Michele Perrin v Jackie Walsh

The background to this case can be stated relatively briefly. On 11 February 2020, the Claimant was involved in a road traffic accident where she was knocked from her motorcycle and sustained multiple traumatic injuries. Liability is not in issue. The Defendant accepts that the Claimant sustained some injury as a result of the road traffic accident but has concern that the extent of the Claimant’s injuries has been exaggerated.

The Claimant alleges that she has suffered several injuries, including:

This judgment will address two (of several) applications that have been made:

Other applications include the Defendant’s application to amend its Defence to plead fundamental dishonesty on the part of the Claimant. I will return to the issue of the (two) draft Amended Defences in due course. The Claimant has also made further applications regarding disclosure, some of which I dealt with during the hearing on 9 September, and I left the parties to discuss the other disclosure matters, having made some observations during the hearing; I understand that this further application may now have been resolved.

Between 16 June 2022 and 28 June 2024, the Defendant instructed a surveillance company, The Surveillance Group (“TSG”) to carry out covert surveillance on the Claimant. TSG deployed a number of covert surveillance operatives over several dates over the above period, and they obtained such surveillance footage. The Claimant raises several complaints about the obtaining and processing of the surveillance footage and alleges that TSG, or their employees or agents, have dishonestly manipulated the evidence in order to paint the Claimant in a negative light or to remove evidence that is helpful to the Claimant’s case. The criticisms fall into four main categories, in summary:

The Claimant’s position is that TSG has engaged in a “deliberate and cynical” manipulation of the surveillance evidence to paint the Claimant as less disabled than she is and/or to bolster the Defendant’s allegations of exaggeration. The Claimant argues that the evidence is so tainted that the Court should be sceptical that the Defendant/TSG has disclosed all surveillance evidence obtained and the evidence is so manifestly unfair, it should be excluded from consideration. The Defendant accepts that there have been some failings on the part of TSG but that these were because of human error and some of the Claimant’s criticisms relate to the obtaining of surveillance evidence more widely. In any event, the Defendant says, there is no prejudice to the Claimant or, if there is, it is far outweighed by the probative nature of such evidence as to the Claimant’s level of disability. The Claimant does not accept the explanations provided by the TSG employees, which she argues “do not withstand scrutiny and further [show a] lack of transparency and dishonesty on the part of the [TSG] operatives” and that “there is overwhelming evidence to prove that [TSG] has manipulated the evidence so as to be more favourable to the Defendant’s case”. I will return to the detail of those submissions later in this judgment.

This issue was first raised before the Court at a case management conference listed on 2 May 2025. I gave a preliminary ruling at that stage and set directions for this hearing, including the service of witness evidence from TSG, if so advised, to respond to the many concerns raised on behalf of the Claimant.

The Court received a significant volume of material for this application, with the main bundle and authorities bundle totalling circa 2500 pages. The parties’ skeleton arguments and appendices totalled 72 pages, 49 of those from the Claimant. I have also considered approximately one hour of sample surveillance footage supplied by the parties in support of their respective submissions. I sat late to finish hearing the parties’ submissions on the central applications, which lasted for a whole day. It goes without saying that I have considered each of the issues raised with considerable care, but I will focus on the core issues raised to try to keep this judgment as concise as possible.

I am told by counsel that they have not been able to identify any authorities that specifically deal with the issues raised in this case. The Court is therefore required to consider some of the authorities relating to surveillance evidence.

The use of surveillance evidence within personal injury litigation was recognised in Douglas v O’Neill [2011] EWHC 601, where HHJ Collender QC, sitting as a Judge of the High Court, stated at [42]:

“Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a court that may demonstrate that a claimant's evidence is false. Such evidence may show inconsistencies that are inexplicable by a claimant. Its production may lead to the end in one way or another to a claim or a part of a claim. It may be a powerful tool in preventing the successful advancement of a case which is based on untruth.”

Whilst a potentially powerful weapon, the Court has the power to prevent the Defendant from relying on such evidence. The power to control and exclude evidence is found in CPR 32.1:

“(1)

The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible.”

The issue of fairness, in the context of ambush, was considered in Rall v Hume [2001] EWCA Civ 146, where Potter LJ said, at [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.”

HHJ Collender QC considered the issue of ambush and said, at [46] to [47] of Douglas:

“46.

In my judgment the issue of ambush comes to this – are the circumstances in which the evidence is disclosed such that the Claimant has a fair opportunity to deal with it, or was the time or circumstances of disclosure such that the court should use its case management powers to prevent the Defendant from relying upon it.

47.

The latter type of order would be one that used the penalty of preventing the use of relevant evidence against a defendant for failing to act in a manner consistent with effective and fair case management.”

At a previous hearing, I referred myself to the decision of Jones v University of Warwick [2003] EWCA Civ 151, a case in which surveillance evidence was obtained by gaining access to the claimant’s home by deception. Lord Woolf LCJ cited the judgment of HHJ Harris QC, sitting as a Deputy High Court Judge, and went on to uphold his decision. Paragraph 15 of Lord Woolf’s judgment reads as follows:

“[HHJ Harris QC] continued by saying that:

‘The primary question for the court is not whether or not to give approval tothe method whereby evidence was obtained. It is whether justice and fairness require that this highly material evidence, which contradicts the evidence which she has given to others, should be put to her before the trial judge to enable him to reach a sound conclusion about the true extent of any disability. True, the claimant was herself deceived but there is strong prima facie evidence that she herself is deceiving or misleading the defendants to enrich herself thereby. It is not easy for the defendants to protect themselves against exaggerated claims. Anyone with much experience of personal injury litigation will know that the defendants and their insurers are frequently faced by claimants who suggest that their disabilities are far greater than they are, and large sums of money may be unjustifiably sought. Though such people are rarely, if ever prosecuted, in many cases what they do or seek to do must amount to the crime of obtaining property or pecuniary advantage by deception. In these circumstances I do not believe that the courts should be too astute to prevent effective investigation by the defendants of claimants against them. Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified, dishonest and fraudulent claims. In the instant case I have no doubt that the latter considerationsdo and should outweigh the former.”

Whilst I may not entirely agree with HHJ Harris QC that defendants and insurers are “frequently faced by claimants who suggest that their disabilities are far greater than they are”, there is a clear public interest in discouraging and unearthing cases where such fraudulent claims are advanced.

The Court of Appeal went on to make clear that there is public concern in ensuring that the law is observed and that the types of practice adopted in that case did not go uncensured. Lord Woolf went on to say at [28]:

“That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge's decision not to exclude the evidence.”

One must understand the limitations of surveillance evidence, however. As was stated in Cullen v Henniker-Major [2024] EWHC 2809 (KB):

“…I accept that if something is shown on the footage, that is determinative of it happening. However I do not accept that the absence of something on the footage is determinative of it not happening.”

I too would accept that proposition. I would also add that the value of surveillance evidence is in what is seen, not what might have been seen on another day or at another time or place. One must be particularly cautious when, as is alleged in the present case and in Cullen, the footage obtained appears incomplete and where there are gaps in what was recorded. Surveillance footage cannot definitively show what the subject is feeling or how much pain they are in. It is merely a snapshot in time. I also accept that an individual’s condition may vary throughout the course of a day, week, month or year, and maybe in response to activity that had occurred prior to the obtaining of such footage. It is therefore only a piece of evidence in the jigsaw. Medical expert witnesses, like the Court, must understand the utility and limitations of such evidence and thus the weight that it should be given. Questions of honesty, dishonesty and exaggeration are matters for the trial judge, not for medical expert witnesses to decide upon, noting that the role of medical expert witnesses is to assist the Court.

