Covert Surveillance and Trial Fairness: Lessons from Middleton v Carnival plc

The High Court’s decision in Kerry Middleton v Carnival PLC (t/a P&O Cruises) [2026] EWHC 235 (KB) is an interesting recent authority on the deployment of covert surveillance evidence in substantial personal injury litigation. The issue before Tim Moloney KC, sitting as a Deputy High Court Judge, concerned the timing of the Defendant’s application to rely on the evidence and, to an extent, the nature of that evidence. Applying CPR 32.1 and several established authorities, the court held that the starting point is admissibility, but that the decisive question is whether the manner and timing of the defendant’s conduct created an unfair ambush. In this case, the Judge concluded that the evidence should be admitted, even though an eight-day trial date was lost, the footage was obtained 12 months prior to the Defendant’s application, and included footage from inside the Claimant’s home, obtained from the roadside.

The Judge approached the application as an exercise of the court’s case management discretion under CPR 32.1, which allows the court to control the evidence placed before it and, where appropriate, to exclude evidence that would otherwise be admissible. However, the fundamental question in this case was not simply relevance, but whether the Defendant’s general conduct and handling of the evidence amounted to an unfair ambush, such that the court should refuse permission to rely on it.

In applying that test, the Judge drew in particular on Rall v Hume [2001] EWCA Civ 146 and Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB). Those cases establish that the court ordinarily leans in favour of permitting reliance on surveillance where it may significantly affect the damages picture, provided the use of the material does not amount to trial by ambush. Importantly, ambush does not depend on proof of some improper tactical motive. The focus is instead on the broader picture of whether the claimant has had a fair opportunity to deal with the footage, and whether the time or circumstances of disclosure show conduct inconsistent with effective and fair case management.

The Court further recognised the established proposition that a defendant is entitled to wait until a claimant has “pinned their sail to the mast” (Hayden)before deciding whether surveillance, or the service of surveillance footage, is warranted, since such evidence is often obtained only after the claimant’s case has crystallised.

On the facts, the Judge did not view the Defendant’s conduct in isolation. He examined the wider, and lengthy, procedural history, including the parties’ historically co-operative approach, the exchange of further expert evidence during 2025, the timing of disclosure, the Claimant’s requests for further information, and the absence of any clear indication that admissibility would be resisted specifically on lateness grounds. That broader context, accounting for the Claimant’s conduct, as well as the Defendant’s, mattered to the assessment overall.

The Court concluded that the surveillance evidence should be admitted. Its potential probative value was too significant for outright exclusion, particularly in a claim valued at about £10 million where the extent and cause of the claimant’s ongoing disability, including functional neurological disorder, were central to quantum. The Court considered it would be manifestly unfair to deprive the Defendant of the ability to place that material before the trial judge, leaving issues as to weight, reliability and interpretation to be tested at trial, including through cross-examination. However, the practical effect of the ruling was that the existing trial window was lost.

Finally, the Judge’s treatment of the parties’ wider conduct is noteworthy. Defendants should not treat the judgment as license to serve and rely on surveillance evidence at any point up to and including the commencement of trial. The Court considered the procedural history in the round, rather than treating the timing of the Defendant’s evidence in isolation. Likewise, Claimants should be mindful that inter-party correspondence, history of co-operation throughout the litigation, and the extent to which any objections to such evidence were articulated promptly may also affect the outcome of an application in respect of surveillance evidence. The decision is therefore best read as a practical authority on both litigation conduct and tactics, and not simply as one relating to surveillance evidence itself.