Admissibility in legal proceedings in England of a covert recording by the claimant of an examination by a medical expert

An overview of the English practice

Whilst in many European countries, experts’ assessments in judicial proceedings are undertaken by ‘judicial’ experts, chosen by a judge on a list of accredited experts and independent of the parties, in the English jurisdiction experts are not appointed by the court, but chosen and instructed by the parties themselves.

Another difference with procedural models such as the French system is that it is very common in England to have more than one expert. For instance, in serious injury claims such as brain injuries, usual practice is to have one expert per party in any medical field relevant to the injuries suffered, such as: neurology, neuropsychology, orthopaedics, ENT etc. In practice, the claimant has one appointment with each expert, individually (there is no such thing as ‘expertise contradictoire’ or ‘joint assessment’). Also, lawyers are not invited to attend: the claimant is usually alone with the expert.

Although medical practitioners acting as experts in court proceedings are expected to be independent and impartial (Rule 35.3 of the Civil Procedure Rules: “it is the duty of experts to help the court (…); this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid”), it is not uncommon to see some experts acting exclusively for victims, and some exclusively for defendants.

Thus, and because it is an adversarial system, experts’ independence is sometimes queried, if not openly criticized in court.

The case of Mustard v Flower & Ors [2019] EWHC 2623 (QB)

This is a case management decision by Master Davison in the High Court of Justice. The claimant had been involved in a road traffic accident, which did not seem particularly serious, but she claimed that she had suffered a brain injury (sub-arachnoid brain haemorrhage and diffuse axonal brain injury), which caused her some cognitive and neuropsychological damage. Given the minor severity of the collision, the defendant disputed the extent of her injuries.

Her solicitor started a claim and obtained permission to instruct six medical experts, including a neuropsychologist. In neuropsychological assessments, the expert usually combines an interview of the victim, typically with one close family member, and psychometric (or other) tests.

The defendant obtained permission to instruct experts in the same fields. Before she attended the appointments with the defendant’s experts, the claimant’s solicitor advised her to record (audio, not video) the examinations (i.e. interview/discussion, and any tests). With four of these experts, the recording was agreed by the expert, but two were undertaken without the consent or knowledge of the experts, in particular the neuropsychologist.

When the claimant attempted to disclose the recordings to criticize the defendant’s experts’ reports, the defendant made an application to the procedural judge to exclude the covert recordings.

Without entering into detail of all arguments exchanged, the essential points to take away from the decision are that:

• The Master accepted that the covert recordings were admissible as evidence (despite ‘lacking courtesy and transparency’, they were not ‘unlawful’).
• “It is in the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use”.
• There was no breach of data protection rules (English domestic and GDPR).
• The Master invited two organizations, APIL (Association of Personal Injury Lawyers – acting for claimants) and FOIL (Forum of Insurance Lawyers, acting for defendants) to discuss the issue and agree a protocol to govern such practice that would be acceptable by all parties.

Current status

• APIL & FOIL have set up a working party, whose work is ongoing. FOIL and APIL are known to collaborate in a constructive manner to establish good practice in personal injury litigation, so we can expect a protocol in due course. This will not be binding but certainly a strong reference for practitioners.
• The British Psychological Society (BPS) is also currently developing its own guidelines. It is notable that recording examinations causes problems mostly when the expert practices (neuro)psychological tests and does not know that this is recorded. Some experts consider that when the claimant records the tests, he does not perform in the same way and this affects the interpretation of the results.
• Another decision on the same subject confirmed in principle the position in Mustard: Macdonald v Burton [2020] EWHC 906 (QB). The judge specified that he would not himself provide guidance, as this was currently in the hands of APIL and FOIL’s working party and of the BPS. He nevertheless “hope[d] that that would allow for recording of some kind in certain cases”. Interestingly, in that case he ordered that the examination with the defendant’s expert take place without any kind of recording, on the ground that the examinations with the claimant’s experts had not been recorded, despite the defendant asking the claimant to do so, so that the parties be on a ‘level playing field’.

Reflections at European scale

• The issue of covert recording is particularly relevant when the claimant is alone with the expert. It is difficult to imagine how this could arise at a judicial expert assessment, where each party is assisted by their lawyer and medical advisor to guarantee open discussions with the judicial expert, who in any event is not interested in “repeat business” from a party or a law firm.
• It is striking that English judges appear favourable to recordings; I suspect the situation would be different in other countries.
• Nevertheless, one can see the advantages of this practice, provided that recordings are made openly and within predefined standards. This can hopefully lead to better standards of evidence, and reduce satellite litigation on such procedural issues.

This article was originally published by the European Experts and Expertise Institute: https://experts-institute.eu/en/expertise-law-and-jurisprudence/admissibility-in-legal-proceedings-in-england-of-a-covert-recording/