As I stated within the ex tempore judgment that I gave at a previous hearing of this case, the Court has a power to restrict evidence and, in particular, refuse permission for the Defendant to rely on surveillance evidence, where it is appropriate to do so. This is an exercise of judicial discretion having made an evaluative judgment considering the competing public interests outlined by the Court in Jones. Having reached that conclusion, the parties agree that the Court needs to consider the probative value of the surveillance evidence and how that is weighed against the prejudice created by the failings alleged by the Claimant.

The Claimant does not dispute that it is her depicted in the footage.

At the outset of the hearing, I sought to ascertain from Ms Ashworth whether, despite the many complaints the Claimant makes about the surveillance evidence, she accepts that the evidence has probative value in this case. I was not provided with a clear answer, in part because the Claimant is so dismayed at the perceived failings on the part of the Defendant’s agents, she does not believe that the evidence creates a fair picture and thus cannot be probative.

The Defendant, through Ms Reynolds’ skeleton argument, points to specific contentions that have been made by the Claimant as to her level of functioning, which are set out below alongside the Defendant’s interpretation of what the surveillance evidence shows. Further contentions are made within the Defendant’s second draft Amended Defence (“the second AD”), to which I will return later. I stress that the Court was not provided with several of the documents referred to below and thus I have been unable to cross-reference all of the assertions made by Ms Reynolds. Ms Ashworth did not agree with at least some of the assertions made by Ms Reynolds and also emphasised that Ms Reynolds had picked very specific points from a wealth of evidence of the symptoms and limitations the Claimant has reported and thus those points need to be read in the context of the Claimant’s reporting as a whole, particularly where her functioning had changed over time. The following assertions were made by Ms Reynolds on behalf of the Defendant, but in setting them out below, the Court makes no finding one way or the other as to whether they are correct:

The Claimant was unable to point to any examples where it could be said that there is any evidence that the video footage itself has been tampered with to show something that did not in reality happen. Whilst Ms Ashworth did not feel able to make a concession that the Claimant accepts that everything depicted in the footage indeed happened, there was no positive averment to the contrary.

There can be no real dispute in this case that the surveillance evidence is of probative value as to the Claimant’s level of functioning and disability and thus to central disputed issues in the case. The Claimant’s claim is based upon her having suffered significant injuries that continue to have a disabling effect on her. As set out above, on the face of it, the surveillance evidence calls for an explanation by the Claimant. Like the situation in Rall, 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 medical reports, medical records and the witness statement of Claimant. Subject to the limitations that generally apply to surveillance evidence, the trial judge would be assisted by seeing such footage.

There is no issue in this case about the timing of service of the surveillance evidence, in terms of ambush or the imperilment of any trial date. As I have already indicated, the criticisms of the surveillance evidence fall into four main categories with, the Claimant says, numerous examples of misfeasance within each category. To make the evaluative decision as to whether the probative value of such evidence is outweighed by any prejudice, it is necessary for the Court to address at least some of those criticisms, albeit neither necessary nor desirable to consider them all in detail.

For the purposes of the hearing, the Defendant has provided seven witness statements from employees, or former employees, of TSG, as follows:

I have read those statements but have obviously not heard any live evidence from them, nor have they been the subject of cross-examination at this stage.

The Claimant alleges that TSG have deliberately edited the Claimant out of the served edited footage and that this was a dishonest attempt to present the surveillance evidence in a way prejudicial to the Claimant. Furthermore, the Claimant alleges that (at least) three TSG employees have misled the Court by filing witness statements, endorsed with statements of truth, that are untrue. These are allegations of the utmost severity and therefore I will address them in some detail.

The first editing issue relates to footage of the Claimant putting rubbish out on 16 June 2022. It appears that two operatives were separately and simultaneously recording the Claimant on that day. I have reviewed the relevant edited and unedited footage as provided within the Claimant’s sample. What that shows is that the first operative had sight of the Claimant for most of the relevant passage of time and films her dealing with rubbish and seemingly walking away from her front door with it. That footage was served by the Defendant within the initial tranche of edited footage. What was not served was footage taken by the second operative, which showed the Claimant reaching the end of her driveway with the rubbish bags. Whilst the operatives were filming the same activity overall, some of the activity was captured by the first operative and some only captured by the second operative, with the second operative’s footage excluded from the original edited footage served. The relevant clips of footage from the second operative lasted for a total of approximately 31 seconds.

In the initial witness statement served alongside the edited footage from Ms Harveen Johal, endorsed with a statement of truth, she said:

“4.

I can confirm that I transferred all of the unedited footage from the SD cards supplied to me from our employees, named in Paragraph 2, on to a secure server. This unedited footage can be provided upon request.

5.

I also created a working copy of the unedited footage, which I subsequently edited and printed as a video file. I can confirm that no footage of the claimant has been omitted from the edited video file. Our client was provided with a copy of this edited video file either by file transfer or by DVD.

6.

The edited video file featured in Paragraph 5 is a sequence of events of footage obtained by the team of operatives. Footage obtained by each operative is edited together chronologically to show, as seamless as possible, a series of events displaying the movements of the claimant on the given dates.” (Emphasis added)

As my summary in the paragraph above shows, paragraph 5 of Ms Johal’s statement is unequivocally untrue as footage from the second operative was not included in the edited surveillance footage served and thus footage of the Claimant had been omitted from the edited video file and the footage from the operatives had not been edited together to show the series of events. The Claimant alleges that the pieces of footage edited out were “clearly helpful to the Claimant” and that they had been deliberately edited out as they showed the Claimant limping.

A further statement was served from Ms Johal for this hearing, dated 14 July 2025. There are several contentions within that statement which the Claimant alleges are untrue and provide further examples of an employee of TSG misleading the Court by way of a witness statement endorsed with a statement of truth. Some examples are as follows:

A statement was also served from Mr Wittering, TSG’s Operations Manager. Mr Wittering makes several contentions relevant to editing, some of which I address below:

I do not find favour with the Claimant’s suggestion that the omitted footage is clearly helpful to the Claimant or that “the only reasonable interpretation is that this was done as this piece of surveillance was helpful to the Claimant” as asserted by the Claimant’s Solicitor. At most, it is neutral. There is some argument that it is more beneficial to the Defendant given the range of motion the Claimant demonstrates as she stoops down. Insofar as limping is concerned, the served edited footage clearly shows the Claimant limping. The additional 30 seconds of footage in this case does not take that issue materially further forward, to my mind. This weighs in favour of Ms Johal’s explanation that the editing failures were human errors rather than misfeasance. However, I do agree with the Claimant’s Solicitor’s contention that it is highly surprising and disappointing that TSG employees have put their July 2025 statements before the Court making assertions that are patently untrue, particularly given the concerns about TSG’s conduct that had been raised by the Claimant.

The next two editing issues of concern relate to 21 June 2024, where the Claimant was preparing to go to and then attending a medicolegal appointment with one of the Defendant’s experts. Ms Ashworth avers that the surveillance evidence has been “manipulated”. The editing was performed by Ms Fateha Begum. The first piece of editing involved omitting footage of the Claimant leaving her property and entering the passenger seat of the vehicle to be driven to the appointment by her husband. The removed footage lasted for just over 50 seconds. I can see no justifiable reason to have edited that footage out, nor was one presented to the Court. The second piece of editing is of the Claimant alighting from the vehicle at the venue of the medicolegal examination and lasts for just under 50 seconds. Very little of the Claimant can be seen in that footage as the Claimant is obscured by vehicles parked in the car park. One can see, however, that the Claimant’s husband appears to assist with the car door.

Much like the footage of the Claimant omitted on 16 June 2022, I do not believe that the removal of that footage is materially beneficial to the Defendant. The footage shows the Claimant limping, but she is seen to be limping at other times on other footage. Whilst I fully agree that it should not have been removed from the edited footage, I cannot see that the Defendant would have received a material advantage from its omission.

