Master urges APIL and FOIL to agree recordings protocol

Recordings: Two were made covertly

A High Court master has urged the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers to agree a protocol to govern the recording of medico-legal examinations.

Master Davison was ruling in a case where he decided that a claimant’s covert recordings – and in one caes accidental recording – of examinations by the defendant’s experts were admissible as evidence.

He also had to consider complaints from six of the defendant’s experts about the volume of part 35 questions they had been asked.

Mustard v Flower & Ors [2019] EWHC 2623 (QB) is a claim arising from a road traffic accident in which the claimant says she suffered a serious brain injury, but the defendants’ insurer, Direct Line, contends there is no, or only minor, injury.

She was advised by her solicitor, Christopher Dickinson of London personal injury firm Dickinson Solicitors, to record the examinations by the defendant’s medical experts.

In the cases of orthopaedic surgeon Mr Matthews and neurosurgeon Mr Kellerman, she did so covertly. She asked neuropsychologist Dr Torrens if she could make a recording. Dr Torrens agreed that she could record the clinical examination but not the neuropsychological testing.

The master recounted: “The claimant accepted this and, on her account (and audible from the recording) tried to switch off her device. But (again, on her account) she mistakenly failed to do this and the machine went on recording.”

The defendant asked the claimant to record her examinations with her own medical experts but she did not do so.

The insurer then applied for the covert recordings to be excluded pursuant to CPR 32.1(2). Resisting this, the claimant filed a supplementary statement from her expert, Professor Morris, which argued that the consultation with Dr Torrens revealed “serious errors” in the administration of the neuropsychological testing such as to render it of doubtful value.

Master Davison said: “Mr Matthews has said that he feels that the claimant’s actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he feels sullied by what took place. Dr Torrens has said that she feels professionally violated, distressed, angry and disillusioned.”

He first rejected the proposition that the recordings were a breach of the Data Protection Act or the GPDR – they fell within article 2(c) of the GPDR, which disapplies the rules to the processing of personal data “by a natural person in the course of a purely personal… activity”.

Further, accepting the argument would have “the very surprising and undesirable consequence that covert video recordings of claimants by insurers would be equally unlawful”.

The master said recording Mr Matthews and Mr Kellerman was “reprehensible” and though he was clearly unconvinced by the explanation that the recording of Dr Torrens’ testing was unintentional – “Turning a digital device on and off is an easy enough thing to do” – he said it would not be “fair or proper” to reject this explanation on a paper application.

Were it not correct, he added, “then the covert recording of Dr Torrens’ examination would be more reprehensible… because it would have involved frank misrepresentation and subterfuge”.

Master Davison said: “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…

“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.”

While making no finding that any of the criticisms of the experts based on the recordings were correct or justified, Master Davison went on to decide that they were not so reprehensible as to outweigh their relevance and probative value.

“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.”

The master had also to deal with what he called an “unprecedented” volume of part 35 questions raised with the defendant’s experts.

“A combination of the questions and the covert recordings prompted six of the defendant’s experts to write to the court seeking directions… Their complaint is that the questions would take a disproportionate amount of time to answer and that they amount to cross-examination.

“Some of the experts have felt sufficiently strongly about the questions and, more particularly, the covert recordings to have involved their professional bodies.”

The master said it was “obvious” that he should accede to the defendants’ application to disallow the questions.

He explained: “I have never before encountered a set of questions to experts even remotely approaching the scale and complexity of these and I have never known questions to provoke letters to the court from an expert or group of experts phrased in terms such as the present.

“(Indeed, letters of any kind from experts to the court seeking directions under CPR rule 35.14 are very rare. I consulted the longest serving Master, Master Yoxall, on this matter. He had received questions from an expert on just two occasions in 18 years.)

“I acknowledge that the questions are relevant. I acknowledge also that in part they address what are accepted to be areas of omission in the defendant’s experts’ reports.

“But none of this changes the plain facts that the questions (i) are wholly disproportionate, (ii) are overwhelmingly not for the purposes of clarification and (iii) amount to cross-examination.”

He said that, where there were omissions in the experts’ reports, they were best addressed by supplementary reports and/or by the process of joint meetings and joint statements.

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