Important judgment on Public Protection: October 2019

In this case the Defendants were aware from the Claimant’s very first appointment with their neurologist that she was intending to record her consultations. He asked her and she confirmed she was, so too did the next 2 medical experts instructed by the Defendants, all of whom also recorded their assessments. All of the Defendants’ 6 medical experts were made aware by their solicitor that the Claimant may record them. Accordingly she felt no reason to announce to each expert that she was recording, understanding this to be her right. Such recordings are commonplace these days in other areas of litigation, notably in family cases, with the advent of smart phones and to seek to stop her would have infringed her Article 6 human right of access to justice, and her right under the Data Protection Act 2018 to retain a copy of all her personal data. The GMC has issued guidance to doctors to advise them that they should not seek to stop patients from recording assessments.

Whilst the court observed that the covert recordings were “reprehensible”, it 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 Defendant accepted that all six recordings were relevant and probative to issues in the case in that they raised legitimate questions of the experts.

The Claimant was asked not to record the neuropsychological testing by the Defendants’ neuropsychologist but was allowed to record the clinical interview. She made an error with her recording device when she was asked to turn it off and the neuropsychological testing was recorded. Her neuropsychological expert was asked to review the recording of the neuropsychological testing because the test scores were significantly at variance with those obtained by her own expert, a variance relied upon in part by the Defendant’s neuropsychological expert to arrive at a formulation that the Court accepted “stopped just short of an allegation of outright dishonesty”. Upon reviewing the recordings, her neuropsychologist confirmed that there were significant deviations from correct test procedures and was critical of the Defendants’ neuropsychologist’s technique and methodology, concluding that was the likely explanation for the variance in the test scores.

Whether or not it was fair to regard the covert nature of the recordings as reprehensible, without it she would not have been furnished with the material to refute the dishonesty insinuation against her. This would have been especially troubling since the introduction of Section 57 of the Courts and Legal Services Act 2015 which provides paying parties with a statutory windfall if they can establish that part of a Claimant’s claim is tarnished by fundamental dishonesty. This fundamental dishonest windfall gain is a formidable weapon in a paying party’s armoury because even the merest insinuation that it may be deployed can have catastrophic implications to funding and to granting vulnerable injury victims access to justice. There is no corresponding sanction available to claimants to restore parity to the playing field to ensure that such allegations are founded on sound methodology and rigorous fairness by their experts on all matters at all times. Being able to record one’s own medical appointment in adversarial litigation is but a small step in re-introducing a modicum of transparency into the process.

The Defendants took no issue with the Claimant recording the assessments that their experts had also recorded. However, they took issue with those recordings that they were aware may be recorded, but had failed to clarify whether the claimant was in fact recording, and had failed to record themselves. They also sought to exclude the recording of the neuropsychological testing, in the knowledge that she needed it to respond to the insinuation that she was dishonest.

Of the three recordings that they objected to, one expert had accused her of failing the Waddell axial loading used to screen for exaggeration, when she did not. The same expert also criticised her for not providing details of her pre-accident medical history. The recording confirmed that the expert failed to ask her about her pre-accident medical history, despite which she provided it anyway. Another expert suggested that she reported her symptoms to have worsened over time which he said was not consistent with the normal pattern of recovery. Her recording confirmed that was not the history she provided to him, which in fact was a history consistent with improvement and symptoms plateauing. The third expert described the Claimant as “a dangerous woman” and concluded based in part on her neuropsychological results, that she was exaggerating her presentation and was likely dishonest. According to the Claimant’s expert neuropsychologist, the recording of the testing confirmed that the Defendants’ neuropsychologist had departed substantially from the standard instructions prescribed by the Test Provider without clearly noting her departures, sufficient to invalidate the results obtained; notwithstanding, those results were relied on in part to impugn the Claimant’s credibility and honesty. All of these issues were explored in detail in Part 35 questions, some of which the Court accepted were relevant, but others it considered were nevertheless for “policy reasons”; to discourage solicitors from drafting lengthy part 35 questions, all were disallowed. The Master exhibited the part 35 questions to the defendant’s neuropsychologist to his judgment.

Whilst only at Master level, this is a very important judgment for claimants who seek to protect themselves against misreporting and unfair allegations of exaggeration by way of a recording, even a covert recording