness who thinks that a particular fact was probably true, as opposed to knowing it to be so from personal observation. At [40] Lords Reed and Hodge JJSC said

"Experts can and often do give evidence of fact as well as opinion evidence. A skilled witness, like any non-expert witness, can give evidence of what he or she has observed if it is relevant to a fact in issue."

47. The Supreme Court then goes on to define expert or skilled evidence at [41] and to adopt authoritatively into the law of the United Kingdom the test in R v. Bonython (19840 38 SASR 45. The dictum is well known and involves two questions, (a) necessity and the existence of a reliable body of opinion; and (b) whether the witness is a member of that reliable body of opinion.
48. Mr. Simm in this case principally seeks to give evidence of what he has seen when viewing the video footage and reading the surveillance logs. All he really says in addition to his factual analysis of what they show is that the operatives chose what to film and had the ability to decide when to film and when not to. Given that they were deployed in the circumstances they were, he says that it is suspicious that there is not more film than there is and this may mean that the film was not only selectively filmed but has also been covertly edited. I do not believe that any knowledge or skill is involved in this exercise such as to subject its admissibility to the expert evidence threshold. It is a routine task of investigation such as is performed by police officers or data analysts in almost every significant criminal case where video footage or telephone data is involved. Whether the suggested inference should be drawn from the raw material is a matter for the Judge, not the witness. The factual analysis can be put before the court and submissions made about what it means after cross-examination of the surveillance operatives. Expert evidence is only necessary to the extent to which it assists the court. In Kennedy v. Cordia (Services) LLP at [45] the Supreme Court quoted with approval a pithy statement of the position by Lawton LJ which reflects the first part of the first question in Bonython.

"If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary."

49. Evidence of opinion which is not necessary in this sense will be excluded in civil cases under CPR 35.1 as well as in consequence of this rule as to the admissibility of opinion evidence.
50. I consider that the factual analysis which Mr. Simm has done in drafting his Appendices is useful and that those documents should be before the Judge. They could have been prepared by solicitors or counsel, but have been prepared by Mr. Simm. Their status is the same either way. Ideally they should be agreed and supplemented by any additional material which the defendant wishes to add. This is not expert evidence but factual evidence and the claimant already has permission to adduce factual evidence. I doubt that there is any real prospect of these litigants co-operating to produce agreed schedules for the Judge but this is the right way to go about this task. If that exercise fails, then it may be legitimate for Mr. Simm to be cross-examined about his Appendices where they are said to be incomplete or inaccurate. I propose to leave that question to the trial judge. I would have thought a revised schedule cross-referenced to the underlying material prepared and disclosed in good time before trial accompanied by a Notice to Admit would be far more helpful to the Judge if there is anything in Mr. Simm's work which is capable of improvement.
51. I have already dealt with Mr. Simm's opinion about what I have called the "alibi" point. I am not persuaded that the opinions about the date/time stamp and the tracking device are reasonably required to resolve the proceedings and therefore restrict the evidence under CPR 35.1 to exclude them. Mr. Simm does not have any technical expertise to explain the significance, if any, of the date/time stamp anomaly and has not attempted to do so. Whether or not a tracking device was used is not mentioned in the lengthy reasons in support of the application in part 10 of Form N244 which were adopted by Mr. Mendoza in his Skeleton Submissions on this issue. That document is all about selective filming, editing/non-disclosure of footage and fabrication. The use of the tracker was not mentioned, so far as I recall, in the oral submissions. Restricting the evidence so as to exclude evidence which no-one has asked for permission to adduce is eminently within CPR 35.1.
52. This does not mean that properly compiled expert evidence about an anomaly such as the disappearance of a date/time stamp for a part of the footage could not be given. If a properly qualified expert identified what had occurred and what it might mean then this would probably be admissible. This ruling relates to the admissibility of the Report under consideration.
53. I reject the present application, which was unnecessary. The Order of Foskett J permits factual evidence on the surveillance issue to be adduced. It is unlikely that it will be necessary to take advantage of that permission to rely on accurate schedules which summarise the video footage and logs, but if it is then the permission already exists. In so far as the claimant does not have permission to adduce the rest of the Report (because it is opinion evidence) I reject the application for the reasons I have just given.

Observation on costs

54. I note from the claimant's 2 Statements of Costs concerning the defendant's application that the claimant incurred £24,577.56 in relation to the application when it was listed before Foskett J on 18^th July 2016 and a further statement has been prepared in the sum of £9,528.00 when it was listed before me on 25^th July 2016. I am not yet clear how these two documents relate to each other. There is a third separate Statement of Costs for the claimant's own application in relation to Mr. Simm. That is in the sum of £4,161.00. The three documents taken together total very nearly £40,000.
55. I have not yet decided what, if any, costs orders to make. If I make any order in favour of the claimant I will summarily assess the costs when I hand this judgment down. I recite the figures in paragraph 50 above so that the cost of the proceedings before me shall be recorded in the judgment. In view of the lack of importance and complexity of the issues involved, this is a figure which will require justification.