Should there be an agreed protocol in personal injury claims governing the recording of medico-legal examinations? The issue of recording medico-legal examinations has been rumbling around in personal injury claims, especially when allegations of fraud or dishonesty are raised by a defendant.

The question has recently come to light in a High Court decision in the case of Mustard v Flower ([2019] EWHC 2623 (QB) – decision 11/10/2019). In this case the Claimant had covertly recorded medico-legal examinations carried out by the Defendant’s medical experts.

The claim arose from a minor road traffic accident where liability had been admitted. The Claimant’s case was that she suffered a serious brain injury, albeit that the manifestations of the injury were subtle. The Defendant’s medical experts say that the Claimant suffered no, or only minor, brain injury.

In 2017 and 2018 the Claimant was examined by the Defendant’s medical experts and she recorded the examinations, some with consent and others covertly. She had not recorded the examinations by her own experts.

There were issues arising from the Defendant’s examinations and the Claimant sought to rely on the recordings to clarify the issues. The Defendant’s objected and applied for the evidence to be excluded. The court was therefore presented with the problem of admissibility of evidence which may have been obtained improperly or unfairly, but which is nevertheless relevant and probative.

The court allowed the evidence to be admitted. It was not a breach of the Data Protection Act or GDPR. The covert recordings were not unlawful. It was not so reprehensible as to outweigh the considerations of allowing the evidence. Whilst the Claimant’s actions lacked courtesy and transparency, covert recordings have become a fact of professional life. The sooner there is some kind of agreed protocol between APIL and FOIL which govern the recordings of medico-legal examinations the better. It is in the interests of all sides that examinations are recorded because from time to time significant disputes arise as to what occurred.

The recordings were relevant and probative. Weighing all the matters in the light of the Overriding Objective the balance favoured admitting the evidence.