In edition 293 of BC Disease News (here), we reported that Master Davison had implored the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) to ‘give attention to’ an agreed protocol concerning the recording of medico-legal examinations and the reception of such evidence in personal injury cases:
‘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’.
The Master’s plea formed part of his judgment in Mustard v Flower & Ors  EWHC 2623 (QB), in which he ruled on the admissibility of claimant evidence, acquired ‘covertly’ (but not ‘unlawfully’), on the advice of the claimant’s solicitor, in the course of her consultation with the defendants’ expert neuropsychologist.
Clearly, Master Davison was unguided (but not necessarily misguided) in having arrived at his decision. The hope, therefore, is that protocol-driven framework will assist judges in reaching the correct outcome of comparable applications going forwards. More than this, increased clarity would also reduce the appetite for litigants to ‘covertly’ record examinations.
Post-Mustard, a joint working party was created so that APIL and FOIL could devise an answer to this issue. Concurrently, the British Psychological Society (BPS) began the process of developing its own guidelines.
Last month, Mr. Justice Spencer echoed Master Davison’s support for an APIL/FOIL-agreed protocol, in the case of Macdonald v Burton  EWHC 906 (QB):[i]
‘I hope that the BPS and the joint working party of APIL and FOIL will together work through these issues and come up with a solution which satisfies the interests of justice from the point of view of both claimants and defendants, and I would hope that that would allow for recording of some kind in certain cases. But in my judgment it is not appropriate for me to lay down any kind of ex cathedra guidelines or instructions in relation to that at this delicate stage’.
The High Court Judge in Macdonald deliberated whether case management directions should allow for the claimant’s neuropsychological assessment with the defendant-instructed expert to be recorded, irrespective of the fact that the opposing expert had not been recorded.
Intriguingly, the claimant’s solicitor in this case was also the claimant’s legal representative in Mustard.
The defendant’s proposed medical expert, Professor Kemp, was of the ‘very firm view’ that examinations ‘ought never to be recorded’ in the specific context of neuropsychology, as patients have a tendency to ‘perform differently’ in anticipation of testing and can be rendered ‘untestable’ in the future if they re-listen to the recording.
However, Spencer J’s ruling that examination should not be recorded was primarily based on the principle that there should be a ‘level playing field’ between claimant and defendant experts of all disciplines to avoid comparison between ‘apples and pears’, i.e. either both or neither are recorded:
‘Experts instructed on behalf of claimants are equally fallible and liable to produce results which are less than accurate, sometimes results which are favourable to the claimant and again, defence experts may wish to be able to examine the process by which those results were obtained in order to see whether they are or are not valid’.
After having dismissed the application, the judge went on to reflect that it would be ‘disappointing’ if forthcoming guidelines were to ban all recordings, as they can offer the clear forensic advantage of disinterring ‘lack of competence of certain experts’.
In circumstances where recordings are admissible, Spencer J clarified that they cannot be deemed ‘privileged’, as disclosure of an expert’s report to the opposition has the effect of waiving ‘all aspects’ of the medical examination:
‘A recording of the examination is simply a different aspect of the same waiver’.
By extension of this notion, disclosure statements should therefore include recordings alongside expert medical reports, if they do indeed exist.[ii]
Full text judgment can be accessed here.
[i] Nick Hilborne, ‘Judge demands “level playing field” on recording medical examinations’ (21 April 2020 Litigation Futures) <https://www.litigationfutures.com/news/judge-demands-level-playing-field-on-recording-medical-examinations> accessed 28 February 2020.
[ii] Application to allow claimant to record neuropsychological examination & testing successfully contested’ (19 March 2020 BLM) <https://www.blmlaw.com/news/application-to-allow-claimant-to-record-neuropsychological-examination-testing-successfully-contested> accessed 14 May 2020.