The first statement of Ms Begum followed the same pro forma as that completed by Ms Johal. As such, it contains the same sentence about no footage of the Claimant having been edited out. Like Ms Johal’s statement, it is untrue. Footage of the Claimant was undoubtedly edited out.

A further statement was served from Ms Begum for this hearing following the directions I gave in May 2025. Ms Begum asserts that the omission of the footage of the Claimant was “oversight andhuman error” and that she could not explain why she failed to include the omitted parts but that it was “unintentional”. She states that, “…no footage of the Claimant should have been omitted from the edited video I created in line with the guidance and instruction I have received throughout my employment with The Surveillance Group”. The inability to provide any substantive understandable explanation is troubling.

The criticisms of Ms Begum do not end there. Further complaints are made about the editing of footage on 24 and 26 June 2024 when the Claimant was seemingly taking her mother to the hospital. The Claimant alleges that this was done to create the impression that she had been driving and/or out of the house on her own for longer than she had.

I have reviewed the removed footage in relation to the visit to the hospital on 24 and 26 June 2024. To my mind, it is at best neutral or may even assist the Defendant. It seemingly shows the Claimant removing a rollator from the rear of her vehicle whilst simultaneously using a mobile telephone with her other hand. The removed commentary suggests that the Claimant had pushed her mother in a wheelchair. I cannot see how the removal of that footage would have been beneficial to the Defendant, which again militates against the argument that there has been a dishonest manipulation of the surveillance evidence in the Defendant’s favour. I also do not understand the Claimant’s submission that the editing of the footage would imply that she was out and/or driving for a longer period that she was. Whilst I fully accept that it should not have been edited out, I cannot see any evidence to substantiate a malign motive with respect to this specific tranche of footage or that the removal of it would have been harmful to the Claimant’s case. Indeed, it may in fact reinforce the view that the editing in this case performed by Ms Begum whilst negligent, was not calculated to assist the Defendant.

Ms Begum is further criticised by the Claimant with regards to her dealing with footage obtained by a Mr Marian Trofin, to which I will return below as this goes beyond concerns about editing. Ms Begum has not acquitted herself well there either.

I should also specifically address the allegations regarding editing of footage obtained on 5 April 2023. On that date, which I will return to again below, footage was obtained of the Claimant shopping with her mother at a supermarket. Footage was later obtained of a male, believed to be the Claimant’s husband, unloading shopping bags and bags of compost from the Claimant’s vehicle. There was also commentary stating that the male had helped unload the vehicle and the Claimant had been seen taking items from the vehicle, however they were small in size. This later footage was not included in the served edited footage pack. The Claimant alleges that this footage has been deliberately excluded as it is helpful to the Claimant’s case and “clearly relevant” in the context of this case as it demonstrates the Claimant receiving assistance from her husband. Mr Wittering explains that the Claimant’s husband was not the subject of surveillance, so footage of him would be excluded. No evidence has been provided by the TSG case handler who edited this footage.

I understand from the evidence before me that the editing of the footage would have taken place relatively soon after the footage was obtained. The issues in cases such as this evolve and may crystalise later. I can perfectly understand that the precise nature of what was being said about the Claimant’s ability to carry shopping, and the like would not have been known (or fully known) in April 2023. Indeed, the Particulars of Claim were not even signed until 18 May 2023. Given that the Claimant’s husband was not the subject of surveillance, I can see why footage obtained of him was not served with the edited footage. Importantly, it was taken and retained as part of the unedited footage. It can therefore be placed before the Court. I am again reassured that the fact that this footage was retained, and the Claimant made aware that there was further unedited footage, militates against the Claimant’s contention that there has been a deliberate manipulation of evidence to exclude evidence helpful to the Claimant as the unedited footage would always have been available.

Criticism is made of the editing out of commentary provided by the surveillance operatives when undertaking the surveillance, particularly where operatives used phrases that, on the Claimant’s account, are supportive of her disabilities, such as her lifting something “small” or making “short” journeys. I have not been provided with any substantive explanation from TSG as to why that is the case, save that it is explained that narration that was not over any footage of the Claimant would not have been included as it was not relevant. The Claimant describes Mr Wittering’s assertions on this as being “disingenuous”.

In my judgment, it is not for the surveillance operatives to provide commentary that could be seen to be usurping the role of the trial judge. Whether an item being carried is heavy or large is something that the surveillance operatives will be no better able to comment on than the trial judge; it will be a finding that can be made from watching the footage. Where there is knowledge unique to the surveillance operative and which is not immediately apparent from the footage, such as a short distance having been driven or the like, it is appropriate for the surveillance operatives to comment to give the appropriate context as to what the footage shows. That knowledge is unique to the surveillance operatives and may not be readily ascertainable to someone simply watching the footage given that the footage is not being constantly recorded. It is not clear to me whether there has been selective editing out of certain aspects of commentary as I have not seen all the footage or listened to all the commentary available. As I have referred to above, some commentary has been edited out that was arguably helpful to the Defendant. There do appear to be instances where commentary that the Claimant might have wanted in the footage has been edited out. I am not convinced that there has been a deliberate targeting of that commentary, and in any event, it has been served in the unedited footage.

Other criticisms made by the Claimant are significantly weaker and were, correctly, not pursued with any vigour by Ms Ashworth. For example, the Claimant argued that a piece of commentary was removed from the footage obtained on 10 May 2024 where the operative suggested that he was either on, or blocking, someone else’s drive. The Claimant alleges that this has been omitted by TSG “presumably because it does not reflect well on the surveillance operative”. I am far from convinced that the surveillance operative was doing any more than blocking someone’s drive. I am even less convinced that this commentary was removed as part of some conspiracy to paint the surveillance operatives in a more favourable light. In my judgment, this is supposition without foundation. There are elements of the Claimant’s Solicitor’s witness evidence, and indeed Ms Ashworth’s submissions, that are a little overstated and there appears to be some confirmation bias on their part in that every little perceived issue with the surveillance evidence is seen through the lens of conspiracy.

Mr Mills states that case handlers are provided training and guidance by TSG regarding their role as it is not an easy job. They are required to work through the footage and edit it into a seamless and chronological video of the subject during the period in question, ensuring that no footage of the subject is missed and trying to avoid including footage of third parties wherever possible.This can be made more complicated if two surveillance operatives are recording the subject at the same time. The case handler will be required to watch both sets of footage to confirm they are of exactly the same event and then decide which one to use as TSG guidance given to them is not to include both. If there are two recordings from the same time, the case handler uses their experience, training and guidance to decide which one to use. To assist them, the guidance given to the handlers is that no footage of a subject is to be omitted from the edited video.

The process of editing the surveillance in this case has been flawed. The Defendant accepts that there have been errors but, in my view, the errors are fundamental and repeated. TSG employees have provided witness statements to the Court, endorsed by statements of truth, that are manifestly untrue; this is clearly of great concern to the Court. Alarmingly, the witness statements provided by TSG management, particularly Mr Wittering, as part of this application appear to be somewhat dismissive of the severity of the failings and the fact that false statements have been put before the Court. At the very least, Ms Johal and Ms Begum negligently failed to include patently relevant material of the Claimant within the edited footage that they prepared and then provided witness statements to the Court stating that no footage of the Claimant had been excluded from the footage when it had.

Ms Reynolds attempted, without evidence in support, to reassure the Court that disciplinary action had been taken against Ms Begum, seemingly in response to Ms Ashworth’s submission as to the lack of TSG taking the above breaches seriously. I am surprised that there was no attempt to put evidence as to this issue before the Court given the repeated breaches of what are said to be TSG policies and procedures.

