Judicial Warning on Surveillance Misconduct
The recent decision in Perrin v Walsh (HHJ Grimshaw, sitting as Deputy Master on 9 October 2025) provides a detailed examination of the Court’s discretion under CPR 32.1 to admit or exclude surveillance evidence, tainted by improper conduct. The case highlights the serious consequences when surveillance operatives provide misleading witness statements, and the limits of judicial tolerance, where the integrity of evidence-gathering is compromised. While the Court ultimately declined to exclude the footage, it issued a strong warning to insurers and investigation firms and imposed significant costs sanctions and gave strong warnings to the experts in the case as to the approach to be taken with the tainted surveillance evidence.
Background
The Claimant sustained serious injuries when she was knocked off her motorbike, including a head injury, multiple fractures requiring numerous surgeries, PTSD, FND, and Somatic Symptom Disorder. It was her case that she continued with symptoms. She had previously worked as a police officer and had retired as a consequence of the accident.
Proceedings were issued on 26 January 2023. Liability was admitted. Case management directions were given on 16 April 2024, including as to expert evidence, and a further CCMC was ordered for 22 May 2024.
In October and November 2024, there were discussions as to a JSM, with the Defendant’s solicitor indicating by email on 18 November 2024 that the Defendant had “no difficulty with proceeding to a JSM after we have exchanged medical evidence of January next year.”
Between 16 June 2022 and 28 June 2024, the Defendant instructed a surveillance company, The Surveillance Group (“TSG”), to carry out covert surveillance on the Claimant. The Defendant served the edited footage on the Claimant on 6 February 2025, along with lay witness evidence from surveillance operatives and evidence packs. The Claimant’s solicitor asked for confirmation that all unedited footage had been sent, and this was eventually shared by TSG on 3 March 2025. This was incomplete, and further unedited footage was finally served on 10 April 2025.
Defendant’s application
On 19 March 2025, the Defendant made an application to rely on the surveillance evidence, amend the defence to plead fundamental dishonesty, and sought its costs of the application.
The Claimant opposed the application on the basis that the surveillance was not reliable and had been manipulated by employees of TSG, such that it was unfair to the Claimant to have to face it. The edited footage did not contain all the footage of the Claimant, and the evidence of one surveillance operative for June 2024, had been completely excluded from unedited footage disclosed, where his timings contradicted other evidence from TSG. A complaint was made that commentary helpful to the Claimant had been excluded, and footage of the Claimant’s husband helping with tasks that the Claimant said she struggled with had been excluded. Further, the SD cards with the original raw data had been wiped, and the Claimant had no means of verifying that the surveillance was legitimate or accurate.
Judgment
At the hearing of 2 May 2025, HHJ Grimshaw, sitting as a Deputy Master, addressed the Defendant’s submission that any inaccuracies and misleading evidence relating to the surveillance were a matter of weight and not admissibility and rejected that submission. He cited Douglas v O’Neill [2011] EWHC 601 as authority for the proposition that the Defendant’s conduct was a relevant factor in determining how to exercise the discretion to exclude evidence under CPR 32.1.
He found that he had the discretion to exclude evidence that had been improperly obtained. He ordered that the Defendant had the opportunity to put in further witness statements from the surveillance operatives, saying that he needed “a very detailed, careful explanation as to how the surveillance operatives had put witness statements signed by a statement of truth before the court saying that they have not edited out the Claimant from images where they have.”
The Defendant then served further witness statements from the case handlers and management of TSG.
At the adjourned hearing, the Defendant maintained that any discrepancies were “human error” and that there was nothing for the Court to sanction.
In his judgment of 9 October 2025, the learned judge found that Ms Johal of TSG had submitted a witness statement saying that no footage of the Claimant had been omitted from the edited video file, which was signed with a statement of truth, and that this was “unequivocally untrue.” The Claimant had been omitted from the edited footage.
He rejected Ms Johal’s explanations that she had omitted evidence to prevent duplication, that she had chosen the clearer footage, and that she could have changed the witness statement template. He found that this further evidence in the witness statement drafted by the Defendant’s solicitor was untrue.
He rejected the similar explanation by Mr Wittering, TSG’s Operations Manager, saying that the assertion that the unedited footage “showed the Claimant doing the same thing just from different angles” was also untrue. He found that Mr Wittering’s attempt to say that the breach was a technicality, painted a picture of Mr Wittering downplaying Ms Johal’s failures.
Another employee of TSG, Ms Begum, was also found to have edited out the Claimant from edited footage contrary to her signed witness statement.
The learned judge found:
48. “The process of editing the surveillance in this case has been flawed. The Defendant accepts that there have been errors but, in my view, the errors are fundamental and repeated. TSG employees have provided witness statements to the Court, endorsed by statements of truth, that are manifestly untrue; this is clearly of great concern to the Court. Alarmingly, the witness statements provided by TSG management, particularly Mr Wittering, as part of this application appear to be somewhat dismissive of the severity of the failings and the fact that false statements have been put before the Court. At the very least, Ms Johal and Ms Begum negligently failed to include patently relevant material of the Claimant within the edited footage that they prepared and then provided witness statements to the Court stating that no footage of the Claimant had been excluded from the footage when it had.”
