Practice and Procedure


PUBLISHED February 4, 2003

After consideration of competing public interests, a defendant to a personal injury claim would be allowed to use as evidence a video of the claimant that was obtained by filming the claimant in her home without her knowledge after the person taking the film had obtained access to the claimant's home by deception.Appeal by the claimant from the decision of HH Judge Charles Harris QC allowing an appeal from the decision of a district judge that the defendant to a personal injury claim could not rely on a video film of the claimant recorded without her knowledge. The claimant was employed by the defendant. She had dropped a cash box onto her wrist at work. She alleged significant continuing disability and claimed substantial special damages. The defendant admitted liability but contended that the claimant had virtually recovered and had no significant ongoing disability. An enquiry agent, acting for the defendant's insurers, obtained access to the claimant's home by posing as a market researcher and filmed the claimant using a hidden camera. The film was disclosed to the claimant. The district judge had ordered the evidence to be excluded on the basis that the court should not give any approval to the defendant's agent's improper method of gaining entry into the claimant's home. The judge on appeal reversed that decision on the basis that the overriding objective was to deal with a case justly and that the claimant should be prevented from making an inflated or exaggerated claim if there was evidence to contravert it.HELD: (1) After the coming into force of the Human Rights Act 1998 the court recognised that there were competing public interests that had to be reconciled as far as possible. The fact that the defendant's insurers had been responsible for the trespass involved in entering the claimant's house and infringing her privacy contrary to Art.8 European Convention on Human Rights was a relevant circumstance for the court to weigh in the balance when coming to a decision as to how it should properly exercise its discretion in making orders as to the management of the proceedings under CPR 1.1 and CPR 32.1. (2) The Convention did not decide what was to be the consequence of evidence being obtained in breach of Art.8. That was a matter for the domestic court and if it could be said to have breached Art.8(1) by making the order that it had decided the law required in accordance with CPR 1.1 and CPR 32.1 it would be acting within Art.8(2) in doing so. (3) This was not a case where the conduct of the defendant's insurers was so outrageous that the defence should be struck out. Therefore the case had to be tried and it would be artificial and undesirable for the actual evidence that was relevant not to be placed before the judge who was trying the case. To exclude the evidence would create a wholly undesirable situation. Therefore it would not be right to interfere with the judge's decision not to exclude it. (4) While not excluding the evidence, it was appropriate to make clear that the conduct of the insurers was improper and unjustified. For that reason, subject to further argument, the defendant should pay the costs of the proceedings to resolve the issue of admissibility.Appeal dismissed.

[2003] EWCA Civ 151