Comparing Apples & Pears - Recordings of Medico-Legal Examinations - Follow Up to Mustard v Flower & Others

In the recent case of MacDonald v Burton 2020 EWHC 906 (QB), Martin Spencer J has indicated that recordings of some medico-legal expert appointments are appropriate in higher value cases. However, he was not prepared to order that the defendant's expert's examination be recorded on this occasion.The Judge was asked to give case management directions in relation to discreet issues concerning the proposed neuropsychological testing on behalf of the defendant. He was also asked to consider the question of recordings of examinations more generally. It was noted that the Claimant's solicitor, who was also the Claimant's solicitor in Mustard v Flower & Others 2019, was in the habit of instructing his clients to record Defendant's expert examinations in high value cases generally.Following an RTA on 25/1/16, the Claimant's Neuropsychological expert, Dr Sembi, concluded that the Claimant lacked capacity and that as at 11/4/19, required further rehabilitation. The Defendant instructed Professor Kemp. The Claimant sought an Order allowing the audio recording of the examination by Professor Kemp and the neuropsychological testing. This was resisted.It was submitted by the Defendant that the most important reason for not recording the examination was that a patient will perform differently when recorded and as the testing is standardised, the test results may be rendered invalid. A further difficulty was that the Claimant who had the ability to re-listen to the testing, becomes untestable in the future. It was noted that Dr Sembi's examination had not been recorded. Professor Kemp was not prepared to allow the examination to be recorded. His position was supported by evidence from the British Psychological Society.Whilst acknowledging that there had been occasions in the past where recordings of examinations had proven to be essential in determining the incompetence of some experts, the Judge concluded that it was not appropriate for Professor Kemp's examination to be recorded. He was persuaded that there needed to be a level playing field and that a level playing field could not be achieved where the claimant had not recorded the examination and testing by his own expert. He stated: “to compare the tests where one set of tests has been subjected to a recording and the other has not, would be to compare apples and pears as it were, in other words, tests which have been produced under different conditions”.The Judge noted that a Joint Working Party between representatives of the Association of Personal Injury Lawyers (APIL) and  the Forum of Insurance Lawyers (FOIL) were continuing to work together to produce a protocol of guidance and that that was the best place for issues arising in relation to recordings of examinations to be worked through. The views of this working party are still awaited.

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