Macdonald (By His Litigation Friend Lindsay Macdonald) v Burton 13.03.2020
 EWHC 906 (QB)
Martin Spencer J acknowledged that there was a need to record expert appointments in some higher value cases to protect litigants (mainly claimants) against experts who are ‘incompetent or worse’. This case followed on from the decision in Mustard v Flower.
What are the practical implications of this case?
The practical implications of this case is that claimants will be permitted going forwards subject to the circumstances of the case, to record defendant medico-legal appointments (with the exception of the neuropsychometric testing element of neuropsychological appointments which requires additional safeguards), provided that they have first recorded their own experts of like discipline. They must disclose a copy of that recording with their experts’ evidence, as part of their experts’ evidence.
What was the background?
The claim arose out of an accident in 2016. The claimant sustained serious injuries including a traumatic brain injury which has led to neuropsychological deficits. The injuries were serious and the consequences are, to some extent or other, permanent.
In April 2019, the claimant was examined by a Dr Sembi. The defendant proposes to instruct a Professor Kemp to examine the claimant and carry out neuropsychological testing on him for the purpose of producing a report in answer to that of Dr Sembi.
In August 2019, the claimant’s solicitor wrote to the defendant’s solicitors explaining that the claimant/his mother had been advised to record his consultations with the defendant’s medical experts as an aide memoire and to protect him against errors.
An order was sought allowing the claimant to record the examination by Professor Kemp and the neuropsychological testing which was strongly resisted by the defendant.
What did the court decide?
The court acknowledged that a recording of a medicolegal appointment was the best evidence as to what was, or was not said by both a claimant and an expert. The court observed that what went on at a medicolegal appointment was frequently a point of dispute between the parties. The court acknowledged that recordings obtained historically by claimants both covertly and overtly had shown a lack of competence on the part of experts that could have resulted in injustice without the recording.
However, the court was quick to emphasise that poor methodology on the part of an expert was not restricted to defendants’ experts, and that if recording evidence is to be admitted into evidence, there needed to be a level playing field and transparency in which defendants should be able to review what was said during the claimants’ expert appointments too.
The fact that an appointment was being openly recorded would likely eliminate much of the mischief underpinning the desire to record, in that the questioning would likely be fair, methodology sound etc. It was observed that in the vast majority of cases, the recordings would not need to be listened to because the ‘vast majority of experts instructed are competent and honest’.
On the thorny question of recording neuropsychometric testing, which involves use of proprietary testing material that would lose its value if it fell into the public domain, the court found that additional safeguards would need to be implemented to avoid that happening. The court was informed that the British Psychological Society’s Division of Neuropsychologists was contemplating instituting a blanket prohibition of recording of medicolegal neuropsychometric testing. The court ruled that such a blanket prohibition would be ‘disappointing’ given that recordings had revealed a ‘lack of competence of certain experts instructed in this field’.
Finally, the court indicted that it was reluctant to provide any ‘ex cathedra guidelines or instructions’ given that it was aware that the joint working party of APIL and FOIL was working through these issues to come up with a solution which satisfies the interests of justice from the point of view of both claimants and defendants.