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Keen as Mustard: Court refuses claimant request for recording of neuropsychological testing

  • Legal Development 19 March 2020 19 March 2020
  • UK & Europe

  • Insurance & Reinsurance

The High Court has recently been asked to consider whether neuropsychological testing of a Claimant by the Defendant’s expert could be recorded, despite the expert instructed by the Claimant not being subject to the same conditions.

Keen as Mustard: Court refuses claimant request for recording of neuropsychological testing

Rory MacDonald v Simon Burton (2020)

This decision follows the well-publicised judgment in Mustard v Flower, where a claimant was allowed to rely upon covert recordings made of the defendant expert.

In MacDonald, Mr Justice Spencer concluded that the Defendant expert should be provided with a ‘level playing field’ and his examination should not be recorded. This finding is beneficial for defendant practitioners, and once again demonstrates the need for further guidance on this issue.

In the meantime, this decision should hopefully deter similar speculative requests from claimant representatives hoping to obtain an evidential advantage via the recording of examinations; particularly in cases where these examinations are extremely sensitive and highly relevant to the outcome.



The Claimant suffered serious brain injuries, including a neuropsychological injury, following a road traffic accident. Breach of duty was admitted but contributory negligence alleged. The Defendant sought permission to instruct a neuropsychological expert to examine the Claimant and prepare a report. The Claimant sought to rely upon the finding in Mustard v Flower and wanted the testing to be recorded.

The expert stated that he did not want his testing to be recorded. The expert was of the view that a recording would change the dynamic of an examination, and potentially invalidate the results.



At a case management conference, Mr Justice Spencer considered the circumstances with reference to the decision in Mustard v Flower.

The Court ultimately concluded that the idea of a ‘level playing field’ – that the experts should be subject to the same conditions - was important, and ruled that the examination should not be recorded. 

It was made clear to the Claimant that should he seek to covertly record the examination in any event, this would have a serious and detrimental effect on his claim.

Mr Justice Spencer also noted that had the Claimant been granted permission to obtain the recording, then disclosure of it would have carried a waiver of privilege.  This would presumably apply to any recordings made of examinations with an expert instructed by a claimant.


What can we learn?

  • This decision offers some insight into the possible limits of the decision in Mustard, and should provide reassurance to defendant practitioners concerned by the attempts to apply Mustard in a way to obtain an evidential advantage. The Court was keen to emphasise the idea of a ‘level playing field’, and that Mustard did not offer claimants and their representatives carte blanche to seek recordings from a defendant expert, having not done the same with their own experts.
  • In addition, the warning to the Claimant from Mr Justice Spencer about covert recordings can be read as complementary to the finding in Mustard by Master Davison that she had continued the recording unintentionally after recording part of the examination with the consent of the expert. A deliberate effort to make a covert recording entirely without the knowledge of the expert would, on the face of this ruling, be considered much differently.
  • Mr Justice Spencer also noted that the British Psychological Society (BPS) is due to give guidance in relation to the use of recordings of neuropsychological testing in personal injury cases and it was not for this court to lay down any guidelines before the BPS does so. Again, such guidance should allay any fears from expert witnesses who are concerned that recordings will affect their professional opinion, and impact on proprietary matters.


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