High Court considers surveillance evidence in £10 million cruise ship injury claim

The High Court has given written reasons on a defendant's application, heard close to trial, to rely on disclosed surveillance footage in a personal injury claim valued at about £10 million.

Kerry Middleton was employed by Carnival PLC, trading as P&O Cruises, as a Senior Director, People (Maritime). On 3 October 2019 she was aboard the MV Britannia, docked in Cádiz, Spain, when she slipped and fell heavily on a wet, slippery tiled floor in a toilet.

The defendant admitted liability in open correspondence on 14 December 2021, and judgment was entered on 8 March 2023. Contributory negligence has been agreed at 95 to 5 per cent in the claimant's favour.

The dispute now concerns the extent and cause of her condition. The medical experts agree a diagnosis of functional neurological disorder (FND), but causation remains in dispute. Her schedule of loss seeks £10.2 million. The defendant's primary case is that the claim has a value of no more than £25,000.

The application

The High Court (King's Bench Division), Tim Moloney KC sitting as a Deputy Judge, heard the defendant's application on 16 January 2026. The defendant sought permission to rely on disclosed surveillance evidence. The trial, with an eight-day estimate, was listed in a five-day window starting on 26 January 2026. Because the hearing was so close to trial, the judge gave his decision to the parties on the day and said he would provide written reasons later. Judgment was handed down on 9 February 2026.

The court was asked to exercise its discretion under Civil Procedure Rule (CPR) 32.1, which allows it to control evidence and to exclude evidence that would otherwise be admissible. The parties agreed that if the evidence were admitted, the trial would have to be adjourned.

The claimant's side argued that disclosure of the footage on 14 October left too little time for her to have a fair opportunity to address it. It said any probative value in the footage was far outweighed by the effect of an adjournment, which it said was caused by the defendant's own delay. It also raised the conduct of the surveillance operatives, pointing out that footage of the claimant was taken through her kitchen window from the road, which caused concern and upset to her and her family, who also appeared on it. It said there would be substantial wasted costs.

For the defendant, Mr Todd KC emphasised that the faces of everyone in the footage other than the claimant had been pixellated.

The legal framework

The judgment reviews the main authorities. In Rall v Hulme [2001] EWCA Civ 146, the Court of Appeal said that where video evidence is available which, according to the defendant, undermines the claimant's case to an extent that would substantially reduce her damages, it will usually be in the overall interests of justice to let the defendant cross-examine on it, so long as this does not amount to "trial by ambush".

In Douglas v O'Neill [2011] EWHC 601 (QB), the question on ambush was put as whether the claimant has a fair opportunity to deal with the evidence given the circumstances of its disclosure, or whether the court should use its case management powers to prevent the defendant relying on it.

In Jones v University of Warwick [2003] 1 WLR 954, surveillance had been properly disclosed but improperly obtained, because operatives had tricked their way into the claimant's home. The evidence was nonetheless admitted. Lord Woolf CJ said judges must consider the effect of their decisions on litigation generally.

Sources

• Kerry Middleton v Carnival PLC t/a P&O Cruises [2026] EWHC 235 (KB), High Court (King's Bench Division), 9 February 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/235