Mustard v Flower & Ors

Evidence obtained improperly or covertly is not automatically excluded. The court must weigh the manner of obtaining it, its relevance and probative value, and the effect of admission or exclusion on the fairness of the litigation, having regard to the Overriding Objective.

Covert recordings of medico-legal examinations may be admitted where they are relevant and probative and the competing fairness considerations do not outweigh their evidential value. Under CPR rule 35.6, written questions to experts must be proportionate and directed to clarification unless permission or agreement permits otherwise. Lengthy questions which amount to cross-examination are impermissible.

The claimant brought a personal injury claim arising from a rear-end road traffic accident. Liability was admitted, but the extent and cause of the claimant’s alleged brain injury were disputed.

The claimant covertly recorded examinations by several of the defendants’ medical experts. The defendants applied to exclude the recordings under CPR rule 32.1(2), while the claimant relied on the recordings to challenge aspects of the expert evidence.

The claimant also served extensive Part 35 questions on the defendants’ experts. The applications concerned whether the recordings were unlawful or should be excluded, and whether the questions were proportionate and limited to clarification.

1. Admissibility of recordings. Evidence obtained unlawfully or improperly is not automatically inadmissible. The court must balance the means by which it was obtained, its relevance and probative value, and the effect of admission or exclusion on the fairness of the litigation, applying the Overriding Objective.
2. The recordings were admitted. The court rejected the submission that they breached the Data Protection Act 2018 or the General Data Protection Regulation 2016/679. Article 2(c) of the Regulation applied to recording by a natural person in the course of a purely personal activity. In any event, the relevant statutory exceptions concerning the exercise or defence of legal rights would apply. The decision in Buivids C345/17 concerned publication of a recording to the public and did not govern the present circumstances.
3. The recordings were relevant and probative. The recording of Dr Torrens’s examination raised legitimate questions about the administration of neuropsychological testing, and those matters could not realistically be excluded from the trial. The recordings of Mr Matthews and Mr Kellerman were also relevant to the claimant’s history and reported symptoms. The alleged impairment of testing caused by recording was a marginal factor and remained a matter for trial.
4. The fairness or “level playing field” objection was theoretical on the evidence. The claimant’s stated motive was understandable in adversarial litigation, and no specific issue concerning the claimant’s own experts had been identified which required reciprocal recordings. Waiting-room conversations were to be erased and excluded.
5. Part 35 questions. CPR rule 35.6 requires written questions to be proportionate and, absent permission or agreement, limited to clarification. The questions served in this case were wholly disproportionate, overwhelmingly went beyond clarification, and amounted to cross-examination. They were therefore disallowed. It was inappropriate to require experts to decide which questions were proper or to justify declining to answer them. Omissions in expert reports should instead be addressed through supplementary reports, joint meetings or joint statements.
6. The court directed controlled disclosure of the neuropsychological test papers to Professor Morris. The claimant’s treating psychologist’s statement, an engineering witness statement, and Professor Sharp’s medico-legal neurological report were excluded. The underlying neuroimaging was not excluded.