RORY MACDONALD (BY HIS LITIGATION FRIEND LINDSAY MACDONALD) v SIMON BURTON (2020) QBD (Martin Spencer J) 13/03/2020
Written by Claire Collins, Partner and Lindsey Bartling, Associate Solicitor who represented the defendant.
In MacDonald v Burton, Mr Justice Martin Spencer accepted BLM’s argument that where there was no recording of one neuropsychologist’s examination and testing, another neuropsychologist’s examination and testing was not to be recorded. This finding demonstrates the need for a level playing field in relation to expert evidence. This was against the backdrop of Mustard and the British Psychological Society’s redrafted, but as-yet unpublished, guidelines.
In respect of recorded expert examinations, the claimant could not claim privilege over a recording of an examination by the defendant’s appointed expert and, once the report of the claimant’s appointed expert is disclosed, privilege was waived over the recording of that examination.
In MacDonald v Burton Mr Justice Martin Spencer gave case management directions in relation to recordings of examinations by experts and the privilege which applied to such recordings. The claimant’s neuropsychologist had already examined the claimant and had not been recorded and the claimant wanted to record the defendant's neuropsychologist's examination and testings when he examined. This was contested.
BLM presented evidence to the court from the authors of the forthcoming, but still draft and unpublished, British Psychological Society guidelines that it was not appropriate for either examination or testing to be recorded, noting that this would render the testing outside of the test standardisation conditions, that it could change behaviour and that the tests are subject to copyright.
The Judge agreed with our submissions that there must be a level playing field and this cannot be adhered to where the claimant has not recorded their own evidence. To compare results where one assessment was recorded and the other was not was like comparing apples to pears.
In his judgment, Mr Justice Spencer asked the British Psychological Society to ensure they took into account the “elephant in the room”, as identified in Mustard, that experts for either side are equally fallible and that they should recognise and reflect on the competing interests. He further expressed his hope that APIL and FOIL could work out guidelines or a protocol, to be informed by medical and clinical opinion.
As regards privilege, there is no privilege over the recordings of the defendant’s instructed experts and privilege in the recordings of the claimant’s experts is waived at the point at which such reports are disclosed.
Where a solicitor attends a medical examination, any notes which they may make are subject to legal privilege.
What this means for you
In MacDonald, our argument was successful in contrast to Mustard where Master Davison considered the level playing field argument was “theoretical”. Claimants' solicitors are now going to have to think very carefully before recording defendants' assessments, as to ensure a level playing field they will have to record their own experts as well. The Judge commented that experts for the claimant are equally fallible and liable to produce less accurate results which are not favourable to the claimant.
This is important as it will now enable both parties to know if the report is an accurate reflection of the examination.
Furthermore, and importantly, privilege of the recordings is now waived. The claimant must now disclose all recordings at the same time as they serve their own medical report or in their disclosure statement if they recorded the defendant’s experts.
In view of this, the claimant will now have to consider very carefully whether they wish to record assessments as it could inevitably restrict the ability of the claimant’s legal team to deal with factual and evidential matters during a conference as there will be a disclosable record of that assessment if it was recorded.