Taking everything together, I reject the contention that the failures on the part of TSG were part of a deliberate and dishonest attempt to provide a misleading picture of the Claimant’s (dis)abilities. I reach that conclusion for the following reasons:

I was assured by the Defendant’s counsel that all unedited footage has now been served on the Claimant. For the avoidance of doubt, I make it clear that the Court expects and orders that every single second of unedited surveillance footage ever taken by, or on behalf of, the Defendant in this case must be served upon the Claimant forthwith, and in any event within seven days of the handing down of this judgment. I will hear submissions as to whether a direction should be made for a further witness statement, endorsed with a statement of truth, to be provided from a senior manager from TSG to confirm that all surveillance ever taken in this case has been disclosed to, and served upon, the Claimant.

The Claimant alleges that there are examples where TSG operatives have filmed ‘selectively’ in that they have deliberately chosen not to film the Claimant partaking (or not, as the case may be) in activities that would support her claimed level of disability.

The Defendant avers that the obtaining of surveillance is dynamic, and operatives have to make decisions about what to record and how to record it as the situation before them evolves. I have read the statements that have been provided by two of the TSG surveillance operatives outlining the approach they take. The Claimant asserts that the explanations provided about avoiding detection and the like do not hold water.

One example of the criticisms made by the Claimant relate to 5 April 2023, where the Claimant invites the Court “to conclude that there is a strong likelihood that observations continued…and that this has either not been recorded or not been saved”. This relates to surveillance of the Claimant walking around a supermarket with her mother. The Claimant was recorded for about 20 minutes in the supermarket, with the footage within the supermarket ceasing at 11:40 hours. The Claimant is not then seen again on footage until 12:39 hours. The Claimant further points to the surveillance logs for that day, which do not state that footage stopped at around 11:40 hours. There is an entry at 11:14 hours regarding the Claimant entering the supermarket and the next entry is at 12:39 hours regarding the Claimant leaving the supermarket. The Claimant avers that the log would have stated if surveillance had been suspended at 11:40 hours.

I have witness statements from Mr Finnigan and Mr Davis regarding this date. They explain how they go about obtaining footage and how they must weigh up the benefits of obtaining more footage with the risks of being seen and compromised. There is also footage, served as part of the unedited footage, which suggests that the Claimant is still in the supermarket at 12:29 hours, with the operative just filming the front of the store without capturing any footage of the Claimant. Mr Wittering further explains how surveillance was also obtained that day following the Claimant around B&Q and therefore the surveillance operatives had to switch to avoid detection.

I can understand how there would be a risk of compromise of a covert surveillance operative obtaining footage in a supermarket setting where the subject of the surveillance is moving slowly through the supermarket for the reasons that Mr Finnigan and Mr Wittering explain. I can also appreciate that this risk would be heightened where close surveillance was obtained around one shopping outlet, followed by a further one, particularly where the subject is accompanied by another individual throughout. I can therefore see why constant surveillance would not be undertaken and I reject the suggestion by the Claimant’s Solicitor that, pursuant to the overriding objective, surveillance undertaken should be constant; that is unrealistic in a supermarket setting in circumstances such as these. Insofar as expecting the surveillance logs to mention when surveillance is stopped, I agree that one would expect this to be recorded. However, there is footage at 12:29 hours where it is said that the Claimant is still in the supermarket, yet that does not appear in the logs. I cannot see a benefit to the Defendant of TSG failing to capture or disclose footage of the period whilst the Claimant is in the supermarket, if it exists. The Claimant can of course give evidence about this trip. Insofar as she cannot remember the day in question, as is suggested, she can give evidence about her usual abilities around the supermarket. The absence of surveillance to counter any evidence she gives on the point will unlikely assist the Defendant. I do not understand how it is said obtaining footage on this day in the manner that it was constitutes a deliberate attempt to give a misleading impression, as the Claimant asserts.

Another example of the complaint is an allegation about footage that was, or was not, obtained on 24 June 2024. The Claimant alleges that the operative deliberately chose not to record her loading her mobility scooter into the rear of her vehicle, instead only filming the immediate period before and after that manoeuvre. The Claimant alleges that this is because it may have shown the Claimant struggling with that task. In response to this allegation, Mr Finnigan, the surveillance operative in question, states that he could not record the Claimant because there were other parties walking around, there was a risk of compromise, and he also had to get into his car to be ready to follow the Claimant as she left the car park.

In my judgment, I cannot see what the surveillance operative would have to gain by stopping the recording for a short period of time whilst the mobility scooter is loaded into the rear of the vehicle. I reach that view because the recording may have demonstrated that this was a difficult manoeuvre for the Claimant but equally, she may have been seen to lift the scooter with ease. The surveillance operative would not have known that before the event. The recording of the lifting of the scooter into the rear of the car, whether difficult or not, may have assisted the Defendant just as much as the Claimant. Furthermore, I accept that surveillance operatives would have to be cautious about being detected, not only by the Claimant but also by members of the public who may be milling around. I accordingly reject Ms Ashworth’s submission that “the clear inference as to why Mr Finnigan did not tape this or has deleted it, is that this would be of assistance to the Claimant”. I also reject the submission that a misleading impression is created. There is no suggestion that the Claimant did not lift the scooter into the vehicle.

Another example relates to 16 June 2022 where there are short periods of time where no footage is obtained, despite two operatives being present. No specific explanation is provided for this date. However, my observations above apply, namely that I cannot see the benefit of deliberately not filming the Claimant for a period as there would be a risk of the operative missing helpful evidence. Insofar as it is implied that the Court should be suspicious that such footage has been deliberately deleted or a decision made not to upload it, there is no evidence before the Court to substantiate such an implication.

I therefore reject the contention that this demonstrates a dishonest attempt to selectively film the Claimant, nor does it give a reason why permission to rely on the surveillance evidence ought to be refused. Where the Claimant alleges that there are gaps in filming, or the filming on a particular day was not representative, she can explain the same within her witness evidence in response.

There is reference to surveillance having been obtained on 11 May 2024, in that the date is listed within the relevant surveillance pack, yet there is no unedited footage served for this date nor any signed statements from any operatives. The explanation appears to be that this footage is not sent to TSG’s clients when footage of the subject is not included. As I stated above, every single second of footage of the Claimant must be disclosed and sent to the Claimant within 7 days of the handing down of this judgment. It is not for TSG to decide whether unedited footage is sent to a claimant once it has been requested. I also direct that statements are provided by the surveillance operatives responsible for filming on that day.

When the surveillance evidence was initially served on the Claimant, no surveillance logs were provided from a surveillance operative called Marian Trofin. When the unedited footage was requested, no surveillance evidence from Mr Trofin and no surveillance log pertaining to him was disclosed. Ms Begum’s 10 July 2024 witness statement does not include Mr Trofin’s name in the list of surveillance operatives. However, following the Claimant’s Solicitor’s careful analysis of the original edited footage, he detected a voice that was not heard on any of the remaining footage, thus raising concern about undisclosed footage. A further request was sent to the Defendant for all footage to be disclosed. A surveillance log, witness statement (dated 28 June 2024) and unedited footage from Mr Trofin was then served. To compound issues that may cause the Claimant suspicion, when Mr Trofin’s footage was disclosed, it showed that TSG had two sets of footage with an identical time stamp, but which had the Claimant in two different places at the same time; this can obviously not be correct. Mr Wittering suggests that the time stamp on Mr Trofin’s camera was incorrect “by around 2 minutes”. He also states that he has reviewed all of the other footage and “it appears the timing was accurate apart from Mr Trofin on 28 June 2024. If it was not, it would have become immediately clear as on occasion there is simultaneous footage of the same incident and more commonly sequential footage from different Surveillance Operatives”.

The Claimant alleges that TSG/the Defendant has deliberately suppressed Mr Trofin’s evidence to avoid scrutiny of the issues with the timing and the effect that would have on undermining the quality of their systems and the inferences that could be drawn as to the unreliability of the evidence. Ms Ashworth variously described this as a “deliberate cover up” for which there could not be an “innocent explanation”, “dishonest” and that the evidence was “deliberately manipulated”. The Claimant also argues that the timings of that day were clearly significant as they were pleaded within the first draft Amended Defence.

