Mustard v Flower & Ors [2019] EWHC 2623 (QB) (11 October 2019)

Mustard v Flower & Ors [2019] EWHC 2623 (QB) (11 October 2019)

The covert recordings made by the claimant were not unlawful under data protection law and, although some were covert and lacked courtesy, their relevance and probative value to the issues in dispute outweighed the impropriety in their obtaining. The recordings are admissible. The Part 35 questions served by the claimant were disproportionate, not limited to clarification, and amounted to cross-examination; they are disallowed. Certain additional witness statements and expert reports are excluded as duplicative or inappropriate.

Citation
[2019] EWHC 2623 (QB)
Parties
Claimant: Samantha Mustard; First Defendant: Jamie Flower; Second Defendant: Stephen Flower; Third Defendant: Direct Line Insurance
Jurisdiction
England and Wales
Judgment Date
11 October 2019
Procedural Posture
Personal Injury Road Traffic Accident / Interlocutory Applications (admissibility of Evidence and Expert Questions)
Outcome
Applications determined: covert recordings admitted as evidence; Part 35 questions disallowed; certain witness statements and expert reports excluded; directions given for disclosure of test materials and preparation of bundles.
Legal Topics
Admissibility of Evidence, Covert Recordings, Expert Evidence, Data Protection, Proportionality of Part 35 Questions
Civil Procedure Personal Injury Admissibility of Evidence Covert Recordings Expert Evidence Data Protection Proportionality of Part 35 Questions

Case Brief

Summary, issues, holding and outcome

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Parties

Samantha Mustard

Claimant

Jamie Flower

First Defendant

Stephen Flower

Second Defendant

Direct Line Insurance

Third Defendant

Procedural Posture

Personal Injury Road Traffic Accident / Interlocutory Applications (admissibility of Evidence and Expert Questions)

Legal Issues

  1. 1 Whether covert recordings of medico-legal examinations are admissible as evidence in civil proceedings
  2. 2 Whether extensive Part 35 questions to experts should be permitted or excluded for being disproportionate and amounting to cross-examination
  3. 3 Whether certain witness statements and expert reports should be excluded from evidence

Ratio Decidendi

The covert recordings made by the claimant were not unlawful under data protection law and, although some were covert and lacked courtesy, their relevance and probative value to the issues in dispute outweighed the impropriety in their obtaining. The recordings are admissible. The Part 35 questions served by the claimant were disproportionate, not limited to clarification, and amounted to cross-examination; they are disallowed. Certain additional witness statements and expert reports are excluded as duplicative or inappropriate.

Court Disposition

Applications determined: covert recordings admitted as evidence; Part 35 questions disallowed; certain witness statements and expert reports excluded; directions given for disclosure of test materials and preparation of bundles.

Orders

  • Covert recordings of medical examinations by the claimant are admitted as evidence, subject to redaction of irrelevant waiting room conversations.
  • Part 35 questions served by the claimant on the defendant's experts are disallowed.