Jones v University of Warwick

JurisdictionEngland & Wales
JudgeThe Lord Chief Justice
Judgment Date04 February 2003
Neutral Citation[2003] EWCA Civ 151
Docket NumberCase No: B3/2002/1138
CourtCourt of Appeal (Civil Division)
Date04 February 2003
Between:
Jean F Jones
Appellant
and
University of Warwick
Respondent

[2003] EWCA Civ 151

Before:

The Lord Chief Justice of England & Wales

Lady Justice Hale and

Lord Justice Latham

Case No: B3/2002/1138

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BIRMINGHAM

DISTRICT REGISTRY

(HHJ HARRIS QC)

Robert Weir (instructed by Messrs Irwin Mitchell) for the Appellant

Robert Owen QC (instructed by Messrs Bullers Jeffries) for the Respondent

The Lord Chief Justice

This is the judgment of the Court.

1

The issue which this appeal raises is whether, and if so when, a defendant to a personal injury claim is entitled to use as evidence a video of the claimant which 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.

2

As Mr Robert Weir, who appears on behalf of the claimant contends, the issue on the appeal requires this court to consider two competing public interests: the interests of the public that in litigation, the truth should be revealed and the interests of the public that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence.

The Background to the Appeal

3

The claimant, Mrs Jean F Jones, appeals against an order of His Honour Judge Charles Harris QC ("Judge Harris"), sitting as a deputy High Court judge, who on 16 May 2002, allowed an appeal from the decision of District Judge Wartnaby and made an order allowing the University of Warwick, the defendant, to rely, at the trial of the claimant's action against the defendant, on a video film which they had recorded of the claimant in her home without her knowledge.

4

The action arose out of an accident that occurred when the claimant dropped a full cash box with a broken lid onto her right wrist causing a small cut in the web between her fourth and fifth fingers of her right hand.

5

The claimant was employed by the defendant. The claimant contended that she had developed a focal dystonia. She alleged significant continuing disability and claimed special damages in excess of £135,000.

6

The defendant admits liability but disputes that the claimant has the continuing disability she alleges. The defendant has expert medical evidence that accepts that the claimant appears to have had an episode of extensor tenosynovitis but contends she had virtually recovered by March 1998 and her ongoing disability "remains uncertain but it seems to be more related to habit than need" (see the report of Professor Burke of 9 May 2001).

7

The video evidence, the admissibility of which is in dispute, was obtained on two occasions by an enquiry agent, acting for the insurers of the defendant. The first occasion was 19 November 1999 and the second 18 January 2000. The enquiry agent obtained access to the claimant's home by posing as a market researcher. The enquiry agent used a hidden camera and the claimant had no idea that she was being filmed. The film which was made was disclosed on 11 June 2001. This was after High Court proceedings had been issued on 30 August 2000 by the claimant in which she claimed substantial damages. Nothing turns on the date that the filming took place. It was, however, followed by the filming of the claimant in public on 21 January and 30 March 2001. The admissibility of this later filming is not in dispute but it is common ground that the later films are not as helpful to the defendant as the films which were taken in the claimant's home.

8

The defendant's expert, after seeing the films taken in her home, was of the opinion that the claimant had an entirely satisfactory function in her right hand. The claimant's medical experts have come to a different conclusion. This is that the claimant still has a significant continuing disability but the films taken in her home can be explained because the extent of the disability in her hand varies. She has good and bad days.

9

It is not in dispute that:

i) The enquiry agent was guilty of trespass and that she would not have been given permission to enter had she not misled the claimant as to her identity.

ii) As the medical experts have now seen what was recorded in the films taken at the claimant's home, if the film was not to be admitted in evidence, those experts would not be able to give evidence. New medical experts would have to be instructed and the existence of the recordings would have to be concealed from the court and the new experts.

The Approach of the Judges in the Lower Courts

10

On 23 August 2001 the defendant made an application to the court for directions as to whether the video evidence obtained at the claimant's home should be admissible in evidence. At a hearing before District Judge Wartnaby on 19 October 2001, the claimant contended the disputed recordings should not be admitted, relying on the court's discretion under CPR 32.1(2) and Article 8(1) of the ECHR. On 1 November 2001 the District Judge gave a reserved judgment in writing, in which he came to the conclusion that:

"The court has to carry out a balancing exercise between the benefit to the court of having all the evidence available and the consideration of the improper way in which the video evidence was obtained.

The court should not in any way give approval to the methods used by the defendant's agent misleading the claimant and gaining improper entry to her home. In those circumstances I am not satisfied that the video evidence should be available and I order that it is excluded."

11

In his reserved judgment of 16 May 2002, Judge Harris came to the opposite conclusion. Judge Harris drew attention to the fact that the claimant was alleging a substantial handicap and therefore that she was entitled to substantial compensation; that the disputed films revealed in the words of the defendant's orthopaedic expert "that she has regained full function of her right hand"; that as copies of the film had been provided on 11 June 2001, this was not an ambush case; that in English criminal proceedings the fact that evidence has been illegally obtained does not render it inadmissible, subject to the power of the trial judge to exclude evidence in the exercise of its common law discretion or under the provisions of section 78 of the Police and Criminal Evidence Act 1984.

12

The judge was considerably influenced by the approach adopted by Lord Nolan in his speech in R v Khan (Sultan) [1997] AC 558. The judge pointed out that: "the overriding objective in a civil case tried in England is that court should deal with a case justly" and referred to his own judgment in McNally v RG Manufacturing [2001] Lloyds Reports 379, where he had stated that if a party is making "an inflated, exaggerated or unjustified claim, then he is seeking other peoples' money to which he is not entitled. It is clearly both just and fair that he should be prevented from succeeding in this. In order to uncover this deception steps may have to be taken which involve him being misled or his privacy being infringed. Misleading him may be the only practical means of showing that he himself is misleading other people." He added that in that case he had concluded "there were next to no physical signs, as opposed to complaints, of anything wrong with him. I do not think that the deception involved in coming to his house in the guise of a market researcher was of such gravity or impropriety as to render evidence thus obtained inadmissible."

13

As to the reliance upon the ECHR, he contended that under the Strasbourg jurisprudence questions of admissibility were matters of domestic law. Referring to the CPR, he stated that:

"The overriding objective of those rules is to enable the court to deal with cases justly. This includes, inter alia, ensuring that the parties are on an equal footing, that the case is dealt with in ways which are proportionate to the amount of money involved and that the case is dealt with "fairly" ( CPR 1.1). The plaintiff knows very well what she can do with her hand, the defendants do not. They are not, therefore, on an equal footing in this respect".

14

The judge added:

"So, the question for me to decide, in my review of the district judge's decision is whether it was wrong. I think it plainly was. The central passage of the district judge's reasoning was, "the courts should not in any way give approval to the method used by the defendant's agent. In those circumstances, I am not satisfied that the video evidence should be available."

15

The judge continued by saying that:

"The primary question for the court is not whether or not to give approval to the 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...

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