Mustard v Flower: Is it Fair Game for a Claimant to Covertly Record Examinations by Medical Experts?

Published 4 November 2019

The question of what was said by a Claimant during an appointment with a medical expert can often become a key issue in clinical negligence claims, particularly when the Claimant asserts that the expert has not accurately recorded their account of their injuries.  The decision by Master Davison in Mustard v Flower, which has just been published, might mean that this issue will increasingly be resolved by the recording of expert appointments.

The Background

Mustard v Flower (which is still ongoing) is not a clinical negligence claim, but, rather, a road traffic accident claim.  There is a dispute in the case as to the extent to which the Claimant suffered brain injury because of the road traffic accident and, during the course of the litigation, she has been seen by several experts instructed on behalf of the Defendant.  She was advised by her solicitor to record her examinations by those experts.  She obtained the agreement of some of the experts to do the recordings, but in relation to two of the expert appointments her recording was covert, and in relation to one of the appointments (with a neuropsychologist) she did not turn off the recording device for part of the appointment, despite having confirmed that she would do so.  She claimed that she had tried to switch off the device, but that (unbeknownst to her) it had nonetheless kept recording.

The Issues

The Master had to decide whether the Claimant’s recording of the examinations should be excluded from the evidence.  The recording of the appointment with the expert neuropsychologist was particularly contentious.  Apart from questions of courtesy and invasion of privacy, the expert was concerned that, if the recording of the testing was to be allowed into the evidence in the case, it would breach the copyright of the company that provided the test material and, furthermore, that it would undermine the efficacy of the tests in future (on the basis that, if the tests were to get into the public domain and were therefore to be made available to anyone who might have to undergo the testing in future, it would be more difficult to get genuine results from the tests).

The Decision

The Master decided to allow all of the recordings, even those that were obtained covertly, to be included in the evidence.  The rationale was that, although there were factors that weighed in favour of excluding the recordings, those factors were all outweighed by the relevance and probative value of the recordings.  The most important considerations were that:

• The Master did not accept the Defendant’s argument that the covert recording breached the Data Protection Act or the General Data Protection Regulation. If the recording was done unlawfully it might have been excluded, but the Master did not accept that it was done unlawfully.
• The Master accepted that the covert recordings could be described as “reprehensible”. But this was not as important as their relevance and probative value.
• The Claimant’s expert neuropsychologist has listened to the recording of the appointment with the Defendant’s equivalent and had provided an opinion that some of the testing had been done erroneously. If he was right about this then it would have a significant effect on how the trial judge might decide the case.
• There was a suggestion from the Master that, if the Claimant had deliberately continued to record the appointment with the expert neuropsychologist despite telling the expert that she would stop, his decision might have been different. However, he accepted the Claimant’s assertion that she had tried but failed to turn off the recording device prior to the testing by the expert. 

Notably, none of the appointments with the experts that were instructed on the Claimant’s behalf were recorded, and therefore the Defendant was not in a position to challenge the accuracy of those experts’ reports.  However, the Master again nonetheless considered that this potential unfairness was outweighed by the relevance and probative value of the recordings.

The Impact

Experts and practitioners need to be familiar with the detail of this decision, which might be interpreted by some as giving a “green light” to widespread recording of expert appointments. Experts may wish to enter into dialogue with Claimants from the outset as to whether they will agree to have the consultation recorded.

The implications of this decision could be very significant. It could affect disclosure (when should the recordings be disclosed, and how should this affect the timetable for production of experts’ reports?), it could affect costs (with experts and lawyers on all sides poring over recordings to try to find discrepancies) and it could easily affect the integrity of the expert examination process.  It is perhaps with this concern in mind that the Master urged in his judgement that Claimant and Defendant representative organisations should come together to devise an agreed scheme for recording of examinations and the admission of such recordings into evidence.  However, there must be real concern that, even with such a protocol in place, the scope for significant disputes and “satellite litigation” relating to this issue would be very substantial.