Private Investigators and Plaintiff Solicitors Beware!

There has been a marked increase in the use of video surveillance by Defendant Insurance Companies. In serious injury cases where millions of euros are at stake, the cost of a few days surveillance is a modest amount of pay for evidence that may undermine and potentially destroy a Plaintiff’s claim.

However, in some cases the use of video footage or pictures obtained through covert surveillance may distort the real picture for the genuine Plaintiff and lead to possible injustice to genuine accident victims.

Plaintiff Solicitors should be in a position to provide practical advice to combat the potential threat of unfair and unbalanced surveillance evidence.

Social network sites are now routinely surveyed by Defendants and their advisors. Security settings, either for Plaintiffs or their contacts, are often at a low level which enables far greater access that may not have been anticipated by the individual user.

Defendants are routinely using the punitive provisions of Section 26 of the Civil Liability and Courts Act 2004 in cases to challenge Plaintiff’s who they allege are deliberately exaggerating their symptoms to obtain greater awards. This issue was addressed in the case of Danagher –v- Glantine Inns Ltd. (2010) IE HEC214. The Plaintiff in that case had unsuccessfully sought to have liability imposed upon the Defendant’s nightclub arising from alleged injuries sustained by him during an altercation in which security staff intervened. The Plaintiff had maintained that for several years following the incident he had suffered from persistent neck and back pain that had adversely affected his third level studies and sporting activities. He gave evidence that he had required some 70 sessions of physiotherapy in the 2 year period following the incident and that he had attended his GP on no less than 50 occasions during this period.

In the context of describing his physical symptoms the Plaintiff specifically denied that he had participated in a parachute jump for charity in July 2006, which had received coverage in his local newspaper. He maintained that this parachute jump had taken place in the previous year 2005. In order to explain the delay in the reporting of the parachute jump in the newspaper he told the Court that the reason that the article did not appear in the paper until the following year was because it was only at that stage that the monies collected were being handed over to the relevant charities. The Defendant challenged this version of events and led evidence to establish that the parachute jump had actually taken place in July 2006, just 6 months after the alleged injuries sustained by the Plaintiff.

Judge Irvine found that the Plaintiff sought to mislead the Court knowing full well that if he had admitted his involvement in the parachute jump, just 6 months after his alleged assault, that it would completely undermine the extent of his injuries which he was claiming damages for. She held that the Plaintiff had also misled the Court in claiming the level of attendances with his GP and physiotherapist which he did deliberately hoping to impress upon the Court the severity of his symptoms.

The Judge held that these were “phantom visits” to his GP and physiotherapist and that his evidence was false and undoubtedly destined to influence and mislead the Court as to the severity of his symptoms. She held that he had deliberately over stated his injuries.

The Judge said that if it were not for the fact that she was dismissing the claim on liability grounds she would have in any event been obliged to dismiss the Plaintiff’s claim having regard to the provisions of Section 26 and to the falsity of the Plaintiff’s evidence.

What Advice Should We Give After Taking Instructions?

As a matter of routine all clients should be advised that they are likely to be surveyed and that investigations of their social networking use may be undertaken by Defendant’s and their representatives. All clients should be warned to be careful about what information they place on their sites. The purpose of this is not to seek to protect the fraudster but to ensure that the “naïve” Plaintiff is protected. In some cases people may say they were out socialising which can be purely innocent commentary but can be taken up the wrong way, even by a Court. This does not mean that a Plaintiff is not having genuine symptoms which would not preclude them from having a night out. Much of this evidence is subjective and often is only a snapshot in someones life. How many of us are not prone to exaggeration when we are using our social sites?

What Happens if the S.I. 391/1998 Schedule Discloses a Private Investigator?

If a private investigator is listed as a witness for the Defendant the following preliminary steps should be taken –

• Request all edited and unedited footage to include DVD and pictures.
• Seek discovery of all logs and records relating to the said surveillance.
• Seek discovery of the letter of instruction and payment terms. It is known that some private investigators work on “a no fraud no fee” basis and so they may be incentified to produce material (in the edited version) that justifies payment.
• Request confirmation that the Defendant’s Solicitors have complied with the provisions of the Data Protection Act in relation to any information given to private investigators. This will also include seeking a copy of the letter of engagement between the private investigator and his client.
• Check the Defendant’s Defence to see if fraud has been specifically pleaded by the Defendants in their Defence.
• Discuss with your client the footage when received and your clients response.

