The Thorny Issue of Covert Recordings

A claimant’s covert recording of a medical examination by the defendant’s medical experts in a personal injury claim was reprehensible but lawful, the High Court has ruled. The ruling has surprised and even horrified some lawyers and raises wider implications across civil litigation generally.

Practitioners will be interested to note that, reflecting his misgivings in this case, Master Davison urged the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) to collaborate on a protocol for governing recordings of medico-legal examinations.

What’s the background?
In Mustard v Flowers and others [2019] EWHC 2623, the claimant had suffered a brain injury and her solicitor advised her to record her medical appointments with the medical experts for the defendant on a digital device. There were eight appointments/experts in total, and in two separate examinations the claimant recorded them covertly.

In further instance, the medical expert asked for the recording to be stopped before clinical (neuropsychological) testing took place. The claimant accepted this and, on her own account (and audible from the recording) she tried to switch off her device. But (again, according to her account) she mistakenly failed to do this and the machine went on recording anyway. She therefore inadvertently recorded the whole of that consultation with the doctor (Dr Torrens).

One of the two keys issues arose out of the strong objections taken to the covert recordings. Mr Matthews, one of the doctors concerned where the recording was covert, said the claimant's actions were wanting in honesty, transparency and common courtesy, and his permission should have been sought. Dr Torrens said she felt professionally violated, distressed, angry and disillusioned by the recording.

The third defendant, Direct Line, (Dr Torrens and Mr Matthews were neither present nor represented) sought to have this evidence excluded under CPR rule 32.1(2). The essence of the claim involved two key limbs.

First, the recordings breached the Data Protection Act 2018 and the General Data Protection Regulation (GDPR). This was rejected by the court as it did not meet the necessary criteria to fall within scope of GDPR. Article 2(c) states that the GPDR does not apply to the processing of personal data "by a natural person in the course of a purely personal … activity". A doctor’s consultation or examination falls into this category and the claimant supplying the recordings to her advisers did not take it out of the category.

Second, the covert recordings should be excluded because of the unlawful or improper manner in which they had been obtained; they had impaired or undermined the validity of Dr Torrens' testing; and because it was unfair as only the defendant's experts' examinations had been recorded in this way.

There were also concerns about testing and materials being brought into the public domain when they were supposed to be confidential. But the claimant argued that recordings and observations in clinical examinations were commonplace without which incompetence or malpractice could go undetected.

The court therefore had to deal with the problem of evidence which may have been obtained improperly or unfairly but which was nevertheless relevant and probative. Was it admissible as evidence? The crux of the matter was whether the public policy interest in excluding evidence improperly obtained was trumped by the important (but narrower) objective of achieving justice in the particular case.

The court stated that the covert recordings were not unlawful but one of them (the deliberately covert recording) was described as ‘reprehensible’ – but not to the extent that it outweighed further considerations. Those related to the relevance and probative value of the recordings; and the effect of admitting the evidence on the overall fairness of the litigation process.

What did the court decide?
On balance, Master Davison came to the clear conclusion that the balance favoured admitting the evidence. He pointed out that while her actions lacked courtesy and transparency, covert recording has become a fact of professional life.

The recordings were therefore allowed in evidence, even the recording accidentally made when the device was not turned off.

What does this mean?
In the absence of formal guidance on the issue of recordings in such cases, claimants might now be advised to digitally record medical examinations as a matter of course.

It will always be wise to ensure the medical experts concerned are aware they are being recorded (when they are), though it leaves a grey area in circumstances where the expert refuses to allow it and the claimant continues regardless (rather than accidentally in the above case).

A protocol awaited
As to the desirability of a protocol to be agreed between APIL and FOIL, Master Davison stated: “It is in the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use.

“It is desirable that the parameters of such recording should be on an ‘industry-wide’ agreed model which caters for the many issues capable of arising and … which pays careful attention to the containment of the costs that might potentially be generated.”

In his postscript to the ruling, he also added further brief observations about covert recordings. Acknowledging that covert recording is “a thorny topic”, he said the issue falls to be decided on a case-by-case basis.

An APIL/FOIL agreed protocol would, he said, provide an agreed scheme for the recording of examinations and for the reception of such evidence. There would then be no need or incentive for covert recording avoiding such cases arising in future.



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