The Dekagram: 19th May 2025

In this week’s edition Linda Nelson examines how and when to serve surveillance evidence, and how and when to respond to it; and John Schmitt asks whether it’s necessary to have a claim form re-sealed if it’s been amended prior to service, and urges caution in doing so.

Service of Surveillance Footage and Statements Responding to Allegations of Fundamental Dishonesty – some Procedural Pointers

Allegations of fundamental dishonesty and surveillance footage can complicate the running of personal injury claims – not least by creating uncertainty as to a party’s obligations and rights when it comes to disclosure and service of the photographic/film evidence and reliance on statements in response to that evidence. The recent case of Matthews v Wye Surgery [2025] 4 WLUK 520 gives a useful insight into the factors relevant to any application for permission to rely on statements in response.

Disclosure of surveillance footage will always be a balancing act for any defendant. Serving it too early will forfeit any element of surprise and will give the claimant time to tailor evidence accordingly. Leaving the big reveal too late risks accusations of trial by ambush and a refusal of permission to rely on the footage.

Useful points to bear in mind are:

1. Surveillance evidence falls within the scope of standard disclosure. CPR 31.4 defines ‘document’ as ‘anything in which information of any description is recorded’ and 31.6 provides that standard disclosure is required of documents on which a party relies, or which adversely affect his own case or another party’s case, or support another party’s case. Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth (CPR 31.23). The disclosure statement includes (CPR 31.10(5)(6)) a statement that the party understands the duty to disclose documents and certifies that, to the best of his knowledge, he has carried out that duty. If surveillance footage exists at the time of preparation of a disclosure list, it is therefore necessary to include the footage in the list. However….
2. The footage is covered by legal professional privilege. Any document obtained by a party’s solicitor for the purposes of pending or anticipated litigation is privileged (litigation privilege) (Watson v Cammell Laird & Co Ltd [1959] 1 WLR 702, and see White Book note 31.3.11). The footage must therefore be included on the Disclosure List in the box reserved for items inspection of which is objected to. (CPR 31.10(4) provides that the standard disclosure list must indicate those documents in respect of which the party claims a right or duty to withhold inspection and CPR 31.19(3) provides that any such right or duty must be stated, along with the grounds on which that right or duty is claimed). As to how exactly the footage should be listed on the Disclosure List….
3. So as not to undermine the purpose of litigation privilege, it is not necessary for the footage to be specifically identified. It is sufficient to enter a phrase such as ‘Documents obtained by the defendant’s solicitor for the purposes of the litigation which are therefore subject to litigation privilege.’ (Gardner v Irvin (1878) 4 Ex. D 49, and see White Book note at 31.10.3)
4. The duty of disclosure continues during proceedings, so that if documents come to a party’s notice, or come into existence, after the standard disclosure exercise has been completed, he must immediately notify every other party (CPR 31.11). The consequences of failing to do so may be dire: where a party fails to disclose a document, he may not rely on it unless the court gives permission (CPR 31.21). However, the Court has a wide case-management discretion when considering whether to admit surveillance evidence. In Douglas v O’Neill [2011] EWHC 601 (QB), the court held that where a defendant to a personal injury claim had obtained surveillance footage of the claimant, he was entitled to withhold disclose of it until after the claimant had produced a signed witness statement. The surveillance was carried out between April 2008 and October 2010 and, due to delays on the claimant’s part, the claimant’s statement was not served until December 2010 and the Schedule of Loss was served in January 2011. The defendant served the surveillance footage on the same day and applied for permission to rely on the footage. Even though at that point the trial was imminent (the application was dated 1^st February 2011 and the trial was listed to start on 14^th March 2011), the Court gave the defendant permission to rely on the surveillance evidence. HHJ Collender KC (sitting as a judge of the High Court) considered the overriding objective and the CPR Part 31 disclosure obligations and took note of the decision of Hallett J in Uttley v Uttley [2001] 7 WLUK 443,that “the defendant’s solicitors were entitled to press for an up-to-date witness statement and schedule, …They were entitled to know what the claimant was saying himself…” and of Potter LJ in Rall v Hume [2001] EWCA Civ 146 that “It is therefore necessary in the interests of proper case management and the avoidance of wasted court time that the matter be ventilated with the judge managing the case at the first practicable opportunity once a decision has been made by a defendant to rely on video evidence obtained…In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush.” He held that there had not been an attempt to ambush the claimant and the footage had been disclosed at the first reasonable opportunity.