It is essential that late disclosure of private investigators and their evidence does not cause panic to run through a Plaintiff’s Solicitor or his client. In many cases it is a tactic used by Defendant insurance companies to try and force the unwitting Plaintiff to accept a lesser amount in settlement.

Intrusion and the Right to Privacy

By its very nature surveillance is intrusive and perfectly innocent Plaintiffs who have suspected they are under surveillance find the process very threatening. There is a right to privacy enshrined under Article 6 of the European Convention on Human Rights Act 2003. The Irish Courts have to give affect to the provisions of the Convention and therefore it is appropriate to explore at the trial how this surveillance evidence was obtained.

In some instances evidence has been obtained through breach of constitutional and convention rights. In the case of Herrity –v- Associated Newspapers (Ireland) Limited [2008] IEHC 249, Dunne J. confirmed the entitlement of the private individual to sue for infringement of the right to privacy. The Judge in that case confirmed –

• There is a constitutional right to privacy.
• The right to privacy is not an unqualified right.
• The right to privacy may have to be balanced against other competing rights or interests
• The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State.

Therefore, surveillance evidence obtained through breach of convention and constitutional rights which are in breach of the right to privacy may entitle a Plaintiff to damages against the investigator and as a corollary against his/her principal. However in civil injury claims this is a matter that has yet to be tested.

Courts Less Reluctant to Accept Private Investigators Evidence

In a recent High Court decision in the case of Murphy (nee Condon) –v- Roche [2011] IEHC 35, Mac Mahon J. made an award of €212,608 to an injured Plaintiff who had been the subject of surveillance by a private investigator. The Plaintiff who was a 36 year old woman sustained injuries to her right shoulder, neck, back and chest in a traffic accident on the 13^th November 2006.

The Defendant’s insurance company engaged a private investigator to observe her. He told the Court that he observed her covertly on two separate occasions. On one occasion he told the Court that he saw her throwing a snowball in the garden at her daughter and that he did not observe any restriction in her movements on that day. On another occasion he followed her as she and her husband drove to town to see her Solicitor. He said that he noticed marked restrictions in her movements on that day and that she had linked her husband’s arm as she walked. The inference was that she was exaggerating her symptoms by adopting a more restricted gait in an effort to impress her Solicitor. The investigator produced 86 photographs to the Court.

Judge Brian Mac Mahon carefully examined the photographs and came to the view that they disclosed nothing which would take from the Plaintiff’s version of events. He ruled that as there were no photographs of her bending, lifting, running, jumping or carrying heavy shopping bags the evidence of the private investigator did not take from the genuineness of her complaints. He said, “as to the allegation that the Plaintiff was seen linking her husband as they walked to the Solicitor’s office, this could hardly be something to be held against her, as married couples frequently link each other for no other reason than to display affection for each other”.

The Court took a balanced approach to this type of evidence and shows an increased willingness on the judiciary’s part to look objectively at the entire of the evidence.

Right to Claim Aggravated Damages

An issue that has not yet been addressed by the Courts is whether a Plaintiff who has been observed by a private investigator and whose evidence has not been accepted by a Court would be entitled to an award of aggravated and/or exemplary damages.

Surely where a Defendant essentially pleads fraud on the part of a Plaintiff, the penalty should be an award of exemplary damages. In many cases the Defence filed by the Defendant does not plead fraud as it should be under the Rules of Court. Therefore, it is questionable as to whether this evidence should be allowed at all in cases where Defendants have not specifically pleaded fraud in their Defence.

The issue was not addressed by Mac Mahon J. in the Murphy case but will probably be tested quite soon in the Civil Courts. In many other cases that have become before the High Court in recent years, exemplary damages have been awarded by the Courts in cases where insurance companies have alleged fraud on the part of the Plaintiffs and where these allegations have not been upheld at the trial. See John Hennessy –v- Michael Cusack t/a The Adare Manor Equestrian Centre, the High Court.

Conclusion

Surveillance is now a part of dealing with injury claims and it is essential that we are able to properly advise our clients and be aware of the law in the area.