A personal injury claim looks exaggerated: what an insurer can lawfully do

Suspicion is a starting point, not a finding

An investigation into a claimant is an interference with their private life, and a court will ask what justified it. That means the decision to investigate should rest on articulable indicators, recorded at the time, rather than on instinct or on the size of the claim alone. Common indicators include a reported impairment inconsistent with the medical records or with the mechanism of injury, a claim that grows with each witness statement, a claimant who continues in a physical occupation or sport that the claim says is impossible, previous claims of a similar pattern, and inconsistencies between what the claimant told different examiners.

Write the indicators down before instructing anyone. The note becomes the justification for proportionality if the surveillance is later challenged, and it keeps the instruction focused on the specific question the claim raises.

Consider proportionate open-source checks

Relevant public material may help test a specific inconsistency, but check identity, dates, and context. A photograph may predate an injury, and a short activity does not show what a claimant can sustain or what symptoms followed. Start with the least intrusive method likely to answer the question.

It is still processing of personal data under the UK GDPR and the Data Protection Act 2018, so the lawful basis is recorded, the collection is limited to what bears on the claim, and material is captured in a way that preserves its date and origin. Only public material is used. Sending a friend request under a false name, joining a private group by pretext, or accessing an account are not open-source techniques, and they take the evidence into territory where it may be excluded and where the person who did it may have committed an offence under the Computer Misuse Act 1990 or the Data Protection Act 2018.

Assess whether surveillance is justified

Covert surveillance requires a case-specific assessment of purpose, necessity, proportionality, privacy, and data protection. A public vantage point does not make any observation lawful. Private investigators do not acquire public-authority surveillance powers. The court separately controls what evidence may be used under Civil Procedure Rules Part 32.

In practice that means:

• Surveillance is observed from public places only. Nothing is done on the claimant’s property, no device is placed on their vehicle, and no attempt is made to see inside the home.
• Agree a justified scope, duration, review point, and stopping criteria. A few days is not automatically proportionate; the assessment depends on the question, circumstances, and less intrusive alternatives.
• Do not target children or uninvolved family members. Minimise incidental capture and restrict access to it. Preserve relevant originals securely; prepare redacted working or disclosure copies where appropriate rather than silently altering the evidential original.
• No pretext or engineered encounter is used to provoke activity. The evidence is of what the claimant does unprompted.
• Every period of observation is recorded in a contemporaneous log, and footage is handled with a chain of custody from capture to service.

Surveillance can raise harassment and privacy issues as well as affect the use of the evidence. Stop and reassess if the operation exceeds the agreed purpose or intrudes beyond its justification.

Timing and disclosure decide whether it is worth anything

Discuss disclosure and evidence deadlines with the instructing solicitor before collection. The solicitor should assess the applicable rules and court directions, including whether permission is needed for late material. Withholding footage to create an ambush can cause fairness, costs, and admissibility problems; do not rely on a universal disclosure timetable.

Sequencing therefore matters. The usual pattern is to complete the surveillance, obtain the claimant’s witness statement and updated medical evidence committing them to a position, and then disclose the footage with an application for permission to rely on it, giving the experts time to revise their opinions. The investigator’s job is to produce material that survives that process: continuous footage rather than selected clips, a log that matches the footage minute by minute, and an operative who can give evidence about what they saw.

Fundamental dishonesty

Section 57 of the Criminal Justice and Courts Act 2015 provides for dismissal of certain personal injury claims where the statutory conditions for fundamental dishonesty are met, subject to the substantial-injustice exception. Costs consequences involve separate procedural rules and decisions. The court determines these issues; an investigator should report observations without declaring that a claim must be dismissed.

The threshold is high and specific. The dishonesty must be found on the evidence, not inferred from an unfavourable impression, and it must relate to something fundamental rather than peripheral. Footage of a claimant carrying shopping does not defeat a claim that says they can carry light loads. Footage of a claimant working a full physical shift, when their statement says they cannot stand for more than ten minutes, may. Investigators and insurers alike should resist the pull towards presenting ordinary activity as damning; overstated allegations of dishonesty are themselves criticised by the courts and can cost the defendant credibility on the parts of the case that are sound.

Where the evidence does establish dishonesty, the Fraud Act 2006 may be engaged and a referral to the police or to the industry fraud bodies may follow. That is a decision for the insurer and its solicitors, taken on the evidence, not for the investigator.

Who should instruct, and how

Coordinate litigated work with the defendant’s solicitors. Privilege depends on the legal tests and purpose of the material; instructing through a solicitor does not automatically protect every communication or draft. Record the questions, limits, expected outputs, and disclosure arrangements. Our insurance and claims investigation page describes the service, and what you receive explains the report format.

When it is the wrong route

Surveillance is not a substitute for medical evidence, and it should not be used where the medical evidence already answers the question, where the claim is too small to justify the interference, or where the aim is to pressure a claimant rather than to test a specific inconsistency. A defendant who cannot articulate what the footage would show, and why that would matter to the claim, does not yet have a case for surveillance.

This is general guidance within the scope identified above. It is not legal advice and does not take account of your circumstances. Before a legal, employment, or court-related decision, seek advice from a solicitor in the relevant jurisdiction. Harwick provides investigative services; legal advice is a separate professional service.

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