Ms Begum is again seemingly responsible for the issue. Ms Begum’s witness statement deals with this issue in part. She explains that the surveillance pack that she prepared did not include the logs for Mr Trofin, despite some of this footage being included in the edited footage for this period. Ms Begum provides no explanation, let alone a good explanation, for how this occurred, albeit she accepts responsibility for the errors and states that they were unintentional. She goes on to explain that the error made with the evidence pack led to Mr Trofin’s footage subsequently being excluded from the unedited footage supplied because the person responsible for putting the unedited footage together (in this case Georgina Ridler) uses the information within the evidence pack to determine which operative’s footage should be included in the unedited footage. The Court has not been furnished with evidence from Ms Ridler, albeit has had an explanation provided by Mr Mills and Mr Wittering.

It is clearly unsatisfactory that TSG has provided surveillance evidence from two different operatives showing the Claimant in different places at the same time. That again raises concern about how robust TSG’s systems are. However, despite the Claimant’s Solicitor’s assertion to the contrary, I cannot see that the precise timings of events were critical on this day, such that it is essential that the precise timestamp on the recording must be accurate. Nevertheless, insofar as the Defendant relies on timings, caution will need to be applied to the evidence given the proven inaccuracy of at least one of the timestamps on at least one of the days of surveillance. That is something that the trial judge can consider when weighing up the value of the surveillance evidence and what it is said to show. That does not excuse the inaccuracy, but it does reduce some of the prejudice. Furthermore, Mr Trofin’s evidence does not seem to take matters materially further forward.

It is also entirely unsatisfactory that such footage was not disclosed as part of the unedited footage when requested by the Claimant. However, an explanation has been provided by the TSG witnesses about the initial mistakes with Mr Trofin’s surveillance log and how those initial mistakes led to the non-disclosure. The fact that some of Mr Trofin’s footage was disclosed within the original edited footage rather militates against the Claimant’s contention that the footage has been deliberately suppressed.

The Claimant’s complaint here is that TSG have wiped the data from the SD cards used within the cameras utilised by the surveillance operatives who took the original footage. That prevents, the Claimant asserts, an independent expert examining those SD cards to ascertain whether all footage has been provided to the Claimant.

The witness statements of Mr Mills and Mr Hull describe the system that TSG utilises, in that operatives upload footage to an online server within a few days of the surveillance assignment using a secure encryption method. That footage is then downloaded onto TSG’s servers by the TSG case handler assigned to the case, which should mean there is an unedited copy of the surveillance that remains unchanged from the SD cards that is then on TSG’s servers. Mr Mills states that these recordings will be numbered so that one can see from the metadata when each was uploaded to the system and downloaded onto the server. The timestamp includes both the time and date that the file was uploaded. Mr Mills states that the footage on the recordings saved on the TSG server is exactly the same as what was on the surveillance operative’s SD card. A separate copy is then used for editing purposes. Mr Mills states that TSG follows the Information Commissioner’s Office CCTV Code of Practice in relation to maintaining the integrity of the footage and TSG believes that keeping it on their secure servers is the best way to do this. Mr Mills sets out within his statement when the footage was uploaded to the TSG system and server for each period of surveillance. He then confirms that:

“The copy of the unedited surveillance footage uploaded by the Surveillance Operatives from their SD cards onto the TSG system remains unedited on the TSG servers. The case handlers then make a copy of that original uploaded version to enable them to carry out the editing…

I have since gone back to check the system, the upload dates align. I can also see on the server if the original uploaded document was altered, and confirm, there are no entries to show that the original unedited uploaded document has been altered. The footage is also numbered sequentially so if any footage was removed from the server it would be clear as the numbers would no longer follow. I confirm I have checked and there is no out of sequence numbering since it was originally uploaded.”

Mr Wittering gives similar reassurance within his own witness statement.

As Ms Ashworth points out, however, TSG’s system is far from infallible, as some footage was in fact uploaded footage over a week after it had been obtained, thus undermining TSG’s contentions.

I further note the decision in Noble v Owens [2011] EWHC 534 (QB), to which I was referred, where Field J concluded that the unavailability of the original footage on the SD card(s) used was not a bar to the defendant relying on the surveillance evidence and, in that case, the procedure adopted of transferring the footage to DVDs was adopted because SD cards were considered an “unstable medium compared with DVDs”.

It seems to me that the system TSG had in place, if it operated properly, was an appropriate one, as it ensured that footage was transferred and backed up securely; I have no evidence to suggest the contrary.

The nub of the concern here is that the Claimant, understandably given the findings I have made above, has concern that not all footage that was obtained of her has been disclosed. Ms Ashworth goes as far as alleging dishonest manipulation of evidence. However, three points arise:

For the above reasons, in my judgment, the wiping of the raw data from the SD cards was neither wrong nor improper and, subject to being satisfied that TSG/the Defendant has not deliberately withheld (or manipulated) evidence from the Court, I find that this strand of the Claimant’s concerns takes her argument no further forward.

I repeat that I have very real concerns about how TSG have approached their assignment in this case. These concerns have been augmented by the witness evidence served ahead of this hearing to provide an explanation/response to the concerns raised by the Claimant. The Defendant accepts that there have been errors on the part of TSG; that is undoubtedly correct.

I take as the starting point, as Potter LJ put it in Rall, that in any application of this kind, 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 claimant and her medical advisors upon it. As Lord Woolf indicated in Jones, that is just the starting point.

Similar to what was said by Lord Woolf in Jones, I am not satisfied that the failings identified by the Claimant, as serious as they are, are such that I should exclude what is otherwise clearly probative evidential material. The conduct of the Defendant’s agents and insurers is not so outrageous that the Defence should be struck out, nor does the Claimant suggest this to be the case. This case will be going to trial, and it would be artificial and undesirable for the evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. In my judgment, it would be manifestly unfair to the Defendant to deprive them of the ability to place the surveillance material before the trial judge. The issue of the weight that the trial judge gives such evidence is an issue for the trial judge. It will be open to the Claimant to cross-examine the surveillance operatives and others form TSG and to submit that the evidence is unreliable for the reasons that have been advanced before me. However, those reasons are not such, in my judgment, that I should order that such evidence should be completely excluded from consideration.

The Claimant has sufficient time to deal with the surveillance evidence and will have an opportunity to provide evidence in response to the surveillance evidence. The experts will have an opportunity to consider and provide comments on the evidence. In all the circumstances of the case, I am content that the Claimant has a fair opportunity to deal with the surveillance evidence. I reject the submission that “the surveillance evidence and the circumstances surrounding its creation and manipulation are such that the Claimant does not have a fair opportunity to deal with the surveillance and could not have a fair trial were it to be admitted”.

I accept the submission made by the Defendant that the Court and expert witnesses in personal injury litigation are, or should be, astute at understanding the limitations of surveillance evidence. I reject the contention that the experts will not be able to perform the “mental gymnastics involved to ignore the prejudicial footage”, as Ms Ashworth put it, to weigh the evidence appropriately in this case. Factual findings are the domain of the trial judge.

There will be circumstances where the conduct of a defendant, or its agents, is so egregious that probative and otherwise admissible surveillance material should be excluded from consideration utilising the Court’s power pursuant to CPR 32.1. Whilst the conduct of TSG in this case is/was extremely poor, I am not satisfied that the threshold has quite been reached such that the surveillance evidence in this case should be excluded, but it was not far away. The providing of patently untrue witness statements to the Court, endorsed with statements of truth, is a matter of serious concern to the Court. The Claimant can consider her position as to whether she wishes to take any further steps with regards to that issue, this Court offering no view one way or the other as to the appropriateness of doing so. It is incumbent on defendants, insurers and those they engage to obtain covert surveillance evidence to uphold the highest standards integrity and propriety. In my judgment, TSG have fallen far short in this case.