When the evidence was initially served there were no surveillance logs from the surveillance operative Mr Trofin for the June 2024 period. When the unedited footage was requested, no surveillance evidence or any log from Mr Trofin was included and Ms Begum’s witness statement did not include Mr Trofin in the list of operatives. After careful analysis of the original edited footage, the Claimant’s solicitor Mr Itson, detected a voice that was not heard on the unedited footage, which raised concerns as to the undisclosed footage. Mr Trofin’s unedited footage, for this period, was eventually served and it showed that TSG had 2 sets of footage with identical time stamps, which had the Claimant in two different places at the same time. Ms Begum was again responsible and could not give any satisfactory explanation to the Court as to why this had not been disclosed.
The learned judge, considering the evidence, did not find that the many failings had prejudiced the Claimant.
He said:
“76…..The conduct of the Defendant’s agents and insurers is not so outrageous that the Defence should be struck out, nor does the Claimant suggest this to be the case. This case will be going to trial, and it would be artificial and undesirable for the evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. In my judgment, it would be manifestly unfair to the Defendant to deprive them of the ability to place the surveillance material before the trial judge. The issue of the weight that the trial judge gives such evidence is an issue for the trial judge. It will be open to the Claimant to cross-examine the surveillance operatives and others from TSG and to submit that the evidence is unreliable for the reasons that have been advanced before me. However, those reasons are not such, in my judgment, that I should order that such evidence should be completely excluded from consideration.
79. There will be circumstances where the conduct of a defendant, or its agents, is so egregious that probative and otherwise admissible surveillance material should be excluded from consideration utilising the Court’s power pursuant to CPR 32.1. Whilst the conduct of TSG in this case is/was extremely poor, I am not satisfied that the threshold has quite been reached such that the surveillance evidence in this case should be excluded, but it was not far away. The providing of patently untrue witness statements to the Court, endorsed with statements of truth, is a matter of serious concern to the Court. The Claimant can consider her position as to whether she wishes to take any further steps with regards to that issue, this Court offering no view one way or the other as to the appropriateness of doing so. It is incumbent on defendants, insurers and those they engage to obtain covert surveillance evidence to uphold the highest standards integrity and propriety. In my judgment, TSG have fallen far short in this case.”
In the order of 10 October 2025, the learned judge recorded that the edited surveillance footage as served was not fit for purpose in its current state and required re-editing. The Defendant agreed that the trial judge and the experts could read the judge’s judgment relating to the applications in the case.
The order was as follows:
A very strong health warning was included for the experts as to the weight to be attached to the surveillance.
Claimant’s applications
The Claimant applied for specific disclosure of the Defendant’s letter of instruction to TSG, for TSG’s guidance to employees, documents and also a report from a Neuropsychologist Dr Mullin, that had been relied upon in the Amended Defence as an instance of Fundamental Dishonesty. It was pleaded that according to Dr Mullin’s report, the Claimant had failed 2 out of 3 effort tests. The report that had been served from Dr Mullin reported that the Claimant had in fact passed the effort tests.
The Defendant asserted that the amended defence had referred to the wrong report and that this was an error.
The Defendant provided the letter of instruction to TSG in the hearing of September 2025. The TSG guidance documents were disclosed after the hearing and before the judgment and so the Court did not make a ruling, as clearly the Defendant had conceded the point.
The Court found that the draft report from Dr Mullin was privileged and did not order its disclosure as the Defendant was no longer deploying its contents having withdrawn the allegation of failing effort tests from the Amended Defence.
Costs
The Defendant argued that the Defendant had been successful in its application and that the Claimant had been partially successful in hers and argued for costs in the case or no order for costs.
The learned judge rejected that submission saying that he had made robust findings as to the conduct of TSG. Had there been more “hands in the air” approach to the errors, he might have had more sympathy, but the original errors had been compounded by more untruthful witness statements. The conduct must be deprecated and the conduct could not go unmarked.
The learned judge considered the dicta by Lord Woolf in Jones v University of Warwick [2003] EWCA Civ 151
“Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes… In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant’s control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective and taking into account the wider interests of the administration of justice, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.”
He made an order that the Defendant should pay 80% of the Claimant’s costs of the Defendant’s application, summarily assessed at £40,000 gross. The other costs were to be costs in the case. The Defendant had submitted a costs schedule in excess of £58,000, which would not be recoverable.
Appeal
The learned judge rejected the application for permission to appeal, but extended the time for making a further application.
Comment
The judgment in Perrin v Walsh sends a clear warning that the Court will not tolerate manipulation or misrepresentation in the preparation of surveillance evidence. Although the material was not excluded under CPR 32.1, the imposition of an 80% costs order and the strong judicial criticism of the surveillance company, together with the very strongly worded warning to the experts, demonstrate that impropriety in evidence-gathering will have significant consequences. The case reinforces the importance for Defendants and insurers of ensuring that all surveillance is accurately recorded, preserved, and presented with scrupulous honesty. It also highlights the need of the Claimant’s representatives to carefully analyse any surveillance served.
Join our mailing list if you want to be kept up to date with our future seminars & conferences.
