The 2019 case of Mustard v Flower & Others [2019] EWHC 2623(QB) has frequently been commented on since Master Davison admitted into evidence covert recordings made by the claimant during her medical examinations by the defendant’s experts. The claimant made no recordings of her examinations by any of her own experts and, whilst there was some criticism of the claimant’s actions, the overriding objective led to a finding that the probative value of the recordings wade in favour of them being allowed in evidence.
Relevant to this issue, Bright J then concluded in Bull v Aifbegoh [2023] EWHC 2452 that no privilege existed over the claimant’s recording of the defendant’s neurology expert interview. As to privilege over the recording of the claimant’s own expert’s examination, this is retained only until the report is served.
Although Master Davison in Mustard encouraged the creation of protocol between the Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) as to recording examinations, subsequent work did not culminate in an agreed protocol, and in January 2025 APIL published unilateral guidance (the Guidance) to its members which is summarised below.
1. Overt recordings of interviews can take place, especially where prior notice is given.
2. The court is more likely to allow recordings for the defendant’s experts’ interviews if the claimant has also recorded their own but may also still allow covert recording of the defendant’s experts if it has sufficient probative value to overcome its covert nature.
3. Recordings may not be appropriate or practical for most cases including low value claims – but the Guidance does not say that these should not be made.
4. There will be a costs impact, and recordings will potentially involve significant expense which must be budgeted for.
5. The court is more likely to permit a recording of a defendant’s expert if the claimant’s is also recorded.
Since following Bull, recordings of the claimant’s interview with their own expert are disclosable upon service of the written report in issued proceedings, these may prove counter productive.
Notably, the Guidance says that where the claimant’s account is more likely to be especially scrutinised by a court i.e. cases of fundamental dishonesty or where pre-accident history is relevant and might be misinterpreted, they say that the claimant “may be well advised to record the interview and assessment of any expert of whatever discipline”.
The case law tells us that there can be no valid objection to a recording in principle so there should not be need for a covert basis. However, if there is no agreement to record and the claimant covertly records an expert’s examination which then proves to have probative value – i.e. demonstrates at least that the expert has misrepresented the claimant, then the claimant may still be committed to rely upon it.
Importantly, if recordings are made then privilege is immediately waived upon service of the claimant’s expert report – i.e. when he has decided to rely upon it. The recording must also be served. There is no privilege attaching to the recording of the defendant’s experts’ examinations regardless of whether reports are served, so any recording of the defendant’s examination is immediately disclosable whether or not a report is disclosed.
The prevalence of discreet recording devices mean that experts are highly unlikely to know if the claimant chooses to record covertly – so in turn we cannot know that there is a disclosable recording.
We already know that some experts choose to record parts or the whole of their interviews, and in the large loss arena it is not uncommon to advise a claimant that this is the expert’s intention – especially in relation to the taking of a history. It is also commonplace for experts to either record and/or dictate the history in front of the claimant so that any misunderstandings can be rectified there and then. Ideally, agreement for recordings should be sought in advance so that the appointment can proceed without difficulty at the outset, and this is what APIL recommend.
The instances of untrustworthy experts and/or those that misrepresent the claimant are, thankfully, very few and far between so this is not an issue which should arise frequently
The Guidance is unlikely to mean an avalanche of recordings, covert or overt, but we might expect more requests and an uptick over time. As to impact, all experts instructed within a personal injury case are engaged on the basis they assist the court by providing objective unbiased opinions on matters within their expertise, and Part 35 of the Civil Procedure Rules covers their obligations. Our experts should be advised that the interview may be recorded, and that consent should be dealt with in advance of the appointment.
We may see that practice develops to agree that recordings are the norm and that knowing this the experts take extra care to ensure the accuracy of their record. Even the prospect of this may discourage the biased expert from departing from his or her obligations under the Civil Procedure Rules. Since the recordings work both ways, however, it may also discourage the dishonest claimant.
Liz Wallace heads up the Large Loss Amputation Technical Unit.