However, given the countervailing interest in the trial judge having all probative material before them to be able to reach a properly balanced decision in what is a serious personal injury case, with serious allegations made by the Defendant as to the Claimant’s (dis)honesty, I exercise the discretion to allow the Defendant to rely on the surveillance material obtained.

As Lord Woolf said in Jones, at [30]:

“Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes...In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant’s control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective and taking into account the wider interests of the administration of justice, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.”

The current edited footage is not fit for purpose. I therefore direct that the parties are to agree a new compilation of edited footage that can be placed before the experts and trial judge. Should there be an inability to reach such agreement, I will hold a further hearing to make any determinations required, albeit the parties are reminded of CPR 1.3 and there may be costs consequences that follow should a party take an unreasonable stance.

The Claimant must be given an opportunity to file witness evidence in response to the surveillance evidence once the edited video is agreed upon. Such evidence need not be limited to her; she should have permission to file witness evidence from her husband and mother, if so advised; the Defendant conceded as much during the course of the hearing.

The surveillance footage must not be provided to the medical expert witnesses until the Claimant has filed any further witness evidence that the Court gives permission for. Such witness evidence must be sent to the medical experts alongside the agreed edited footage. There should be permission for the medical experts to provide supplemental reports that address the surveillance evidence.

Due to the hearing being taken up with the parties’ lengthy submissions dealing with the two issues that this judgment addresses, amongst others, I was unable to hear submissions as to the Defendant’s application to amend her Defence. Should that application be contested, I will deal with that application at the case management hearing listed on 10 October 2025.

On a separate but related point, since the hearing of these applications, the Defendant has filed with the Court several documents from TSG regarding its processes. I understand that this satisfies some, if not all, of the Claimant’s requests in relation to such disclosure. I have not reviewed these documents in the preparation of this judgment as I do not believe that they will materially change the issues before me. A draft of this judgment was provided to counsel ahead of handing down and thus no doubt this paragraph will have been noted. If either party suggests that the newly disclosed material changes any of the issues before me, I expect the parties to bring that to my attention ahead of the formal handing down of this judgment.

The Claimant seeks specific disclosure of the (presumed draft) report of Dr Mullin (“the draft report”), the neuropsychologist instructed on behalf of the Defendant pursuant to CPR 31.14(1)(b) and (2). The Claimant seeks disclosure of that report because, she says, that Dr Mullin has materially changed his position on a central issue in the case, namely the effort applied by the Claimant to neuropsychological tests performed by Dr Mullin. The Claimant says that this change of position has come to light as Dr Mullin’s served reports do not contain passages of text quoted firstly in the Defendant’s original draft Amended Defence (“the first AD”) pleading fundamental dishonesty and second in the served report of Dr Jarman, the neurologist instructed on behalf of the Defendant. The Defendant has served two reports from Dr Mullin, dated December 2024 and 4 February 2025 respectively. Dr Jarman’s report is dated January 2025. I understand that the Defendant opposes the application on the basis that the draft report is privileged given that it was in draft; regrettably, no witness evidence has been served by the Defendant on this issue. I also received very little by way of oral submissions on this issue from counsel given the time taken to deal with the surveillance issues addressed above. I do not say that by way of criticism of counsel, but just as an explanation that the positions advanced were not argued with any detail. The Defendant has put little before the Court about this issue in writing.

The first AD contained the following passage as part of the material going towards a pleading of fundamental dishonesty:

“f.

Dr Mullin: ‘Ms Perrin passed the embedded indicators of Performance Validity. However, Ms Perrin failed two of three trials of the TOMM test administered. The trial, which was failed by an unusually large margin, is not used when determining whether an individual has passed or failed this test. Ms Perrin also failed the third trial of this test, although her score was just below the point set by the test authors as required for adequate performance upon this test. I therefore consider that this pattern of performance upon tests of Performance Validity overall is a borderline failure with regards to Performance Validity… Due to this repeated borderline failure upon a test of Performance Validity, I do not consider that the possibility of intentional underperformance upon testing can be ruled out…’ [Dr Mullin Report para.9.1.3 / 10.2.5]”. (Ms Ashworth’s emphasis)

It is accepted that this passage is not found in Dr Mullin’s served reports.

Dr Jarman’s served report refers to the instructions that he received and lists “Neuropsychological report of Dr Mullin” in the list of documents available to him to prepare his report, later stating that the report was dated August 2024. Dr Jarman’s report refers to Dr Mullin’s August 2024 report and Dr Mullin stating that the Claimant “failed a test of performance validity” and that whilst Dr Mullin did not consider this to be compelling evidence of underperformance on testing, this could not be ruled out and that the results of neuropsychological testing should be interpreted with caution based on the failure of performance validity testing. This, Ms Ashworth argues, demonstrates that “Dr Jarman has used this report upon which to base his opinion” and in any event that the Claimant is entitled to the draft report as it was provided to Dr Jarman as part of his instructions.

Paragraphs 9.1.3 and 10.2.4 of Dr Mullin’s served December 2024 report contains the following paragraphs:

“9.1.3.

Performance Validity was assessed using the TOMM, a dedicated measure of Performance Validity upon psychometric tests, and via indicators of Performance Validity embedded within the CVLT test. Ms Perrin passed the tests of Performance Validity administered, though her score upon the first trial of the TOMM test was unusually low, this element of the test is not used to directly assess performance validity”

“10.2.4.

Ms Perrin’s performance upon tests of Performance Validity was reported to be borderline by Dr Kinch. This is similar to Ms Perrin’s performance upon tests of Performance Validity within the current assessment: while Ms. Perrin did pass the tests of Performance Validity her score upon the first subtest of the TOMM test was unusually low. However, this does not constitute a failure with regards to performance validity and there is therefore no indication of intentional underperformance upon testing.” (My emphasis)

This should also be read alongside Dr Mullin’s review of Dr Jarman’s evidence, within his served February 2025 report, which states at paragraph 4.6 that:

“I note that Dr Jarman reports having found no evidence that Mrs. Perrin’s symptoms were feigned or exaggerated. I note that this is consistent with the results of my assessment, as Mrs. Perrin passed the tests of Performance Validity incorporated into my neuropsychological assessment. I agree with Dr Jarman that it is ultimately for the Court to determine intention, or the lack of it.” (My emphasis)

The TOMM scores are set out at paragraph 13.6 of Dr Mullin’s December 2024 report, which suggest that the Claimant failed one of the tests/trials, rather than two.

Ms Ashworth argues that this is not a change of opinion by Dr Mullin, as the results of neuropsychological testing are objective and the outcome binary. Ms Ashworth argues that the results are not something that Dr Mullin could have an opinion on as the answer is simply ‘pass’ or ‘fail’. Ms Ashworth argues that it is not understood how this error could have happened, and it casts doubt over Dr Mullin’s whole testimony.

Dr Mullin’s position does seem to have changed from there being two tests/trials failed to one test/trial that was failed. I have of course heard no evidence from Dr Mullin about this. Whilst I agree with the submission about objective and binary results in part, it may be too simplistic, given that testing results can presumably be within a range, albeit with a threshold below which the tests would be counted as a ‘failure’. This appears to be what the draft report is alluding to. In any event, whilst the results from the testing themselves may have a large degree of objectivity depending on the test scoring matrix, to my mind Dr Mullin has seemingly changed his opinion when considering the above paragraphs in relation to whether the Claimant has intentionally underperformed and/or whether there is any evidence of the same.

The Claimant further raises concern that Dr Mullin’s served December 2024 report is 120 pages long, whereas Dr Jarman refers to the draft report as being 188 pages long. Ms Ashworth goes as far as stating that, “…there are reasonable grounds to find that these 68 pages were considered to be inaccurate or they would not have been deleted from the final version”. I had no evidence from the Defendant about this issue, albeit Ms Reynolds sought to reassure the Court that the reduction of 68 pages in report length was due to the removal of duplicated appendices to the report.

