Summary

The Claimant, on her solicitor’s advice, covertly recorded her testing by the Defendant’s neuropsychological expert. Weighing up the factors in favour of admitting the evidence and against admitting it, the judge considered that they were very finely balanced and quite difficult and that he may well have ruled that the evidence could not be relied on, if the Defendant’s expert had not himself inadvertently recorded the testing.

Learning points

Learning points for experts

• It is simple for a Claimant to record the audio of an assessment or test without the expert being aware of the recording. For example, smart watches can record audio.

• It is wisest to assume that any assessment or test you conduct could be recorded and that the recording might be admissible.

• Check if the testing software that you use automatically sound records the testing process. If it does, disclose this to your instructing party.

Learning points for instructing parties

• After consulting your client and your expert, attempt to make an agreement with the other party about whether or not you will both record the expert assessments.

• Ensure that your client, and the experts you have instructed, are fully aware of any agreements you have made with the other party about recording or not recording assessments. Make sure you keep a clear record of these agreements in your own case files.

• Ask your experts whether the testing software that they use automatically records the testing process.

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