Lord Woolf, the Lord Chief Justice, has urged lawyers to show restraint in relying on the Human Rights Act to win legal arguments.
The architect of the Woolf civil justice reforms was moved to comment in Daniels v Walker before the Court of Appeal recently.
In this case, the claimant invoked the Act to prevent the defendant insurers from seeking further expert evidence on his personal injury claim, when an initial report recommended he receive expensive care.
Lord Woolf said: “Quite apart from the fact that the Act is not in force, if the court is not going to be taken down blind alleys it is essential that counsel, and those who instruct counsel, take a responsible attitude as to when it is right to raise a Human Rights Act point.”
He added that lawyers needed to show restraint when the Human Rights Act comes into force in October if it is not to be discredited.
The insurers were allowed their additional expert witness by the Court of Appeal.
Human rights law specialist Richard Highley, partner in Davies Arnold Cooper, thought the judiciary would take a pragmatic line in applying the Act.
He said that some lawyers thought Article 8, which guarantees the right to a private life, would mean video surveillance used to detect fraudulent insurance claims, would be ruled as inadmissible evidence by the courts.
But Highley believed such evidence would be acceptable if the degree of intrusion was proportionate to the legitimate aim of detecting fraud.
“If the amount of fraud was very small and the intrusion significantly great, the court may try to exclude such surveillance evidence. But in the majority of surveillance cases this is unlikely,” said Highley.