News & Resources

Judicial ruling on recording of expert appointments in injury claims

13th March 2020

Marcus Grant, instructed by Dickinson Solicitors, represented a Claimant in a High Court hearing that addressed the issue in the round.

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.





Related Barristers

Marcus Grant

Marcus Grant
Year of Call: 1993


Close X

Coronavirus Update

TGC continues proactively to safeguard against the risks posed by the spread of Coronavirus. We have a Covid-19 Committee who continue to monitor the situation and follow advice issued by the Government and Public Health England. We will be updating this page as and when new information becomes available. As of 6 July 2020, our London premises, 1 Harcourt Buildings, will be operating with a reduced clerking team in attendance. The remaining staff members and barristers will continue working remotely. We wish to reassure everyone that our contingency plans enable us to continue to provide our services.

Telephoning us

When calling our switchboard number, it will be diverted to a member of the clerking team who will be able to assist in the usual way. All direct dials in Chambers are diverted to be answered remotely.

Emailing us & Sending Instructions

Please send all instructions via email directly to clerks@tgchambers.com. We would be grateful if this could be sent in an orderly fashion to enable working from a screen manageable. We are able to receive hard copy instructions via DX or Post, if necessary. However, we have a preference for electronic documents wherever possible.

Please continue to communicate with barristers directly via phone or email.

Conferences, Joint Settlement Meetings & Mediations

Conferences, meetings and mediations will take place remotely, either by telephone or video until further notice. Group Telephone calls and video calls can be easily arranged. If an in-person meeting is felt necessary please see our Covid-19 Information page for full criteria.

Court Hearings

We are following the Government’s advice closely, which is changing daily. In keeping with that advice, we will continue to service hearings remotely, where possible and as instructed by the hosting Court. In-Person hearings will be accommodated by members of TGC. We will continue to monitor this situation.

Making a payment

If you do not already pay us by BACS, going forward please make arrangements to do so. Please contact the clerks who can supply you with the relevant BACS details.

If you wish to discuss our policy and procedure relating to coronavirus, please do not hesitate to contact our senior clerk Dean Norton on 07535 753098 or dnorton@tgchambers.com.

To learn more visit our Covid-19 Information page.