Mustard v Flower [2019] EWHC 2623

Can covert recordings ever be admissible in evidence? This was a question recently considered by a Master of the Queen’s Bench Division in London.

In January 2014, the claimant’s stationary Honda Jazz was impacted from behind by the Defendant’s Fiat Punto.  Liability is not in issue.  The claimant was 34 years old at the time and employed as a Quantity Surveyor.  The case turns on the extent of the injuries sustained with marked differences between the various experts engaged by the respective parties.  The claimant’s case is that she sustained a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury such as to have left her with cognitive and other deficits. The defendant’s experts maintain that the claimant suffered only minor brain injury, if at all.

The claimant was examined by the defendant’s experts.  On the advice of her solicitor, she recorded these examinations on a digital device.  This included covert recordings of her encounters with the defendant’s neurosurgeon and orthopaedic surgeon.  In addition, the claimant inadvertently recorded the entirety of her consultation with the defendant’s neuropsychologist beyond their express consent.

The defendant was aware of this practise and invited the claimant to also record her encounters with her own medical experts.  These encounters were not, however, recorded.

Master Davison rejected arguments that the recordings were contrary to the Data Protection Act.  He ruled the evidence admissible but was critical of the claimant’s ‘reprehensible’ actions which ‘lacked courtesy and transparency’. That said, Master Davison noted that covert recordings had ‘become a fact of professional life’ and he went on to suggest the Association of Personal Injury Lawyers and Forum of Insurance Lawyers work together on a protocol for the recording of medical examinations.

It is [in] 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.

By Paul Sullivan FRSA

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