Clyde and Co’s Gemma Pearce acts for the defendant

Background

The claimant, Kerry Middleton, brought a high‑value personal injury claim valued at approximately £10 million against Carnival plc trading as P&O Cruises (the defendant). The claim arose from an incident aboard the MV Britannia in 2019, while the vessel was in port in Cadiz, Spain during which Middleton slipped on a wet floor and sustained a neck fracture. She was later diagnosed with functional neurological disorder (FND), which she claimed had left her largely wheelchair‑dependent and unable to work.

The defendant accepted primary liability for the accident but disputed the extent of Middleton’s ongoing disability. They commissioned surveillance footage, which they argued cast doubt on the severity of Middleton’s condition. 

Four months before trial, the defendant applied for permission to rely on the surveillance evidence. It was argued that the footage was relevant in that it contradicted what the claimant had told her experts. It showed her walking with normal mobility and moving freely in her kitchen, when she had claimed she was required to use a wheelchair. 

In this case, the surveillance was disclosed by the defendant within a list of documents as part of standard disclosure for which a mutual extension had been agreed between the parties to 28 October 2025. The defendant served their unsigned list together with surveillance on 14 October 2025 and then the signed list followed on 28 October. Authenticity of the surveillance footage was never challenged by the claimant.

Under CPR 32.1, the court has broad discretion to control evidence and decide whether to admit or exclude evidence. Here, the key issues included whether the surveillance evidence should be admitted so close to trial and whether admitting it would require the trial to be adjourned. Both parties agreed that admission of the footage would require adjournment of the imminent trial. The claimant applied to exclude the footage, arguing that the late disclosure amounted to procedural ambush. 

The court’s decision and rationale 

Judge Moloney KC considered the following: 

1. Probative Value of the Surveillance: Surveillance evidence is often critical in testing the credibility of high‑value personal injury claims and may be admitted even when disclosed late if it materially assists in determining disputed disability.
2. Timing and Fairness: The footage was disclosed very close to trial. The court assessed whether admitting it would amount to an unfair “trial by ambush”, weighing this against its potential relevance.
3. Impact on Trial Management: Admission would inevitably disrupt the timetable and delay trial, raising case management concerns, yet potentially justified by the significance of the evidence.

Judge Moloney KC considered whether the defendant’s conduct amounted to an ‘ambush’ and whether they should have served and relied upon the surveillance evidence at an earlier stage.

Judge Maloney KC held:

“The Defendant is entitled to wait for the Claimant to pin their sail to the mast…I have been told that the parties have behaved co-operatively throughout the proceedings. Joint Statements were served on 31 August and 2 September 2025 and care and accommodation evidence was exchanged on 10 October 2025. The Defendant was entitled to assess what the claimant had finally said to the experts before disclosing the footage. The footage was disclosed in a reasonable time after assessment.”

The footage would be relevant, going to the heart of the dispute about the claimant’s functional abilities and excluding it would have risked an unfair trial. Although disclosure was late, the judge found that the claimant had contributed to the delay by failing to object promptly and waiting until after a failed Joint Settlement Meeting in December 2025 to raise concerns about jeopardising the trial. 

The judge therefore granted permission for the defendant to rely on the surveillance evidence, finding that its potential value in testing Middleton’s claimed level of disability outweighed the disadvantages of its late disclosure.

Key takeaways for practitioners 

This decision underlines several key points relevant to litigators:

• Late surveillance evidence may still be admitted where it directly addresses core issues central to issues of honesty, exaggeration and functional disability.
• Courts continue to emphasise credibility testing in large FND-related claims, especially where observed behaviour may contradict reported limitations.
• Parties who oppose admissibility on the basis of delay, must raise the issue promptly.
• Parties should anticipate that even close to trial, probative evidence may reshape proceedings, including adjournments where necessary.
• The priority of the court is to ensure a fair trial. 

This case adds to the growing body of decisions confirming that surveillance remains a powerful tool for defendants in high‑value personal injury claims, particularly where disability is contested. This case confirms that surveillance evidence remains admissible even if served late, provided there is no deliberate ambush and the claimant can fairly respond, strengthening confidence that well founded surveillance will not be excluded purely because of timing.

Mandeep Chahal- Dhillon, Legal Director, is Co-lead of Clyde and Co’s Advocacy Subject Matter Group and a member of the firm's Cross Border Subject Matter Group.