Mustard v. Flower & Flower & Direct Line Group – 11.10.2019
11th October 2019
 EWHC 2623 (QB)
Judicial ruling on admissibility of covert recordings in injury claims.
Marcus Grant, instructed by Dickinson Solicitors, represented a Claimant in the High Court who was permitted to rely on such recordings.
Master Davison handed down a detailed judgment on the admissibility of covert recordings, including recording of neuropsychological testing in a head injury case.
The Claimant recorded her appointments with all six of the Defendant’s experts, four overtly and two covertly. She was asked to stop the recording of the neuropsychological appointment part way through the neuropsychological testing, attempted to do so but, in fact, failed to do so.
The Claimant’s neuropsychologist reviewed the recording of the Defendant’s neuropsychological appointment and observed significant deviations from correct procedure and was critical of her technique and methodology. The Defendant’s neuropsychologist relied in part on her test scores in reaching her formulation that characterised the Claimant in terms that stopped just short of an allegation of outright dishonesty.
The Defendant accepted that all six recordings were relevant and probative to issues in the case in that they raised legitimate questions of the experts, but nevertheless asked the Court to refuse the Claimant permission to rely on them because they were illegal because they breached the GDPR and the DPA 2018, because they were unfair as the Claimant had not recorded her own experts and because they were discourteous to the experts. One expert reported that she felt “professionally violated, distressed, angry and disillusioned” by the recording.
The Court rejected the Defendant’s submissions, finding that the recordings were not unlawful, that they did not breach the GDPR or the DPA 2018 and that the Overriding Objective clearly favoured admitting the recordings into evidence, subject to providing safeguards that the recording of the proprietary test materials of the neuropsychological testing did not enter the public domain.
The Court found that the Claimant’s motives for wanting to record the Defendants’ appointments were “in the context of adversarial litigation, understandable” and found that “ Whilst her actions lacked courtesy and transparency, covert recording had become a fact of professional life”.
The Court picked up on, and commended to the legal profession, a suggestion from Claimant’s Counsel in 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”
The Court was critical of a series of Part 35 Questions asked of the Defendant’s experts on the grounds that they were disproportionate and overwhelmingly not for the purposes of clarification and amounted to cross-examination.