The High Court has recently considered the question of whether evidence covertly obtained by one of the parties to litigation should be excluded; in circumstances where that evidence casts doubt on the credibility of an expert's opinion.
The Claimant's covert recordings of the Defendant experts had uncovered alleged methodological flaws which the Claimant's representatives stated were of significant probative value to the claim.
In delivering his judgment, Master Davison noted covert recording is a contentious issue. In response to the issues raised in this decision, he proposed an agreed protocol between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers. This protocol would create a scheme for the recording of examinations and how such evidence should be utilised, so that "there would then be no need or incentive for covert recording."
In 2014, the Claimant was involved in a minor road traffic collision with the Defendant. It is alleged that she suffered a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury. The parties were given permission to seek permission to use their own medical experts. The Claimant attended upon the Defendant's expert neurophysiologist ("A"), and on the advice of her solicitor, made recordings. A recording of the examination up was permitted by A until the point where testing commenced. However, the Claimant failed to end the recording at the agreed point, continuing throughout the testing.
Similar recordings were also made with the other experts instructed by the Defendant without their permission, and were made covertly. No such recordings were made during the examination by the Claimant's neuropsychological expert ("B") or any of the Claimant's experts, despite an invitation by the Defendant for the Claimant to do so. Transcriptions of the recording with A were reviewed by the Claimant's solicitors on receipt of A's report.
The Defendant applied to have the evidence excluded under CPR 32.1(2). The Claimant resisted, filing a cross application, which included a statement from her neurophysiological expert, which alleged that A had "made serious errors in her administration of the testing".
The Defendant also applied for an order setting Part 35 questions issued to A or seeking an order directing the expert not to answer them. The questions, with appendices, filled two ring binders. The Defendant argued that these were disproportionate and amounted to a cross-examination.
The Court allowed the Claimant to rely upon the recordings. Master Davison set out on what basis he/she reached this conclusion:
- The Claimant had not breached GDPR. The personal nature of the assessment is excluded under Article 2(c). The assessment was akin to a doctor's examination, therefore the recordings were the Claimant's to use. It was suggested that the General Medical Council and Information Commissioner's Officer are of the same view.
- The recordings were not considered unlawful. The covert recordings were "reprehensible". However, in the case of the extended recording of A, Master Davison made clear that he considered the Claimant to have been truthful when stating the recording of the testing was unintentional.
- The recordings have "relevance and probative" value. Master Davison held "It would be highly artificial and unsatisfactory to expect the experts to conduct their joint meeting and for them to give evidence without reference to these matters".
Master Davison however felt "it is obvious that [he] should disallow the questions." The questions were considered to be excessive, and not for the purposes of clarification, which amounted to cross-examination.
What can we learn?
- The issues of recordings will remain extremely contentious, particularly in claims where a minor traumatic brain injury is alleged. Symptoms reported to experts will be heavily subjective to the Claimant, and much of these claims will turn on expert evidence. Master Davison highlighted that had the positions been reversed, it would be "very surprising and an undesirable consequence" that recordings made of claimants - such as surveillance - were found unlawful. However, the Defendant's experts made it clear in very strong terms that the covert nature of the recordings raised issues around proprietary rights of the tests, but also raised significant professional concerns for them. On balance, Master Davison allowed the recordings.
- Nonetheless, it is clear that an agreed protocol as that proposed by Master Davison may be the most appropriate way of dealing with issues such as this. However, such a protocol would inevitably create additional work and costs for parties, associated with the preparation and review of transcripts, and possible consideration of those by experts.
- The Court agreed that the Claimant's motivation was to "protect her interests having regard to her vulnerabilities and frailties she maintains to have been the result of the accident." Irrespective, experts may now be concerned about agreeing to recordings, should they be used to cast doubt on their professional opinion and credibility, as well as proprietary matters. The proposed protocol would seek to resolve this issue, particularly as Master Davison stated that "covert recording has become a fact of professional life".
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.