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.

Open-source checks come first

Much of what a defendant needs to know is in plain sight. A claimant’s own public social media, business listings, sporting results, event photographs and marketplace listings frequently show activity that the schedule of loss says is impossible. Open-source intelligence is lawful, inexpensive and often decisive, and it is where every claims investigation should begin.

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.

Surveillance: lawful, but only when proportionate

Covert surveillance of a claimant in public places is lawful in England and Wales. Private investigators are not regulated by the Regulation of Investigatory Powers Act 2000, which governs public authorities, but the evidence will be measured against Article 8 of the Human Rights Act 1998 when the court decides how to treat it. The test the court applies is whether the interference was justified by the legitimate aim of defending a possibly dishonest claim and went no further than necessary.

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.
• The operation is limited in time and tied to the indicators. A few days spread across the period when the claimant’s activity is most likely to be informative is proportionate; open-ended surveillance is not.
• Children are not filmed as subjects and are edited out where incidentally captured. Other family members are not targets.
• 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 that reads as harassment, or that intrudes into private settings, engages the Protection from Harassment Act 1997, will be criticised by the court, and will colour the way the whole defence is received.

Timing and disclosure decide whether it is worth anything

Surveillance evidence is only as useful as the moment it is deployed. Courts in England and Wales have repeatedly held that surveillance footage should be disclosed promptly once the defendant has decided to rely on it, so that the claimant and the medical experts can comment on it. Evidence held back for an ambush at trial risks being excluded, or the trial being adjourned at the defendant’s cost. The legal framework page on admissibility explains how courts balance improperly obtained or late evidence against its value.

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

Where a claimant has been dishonest about a matter that goes to the root of the claim, the court must dismiss the whole claim under the fundamental dishonesty provisions unless the claimant would suffer substantial injustice, and the claimant loses the costs protection that would otherwise apply. The glossary entry on fundamental dishonesty sets out the test.

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

Surveillance and enquiry work in a litigated claim should be instructed through the defendant’s solicitors, so that the investigator’s communications and drafts attract legal professional privilege where the law allows and the evidence enters the case through the proper disclosure channel. The instruction should set out the indicators, the specific questions the evidence needs to answer, the limits on scope and duration, and the format the panel firm or counsel requires. Our insurance and claims investigation page describes the service, and what you receive explains the evidence pack and the operative’s availability to give evidence.

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 guide is general information about the law of England and Wales as we understand it at the date shown at the foot of the page. It is not legal advice and does not take account of your circumstances. Before acting on anything here, particularly where court proceedings, a criminal complaint or an employment decision are involved, take advice from a solicitor. We are investigators, not lawyers, and we will say so if a question you bring us needs one.

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