On the record – Should the claimant be allowed to record examinations?

Related Sector: Expert Witness

In a recent case, the judge commented that audio-recording of examinations by experts instructed in court actions would give the courts access to the “best evidence” available.

Although Mr. Justice Martin Spencer was not himself laying down any guidelines for general application, he concluded that there is a clear forensic advantage in making a recording because it gives irrefutable evidence of what took place; this is particularly important where the expert turns out to have made some errors which throw doubt on the results found and the conclusions drawn.

In Macdonald v Burton [2020] EWHC 906 [QB], the claimant had sustained a traumatic brain injury and had been examined by a neuropsychologist instructed on his behalf. When it came to arranging an examination by an expert instructed on behalf of the defendant, the claimant’s solicitor wrote to state that the claimant would be making a recording.

The defendant’s solicitors and their expert, Professor Kemp, strongly objected and the matter came before the judge in a case management hearing.

For the full judgement, please click here 

The judge referred to the case of Mustard v Flower [2019] EWHC 2623 [QB], in which the covert, although accidental, recording of the examination was allowed to be used at trial because it demonstrated a lack of competence on the part of the expert involved.

Medical experts may well have some concerns over the issue of recording, whether overt or covert. Interestingly, the other experts involved in the Macdonald case (orthopaedic, neuropsychiatric and OT) did not object – at least, the parties both agreed that all those examinations should be recorded.
The issue for the neuropsychologist was essentially twofold: firstly, no recording had been made of the claimant-instructed expert and there should be a level playing field between the parties (either both recorded, or neither recorded); secondly, there were strong concerns about the possible invalidation of particular tests once a recording was made.

The reason that the judge did not lay down guidelines on the issue more generally is that there is currently a working party looking into this issue, brought together by APIL (the Association of Personal Injury Lawyers) and the Federation of Insurance Lawyers.

Whilst awaiting the protocols from that working part, and recognising that that would be the best forum for a full debate of the issues, the judge went on to express the view that it would be “disappointing if the guidelines merely stated that psychological examinations should never be recorded”.

He noted that not all experts work to properly high standards and went on to say that “every means at the disposal of the parties should be deployed to ensure that the higher standards are adhered to”.

As an expert in the medico-legal world, you can expect recordings increasingly to become the norm, whether by request or not.

It would be worth making your views known to your professional organisations, so that they can have an input into the current debate.

Nick Deal
Barrister & Head of Expert Witness Training, Bond Solon
info@bondsolon.com
020 7549 2549

This article was first published on 1st May 2020.