What leeway is there for a claimant to respond to such late-served surveillance footage? Matthews was a decision of the High Court on the claimant’s application for permission to serve additional witness evidence to respond to surveillance footage. The claimant had brought a personal injury claim against her employer. Directions were given for witness statements to be served by January 2024, with a trial window of October- December 2024. In May 2024 the defendant was given permission to rely on surveillance footage that, the defendant argued, showed fundamental dishonesty by the claimant. The claimant was given permission to serve a second witness statement to address matters arising from the surveillance footage and the trial date was moved to January – March 2026.

The claimant’s application was made in April 2025: she first sought permission to rely on a third witness statement, in order to further respond to the surveillance footage and to clarify how her pain had evolved. Permission was granted for her further statement. The Court held that the application should be treated as akin to an application to amplify existing evidence under CPR 32.5(3). Factors relevant to that decision were: (i) the claimant had been acting in person until January 2025; (ii) the third statement, unlike the previous statements, raised the issue of elements of surveillance footage being missing; (iii) granting this permission would not change the trial timetable or cause a material change to costs.

The second element of the claimant’s application was for permission to rely on statements from seven new witnesses (personal contacts, to give information about her condition and abilities), also to help rebut the fundamental dishonesty allegation. Permission was refused, with relevant factors being: (i) if the statements were admitted the trial would inevitably extend beyond its allotted four days and would therefore have to move to a trial window of April – June 2026; (ii) addressing the issues raised by the new witnesses would entail significant extra cost; (iii) the statements should have been provided by December 2024 and there was no good reason for the delay; (iv) the evidence from the witnesses was much less significant than the evidence that would come from the claimant herself and from the medical experts; (v) the benefit the statements would bring was therefore significantly outweighed by the difficulties they would entail.

It therefore remains the case that, as a broad overview, a court is likely to admit late-produced surveillance evidence, so long as it is served reasonably expeditiously, and a claimant is likely to be allowed to serve an updated witness statement in response, particularly where allegations of fundamental dishonesty or fraud have been raised.

About the Author

Linda Nelson was called in 2000 and is ranked in both the Legal 500 and Chambers and Partners for her travel law work. Linda regularly advises in international personal injury cases with cross-border issues, particularly those falling within the jurisdiction of the Admiralty Court. She is well-versed in claims involving the international carriage conventions, the package holiday regulations, Merchant Shipping regulations, ship collisions and issues of jurisdiction, applicable law and limitation. She is a contributing author to Munkman on Employers’ Liability (writing the ‘Shipping and Workers on Ships’ chapter) and co-authored ‘Work Accidents at Sea’ (now in its second edition).

When Service Goes Wrong: the Electronic Working Pilot Scheme

This week we look at an important case for practitioners on service of claim forms and using the Electronic Working Pilot Scheme: Howard Beckett v Sharon Graham & Anor [2025] EWHC 993 (KB).

Senior Master Cook considered cross applications around issues in relation to the service of a claim form which has been amended prior to service under CPR 17.1, in the context of PD 51O.

Background

On 5^th June 2024 the Claimant filed his Claim Form in the Liverpool District Registry. It was filed using Electronic Working and a PDF of the sealed claim form bearing the Court’s seal dated 5^th June 2024 was sent by the Court to the Claimant’s solicitor by e-mail on 6^th June 2024. The claim form set out a claim for libel.

Prior to service of the Claim Form the Claimant decided to amend his claim by replacing his claim for libel with a claim for misuse of private information. The Claimant’s solicitor made manuscript alterations in red to the copy of the claim form issued by the court. The words “Amended Claim Form Under CPR 17.1 (1) Dated 21/10/24” appeared across the top of the claim form

The Claimant’s solicitor sent the amended claim form together with particulars of claim and a response pack to the Defendants’ solicitor by first class post on 2^nd October 2024.

