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.

The case

The Claimant was injured in a crash accident caused by a lorry belonging to the Defendants. The Defendants admitted liability but there was an issue as to whether the accident’s severe effects on the Claimant’s functioning were due to traumatic brain injury or psychological or psychiatric.

The experts in neuropsychology

Among the experts instructed were doctors in neuropsychology: Professor M for the Claimant and Professor B for the Defendant. The judge was satisfied that both experts were eminent in their field and very familiar with giving expert evidence.

Recording the neuropsychological tests

At the case management conference, the parties agreed, in relation to the neuropsychological assessments, that the interview section of the assessments would be recorded but the testing would not be. The Claimant’s solicitor had forgotten about this agreement when he advised the Claimant to covertly record the testing administered by Professor B, to avoid the risk as he perceived it of injustice resulting from unreliable test results being put forward on behalf of the Defendants. At the time he gave this advice, he was aware that the Claimant had undergone her tests with Professor M and that they had not been recorded, which would likely create an issue if the Claimant wished to rely on her recording.

At her assessment with Professor B, the Claimant was asked to turn off her phone but then covertly recorded the meeting, apparently on her watch. In the report based on his assessment, Professor B made a number of observations which were unhelpful to the Claimant’s case. He said she had failed effect tests, which meant her test results should be treated with caution, and her score on the digital span test were so low as not to make any clinical sense if taken at face value. He noted in his report that:

“I am of the opinion that the claimant has suffered psychological and neuropsychological sequelae secondary to the index event. However, her failure on tests of performance validity make it extremely difficult to determine whether she continues to have psychological or neuropsychological symptoms and if so, how severe they are. I am of the opinion that their cause is non-organic in origin.”

After the Claimant told her instructing solicitor that the testing had been difficult, particularly because of drilling in the vicinity, he asked Professor B CPR 35 questions about the testing including whether there were environmental factors which may have influenced the results. Professor B included some reference to the drilling in his answer. However, the Claimant’s instructing solicitor felt the answer was unsatisfactory and instructed Professor M to listen to the covert recording and consider the assessment made by Professor B.

Professor M produced a report raising a number of concerns about the conduct of the test by Professor B noting that:

“The main concern from my review is the potential impact of the assessment procedures on the performance validity tests which were indicated by Professor B as causing concern. In my view that interpretation should be considered with caution and it is unsafe to indicate lack of effort regarding her performances. This is also taking into account that she passed the direct measurement of effort when I saw her. It seems more likely to me that there is variability in performance between assessments due to her problems with attention and factors such as fatigue effects, which are on top of neuropsychological weaknesses in everyday life. There is also the issue of whether Professor B’s instruction concerning filling in the symptom questionnaire may have biased her responses to indicate more problems, for example the anxiety and depression and so on. If so this could have implications when weighting the evidence in terms of brain injury versus non-organic factors. Specifically greater non-organic psychological difficulties could be used to explain more of her overall symptoms as an alternative to brain injury causation.”

The Claimant then applied to reply on the covertly recorded audio and the report of Professor M. At this point, it came to light that Professor B had himself inadvertently recorded the testing as the software he uses, Q-interactive, automatically sound records the testing process.

The test to be applied

The judge considered that the test to be applied had been set out in the Mustard case, where Master Davison had said:

“It is important to note that [it was not contended] that the manner of obtaining the recording should of itself lead to that exclusion. Counsel accepts the proposition that evidence that had been unlawfully or improperly obtained might still be admissible. What was required was that the court should consider the means employed to obtain the evidence, together with its relevance and probative value and the effect that admitting or not admitting it would have on the fairness of the litigation process and the trial. The task of the court was to balance these factors together and, having regard to the overriding objective, arrive at a judgment whether to admit or to exclude. To put it differently, the issue is whether the public policy interest in excluding evidence improperly obtained was trumped by the important but narrow objective of achieving justice in the particular case. This approach, from which Mr Grant, did not dissent, seems to me to be fully in line with the authorities to which I was referred and which I need not set out. I do, however, note that in the majority of such cases the balance has been struck in favour of admitting the evidence”.

The judge’s decision

The judge noted that it was not disputed that the audio recording and Professor M’s report are relevant and may be of some significance in the case. However, there was no suggestion that Professor B had behaved in some egregious way or that this report would be rendered of no value at all and the neuropsychological evidence was only part of the overall evidence.

The judge felt that the Claimant, who was relatively blameless, may be left with the justified sense of injustice if the evidence were excluded.

On the other hand, the recording was obtained covertly and the instructing solicitor had been wrong to advise his client to record the testing. Further, the recording was made in direct breach of the agreement described above. While the agreement did not amount to an “undertaking to the court”, it was an agreement between lawyers as to how the litigation should be conducted. The evidence would definitely not have been admitted if it had been a deliberate breach, but the judge accepted that the instructing solicitor did genuinely forget about the agreement. Thirdly, admitting this evidence may divert attention from the real issues in the case.

The judge noted that there was currently a debate about the recording of these types of tests, with the British Psychological Society issuing guidance that personal recordings should not be allowed and that any recordings that do take place should only be shared between the expert neuropsychologists. Arguments against such recordings included first, the proprietary interests of those who own the rights in the format of the tests are put at risk; second, knowledge of recording is taking place can influence the performance of the test taker; third, if a recording is in existence, it can be used to coach claimants in the relevant case or other litigation.

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. However, there was a feature of the case that led the judge to conclude firmly that I should admit the evidence. As Professor B was himself in possession of a recording, his recording would be disclosable by the Defendant. In those circumstances it did not make sense to prevent the claimant from relying on her own recording and the judge therefore allowed it.

This conclusion left the concern that Professor B’s results were open to review and criticism based on his administration of the test, and Professor M’s were not. The parties agreed that Professor M should undertake a new set of tests on the Claimant and that these processes should be recorded and the recording send to Professor B to check the validity of those tests.