Stewart v Kelly (2016) QBD (Blake J) – 31 October 2016 [Doc No. AC9402058]

The Defendant to a personal injury claim applied for permission to adduce further surveillance evidence. The Claimant had served a final witness statement in May 2016 setting out further detail of his pain and restrictions. In August, the Defendant served further unedited surveillance material. The trial date was listed in November. The Claimant objected to the evidence being adduced, submitted the application should have been made sooner and that it had not been necessary to wait until the final witness statement, and that the trial date was imperilled as a result of the need to respond to the issues raised in the surveillance evidence.

Held: The central issue was whether the Claimant had had good reason to object to the admission of the surveillance evidence in August. The question was when the Claimant had ‘nailed his colours to the mast’: Hayden v Maidstone and Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) applied. The court agreed that the Claimant had nailed his colours to the mast in his last witness statement; the Defendant had had a duty to act quickly in deciding to commission further surveillance; it was reasonable to update the earlier evidence and it was not a tactic to disguise previous delay; there was no prejudice to the Claimant caused by the delay in serving the evidence and no question of ambush. The Claimant should have worked promptly to agree new directions to enable the trial timetable to be kept – they were responsible for it being unable to be met and the delay would not count against the Defendant in costs.