CPR r. 31.14(1) states as follows:

“(1)

A party may inspect a document mentioned in—

(a)

a statement of case;

(b)

a witness statement;

(c)

a witness summary; or

(d)

an affidavit.”

“(2)

Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings. (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report).”

CPR 35.10 states:

“(1)

An expert’s report must comply with the requirements set out in Practice Direction 35.

(2)

At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3)

The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4)

The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions— (a) order disclosure of any specific document; or (b) permit any questioning in court, other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.” (My emphasis)

I was referred to three specific cases that deal with the issue of privilege, disclosure and inspection in relation to draft expert reports, which I will consider briefly in turn.

In Lucas v Barking, Havering and Redbridge Hospital NHS Trust [2004] 1 WLR 220, Waller LJ considered the position both pre- and post-the introduction of the CPR. That case concerned a party seeking disclosure of a draft witness statement and the draft report of an expert referred to in another expert’s served report. Waller LJ considered whether the statement and draft report formed part of the instructions to the second expert. He went on to consider the interplay between CPR 35.10(3) and (4), stating that:

“30.

Mr Donovan suggests that CPR 35.10(4) is intended to reach a reasonable compromise so far as material supplied to experts is concerned. The rules require a full setting out of the facts; that would have waived privilege; the loss of privilege is confirmed by 35.10(4) but the court will not make an order for disclosure unless “it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.” That he submits supports a wide construction of the word “instructions” to include the information being supplied by the claimant and all the material which a solicitor places in front of the expert in order to gain advice.

31.

In my view Mr Donovan’s submissions are to be preferred. It seems to me that CPR 35.10(4) is designed primarily to give protection to a party who would otherwise have waived privilege by being compelled to set out matters in an expert’s report. It is also designed so far as possible to prevent lengthy arguments as to whether there has been a waiver of privilege either prior to the trial or indeed at trial leading to an entitlement to further disclosure.

32.

In this case there is no difficulty in relation to the statement of Mr Lucas. That statement was supplied to the expert as part of the instructions to the expert. Substantial parts had been set out as “material instructions” pursuant to CPR 35.10(3). The very purpose as it seems to me of CPR 35.10.(4) is to prevent compliance with CPR 35.10(3) rendering such a statement disclosable unless there are grounds for believing that the statement of instructions given in the expert’s report is “inaccurate or incomplete”.

33.

So far as Dr Durdey’s previous report is concerned I see no reason why a similar approach should not render that document part of the instructions given to Dr Mason. That report was clearly given to her for a purpose and the purpose must have been to instruct her about what it was that the expert had been saying about Mr Lucas’ condition. It is no abuse of language thus as it seems to me to describe the provision of that report as part of the instructions to Dr Mason.

34.

It follows that I disagree with the decision of Morland J in Taylor and would hold that that should no longer be considered authoritative in this area. Material supplied by the instructing party to the expert as the basis on which the expert is being asked to advise should in my view be considered as part of the instructions and thus subject to CPR 35.10(4)…

36….The obligation under CPR 35.10(3) is to disclose the substance of all material instructions. The protection under CPR 35.10(4) relates to “any specific document” and “questioning in court” unless the statement of instructions given under paragraph (3) is inaccurate or incomplete. There is no requirement to set out all the information contained in the statement or all the material that has been supplied to an expert. The only obligation on the expert is to set out “material instructions”” (Original emphasis).

Laws LJ, whilst agreeing with Waller LJ’s conclusions, added a few percipient words of his own, including at [43]:

“There is a plain impact on the scope of legal professional privilege, and thus a degree of protection against the loss of privilege is given by the restrictions on disclosure provided for by 35.10(4). I think it a premise of the arrangements constituted by 35.10(3) and (4) that in the ordinary way the expert is to be trusted to comply with 35.10(3): the effect of the 35.10(4) restrictions is that the party on the other side may not as a matter of course call for disclosure of documents constituting the expert’s instructions as a check to see that 35.10(3) has been fulfilled. There must be some concrete fact giving rise to “reasonable grounds” within the closing words of 35.10(4). It is unsurprising that the expert is thus to be trusted; it is of a piece with his overriding duty to help the court (CPR 35.3). Overall, 35.10(4) in my view strikes an important balance between on the one hand the protection of the party whose privilege is lost, and on the other the vindication of 35.10(3) where there is a real question-mark as to its fulfilment.”

In Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225; [2004] 1 WLR 2926, the Court of Appeal unanimously upheld the position that a draft expert report is privileged, subject to the provisions of CPR 35.10. Longmore LJ stated as follows:

“13.

There can be no doubt that, if an expert makes a report for the purpose of a party's legal advisers being able to give legal advice to their client, or for discussion in a conference of a party's legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of expert reports to be circulated among a party's advisers before a final report is prepared for exchange with other side. Such initial reports are privileged.

14.

I cannot believe that the Civil Procedure Rules were intended to override that privilege. CPR 35.5 provides that expert evidence is to be given in a report unless the court directs otherwise. CPR 35.10 then changed the previous law by providing in sub-rule (3) that the expert's report must state the substance of all material (whether written or oral instructions) on the basis on which the report was written. By sub-rule (4) it is, moreover, expressly provided that these instructions shall not be privileged. But the reference in Rule 35.10 to "the expert's report" is, and must be, a reference to the expert's intended evidence, not to earlier and privileged drafts of what may or may not in due course become the expert's evidence.

15.

The specific and limited exemption from privilege of the instructions given to the expert as the basis on which the report is to be written, shows, to my mind, that there cannot have been any intention in the minds of the draftsmen of the Civil Procedure Rules to abrogate the privilege attaching in other respects, eg to earlier drafts of a final report or to earlier reports whether said, in terms, to be draft reports or not.”

The more recent decision of Judge Matthews (sitting as a Judge of the High Court) in Pickett v Balkind [2022] EWHC 2226 (TCC); [2022] 4 WLR 88 considered the above authorities when dealing, inter alia, with an application for the inspection of a draft report not served in proceedings that an expert had subsequently relied upon as part of their opinion within the expert joint statement. The salient part of HHJ Matthews’ judgment is found at [99] to [100]:

“99.

Mr Crowley submitted that the earlier report was indeed privileged, and that that privilege had not been waived. He referred to the Court of Appeal’s decision in Jackson v Marley Davenport Ltd [2004] EWCA Civ 1225; [2004] 1 WLR 2926. There the court held that only reports intended to be relied on before the court at trial fell within the rule 35.10(4) regime. Other expert reports (including drafts of the final report) were subject to litigation privilege, as documents brought into existence for the purposes of the litigation. CPR Pt 35 did not override that privilege. I am of course bound by that decision. I would therefore have expected some evidence about the circumstances of the creation of the earlier report which would satisfy the test for privilege. As Ms Chalmers pointed out, however, I do not have any such information. Neither the claimant nor anyone on his behalf has given any evidence as to those circumstances. Accordingly, I cannot hold that the claim to privilege is justified. So, I should proceed simply to decide whether to order production under CPR r 31.14(2).

100.…I will consider the position as if the report were privileged. In these circumstances, the question would not be whether there are reasonable grounds to consider that Mr Pryce’s statement of his instructions were inaccurate or incomplete. Instead, it would be whether privilege in the earlier report had been waived. This in turn would depend on a combination of two matters. The first is whether the expert report of Mr Pryce merely refers to the earlier report (for example, as an event in the narrative) or whether it relies on (deploys) the content of that report. In the former case, the mere reference would not amount to any kind of deployment, and could not waive privilege. In the latter case, however, the content of the earlier report would be being deployed, and would in principle be capable of operating as a waiver of any privilege in that material. In the present case, I have no doubt that the position is indeed the latter rather than the former. Mr Pryce does not merely refer to the report, he sets out a particular conclusion in that earlier report as a basis for something that he himself says. He has relied on it to reach his own conclusion.”

