As a personal injury solicitor of almost 25 years experience, I can recall a fair few occasions, normally handling larger claims involving more serious injuries, when a video film of my client has landed in my in-tray, filmed covertly by an investigator, acting for the insurer, who may have followed my client from home to the shops or filmed him loading the boot of his car with various heavy items of luggage. I have never had too much difficulty with these films but they can be a real trap for a client who has dishonestly exaggerated the extent of his injuries. If a client has said in his witness statement that he cannot walk without a walking stick, it will not create a good impression if he is then the subject of a video showing him playing football with the kids.
This is exactly what happened in Douglas v O’ Neill. An accident occurred in 2005 and six weeks before the trial the defence legal team applied to use a video film they had taken over a couple of years showing that the claimant had exaggerated his injuries. The question before the court was whether the defence were to be allowed to use the film when it was disclosed so late in the case. The court decided that it was in the interests of justice that the film could be used and it was reasonable for the defence to wait until the claimant had served his witness statement, which, of course, contains a promise to the court that the contents of the statement are true.
This case should be contrasted with the 2009 decision of O’Leary v Tunnelcraft Ltd where the disclosure by the Defence of the video film was too late in the day and meant that the trial had to be put back which the court was not going to do so the use of the video film was not permitted.