THE COVERT RECORDING OF AN EXPERT’S EXAMINATION – THE SEQUEL: DEFENDANT GIVEN PERMISSION TO OBTAIN NEW EXPERT

In October last year I wrote about the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB).  The claimant recorded her consultation with the defendant’s medical expert and was given permission to produce these in evidence.  That case has an interesting sequel.  Master Davison subsequently gave the defendant to rely on a new medical expert in place of one whose evidence had been “tainted”.

THE FIRST JUDGMENT

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 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 Master allowed the recordings to be introduced.

THE SECOND JUDGMENT

The defendant then applied for permission to rely on a different medical expert. The judgment is available here Samantha Mustard – RCJ QBD – Judgment – 20191101 V FINAL (1)* 

2. The first question is whether there is good reason for the defendant’s application. It seems to me that the answer to that is, resoundingly, that there is good reason for it. There has been criticism, (I might call it trenchant criticism), of Dr Torrens’ professionalism by Professor Morris, the neuropsychologist instructed by the claimant, and there is plainly substance in that criticism. Obviously, I make no finding that the criticism is justified. I simply observe that it is criticism which appears to have a valid basis.

3. It is not, however, simply the fact that there is a well-arguable case that Dr Torrens administered the neuropsychological testing in a sub-standard way. It is also the fact that she has expressed criticisms of the claimant in language which, in my view, is intemperate and inappropriate in the context of an expert’s report in personal injury litigation. I would, on present material, expect that a trial judge would have serious reservations about Dr Torrens’ evidence and I can, therefore, entirely credit that the defendant has lost confidence in her as an expert 

THE DEFENDANT’S CONDUCT

4. I turn then to the conduct of the party who is seeking to instruct a fresh expert, which is the defendant. There is force in the point that Mr Grant has made arising out of the fact that the defendant initially sought to exclude the covert recordings, which have formed the basis of Professor Morris’ criticisms of Dr Torrens. It can be said that, in those circumstances, the defendant should have to live with the outcome of that application. But this point is, at least to some extent, met by two countervailing considerations. First, it seems to me understandable that the defendant took that stance when the claimant’s conduct was, (as I have found), reprehensible, in that she recorded the examinations covertly and the doctors themselves sought directions and guidance from the court. Second, I think it is right to take into account the fact that Mr Audland was candid in saying, during the course of that application, that the defendant would have to consider whether to continue with Dr Torrens if the application to exclude the covert recordings was unsuccessful.

THE BALANCE OF PREJUDICE

5. Turning then to prejudice and the balance of prejudice, it seems to me there would be great prejudice to the defendant if I were to refuse the application. That would leave the defendant, effectively, with no neuropsychological evidence, or none worth having. Conversely, there is little prejudice to the claimant. It is true that she will have to undergo another examination by a freshly instructed neuropsychologist, and that, I can well credit, will be unwelcome to her. But there will be no invasive testing involved and, in the context of the fact that she is bringing a very large claim, on which neuropsychological evidence is absolutely critical, she must expect to have to undergo examinations…

7. It seems to me that there is no, or no substantial prejudice, in terms of delay or cost. The overall timescale to an ultimate resolution of this claim, i.e. the overall timescale to trial, will not be affected and the defendant accepts that it must pay all the costs thrown away by the exercise. These are capable of being calculated, even if that is not a particularly easy task. I do not accept that Dr Torrens’ evidence, or the ghost of it, will influence the existing experts. The analogy is with judge and jury. A judge can put out of mind what a jury might find difficult to. Likewise a professional medical expert.

8. Turning then, lastly, to the interests of justice. It seems to me that these are best served by both sides having experts in whom they have confidence and whose evidence bears no taint of lack of professionalism. The interests of justice are also served by the court having evidence which is in no way compromised by the potentially adverse influence, or unwanted dynamic, of covert recording. And I repeat that it was, of course, the claimant who was responsible for that in the first place. So, for those reasons I grant the defendant’s application.

* I am grateful to solicitor John McQuater and barrister Marcus Grant for letting me have a copy of this judgment.