Surveillance and Social Media Evidence: Let’s Dance

June 24, 2021

Andrew Ward

Andrew Ward covers the use of surveillance and social media evidence in respect of two cases: Watson –v- Ministry of Defence [2016] EWHC 3163 (QB) and Brian Muyepa -v- Ministry of Defence [2021] 5 WLUK 122. He appeared as Counsel for the Defendant in both cases.

Brian Muyepa -v- Ministry of Defence [2021] 5 WLUK 122 concerns a claim for damages for Non-Freezing Cold Injuries (“NFCI”) to the hands and feet. Mr. Muyepa served in the Army for over 10 years. He was medically discharged for NFCI allegedly sustained during cold exposures in 2016 and 2017. The Claim Form was served in July 2018. In March 2021, breach of duty was admitted subject to medical causation.

In February 2021, the Claimant served an updated Schedule of Loss totalling £3.7 million including future loss of earnings of £826,000 and a future care claim of £1.7 million.

In March 2021, the Defendant applied for permission to rely upon, firstly, covert surveillance evidence taken of the Claimant in September 2020; and, secondly, social media evidence. The surveillance and social media evidence was disclosed in March 2021. The Defendant also applied to amend its Defence to plead a positive case of Fundamental Dishonesty and fraudulent exaggeration.

The Defendant’s application was granted by H.H.J. Auerbach sitting as a Deputy High Court Judge on 10th May 2021.

The decision reiterates the well-established principles applicable to covert surveillance evidence, namely:

  • Surveillance evidence is privileged from disclosure. The Defendant can choose to waive privilege once the Claimant has pinned his colours to the mast in terms of how he portrays the effects of his injuries in his witness statement and to his medical and non-medical experts. Once privilege is waived, it becomes disclosable subject to the Defendant’s ongoing duty of disclosure under CPR Rule 31.11;
  • The Court’s power to control the evidence is contained in CPR Rule 32.1(2) which states that: “The court may use its power under this rule to exclude evidence that would otherwise be admissible.”
  • Pursuant to Rall -v- Hume [2001] EWCA Civ 146, the starting point is that where video evidence is available which undermines the Claimant’s case, it would usually be in the overall interests of justice to admit it;
  • However, the Court uses the concept of “ambush” as a controlling mechanism to exclude surveillance evidence if its late disclosure, firstly, prevents the Claimant from having a fair opportunity to deal with it before the trial by way of commenting upon it in witness evidence and obtaining addendum reports from his medical and non-medical experts; and / or, secondly, if its late disclosure is due to unexplained delay, apathy or an attempt to take an unfair advantage of the Claimant.

Applying that test, H.H.J. Auerbach permitted the Defendant to rely upon the surveillance evidence even though the trial listed to commence on 14th June 2021 would have to be vacated. The Court could not say that the Defendant had deliberately, cynically, or tactically delayed its application; nor had it irresponsibly conducted the litigation. The probative evidential value of the surveillance evidence meant it should be admitted.

Strictly, it seems that the burden should be upon the party seeking to exclude the evidence under CPR Rule 32.1(2). In other words, the Claimant should apply to exclude the surveillance evidence that is otherwise admissible once disclosed. However, the reported cases all have it the other way around. They concern applications by Defendants to rely upon surveillance evidence, rather than by Claimants to exclude it. There is a mismatch between this practice and the wording of the CPR. In Watson –v- Ministry of Defence [2016] EWHC 3163 (QB), H.H.J. Yelton states (at paragraph 13) that if the Defendant brings the application then the burden is upon it.

It is probably a moot point where the burden lies in most cases. If it is clear one way or the other whether the evidence should be excluded, then the decision will not turn upon the burden of proof.

In Muyepa, the Defendant was also granted permission to rely upon social media evidence, particularly a Facebook video of Mr. Muyepa dancing at a Barbecue on 23rd August 2019 despite the fact that he had collapsed to the ground when asked to lift his walking stick when examined by the Defendant’s Consultant Neurologist in March 2020.

H.H.J. Auerbach held that the social media evidence was not privileged and was subject to the ordinary ongoing duty of disclosure under CPR rule 31.11. Arguably, the Defendant required relief from sanction under CPR rule 3.9 in respect of its failure to disclose the social media evidence until March 2021, having obtained it between June and September 2020 and, if so, then relief was granted pursuant to the third stage of the Denton test.

Two points are worth making about the decision in respect of social media evidence:

  1. The decision that the social media evidence was not privileged and was subject to the ordinary ongoing duty of disclosure under CPR rule 31.11 is perhaps doubtful. Where copy documents, such as Facebook posts, are obtained by a solicitor for the purposes of pending litigation, they are privileged: see Watson -v- Cammell Laird & Co. Ltd [1959] 1 WLR 702 and the notes in The White Book, Volume 1, 2021, at paragraph 31.3.11. If so, then the Defendant can decide when to waive privilege in them, akin to the law concerning surveillance evidence; and
  2. If the social media posts had been made by Mr. Muyepa, then he should have disclosed them. However, they were made by his wife and it was unclear that he was aware of them.

Andrew Ward is a member of the Personal Injury Team at Exchange Chambers. He appeared as Counsel for the Defendant in both Watson –v- Ministry of Defence [2016] EWHC 3163 (QB) and Brian Muyepa -v- Ministry of Defence [2021] 5 WLUK 122.