The High Court has rejected an application for relief from sanctions from a claimant who went “well beyond” the terms of a directions order by obtaining a fully updated report from a medical expert.
Master McCloud said the playing field had been “tilted towards the claimant” because the expert had seen the defendant’s surveillance footage and medical report before carrying out his re-examination.
“I do not think in any way this was intentionally tactical but that is the effect,” Master McCloud said.
She said the correct approach would have been for the claimant to have come to the case management conference, seek relief to “try to get permission for the full update out of time”, and done so without telling the expert about the surveillance evidence.
“Relief may or may not have been granted but one would not have found oneself in the position where the horses had left the stable and the expert had already seen and reported on not merely the surveillance but also the position generally.”
If relief had been granted, the master said, it would only have been after the expert had reported, without sight of the surveillance or the defendant’s report.
“I do not accept that the notion of the obligation on an expert to assist the court extends to mean that a solicitor can effectively expand the scope of an order for a report simply because the expert wishes to.”
The court heard in Tully v Exterion Media (UK) and London Underground  EWHC 1119 (QB) – decided in March but only just published – that Mr Tully claimed he was injured while putting up advertising materials on the London Underground.
The defendants obtained covert video evidence showing Mr Tully was “far more mobile” than he claimed.
Master McCloud said the claimant’s lawyers deliberately decided not to obtain an updated medical report by the date for exchange of reports, even though their existing report was “long in the tooth”.
This was “a surprising stance”, given that the defendant’s set of reports were more up-to-date.
Once reports had been exchanged, the defendant served surveillance footage showing Mr Tully “walking without support on short, local shopping trips”.
Master McCloud said the way the surveillance footage was served was appropriate and could not be described as a “late ambush”, because material of this kind was usually only served after the claimant had “pinned his/her colours to the mast”.
The master said the parties had agreed to a consent order permitting them “to serve new reports limited to the issues arising from the surveillance and the claimant was permitted to serve an explanatory statement to be seen by the experts”.
Permission was not given for the claimant’s expert to produce a fully updated medical report, based on the surveillance and the defendant’s medical report, and then to disclose it to their psychiatric expert, who produced a further report.
On relief from sanctions, the master said the breach was serious and there was no reason for it.
The breach meant that the “ultimate trial timetable” would be delayed, and it would be unfair to allow the claimant’s updated medical and psychiatric reports to be replied to.
Though she rejected the applications for relief from sanctions, Master McCloud said she was prepared to hear argument over whether those paragraphs in the medical report which covered the surveillance evidence should be allowed to stand and whether there should be a new psychiatric report from someone who had not seen the surveillance.
She observed that, in response to such footage, a claimant was “normally entitled to say that ‘things are not always what they seem’, to resurrect Phaedrus”, referring to a Roman poet.
“Yet speaking from experience, much of the time surveillance footage is very much how it seems, which is to say equivocal. It is seldom ‘the Rockford Files’ and more often closer to ‘slow TV’.”