Not single spies but in battalions: surveillance evidence, specific disclosure and social media

In October 2024, the High Court (Christopher Kennedy KC sitting as a Deputy Judge of the High Court) gave judgment in Harper v Thomas Cook Airlines (in Liquidation) and another [2024] EWHC 3037 (KB) on the defendant insurer’s application for several forms of relief against a personal injury claimant, including an urgent injunction requiring the claimant to restore deleted social media posts and refrain from deleting further posts, specific disclosure of photos, videos and messages from various social media accounts, and permission to rely on surveillance evidence.

The claimant had been involved in the emergency evacuation of a Thomas Cook aircraft in 2017. The claimant’s case was that she landed heavily while going down a slide, sustaining multiple physical and psychiatric injuries leaving her disabled and unable to work again. Her claim was for over £600,000 in special damages and general damages had yet to be quantified.

The defendant alleged that surveillance evidence taken of the claimant in 2022 and 2023 contrasted starkly with what the claimant had said in her witness statement and various Part 18 questions. The defendant had also noticed apparent deletions of posts from the claimant’s Instagram accounts.

Decision

By the time the defendant’s application came before the court, the claimant had no doubt sensibly conceded to the admission of the surveillance evidence. However, the judge observed that the surveillance was disclosed 18 months after it was last collected, taking the view that the Claimant had “nailed her colours to the mast” and not changed her position since her witness statement in May 2024. Although this did not impact the admissibility of the evidence in this instance, it appears to be implied that lateness may impact costs.

Regarding the application for an injunction, the court applied the American Cyanamid test. The judge concluded that there was prima facie evidence that potentially disclosable Instagram posts had been deleted, and ordered the claimant to take steps to recover posts by midnight the following day, provide a witness statement setting out her best recollection of which posts had been deleted, and prohibited the claimant from making further deletions between the hearing and trial.

While the claimant was prepared to agree to limited disclosure of her Facebook and Instagram accounts, she refused to disclose anything from her WhatsApp messages. The judge decided that two years’ worth of WhatsApp photos and videos should be disclosed, noting apparent inconsistencies between the claimant’s witness statement and her Part 18 answers regarding her mobility, as well as the absence of evidence addressing a serious leg injury in a “pub stampede” in 2021 and a car accident in 2022. However, in ordering specific disclosure, the judge excluded images or videos taken in “domestic premises” to balance privacy interests.

Comment

The judge’s observations about the appropriate time to disclose surveillance evidence appear to conflict with Muyepa v Ministry of Defence [2021] EWHC 2236 (QB), where the defendant was entitled to wait until the claimant had “fully put his cards on the table” by serving a final schedule of loss. The judge’s position that the claimant had nailed her colours to the mast in her witness statement involves a degree of hindsight and does not account for the possibility that, following further Part 18 questions, her position may have changed by the time she filed her final schedule of loss.

The case demonstrates several important points for practitioners:

• The utility of monitoring claimants’ social media accounts, including private Instagram accounts, as these still reveal the total number of published posts.
• The court’s willingness to order WhatsApp disclosure, as opposed to merely public social media accounts in personal injury cases involving allegations of dishonesty. WhatsApp’s hybrid role as messaging and social platform may influence future applications.
• The tension between a privacy exception for those unrelated to the litigation and the reality that many potentially relevant social media posts may be taken in domestic settings.
• The utility of highlighting the deficiencies in a party’s case all in one go to justify wide-ranging disclosure orders. The more the court can see why dishonesty is or may be an issue in this case, the clearer it may be why the evidence is likely to be relevant and proportionate. 

As always, the strength of a fundamental dishonesty argument lies in its focussed application.  Alleging dishonesty in every case, or even every case where there are suspicions that the claimant may be gilding the lily, weakens its effect.  But used judiciously, a careful pre-trial application layering up the battalions of disclosure and surveillance and the claimant’s own evidence can greatly increase a claimant’s sorrows, particularly given usual funding regimes and CPR 44.16.