When Part 35 questions are just too much!

I have recently blogged about Mustard v Flower [2019] EWHC 2623 (QB) in the context of covert recordings of expert examinations.  The case also had to consider the service of extensive Part 35 questions.  CPR 35.6 provides:

(1) A party may put written questions about an expert’s report (which must be proportionate) to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,

unless in any case –

(i) the court gives permission; or

(ii) the other party agrees.

The judge (Master Davison) regarded the questions as relevant and addressing areas of omission in the defendant’s experts’ reports (in the light of clarification of certain evidence in the case) but also considered the sheer volume of the questions to be unprecedented.  Some of the questions required consideration of a mass of literature appended to the questions, including literature not referred to in the expert’s report.  With the appendices the questions ran to two full ring folders.  It was estimated that answering the questions would take several working days and would result in a document longer than the original report on which the questions were raised.  They were, in essence, cross-examination. The judge noted that ‘the mandatory requirement for proportionality was intended to address the practice that had arisen in some quarters of serving lengthy, complex sets of questions that were, in reality, a form of cross-examination.’  He also observed that the issues would be more proportionately dealt with in the joint discussion and joint statement.

It was held that the questions need not be answered because (i) they were wholly disproportionate, (ii) they were overwhelmingly not for the purposes of clarification and (iii) they amounted to cross-examination.   While there were omissions in the experts’ reports, these would, in this case, be best addressed by supplementary reports and/or by the process of joint meetings and joint statements. Such reports and joint statements would be likely to render whole swathes of the questions redundant.

The judge referred to the note to CPR35.6 in the White Book (generally regarded as guidance carrying significant weight – other guidance to the CPR is available) which stated that if an expert received a set of questions which it was considered went beyond the spirit of the rule, the right approach was to –

answer the clearly relevant questions and only to decline to answer the remainder if (i) to do so would be clearly prejudicial to the instructing party’s position, or, (ii) the time and cost of replying to the questions was disproportionate’.

The judge expressed sympathy with experts faced with such questions who would themselves have to make a judgment about the appropriateness or proportionality of each question, or set of questions, before choosing whether to answer and then formulate reasons why they chose not to answer, in itself a time-consuming operation.

Learning point:

Part 35 questions must be for clarification and must be proportionate.  They are not for the purpose of cross-examining the expert.  Failing to cover all relevant matters in a report is likely to provoke Part 35 questions, if the failure is not picked up (as it should be) by the instructing solicitors.  Both the terms ‘clarification’ and ‘proportionate’ are open to interpretation.  Extensive questions on the scale of those in the current case which arise from omissions from the expert’s report are generally best dealt with by way of a supplementary report or at the joint discussion and in the joint statement – aided by an agenda – rather than in a mass of questions supported by annexed (and cross-referred) documentation.

Experts letters seeking guidance from the court:

Interestingly the experts concerned in this case about the lengthy questions and the covert recordings wrote to the court seeking directions, pursuant to CPR35.14.  Few have experience of this procedure including Master Davison, and he recorded that even his senior colleague (Master Yoxall) had received such letters from experts on 2 occasions in 18 years.  However experts should remember that in difficult or unusual circumstances, and where matters are not satisfactorily resolved through instructing solicitors, they can write direct to the court for directions (see para 28 of the Guidance for the Instruction of Experts in Civil Claims as to how that should be done).

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Admissibility in evidence of covert recordings of expert examinations

It has been a matter of some concern among medical experts that examinations by them of a claimant might be secretly recorded, and if they were, whether the recording would be admissible in evidence to challenge or contradict the expert’s evidence about the examination.  In the recent case of Mustard v Flower [2019] EWHC 2623 (QB) a Master (procedural judge) in the High Court had to rule on the admissibility of the evidence of just such covert recordings made by a claimant.

The claimant’s action raised the question of whether or not she had suffered organic brain damage in a relatively low speed road accident.  The claimant made covert recordings of her examination by several of the defendant’s experts.  In relation to the neuropsychologist, the recording of the formal testing was asserted to have been made accidentally but in relation to the other experts it was accepted that the fact of the recording was intentionally not revealed.

Objections:

The experts complained in very strong terms about the covert nature of the recordings (one said that he felt that the claimant’s actions were wanting in honesty, transparency and common courtesy, that his permission should have been sought and that he felt sullied by what took place; another that she felt professionally violated, distressed, angry and disillusioned). Further, the defendant asserted that the recording of neuropsychological testing (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) was capable of changing and distorting the nature and dynamics of the examination and therefore the results undesirably, (d) conferred on the claimant’s solicitors “insider knowledge” of the content and methodology of the tests, and (e) by reason of the foregoing, raised professional conduct issues. Further the defendant’s neuropsychologist complained that because her consultation with the claimant had been recorded and that of the claimant’s neuropsychologist had not, she was unable to scrutinise any shortcomings in his approach and operating methods in the same way that the claimant could, were she to wish to do so.

The defendant further asserted that (1) the recordings were unlawful under the Data Protection Act 2018 and the General Data Protection Regulation 2016/679 and (2) they should be excluded because (a) of the unlawful (or, at the very least, improper) manner in which they had been obtained, (b) they had impaired or undermined the validity of the neuropsychologist’s testing, and, (c) they gave rise to an uneven playing field or an inequality of arms as between claimant and defendant in that only the defendant’s experts’ examinations had been recorded in this way.

Court’s ruling:

The Master rejected the proposition that the recordings were a breach of the Data Protection Act or the GPDR on the basis that Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data “by a natural

person in the course of a purely personal … activity”. Recording a consultation with or examination by a doctor fell into this category and supplying the recordings to her advisers did not take it out of the category. Further, the relevant data related to the patient (the claimant) not the doctor.

Therefore the Master ruled that the covert recordings were not unlawful, even if reprehensible. Given that the claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable, whilst her actions lacked courtesy and transparency, covert recording had become a fact of professional life and was not so reprehensible as to outweigh other considerations.

Because the defendant neuropsychologist’s conduct of her examination of the claimant and her administration of the neuro-psychological tests was put into question, the recording of her examination was highly relevant and potentially probative. The Master regarded the potential of the recording to impair or degrade the results of the neuro-psychological testing by the defendant’s expert as only a marginal factor in the decision on admissibility, particularly given the argument that the testing was impaired by reason of the expert’s own technique and methodology.

The covert recordings of 2 other of the defendant’s medical experts was also found to be relevant and probative, specifically in relation to the claimant’s account given to them of her pre-accident history and the progression of her symptoms and in relation to whether the Waddell sign from the axial loading test was correctly reported as positive.

The future:

The Master did observe that some kind of protocol was needed governing the recording of medico-legal examinations and should be agreed between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers. It was also suggested that it was in the interests of all sides that examinations were recorded because from time to time significant disputes do arise as to what occurred. In that situation, it is important to have a complete and objective record of the examination, which is subject to appropriate safeguards and limitations on its use. It is desirable that the parameters of such recording should be on an “industry-wide” agreed model catering for the many issues capable of arising in such cases.

Significance:

The Master’s ruling appears pragmatic and, given the significance of the evidence contained in the recording to issues in the case, appropriate.  It is however a decision made at the lowest end of the judicial hierarchy and does not bind any other judge.  The proposal that all examinations in the medico-legal context be recorded, and effectively held in case an issue arises, would seem likely to be the direction in which we are heading, particularly given the ease and economy with which such recordings can be made, both overtly and  covertly.

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