Undercover - Court allows claimant to rely on covert recordings of medical examinations

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19 December, 2019

Sarah Wilkinson

Samantha Mustard v (1) Jamie Flower (2) Stephen Flower (3) Direct Line Insurance [2019] EWHC 2623 (QB)

A defendant insurer in a personal injury claim applied to exclude the claimant's covert recordings of medical examinations with the defendant's experts and to set aside excessive Part 35 questions.

The facts

The claim arises out of a road traffic accident, which took place in January 2014. The claimant alleged that as a result of the accident she sustained a sub-arachnoid brain hemorrhage and a diffuse axonal brain injury, which left her with cognitive and other deficits.

The claimant and the defendant had permission from the Court to obtain various medical expert reports. The claimant had been advised by her solicitor to record the examinations by the defendant's medical experts on a digital device. She obtained two recordings covertly without informing the medical expert that she was recording the examination. The claimant did not record the medical examinations by her own experts.

The defendant strongly objected to the covert recordings and invited the court to exclude the evidence pursuant to CPR rule 32.1(2). The application was resisted by the claimant and, by way of cross application, the claimant filed a supplementary statement from her neuropsychological expert suggesting that the covert recording suggested that the defendant's expert had made serious errors in the administration of the neuropsychological testing such as to render it of doubtful value.

The defendant also objected to the claimant's Part 35 questions to the defendant's experts. In essence, it was argued that the questions would take a disproportionate amount of time to answer and amounted to cross-examination.

The decision

The Judge agreed to admit the evidence. The claimant argued that given her vulnerabilities resulting from the accident she wished to record the examinations to protect her interests. The Judge concluded that whilst the covert recordings "lacked courtesy and transparency" they were not unlawful. He also rejected the proposition that the recordings were a breach of the Data Protection Act or the GPDR. The relevant data related to the patient (the claimant) not the doctor.

The Court found that the Part 35 questions were wholly disproportionate and were "overwhelmingly not for the purposes of clarification" but amounted to cross-examination. It was suggested that omissions in the experts' reports were best addressed by supplementary reports or joint statements.

Forbes comment

The recording of medical examinations, especially covertly is of significant concern to defendants. Master Davison refused the application to refer this case to a high court judge for determination and general guidance ruling that although "covert recording is a thorny topic, it falls to be decided on a case by case basis". He instead called upon FOIL and APIL to work together to draft an agreed protocol to govern such recordings.

In addition, the judgment confirms that defendants should continue to challenge disproportionate and unreasonable Part 35 questions put to its experts.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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