The use of surveillance evidence in personal injury claims is becoming more and more common. Insurance companies representing defendants continually use undercover surveillance to question a claimant’s credibility or undermine their claim.
An insurer may consider it worthwhile and cost-effective to gather this type of evidence if there is a possibility that the value of a claim might be substantially reduced or perhaps even dismissed entirely. It is common if a claimant has sustained a back injury or a traumatic brain injury when, for example, evidence from security cameras can be used to identify an individual withdrawing money from a cashpoint machine who has claimed to lack the capacity to manage finances in order to avoid paying deputy and official solicitors’ fees.
Insurers may instruct agents to carry out covert filming for a short while or over a prolonged period of time – days, weeks or months for instance – and can use social media sites to look for evidence of how a claimant lives their daily life. Although this is not illegal, claimants who are observed in this way often feel violated when they realise the extent to which their insurer has been watching them covertly.
Whilst the Human Rights Act 1998 allows us a right to privacy, this law only applies to public authorities – surveillance can legally be carried out in a public place by a privately-instructed inquiry agent.
As legal representatives we cannot do much to stop an insurer carrying out surveillance on a claimant. However we can try to ensure we have sight of all of the evidence that has been gathered. A claimant who has been subjected to surveillance of this type is entitled to request access to all the unedited footage then compare this with the edited surveillance evidence and match it against the logs and records of time spent following the claimant. Any video footage that has been taken should also be disclosed and checked in this way. If an insurer fails to comply with these requests, it is possible to make an application for specific disclosure – non-compliant insurers can also be officially reported to the Information Commissioner’s Office, an independent UK authority set up to uphold information rights for individuals and in the public interest.
Emma Dryden. Solicitor, personal injury department.
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