COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT

In  Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts.   This decision raises some interesting issues. (The case also raised an issue in relation to Part 35 questions that will be dealt with in a separate post.)

“… 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.”

THE CASE

The claimant brings a claim for damages for personal injury. When she was examined by the defendant’s medical experts she recorded the consultations, in two cases covertly, in aother with permission of the expert. In the latter case the expert, a neuropsychologist, asked that the recording be switched off during testing.  The claimant’s case was that she meant to switch the recording device off at that stage but was unable to do so.

THE APPLICATION

The defendant made an application that the evidence be excluded. The claimant made a counter-application.

In addition the claimant filed a statement from a doctor which stated that the recordings showed that the neuropsychologist made serious errors in the testing which made them of doubtful value.

The recordings also led to  detailed questions being asked of the defendant’s experts and six of those experts wrote to the Court requesting directions in relation to whether those questions should be answered.

THE EVIDENCE WAS ADMITTED

The Master did not accept the argument that the recorded evidence should be excluded.
  1. I have decided that I should admit the evidence in this case.
  2. I reject the proposition that the recordings were a breach of the Data Protection Act or the GPDR and I do not propose to give the submission detailed attention. Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data “by a natural person in the course of a purely personal … activity”. Recording a consultation with or examination by a doctor would seem to me to fall into this category. I do not think that the claimant supplying the recordings to her advisers took it out of the category. Further, the relevant data relate to the patient (the claimant) not the doctor. (I mention that this is apparently the view of the General Medical Council – see the article in the Medico-Legal Journal referred to above – and also the Information Commissioner’s Office, whom Mr Dickinson consulted on this matter). Both the Act and the GPDR contain exceptions or “carve-outs” for data which is gathered or processed or disclosed for the purposes of exercising or defending legal rights, (I use that expression loosely and compendiously). The provisions are contained in Article 6 as read with section 8 of the Act and in section 5 of Schedule 2 and, if recourse to them were needed, would apply in this case. I note that all objections based on the legality of the recording were abandoned in the case of Chairman & Governors of Amwell View School v Dogherty UKEAT/0243/06/DA, which was similar on its facts to the present one. Although the data protection regime was then contained within the 1998 Act, I have not been alerted to any material difference so far as the point under consideration is concerned. Finally, I note that if Mr Audland QC’s submission were correct it would have the very surprising and undesirable consequence that covert video recordings of claimants by insurers would be equally unlawful.
  3. Mr Audland QC placed some reliance on the decision of the CJEU in the case of Buivids C-345/17. That case is of no assistance. Mr Buivids, a Latvian citizen, had published on YouTube a video he had taken of Latvian police officers performing their duties in a police station which he had attended in the context of administrative proceedings brought against him. He considered that the officers had behaved unlawfully and wished to expose that conduct to the general public. It is obvious that the data protection breach (which it was found to be) was the uploading to and publication by FaceBook of the video recording; see paragraph 39 of the judgment. That is entirely different from the facts of this case and, in particular, the provision of the doctors’ data (if such it be) to the claimant’s solicitor and her own medical experts.
  4. The position is therefore that the covert recordings were not unlawful. In the case of the recording of the examinations by Mr Matthews and Mr Kellerman, the recording was reprehensible and perhaps deserving of some of the epithets which Mr Matthews has himself applied. In the case of the recording of the examination by Dr Torrens, the evidence from the claimant is that the recording was unintentional. She had meant to turn off her digital device and through clumsiness or unfamiliarity had failed to do so. Turning a digital device on and off is an easy enough thing to do. However, it would not be fair or proper for me to reject this explanation on a paper application and I will therefore proceed on the basis that the explanation is correct. If it were not correct, then the covert recording of Dr Torrens’ examination would be more reprehensible than that of the examination by Mr Matthews because it would have involved frank misrepresentation and subterfuge. There is also the added dimension that the materials she was recording were subject to copyright. Wherever the truth of this may lie (and I repeat that I am proceeding on the basis that the claimant’s explanation is correct), I do not think that the covert recordings were so reprehensible as to outweigh the considerations that I set out in the following paragraphs. 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. As foreshadowed by Professor Morris and as Mr Grant suggested in the course of his submissions, 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.
  5. I turn then to the other considerations: first, the relevance and probative value of the recordings. For the reasons given by Professor Morris, the recording of Dr Torrens’ examination is and is accepted to be relevant and probative. It seems to me to be highly relevant. Further, there is a related factor which was regarded as important in the case of Jones v University of Warwick [2003] EWCA Civ 151. A question mark has been placed against Dr Torrens’ conduct of her examination of the claimant and her administration of the neuro-psychological tests. That matter is now known. It cannot be unknown. 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. A similar artificiality would apply to the claimant’s evidence. To coin the well-known expression, it would be difficult to put this particular genie back in the bottle.
  6. I have not overlooked Mr Audland QC’s submission that the effect of the claimant’s covert recording was to impair or degrade the results of the neuro-psychological testing by Dr Torrens. But this is a marginal factor in the decision on admissibility. Plainly, the thrust of Professor Morris’s supplementary report is that the true impairment and the reason for it lie in Dr Torrens’ own technique and methodology. He would not agree that the covert recording contributed to any or any significant degree. This, on the face of it, is a matter to be resolved at trial.
  7. Although argument at the hearing concentrated on the recording of Dr Torrens, the covert recordings of Mr Matthews and Mr Kellerman are also accepted to be relevant and probative – specifically in relation to the claimant’s account to them of her pre-accident history, the progression of her symptoms and (in the case of Mr Matthews) in relation to whether the Waddell sign from the axial loading test was correctly reported as positive.
  8. I emphasise that I am making no finding that any of the criticisms of the defendant’s experts based upon the recordings are correct or justified. The extent of Mr Audland QC’s concession and the extent of this part of my decision is that the recordings have raised legitimate questions and such criticisms as there are may or may not be substantiated.
  9. The other factor to consider is the effect of admitting the evidence on the overall fairness of the litigation process: what Mr Audland QC called the “level playing field” point. The claimant’s stated reason for wishing to record her examinations with the defendant’s experts was to protect her interests having regard to the vulnerabilities and frailties she maintains have been the result of the accident. If that was her motivation (which I am not in a position to question on a paper application and which is, anyway, plausible) then it is understandable that it applied or applied with particular force to the defendants’ experts and not those instructed on her side. She gave no undertaking that she would record her examinations with her own experts and none was sought. As Mr Grant observed during the course of his submissions, the defendant has not pointed to any aspect of the examinations by the claimants’ experts that has raised a query that a recording would assist to resolve. To that extent, Mr Audland QC’s level playing field point is merely theoretical.
  10. Weighing these matters in the light of the Overriding Objective, I have come to the clear conclusion that the balance favours admitting the evidence. (I deal separately below with the discrete question of the test materials.)
  11. It is conceded that those parts of the recordings which have picked up conversations in the waiting rooms of the experts concerned should be erased and excluded. The persons concerned would appear to have been the receptionists employed there and the conversations merely social interactions. Although I regard this as an unfortunate feature of the covert recordings, there has been no wider publication of these parts and the claimant and Mr Dickinson never intended that there should be.