Samantha Mustard v Jamie Flower
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 11 October 2019 |
| Neutral Citation | [2019] EWHC 2623 (QB) |
| Court | Queen's Bench Division |
| Docket Number | HQ17P00164 |
| Date | 11 October 2019 |
[2019] EWHC 2623 (QB)
Master Davison
HQ17P00164
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Marcus Grant (instructed by Dickinson Solicitors Ltd) for the Claimant
Mr William Audland QC (instructed by BLM) for the Third Defendant
Hearing date: 29 August 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my reserved judgment on cross-applications that came before me on 29 August 2019. Mr Marcus Grant represented Samantha Mustard, the claimant. Mr William Audland QC represented Direct Line Insurance, the third defendant. (The other defendants were not present or represented.) I am very grateful to counsel for their helpful and economical submissions.
The claim arises out of a road traffic accident which took place on 21 January 2014 in Milton Keynes. The claimant's stationary Honda Jazz vehicle was struck from behind by a Fiat Punto vehicle driven by the first defendant. Liability is not in issue. The claimant was then 34 years of age and employed as a quantity surveyor. She had a complex medical history. She claims that in the accident she sustained a sub-arachnoid brain haemorrhage and a diffuse axonal brain injury such as to have left her with cognitive and other deficits. But there are marked differences between the experts as to her presentation and the interpretation of her medical records, imaging and history. In part, these differences depend on, or may be influenced by, the court's finding as to the speed of impact. Essentially, the third defendant (hereinafter “the defendant”) says that the impact was relatively minor, whereas, on the claimant's case, it was at least a “medium velocity impact”. In turn, the defendant's medical experts say that the claimant suffered no, or only minor, brain injury, whereas the claimant's experts say she suffered a serious brain injury – albeit that the manifestations of that injury are “subtle”.
The main directions were given by Deputy Master Bagot QC on 26 July 2018. He restricted the number of factual witnesses to 10 in total and gave permission for expert medical evidence in the fields of:
Orthopaedics
Neurology
Neuropsychology
Neuropsychiatry
Audiology
Neuroradiology
Neurosurgery
Engineering
On various dates in the second half of 2017 and the first half of 2018 the claimant was examined by the defendant's medical experts. She had been advised by her solicitor, Mr Christopher Dickinson, to record the examinations on a digital device. She did so. In the cases of Mr Matthews, the defendant's orthopaedic surgeon, and Mr Kellerman, the defendant's neurosurgeon, the claimant recorded the consultations covertly. In the case of Dr Torrens, the defendant's neuropsychologist, the claimant asked if she could make a recording. Dr Torrens agreed that she could record the clinical examination but, for reasons I will come to, not the neuropsychological testing. The claimant accepted this and, on her account (and audible from the recording) tried to switch off her device. But (again, on her account) she mistakenly failed to do this and the machine went on recording. She inadvertently recorded the whole of the consultation with Dr Torrens. There are therefore recordings by the claimant of all her consultations with the defendant's medical experts. Additionally, three of those experts, Dr Grace, neuropsychiatrist, Dr Surenthiran, audio-vestibular physician, and Dr Torrens made their own recordings.
Because the defendant was aware that Mr Dickinson advised his clients to record their examinations with the other side's medical experts and because they wanted to establish a level playing field in this regard, the claimant was invited by the defendant to record her examinations with her own medical experts. She gave no undertaking or indication that she would do so and, in the event, she did not. There are, as I understand it, no recordings made by the claimant's experts either.
The two principal applications
Strong objection has been taken to the covert recordings and the defendant invites me to exclude the evidence pursuant to CPR rule 32.1(2). That application is resisted and, by way of cross-application, the claimant has filed a supplementary statement from Professor Morris, her neuropsychological expert. The thrust of that statement is that the transcript of the consultation with Dr Torrens reveals that she made serious errors in her administration of the neuropsychological testing such as to render it of doubtful value. Thus, the court is presented with the problem (more familiar in the criminal and family jurisdictions than it is in personal injury litigation) of evidence which may have been obtained improperly or unfairly but which is nevertheless relevant and probative.