The Issue

CPR r.17.1(1) is of course well-known:

A party may amend their statement of case, including by removing, adding or substituting a party, at any time before it has been served on any other party.

Within these applications, the Defendants submitted that the amended claim form requires re-sealing and filing prior to service and that the failure to do so is fatal to the prospects of this claim. The Claimant submitted that the amended claim form does not require re-sealing or filing prior to service.

The Submissions in Summary

The Claimant submitted that it was neither necessary nor appropriate for the claim form to be re-sealed / sealed again after it had been amended (in manuscript) by the Claimant’s solicitor. There is no requirement in the CPR for a claim form (or other statement of case) to be sealed again after it has been amended (whether with or without permission) (provided that the amended claim form bears the Court seal). The date on the seal is to show when time starts to run for the period of validity of the claim form.

The Defendants accepted that CPR 17.1 does not expressly state that a claim form amended without permission prior to service must be filed before service. However, they submitted that the requirement to file and re-seal the amended claim form was clear from the authorities.

Judgment

Senior Master Cook held the relevant rule is perfectly clear; the claim form may be amended “at any time” prior to service and the reference to “claim form” must clearly be to the sealed claim form which has been issued.

Nonetheless, the judge noted that the White Book commentary to CPR 17.1 has been expanded in the 2025 edition. It now reads: “A sealed claim form that is amended before service should be re-filed with the court that, depending upon the system in operation, will record or mark how the original sealed claim form had been amended. The resealed amended claim form ought to be served within the period prescribed by r.7.5…”

After a review of the authorities, the judge held there is no requirement in the CPR which requires a claimant using electronic working who has amended a claim form without permission under CPR 17.1 by endorsing the issued and sealed version received from the Court to serve a re-sealed version of the claim form. Nor is such a requirement imposed by any of the case law decided before or after the implementation of the Electronic Working pilot. This conclusion accords with the reality of practice in the King’s Bench Division where there would be no discernible difference in a claim form amended pursuant to CPR 17.1 on the face of the issued sealed copy if it were served prior to filing or after filing.

The judge also held that there is an obligation to file a claim form which has been amended without permission under CPR 17.1 by endorsing the issued and sealed version received from the Court with the Court. 

Hence the judge found the claim form was validly served in accordance with CPR 7.5(1) within four months of the date of issue.

The judge acknowledged some unfortunate consequences to this. It may well be that for a limited period of not more than 21 days the court file will not contain the claim form as amended. This seems to be a consequence of the application of CPR to electronic working. There may well be other circumstances where there is a delay between the filing a document and its acceptance under PD 51O r 5.4(4).

Discussion

The judge placed weight on the overriding objective and also noted at the end of the judgment that in the circumstances of this case if he had sided with the Defendants, it would be of little consequence as a new claim form could be issued, the limitation period still being current. It may be then there is an element of pragmatism in the decision.

The judge also noted it was unfortunate that the relevant provisions of the CPR are not expressed with the clarity which would have avoided this situation. The Civil Procedure Rule Committee are considering re-drafting PD 51O and incorporating it into the mainstream Civil Procedure Rules: Senior Master Cook urged them to give this issue specific consideration.

This decision is also vulnerable to reconsideration at a higher level. The Defendants’ arguments were rigorous and pointed to the problems with Claimants being able to make any amendments to the claim form without needing to re-file it prior to service. Examples given were to remove a valid action and to replace it with a nonsense poem by Edward Lear (barristers edging closer to the 20^th century with their cultural references) and to add Defendants based out of the jurisdiction which would be procedurally problematic.

Hence practitioners therefore must always take great care with issues of service and when making any amendments to a claim form that has been sealed. It is recommended to read the judgment in full and the amended White Book commentary to r.17.1(1).

Anecdotally, it seems to be practice amongst some Claimant solicitors to amend a sealed claim form in between its issue and its service, most usually in the context of amending the statement of value, that normally (in the context of personal injury claims) being a consequence of the drafting of a Schedule of Loss revealing a new valuation to the claim that was not fully heeded at the time of issue. Clearly, while this judgment is helpful to Claimants, it raises the issue of the danger of serving an unsealed amended claim form, the possibility of the issue being considered by higher courts in the future, and the need to act with an abundance of caution.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.