The embattled Maidstone and Tunbridge Wells NHS Trust has been hit with a bill of £40,000 in indemnity costs after it spied on one of its doctors.
The case goes back to 2007 and the now demolished Kent & Sussex Hospital in Tunbridge Wells.
The trial had to be called off in May because of irregularities with the use and presentation of the evidence.
The Trust has been secretly filming Lorna Hayden in order to disprove the severity of a neck injury she sustained during the course of her work.
The former cardiac physiologist is suing the Trust for £850,000 after she damaged nerves in her spine while lifting a patient who was having a heart attack.
She claims the injury has affected her ability to work and the Trust disputed ‘the extent of her continuing symptoms’, according to Mr Justice Foskett.
In May 2015 the defendants’ expert witness in pain medicine said he thought the claimant might be exaggerating her physical impairment.
It was only in January that the Trust, in consultation with the NHS Litigation Authority (NHSLA), decided to commence the surveillance programme.
The video evidence was gathered in March and April, and only submitted eight days before the trial was due to begin, and was found to have been heavily edited.
The judge said of the wait for almost a year before beginning the filming: “The longer it is left, and the nearer the time gets to trial, the more likely it is that the court will regard the delay as culpable.”
He also blamed the last-minute delivery of the film for his decision to vacate the trial until the claimant’s legal team ‘had the opportunity to consider the position more fully’.
In two instances there was no date and time stamp on the footage, and it was also claimed that some of the timings could not be correct.
Another matter of contention was that the doctor’s lawyers were told that they would have to travel 60 miles to watch the unedited version of the footage.
In the High Court Mr Justice Foskett said they ‘undoubtedly’ believed they had been the ‘victims of an ambush’.
The judge described the NHSLA’s activity in the case as ‘unreasonable litigation behaviour’, adding: “The sending of an edited video (with no reference to the unedited material) by registered post over the Easter weekend, with no courtesy email warning of its impending arrival, was exactly the kind of initial approach that would engender suspicion on the part of the recipient.
“Then to be told that the application for permission to rely on it would be made on the first day of the trial, just before the claimant would give evidence, is exactly the way this kind of issue was dealt with in the past, when ambush was precisely the objective.
“To add to that the suggestion that, on effectively the eve of the trial, the claimant’s solicitor, who will have considerable responsibilities for the arrangements for the trial, should travel to the offices of the surveillance company some 60 miles away to view the unedited footage, was reflective of an obstructive attitude.
“It may not have been intended to be obstructive, but that is undoubtedly how it would have appeared. Some proper professional co-operation at a time like this is essential.”
Maidstone and Tunbridge Wells NHS Trust was also placed in special financial measures last month after running up a deficit of £23million.
