Last Friday, reserved judgment was handed down by Master Davison, in respect of a defendant insurer’s application to exclude ‘covert’ clamant evidence, pursuant to CPR 32.1(2), which had been adduced in support of a personal injury (PI) claim.
Mustard v Flower & Ors  EWHC 2623 (QB) regarded a road-traffic accident (RTA), which took place in 2014. Although liability was uncontested, the extent of physical injuries sustained, as a result of the collision, was disputed.
Was it a ‘medium velocity impact’, or a ‘minor’ impact? Had the incident caused ‘serious brain injury’, or ‘no [injury], or only minor brain injury’?
The RTA claimant was examined by 6 defendant-instructed medical experts, in 2017 and 2018.
In preparation for these examinations, she was advised by her solicitor to make audio recordings, using a digital device, ‘to provide ... an aide memoire of what was said and to provide ... evidence to demonstrate any misunderstanding as to what was actually said, if required’, thus alleviating any prospective ‘allegations of dishonesty’.
The defendant, having been made aware of the claimant solicitor’s advice, encouraged the claimant to record consultations with her own medical experts, thereby establishing a ‘level playing field’.
While the claimant did not follow the defendant solicitor’s advice, she did follow the advice of her own legal representatives.
Some of the defendant medical expert consultations were recorded by the experts themselves and others were recorded by the claimant, either having been granted permission, by ‘accidental’ recording, or by ‘covert’ methods.
Crucially, transcription of the defendant neuropsychologist’s ‘covertly’ recorded examination formed the basis of a supplementary statement from the opposing neuropsychologist, which alleged ‘serious errors in her administration of the neuropsychological testing such as to render it of doubtful value’. In turn, this generated Part 35 questions to ‘appraise the accuracy of the neuropsychological assessment’.
Consequently, the defendant made an application, inviting the court to exclude the ‘covertly’-obtained dialogue, under powers bestowed by CPR 32.1(2).
The defendant neuropsychologist contended that ‘covert’ evidence ‘(a) raised issues regarding the proprietary rights in the tests, which were not for release into the public domain, (b) rendered the claimant herself essentially "un-assessable" on any future occasion, (c) undesirably conferred on the claimant's solicitors "insider knowledge" of the content and methodology of the tests, (d) by reason of the foregoing, raised professional conduct issues’.
A witness statement was also prepared by Professor Gus Baker, Member of the Executive Committee of the British Psychological Society’s Division of Neuropsychology and former Chairman of its Professional Standards Committee, who co-authored a Position Paper on ‘Guidelines for the recording of Neuropsychological Assessments’, which advised that ‘neuropsychologists should not allow patients to make their own recordings and should, indeed, discontinue the assessment if covert recording came to light’.
Naturally, the defendant’s application was resisted by the claimant, with the deployment of another supplementary report, produced by the claimant-instructed neuropsychologist.
The report conceded that there was ‘little empirical evidence’ as to the effect of the additional ‘dynamic’ that recording provided, but counselled that any disadvantage (e.g. the patient being rendered un-assessable in the future) could be mitigated by the risk of undetected ‘incompetence or malpractice’ impeding justice. Contrary to the statement of Prof. Baker, the expert went on to submit that recordings of clinical examination was actually ‘commonplace’.
This opinion was reinforced by Gross et al. (2018),[i] who claimed that the General Medical Council and other medical defence organisations in the UK had ‘come to accept that patients can legally make covert recordings of their consultations with a doctor’. As such, the editor's note proposed a hypothetical contract, which, in practice, would require the expressed consent of all parties to ensure proper creation, use and dissemination of recorded examinations.
Before the application was listed, the claimant failed to refer the matter to a High Court Judge for determination. Master Davison deliberated that, even though the application concerned a ‘thorny topic’, recording by ‘covert’ means was ‘not very susceptible’ to ‘general guidance’ that could be ‘applied across the board’.
The matter therefore fell to be resolved on a ‘case by case basis’ and the Master proceeded to hear the application, on 29 August 2019.
In this instance, the ‘covert’ evidence was deemed admissible and was ‘not unlawful’.
The Data Protection Issue
Firstly, it was reasoned that there had been no breach of Article 2(2)(c) of the EU General Data Protection Regulation 2016/679 (GDPR), as implemented by s.21(3) of the Data Protection Act 2018.
The recording of a consultation with a clinician (except from, e.g. an excerpt of a recording which picked up conversations in a waiting room), containing relevant personal data relating to the claimant (not the consultant), was classified as a ‘purely personal activity’ – an excluded category under both bodies of law. Further, it remained a ‘purely personal activity’, even after the recordings were supplied to the claimant’s legal representatives.
Incidentally, the judge highlighted that, had the defendant’s argument succeeded here, ‘it would have [had] the very surprising and undesirable consequence that covert video recordings [i.e. video surveillance] of [potentially fraudulent] claimants by insurers would be equally unlawful’.
The Substantive Issue – The Legality of ‘Covert’ Recordings
On the legality of the claimant’s actions, the Master reasoned that:
‘The claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable. Whilst her actions lacked courtesy and transparency, covert recording has become a fact of professional life ... the sooner that there can be some kind of protocol agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers which governs the recording of medico-legal examinations the better. It is 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. It is desirable that the parameters of such recording should be on an "industry-wide" agreed model which caters for the many issues capable of arising and, I might add, which pays careful attention to the containment of the costs that might potentially be generated’.
Other Issues Affecting Admissibility of The Claimant’s ‘Covert’ Recordings
Having established that the claimant’s recordings were not ‘unlawful’, the judge moved on to consider any remaining factors which could compel ‘covert’ evidence to be excluded from the proceedings.
The fact that the recording had had the effect of placing a ‘question mark’ against the defendant medical expert’s conduct of examination and administration of neuro-psychological testing made it ‘difficult’ to put the ‘genie back in the bottle’, regardless of whether criticism was justified.
Moreover, acknowledgment of the fact that permitted recordings could unjustifiably ‘impair’ or ‘degrade’ the results of neuro-psychological testing was only considered to be a ‘marginal factor’ when assessing admissibility.
Dispelling the defendant’s insinuation that because there was no ‘level playing field’, the litigation was inherently unfair, the Judge found that the ‘vulnerabilities and frailties’ of the claimant party meant that it was ‘understandable’ for the ‘level playing field’ to apply ‘with particular force to the defendants' experts and not those instructed on her side’.
All things considered and when viewed in the context of the overriding objective, the balance tipped in favour of admitting the ‘covert’ evidence.
Full text judgment can be accessed here.
N.B. in the judgment postscript, Master Davison repeated appealed for both sides of the PI sector to approve a protocol governing the recording of medico-legal examinations:
‘In personal injury cases, I have suggested that an APIL / FOIL agreed protocol is the way forward. Such a protocol would provide an agreed scheme for the recording of examinations and for the reception of such evidence. There would then be no need or incentive for covert recording so that such cases would be unlikely to arise in the future. If they did arise, the protocol would dictate or steer the outcome of an application such as the present one. I hope that the relevant organisations can give attention to this topic in the future’.
[i] Cross MJ, Doyal L and Sawsh M, The cover recording of medico-legal consultations. Medico-Legal Journal 86(4), 202–207. <https://www.deepdyve.com/lp/sage/the-covert-recording-of-medico-legal-consultations-vSFwfZVhzo?key=bioportfolio> accessed 22 October 2019.