Jean F Jones v University of Warwick
CA (Lord Woolf LCJ, Hale LJ, Latham LJ) February 2 2003
Covert filming of a personal injury claimant by the insurer's enquiry agent did not breach Articles 8 or 6
The claimant was an employee of the defendant. She alleged that she had developed focal dystonia after dropping a cash box on her wrist, which she said caused significant continuing disability. She claimed £135,00 in special damages. The defendant admitted liability but contended that the claimant had virtually recovered and that the claim for significant ongoing disability was unfounded. An enquiry agent, acting for the defendant's insurers, obtained access to the claimant's home by posing as a market researcher and filmed the claimant using a hidden camera. The film was disclosed to the claimant, but was rejected by the district judge on the basis that the court should not give any approval to the defendant's agent's improper method of gaining entry into the claimant's home. The judge on appeal reversed that decision on the basis that the overriding objective was to deal with a case justly. The claimant appealed against that decision, contending, inter alia, that her rights under Article 8 had not been taken into account.
Appeal dismissed. After the coming into force of the Human Rights Act 1998 the court recognised that there were competing public interests that had to be reconciled as far as possible. The fact that the defendant's insurers had been responsible for the trespass involved in entering the claimant's house and infringing her privacy contrary to Article 8 of the Convention was a relevant circumstance for the court to weigh in the balance when coming to a decision as to how it should properly exercise its discretion in making orders as to the management of the proceedings under CPR 1.1 and CPR 32.1. If it could be said that the use of such evidence breached Article 8, such use would be within Article 8(2). It would be artificial and undesirable for the actual evidence that was relevant not to be placed before the judge who was trying the case. To exclude the evidence would create a wholly undesirable situation. Therefore it would not be right to interfere with the judge's decision not to exclude it.
Whilst not excluding the evidence, it was appropriate to make clear that the conduct of the insurers was improper and unjustified. For that reason, subject to further argument, the defendant was ordered to pay the costs of the proceedings to resolve the issue of admissibility.
COMMENT (February 2003)
This is a very important case on the much debated legitimacy of private video surveillance by defendants' insurers in personal injury claims. The type of film - known in the business as a "day in the life of" record - is routinely made without the claimant's consent in order to produce evidence of the claimant taking part in some activity incompatible with his or her damages claim. In their chapter on "Clinical Negligence and Personal Injury Litigation" in An Introduction to Human Rights and the Common Law (Hart, Oxford 2000) the authors note that
"such surveillance is usually done as a fishing expedition. It is a growth industry….Objections are difficult in domestic law, as there is no property in a person's image. It is possible that such conduct could be complained of as harassment under the Harassment Act 1997, if repeated and blatant, but it surely only a matter of time before this practice is challenged as a breach of Article 8" (see page 156)
Since the Strasbourg authorities tend not to interfere in Contracting States' rules for admission of evidence, case law on this point under Article 8 is virtually non existent. There is an admissibility decision, Application no. 44866/98 Raymond and Sheila Arnott v United Kingdom (Third Section), 3 October 2000, in which the Court considered a complaint about the infringement of Article 8 by a private surveillance company. However the matter proceeded no further because it was resolved by a friendly settlement between the parties.
The outcome of this case is therefore an precedent for future courts faced with the difficult task of balancing the interests of justice on the one hand and the right to privacy on the other. Whilst it is hard to imagine any more flagrant invasion of privacy than obtaining admission to a person's home under false pretences in order to obtain covert video footage, this has to be balanced against the equally deceptive behaviour of many personal injury claimants wishing to obtain inflated damages awards. There is nothing new about the balance struck by the court in this case; it is just that the exercise has been carried out conclusively under Article 8 and should lay to rest the argument, quoted above, that the activities of enquiry agents are necessarily going to fall foul of the Convention. An analogous situation was considered by the Strasbourg Court in MS v Sweden (1999) 28 EHRR 313, although this did not involve the activities of enquiry agents. Here the applicant had made a claim for compensation from the Social Insurance Office arising from a back injury caused by a fall at work. She was a long term sufferer of spondylolithesis, a spinal condition which can cause chronic back pain. The Office requested the applicant's medical records, without her consent, from the head of the clinic who had treated her for the back injury, and, having found that the records suggested that an abortion had been performed due to previous back problems, rejected her claim. The Court found that although there had been an interference with her right to privacy under Article 8, the interference was justified as it served the legitimate aim of the protection of the economic well-being of the country as it was potentially decisive for the allocation of public funds. Although the facts of MS are somewhat different to the instant case, it shows that sharp behaviour on the part of the claimant will generally legitimise the privacy-infringing tactics on the part of the defendant.
The fact that the issue has been debated at all under the Human Rights Act is interesting in itself, since neither the enquiry agent nor the insurance company who employed them were public authorities for the purposes of Section 6 of that Act. That the matter arose at all was of course because the court, in exercising its discretion as to whether to admit the evidence, was itself acting as a public authority under that Section. It would contravene its duty under Section 6 if it were to admit evidence which in its view interfered with Article 8.
Happily for insurance companies the ruling in this case does seem to square the circle between the conflicting public policies at stake and provide guidance for future judges exercising their discretion under CPR 1. In any event the court can reflect its disapproval of the behaviour of the defendants' agents in the costs order, a measure that does not distort the outcome of the litigation (which would be the inevitable consequence of rejecting the evidence).
Rosalind English, 1 Crown Office Row