I have referred myself to the commentary in Privilege (5^th Ed.), where the author states at paragraph 3-389:

“One area where the application of the CPR Pt 35 expert privilege rules can give rise to acute challenges is where the expert relies on his own or another’s earlier—and privileged—advisory report. It will be recalled that in Lucas the second expert was provided with the first report of her fellow expert and to which she made reference. As Lucas confirms, the effect of CPR r.35.10(4) is that, while privilege over such documents is lost where they form part of the Pt 35 expert’s instructions, they are only at risk of disclosure if CPR r.35.10(3) is not complied with: in other words, so long as the expert’s report sets out the substance of his material instructions, then even if, as in Lucas, the contents of the prior expert report is not referred to in the later report (presumably because it does not form part of the expert’s material instructions), it does not become discloseable [sic] under the r.35.10 regime.”

I derive the following principles from these authorities:

With respect to the Claimant’s application pursuant to CPR 31.14(1), the Defendant no longer seeks to rely on the first AD containing reference to the draft report. The Defendant has served a further draft Amended Defence that has removed that paragraph. As such, there is no pleading before the Court that quotes from the draft report, no permission having been given for first AD to be relied upon. The test under CPR 31.14(1) is not met and thus this element of the Claimant’s application fails.

The position with respect to CPR 31.14(2) is not so straightforward. Dr Jarman has referred to Dr Mullin’s draft report. As such, CPR 31.14(2) gives the Court a power to order production and inspection of such a document. That power is subject to the provisions of CPR 35.10, and I am also bound by the decision in Lucas.

The decision in Lucas is clear that an opposing party is not entitled to inspection of a draft expert report even where that draft has been referred to in the served reports of the same expert, or another expert, subject to compliance with CPR 35.10(3). Whilst that might seem an unsatisfactory outcome on first blush, there are policy reasons for that approach, as were articulated in Lucas.

Ms Ashworth submits that in Lucas it was held that privilege to a document referred to in the expert’s report was not waived, however this was subject to the statement of instructions being inaccurate or incomplete. Ms Ashworth argues that Lucas is therefore to be distinguished“as in that case there was no basis to suggest that the “material instructions” are in any way inaccurate in either report”. I reject the submission that Lucas should be distinguished in this case and do not agree with Ms Ashworth’s summary of the ratio of Lucas for the reasons set out above.

The difficulty I have in the present case is that I have no witness evidence from the Defendant as to the circumstances of the creation of the draft report and how it came to be provided to Dr Jarman. All I have is an email from the Defendant’s Solicitor to the Claimant’s Solicitor’s request for inspection, which asserts that the draft report was in draft form and was subject to privilege. Given my knowledge and experience of such cases, I consider that I can safely conclude that it is highly likely that Dr Jarman was provided with the draft (August 2024) version of Dr Mullin’s report and that the draft report was provided as part of the instructions to Dr Jarman to prepare his report. I reach that view because the report is listed in Dr Jarman’s report list of documents available to him to prepare his report, as set out in the paragraph of his report detailing his instructions.

I therefore must determine whether CPR 35.10(3) has been complied with. I am satisfied that it has. Dr Jarman has listed Dr Mullin’s report, albeit undated, at the start of his report. In the body of his report, he has stated that he had been sent a copy of Dr Mullin’s August 2024 report, along with a summary of Dr Mullin’s conclusions within that report. Dr Jarman has therefore set out the substance of all material instructions. Indeed, not only has he set those instructions out, but he has also gone on to reach a contrary view. That indicates that Dr Jarman is complying with his duties under Part 35; he has set out the material instructions that he received and has then reached a contrary view. The witness statement in support of the Claimant’s application seems to fundamentally misunderstand CPR 35.10 given the repeated reference to the adequacy of the Defendant’s instructions to Dr Jarman rather than Dr Jarman’s setting out of the substance of his material instructions.

In terms of CPR 35.10(4), the court will not, in relation to instructions to an expert, order disclosure of any specific document unless it is satisfied that there are reasonable grounds to consider the statement of instructions given pursuant to CPR 35.10(3) to be inaccurate or incomplete. There are no grounds, let alone reasonable grounds, for me to conclude that Dr Jarman’s statement of instructions is inaccurate or incomplete. On the contrary, I am reassured that Dr Jarman has taken steps to identify elements of another expert’s report that ultimately goes against the conclusion he reaches. It seems to me that this is a sign of an expert taking care to consider the material before them and reassures me that, was there anything else of substance in the draft report upon which Dr Jarman relied or impacted upon his opinions, he would have referred to them. This is part of the Part 35’s expert’s duties to the Court and the Court has to place faith in the expert that they will fulfil those duties, as enunciated by Laws LJ in Lucas.

It is not clear how it is that Dr Mullin came to change his position/opinion regarding the number of performance validity tests/trials the Claimant failed. However, it is his opinion within his served report that the Claimant did not fail such testing. That is the evidence that is now before the Court, the evidence advanced by Dr Mullin and the evidence relied upon by the Defendant. His previous opinion and/or analysis of the performance validity testing is not before the Court and is not relied upon or deployed by the Defendant. Dr Jarman does not seemingly rely on Dr Mullin’s findings to reach or underpin his own conclusions on any issue; this case can therefore be distinguished to that extent from Pickett.

I reject the Claimant’s contention that the Defendant’s other experts will have relied on Dr Jarman’s summary of his reading of the draft report and that gives a reason to order inspection of the draft report. Drs Neal and Edwards explicitly refer to having sight of Dr Mullin’s December 2024 report. I was not taken to any passage to suggest they had either been sent, or relied upon, the draft report or Dr Jarman’s summary of the same.

As for the reduction of the report by 68 pages, there is little if any evidence that those 68 pages contained inaccurate opinion, let alone “reasonable grounds” for me to make such a finding as averred by Ms Ashworth. I would find it surprising if 68 pages of analysis had been cut from an expert report. In any event, any preliminary opinion reached by Dr Mullin in his draft report is just that, preliminary. If it is not in his served report, it is not opinion that is before the Court, and the Defendant cannot place reliance on it. I have not been taken to any examples of any of the Defendant’s experts relying on anything within the draft report to ground their own opinions or conclusions.

Even if I were to be wrong about whether Dr Jarman has complied with the requirements of CPR 35.10(3), I would still exercise my discretion against ordering inspection of the draft report, in reliance on what is said in both Lucas and Jackson regarding the status of draft expert reports. Additionally, the draft report is not used by Dr Jarman as a springboard for his own conclusions. The Defendant does not seek (or no longer seeks) to deploy the contents or conclusions of the draft report in this case. Permitting inspection of draft reports in these circumstances would risk opening the type of satellite litigation that Waller LJ was seemingly eager to avoid in Lucas.

Furthermore, if I am wrong in my analysis that the draft report formed part of the instructions to Dr Jarman, I would not consider that privilege in that report had been waived given the lack of deployment of the draft report and the lack of reliance placed upon it by the Defendant and Dr Jarman.

For all the above reasons, I refuse the Claimant’s application for specific disclosure of, and production for the inspection of, Dr Mullin’s draft report, dated August 2024.

I explicitly do not decide whether the Claimant should be entitled to question Dr Mullin on his change of opinion; that will be a matter for the trial judge.

The parties are invited to agree a draft Order that encapsulates the rulings that I have made above. Should any element of that Order not be capable of agreement, I will deal with it at the hearing listed on 10 October 2025. The parties are reminded of the obligation pursuant to CPR 1.3 to assist the Court with furthering the overriding objective, particularly in the circumstances of this case where there have been several applications and cross applications made, which has called on a not insignificant amount of the Court’s resources.