On occasions an accident victim can be caught upon video, covertly taken by an Enquiry Agent, and recognised as a malingerer.
Such Agents might employ different guises to obtain such evidence and apparently one trick was to invite the injured person to a promotion for a free satellite dish if he or she fitted it him or herself.
Will the Court then allow such evidence to be used at a Trial?
One can envisage the injured person asserting his Right to Privacy (for example under the Human Rights Act) and the Defendant Insurance Company equally asserting with some force its right that the ‘truth’ be revealed. So what will the Court do? Its overriding aim is to achieve justice. It will aim to balance the parties’ rights and this will include regard to whether the footage has been obtained illegally eg by way of trespass or deception. Nevertheless, even secret filming which is unlawful may be admissible evidence if a fair Trial is not prevented.
Payment of costs
The Court also has the option of allowing the video evidence to be admitted, but showing its disapproval as to the way it was obtained, by making the Defendant subject to an Order to pay the associated legal costs.The costs actually involved in both obtaining, and then the proper consideration of the evidence, can be exorbitant. The Defendant may wish to take care in deciding how influential and probative the evidence is likely to be before embarking upon this course. The potential value of the claim itself is an obvious consideration.
Nevertheless, if it does illustrate the Claimant is intentionally exaggerating his or her injury, the Court can order the injured person to pay the Defendant’s legal costs, even if successful overall in obtaining compensation, and this could leave them out of pocket.
Worse, even though there is no need in such cases for the Insurer to allege fraud in its Defence, a fraudulent accident victim exposes him or herself to prosecution for perjury or perverting the course of Justice where he is guilty of knowingly and deliberately making a falsehood.
For the injured victim it may be wise to seek disclosure of any unused and edited video material and any refusal by the Defendant to do this, can be brought to the Court’s attention subsequently.
From the Defendant’s view point, although “Ambush at Trial” was once allowed, by the late 1990’s it was not the normal approach, and delay in disclosing such evidence can count against the Defendant if it is seeking late permission to rely upon it. Even so the issue of the video evidence’s admissibility may be re-opened at Trial if, for example, the Claimant’s evidence at Trial seriously contradicts such video evidence as has been viewed.
Reassessment of damages
Finally, even if the Insurance Company obtained video evidence after the Trial, this can lead to argument as to whether there has been genuine recovery from disability or whether the victim misled as to the extent of his or her disability. Then the Court can determine (and indeed has), whether there has been fraud and then reassess the damages awarded.