The other main application concerns Part 35 questions to the defendant's experts. Such questions were served on 3 June 2019. With their appendices, they fill two ring binders. In order to illustrate their length and complexity I have annexed the questions to Dr Torrens to this judgment. A combination of the questions and the covert recordings prompted 6 of the defendant's experts to write to the Court seeking directions. I summarise their objections to the questions below, but, in essence, their complaint is that the questions would take a disproportionate amount of time to answer and that they amount to cross-examination. Some of the experts have felt sufficiently strongly about the questions and, more particularly, the covert recordings to have involved their professional bodies. Notwithstanding the claimant's advisers' attempts to shorten and simplify the questions and their suggestions as to how the experts may wish to approach them, the defendant has applied for an order setting aside the questions or directing that the experts are not obliged to answer them. This too is resisted.
The covert recordings
In his witness statement filed in opposition to the application, Mr Dickinson has stated that the claimant “elected to record her appointments both to provide herself with a reference as an aide memoire of what was said and to provide herself with evidence to demonstrate any misunderstanding as to what was actually said, if required”. To this, Mr Dickinson added that his experience of this cohort of his clients (those with subtle brain injury) demonstrated that many have problems of memory and fatigue. They could answer questions clumsily, their answers could be misinterpreted and this could then be the foundation for allegations of dishonesty. He has pointed out – correctly in my view – that Dr Torrens has characterised the claimant in this litigation in terms that stop only just short of an allegation of outright dishonesty.
Whatever her intentions and whatever guidance may have been offered to her by Mr Dickinson, the claimant did not in every case inform the relevant expert that she intended to record the consultation. In the cases of Dr Cockerell, Dr Grace and Dr Surenthiran, she announced her intention and they all agreed to the recording. In the case of Dr Torrens, she told Dr Torrens what she was doing or proposed to do and Dr Torrens told her she could record the clinical interview but not the neuropsychological assessment. Both were nevertheless recorded – the claimant says by accident. In the cases of Mr Matthews and Mr Kellerman, the recording was covert. However, in his client's defence, Mr Dickinson has pointed out that all the defendant's experts had been forewarned by their own instructing solicitors that the claimant was likely to be recording the consultations and the claimant assumed that they knew.
By way of qualification to the foregoing, Dr Surenthiran, although taking no issue at the time, has nevertheless also complained that the recording was covert. Both he and Mr Matthews have drawn attention to an additional feature of the recordings, which is that they began in the waiting room and picked up extraneous material, including the name of one of Dr Surenthiran's consultant colleagues.
Both Mr Matthews and Dr Torrens have complained in very strong terms about the covert nature of the recordings. Mr Matthews has said that he feels that the claimant's actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he feels sullied by what took place. Dr Torrens has said that she feels professionally violated, distressed, angry and disillusioned. Further, the recording of the neuropsychological testing had (a) raised issues regarding the proprietary rights in the tests, which were not for release into the public domain, (b) rendered the claimant herself essentially “un-assessable” on any future occasion, (c) undesirably conferred on the claimant's solicitors “insider knowledge” of the content and methodology of the tests, (d) by reason of the foregoing, raised professional conduct issues. She also complained that because her consultation with the claimant had been recorded and Professor Morris's (her counterpart) had not, she was unable to scrutinise any shortcomings in his approach and operating methods in the same way, (though she emphasised that she considered that such scrutiny when based upon a covert recording was unprofessional and that she would not, herself, wish to undertake it).
Before coming to the substance of these complaints, I should set out what became of the recordings once made. I was told that the claimant herself did not listen to them but released them to Mr Dickinson. Mr Dickinson then followed what I understand to have been his usual practice....
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