Celikdemir v PGR Timber Limited & Anor

The admissibility of improperly obtained evidence in civil proceedings requires a balancing exercise. The court must consider how the evidence was obtained, its relevance and probative value, and the effect of admission or exclusion on the fairness of the litigation and trial, having regard to the overriding objective.

A breach of a litigation agreement is a serious factor against admission, but it does not necessarily require exclusion. Where equivalent evidence is independently available and disclosable from the opposing party, fairness may require admission, subject to safeguards ensuring a level playing field.

The claimant brought a personal injury claim arising from a road traffic accident. The principal issue at trial will be whether her continuing difficulties result from traumatic brain injury or from psychological or psychiatric causes.

Before trial, the claimant sought permission to rely on a covert recording of neuropsychological testing conducted by the defendant’s expert, Professor Baker, and on a report by her own expert, Professor Morris, based on that recording. The recording had been made contrary to an agreement at a case management conference that the testing would not be recorded. It later emerged that Professor Baker’s software had automatically recorded the same testing, although the recording had not been retrieved or listened to.

The central issue was whether the claimant should be permitted to rely on her recording and report.

1. Application allowed subject to condition. The claimant was permitted to rely on the covert recording and Professor Morris’s report, conditional on Professor Morris carrying out a fresh set of neuropsychological tests, recording them, and supplying the recording to the defence.
2. The applicable test was the balancing approach identified in the Mustard decision. The court had to weigh the means by which the evidence was obtained, its relevance and probative value, and the effect of admission or exclusion on the fairness of the litigation process and trial, having regard to the overriding objective. Improper or unlawful obtaining of evidence did not, by itself, determine admissibility.
3. The evidence was relevant and potentially significant, although the defendant’s expert had not behaved egregiously, his report would not become worthless if the evidence were excluded, and the neuropsychological evidence formed only part of the overall case. Exclusion could nevertheless leave the claimant with a justifiable sense of injustice.
4. The covert recording and breach of the lawyers’ agreement weighed strongly against admission. Trust between lawyers was essential, and deliberate breach would have justified exclusion. The judge accepted, however, that the claimant’s solicitor had genuinely forgotten the agreement and that the claimant herself was unaware of it.
5. Admission also risked diverting the proceedings into an unnecessary dispute about the conduct of testing. The judge expressed no general view on whether neuropsychological testing should routinely be recorded, leaving that issue to the professionals.
6. The decisive factor was that the defendant’s expert possessed an equivalent recording generated automatically by his software. If disclosed, it could be used for the same purposes as the claimant’s recording. In those circumstances, preventing reliance on the claimant’s recording would not be sensible. Reciprocal fresh testing and recording provided an appropriate safeguard.