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

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

Covert recordings made by the claimant are admissible as evidence; they are not unlawful under data protection law and are highly relevant and probative. The balance of fairness and the Overriding Objective favour admission. Part 35 questions served by the claimant are disallowed as they are wholly disproportionate, not for clarification only, and amount to cross-examination. Certain witness statements and reports are excluded as they add nothing or improperly supplement expert evidence.

Citation
[2019] EWHC 2623
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 / Interlocutory Applications (admissibility of Evidence and Expert Questions)
Outcome
Applications determined: covert recordings admitted; Part 35 questions disallowed; certain witness statements and reports excluded; directions given for disclosure of test papers and preparation of paginated bundles.
Legal Topics
Admissibility of Evidence, Covert Recordings, Expert Evidence, Data Protection, Proportionality of Part 35 Questions
Personal Injury Civil Procedure Data Protection Admissibility of Evidence Covert Recordings Expert Evidence Proportionality of Part 35 Questions

Case Brief

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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 / Interlocutory Applications (admissibility of Evidence and Expert Questions)

Legal Issues

  1. 1 Whether covert recordings of medical examinations are admissible as evidence
  2. 2 Whether Part 35 questions to experts are proportionate and permissible
  3. 3 Whether certain witness statements and reports should be excluded

Ratio Decidendi

Covert recordings made by the claimant are admissible as evidence; they are not unlawful under data protection law and are highly relevant and probative. The balance of fairness and the Overriding Objective favour admission. Part 35 questions served by the claimant are disallowed as they are wholly disproportionate, not for clarification only, and amount to cross-examination. Certain witness statements and reports are excluded as they add nothing or improperly supplement expert evidence.

Court Disposition

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

Orders

  • Covert recordings admitted as evidence, subject to redaction of extraneous waiting room conversations.
  • Part 35 questions to defendant's experts disallowed.