The NHS Litigation Authority (NHSLA) has been ordered by the High Court to pay indemnity costs after sending a last-minute surveillance video to the claimant’s lawyers which resulted in a trial being vacated.
Mr Justice Foskett said he could “quite understand” why the claimant’s lawyers believed they had been the victims of a “deliberate ambush”.
He went on: “The sending of an edited video (with no reference to the unedited material) by registered post over the Easter weekend, with no courtesy e-mail warning of its impending arrival, was exactly the kind of initial approach that would engender suspicion on the part of the recipient.
“Then to be told that the application for permission to rely on it would be made on the first day of the trial, just before the claimant would give evidence, is exactly the way this kind of issue was dealt with in the past, when ambush was precisely the objective.
“To add to that the suggestion that, on effectively the eve of the trial, the claimant’s solicitor, who will have considerable responsibilities for the arrangements for the trial, should travel to the offices of the surveillance company some 60 miles away to view the unedited footage, was reflective of an obstructive attitude.
“It may not have been intended to be obstructive, but that is undoubtedly how it would have appeared. Some proper professional co-operation at a time like this is essential.”
The High Court heard in Hayden v Maidstone and Tunbridge Wells NHS Trust  EWHC 1121 (QB) that Lorna Hayden, a cardiac physiologist at the hospital, seriously injured her neck while lifting a patient. She sued the trust for almost £1.5m.
Foskett J said there was a dispute about “the extent of her continuing symptoms”.
The defendant’s solicitors applied to the court for permission to rely on video surveillance evidence, but the evidence was not received by the claimant’s solicitors until the first working day after the Easter weekend – eight working days before the trial.
Foskett J said the claimant’s legal team “undoubtedly” regarded themselves as “the victim of an ambush”, and he ordered the trial date to be vacated so they “had the opportunity to consider the position more fully”.
He went on: “A very significant factor in deciding whether to accede to a late application, in my judgment, is the time when a defendant ought reasonably to commission such evidence.
“Once the claimant’s case, both in relation to the disabilities relied upon and their consequences, is clearly articulated and the defendant is possessed of an opinion from an expert upon whom it relies that the claim is ‘suspect’, it seems to me that the obligation actively to obtain surveillance evidence arises if it is considered a proportionate approach to adopt in the particular case.
“The longer it is left and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable.”
Foskett J said that, “with considerable misgivings”, he had decided that the interests of justice required that the video evidence should be considered by the court.
He said the claimant and one of her main experts had been able to answer the new material “in a strong fashion”, and the playing field had remained level.
However, rejecting the defendant’s arguments that the costs thrown away by the vacation of the trial date should be dealt with by the trial judge, Foskett J said there was “the clearest possible case” that the defendant should bear them on an indemnity basis for its “unreasonable litigation behaviour”.
In a summary assessment of costs, he awarded the claimants £15,000 for the initial hearing of the defendant’s application, £20,000 for the adjourned hearing and almost £5,000 for expert cancellation charges.