Macdonald v Burton

In a clinical-neuropsychological assessment for litigation, the court may refuse to require an expert to permit audio recording where recording would create materially different testing conditions and undermine a level comparison between experts. The court should strive for reciprocity between claimant and defendant experts, while recognising the forensic value of recordings in exposing inaccurate or incompetent expert work. General guidance should be developed through appropriate professional and legal working groups rather than imposed prematurely by judicial fiat.

Where a claimant discloses a report from his own medical expert, privilege in a recording of the examination itself is waived because the recording is another aspect of the matters disclosed in the report. That ruling does not necessarily determine the position of notes made by a solicitor or solicitor's clerk.

The claimant, who had suffered a serious traumatic brain injury and was said to lack litigation capacity, brought a claim arising from a road accident. Liability was admitted subject to contributory negligence. The defendant sought to obtain a neuropsychological examination and testing by Professor Kemp.

The claimant sought permission to record the examination and testing. The defendant opposed recording, relying on evidence that it could alter the testing conditions, affect the claimant's behaviour, compromise standardisation and create future testing difficulties. The court was also asked whether disclosure of a report by a claimant's own medical expert waived privilege in a recording of that expert examination.

1. Recording of the defendant's assessment. The claimant was not entitled to require Professor Kemp to permit audio recording of his examination or neuropsychological testing. The court accepted that recording could alter the dynamic of the examination, affect the patient's behaviour, take testing outside standardised conditions, complicate comparison with an unrecorded assessment and potentially prejudice future testing. These considerations justified refusing the order in this case.
2. Level playing field. Recording arrangements should be reciprocal. Experts instructed by either party may be fallible, and a process that permits one party's assessments to be scrutinised by recording while the other's are not recorded may produce tests conducted under materially different conditions. The court therefore rejected the submission that claimant-specific procedural disadvantages justified imposing recording on the defendant's expert.
3. Forensic value and future guidance. The court recognised the important forensic value of recordings in exposing inaccurate histories and failures to follow neuropsychological testing protocols, as illustrated by Williams v Jervis [2008] EWHC 2346 (QB) and the Mustard case. However, it declined to issue general ex cathedra guidance. The competing interests were better addressed through the proposed APIL/FOIL protocol and the British Psychological Society's developing guidance. The judge indicated that guidance should allow recording in some cases.
4. Covert recording. Any covert recording contrary to the ruling would conflict with both its letter and spirit and could have serious consequences for the claimant's claim and ability to recover damages.
5. Privilege. The court distinguished the protection of legal professional privilege recognised in R v Derby Magistrates' Court [1996] 1 AC 487. Disclosure of a claimant's own medical expert report waives privilege in the recording of the examination itself, because the recording is another aspect of the matters disclosed through the report. The ruling was expressly left open in relation to notes made by a solicitor or solicitor's clerk.
6. The defendant was permitted to conduct the neuropsychological examination and testing without recording.