Surveillance in personal injury claims: an update

Surveillance is commonly used by defendants to personal injury claims and their insurers and can be an effective tool for testing the claimant’s evidence.

This article considers when and how surveillance evidence is most suitably deployed in personal injury cases and also discusses two recent relevant decisions, including Kerry Middleton -v- Carnival PLC T/A P&O Cruises [2026] EWHC 235 (KB).

Background

Whilst claimants are mostly honest individuals who have suffered genuine injuries, nonetheless instances of personal injury claimants fabricating and exaggerating their injuries are not uncommon. Surveillance evidence can help defendants and their insurers to uncover such dishonesty. A covert surveillance company is usually instructed to record footage of the claimant carrying out their daily activities to verify whether the claimant’s statement of case accurately reflects the extent of their injuries and the impact of those injuries on their daily life.

Is the case suitable for surveillance?

Surveillance can be costly and there are no guarantees that the footage will prove helpful. Not all cases are suitable for surveillance. For example, a claimant may not leave their home for the duration of the surveillance period and it may not be possible to get footage of them indoors (although it can be done – see the discussion of Kerry Middleton below).

Therefore, defendants and their insurers should firstly consider the claimant’s statements and medical evidence to assess what the claimant is alleging as to their physical condition and then decide whether surveillance footage would be helpful in verifying the claimant’s alleged physical limitations.

If, for example, a claimant suffered an injury to their dominant hand and claimed that they could no longer write with a pen or carry out tasks requiring particular dexterity, such as doing up buttons on shirts, it is unlikely that surveillance would be particularly helpful. This is because surveillance footage is probably unlikely to capture the claimant writing or dressing themselves (tasks which tend to be undertaken at home). On the other hand, in a case where a claimant has alleged that they cannot walk more than a short distance due to their injuries, such an allegation could be potentially verified via successful surveillance if the claimant is recorded outside moving around.

In cases of pure psychological injury, surveillance footage will only assist if a claimant alleges that their psychological injuries are such that they impact on their ability to carry out day-to-day activities (such as socialising, working, playing sports, visiting public places etc.).

Timing of disclosure of surveillance evidence

Defendants and their insurers tend to undertake surveillance over a period of time and then wait until the claimant has “pinned their colours to the mast” by way of witness evidence or accounts to their medical experts before disclosing copies of the footage. If the surveillance is not helpful to a defendant’s case, they and their insurers are under no obligation to disclose the same. However, if the footage is helpful, they are likely to disclose it after the exchange of witness and/or medical evidence.

Typically, in personal injury cases, parties are ordered by the Court to disclose all documentation relevant to their claim (standard disclosure) at a relatively early stage of proceedings, usually prior to exchange of witness and medical evidence. Parties then have a continuing obligation to disclose any further relevant documentation promptly as and when the documentation comes into their possession.

A claimant will often object to defendants holding onto surveillance footage obtained before standard disclosure exchange and then disclosing it at a later date post witness/medical evidence exchange. However, in such cases, the Court has generally held that a defendant is entitled to wait until the claimant has set out their case in a document endorsed with a statement of truth, as long as the timing of disclosure does not amount to “trial by ambush” and the footage is of probative value.

Kerry Middleton -v- Carnival PLC

In Kerry Middleton, the defendant cruise company, Carnival PLC, sought to adduce surveillance evidence on 16 January 2026 when the trial was listed to take place within a trial window commencing on 26 January 2026. Allowing the application would mean the trial had to be adjourned.

A claimant employee, Kerry Middleton, slipped whilst working onboard Carnival’s vessel MV Britannia on 3 October 2019. Liability was resolved between the parties, but their experts disagreed on the cause of her functional neurological disorder (FND), which she had developed since the accident.

The claimant argued that the FND had been caused by the accident and had left her severely disabled. Her Schedule of Loss totalled almost £10 million. The defendant’s primary case was that the claimant’s damages were valued at no more than £25,000 and that the FND was not caused by the accident.

On 14 October 2025, the defendant served an updated disclosure list, for which permission had been sought and granted by the Court. The updated list included the surveillance evidence, which was therefore disclosed three and a half before the trial window. The footage covered a time period from 11 March 2023 to 14 January 2025 and, highly unusually, contained surveillance footage of the claimant at home filmed through her kitchen window from the roadway.

The defendant issued their application to admit the surveillance footage on 5 December 2025, arguing that the surveillance footage was relevant to the issue of the claimant’s true level of disability and the reliability of her evidence. The footage was said to have very significant probative value because it contradicted what the claimant had told her pain management expert regarding her disabilities and what she had recorded in diary entries attached to her disclosed witness evidence. The footage included the claimant walking around her kitchen and preparing food without any obvious mobility issues, at a time when she claimed she was unable to walk and required a wheelchair.

The defendant also referred to the fact that the claimant had submitted a claim in her Schedule of Loss for the cost of a live-in carer at £120,000 per year alongside various aids and equipment and a replacement home. The defendant said that these heads of loss were undermined by the surveillance.

The defendant argued that the claimant had had a fair opportunity to deal with the footage because it had been disclosed three months before trial and the defendant was entitled to wait until the claimant had completed all of her medical evidence and disclosed all her medical expert reports before making the decision to rely upon and serve the surveillance evidence.

The claimant submitted that service of the surveillance footage three months before trial amounted to an “ambush” and the defendant could have served and relied upon the footage at an earlier stage of proceedings given that the claimant had disclosed all of her substantive witness and medical evidence by the time of exchange of evidence in April 2025, six months earlier.

The Deputy Judge held that the defendant was entitled to wait for the claimant to pin her sail to the mast before disclosing the evidence. The experts in this case had not completed joint statements until 2 September 2025 and the parties’ care and accommodation evidence was not exchanged until 10 October 2025. The defendant disclosed the surveillance footage on 14 October 2025, and in the Deputy Judge’s view, this was within a reasonable time after the updated medical evidence had been disclosed.

The Deputy Judge also noted that the claimant, upon receipt of the surveillance footage, did not raise any immediate concerns with regard to the timing of disclosure of the surveillance evidence, and the possibility that the trial would need to be adjourned. Rather she had sought to reserve her position, requesting time to consider the position, and had only challenged the probative value of the footage in the first instance. It was only after the parties had attended an unsuccessful Joint Settlement Meeting on 4 December 2025, and the defendant had subsequently served their application to admit the surveillance evidence on 9 December 2025, that the claimant formally indicated that the application would be opposed.

The application was, therefore, allowed and the trial adjourned.

Perrin -v- Walsh

In the earlier case of Perrin -v- Walsh [2025] EWHC 2536 (KB), the Judge allowed the defendant to rely upon surveillance footage despite finding that there were very real concerns with the way that the surveillance operatives had conducted their surveillance of the claimant and edited/preserved the footage. In particular, the Judge noted that the surveillance company had provided untrue witness statements to the Court, endorsed with statements of truth.

Nevertheless, the Judge concluded that the probative value of the footage was such that it should be admitted, although the recoverability of the costs of the surveillance footage would be called into question at the appropriate stage.

The Court will, therefore, be reluctant to disallow surveillance footage where it is of probative value even where there has been questionable conduct by the surveillance operatives.

Duty to disclose all footage

Whilst undisclosed surveillance footage is privileged and does not have to be disclosed by a defendant, if the defendant decides to disclose it then any privilege attached to the footage is lost and the defendant must disclose all of their surveillance footage. In other words, if a defendant has obtained three surveillance videos of the claimant, the defendant cannot cherry pick by disclosing one more favourable surveillance video and holding back the other two.

Similarly, a defendant cannot disclose an edited version of footage and hold back the unedited version. Once privilege is waived in respect of a piece of surveillance footage, all of the surveillance footage (both the edited and unedited versions) should be disclosed to the claimant and their legal team.

This will include any surveillance logs and statements provided by the surveillance operatives regarding the footage. Defendants and their insurers must therefore ensure that they request copies of both edited and unedited footage from their instructed surveillance company and ensure that copies of both are preserved.

Conclusion

As the decision in Kerry Middleton shows, defendants and their insurers can generally wait until the claimant has set out their up-to-date account of their injuries in final statements of case before having to disclose surveillance footage of probative value. Thereafter, however, defendants should not delay disclosing any positive surveillance footage beyond a reasonable timescale, or too close to trial. Doing so runs the risk that a judge may find the claimant has not had a fair opportunity to deal with it and so excludes it.

When used in the right circumstances, surveillance can be a very effective tool for defendants and their insurers to help challenge fraudulent or exaggerated personal injury claims. However defendants need to consider the suitability of individual cases for surveillance, the timing of such disclosure and ensure that they provide full disclosure of surveillance footage and accompanying statements/logs.