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For your ears only

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Learn more here. Close Me. Last Updated: 30 October Outcome The Court allowed the Claimant to rely upon the recordings. The personal nature of the assessment is excluded under Article 2 c. The assessment was akin to a doctor's examination, therefore the recordings were the Claimant's to use. The recordings were not considered unlawful. The covert recordings were " reprehensible ".

However, in the case of the extended recording of A, Master Davison made clear that he considered the Claimant to have been truthful when stating the recording of the testing was unintentional. The recordings have " relevance and probative " value. Master Davison held "It would be highly artificial and unsatisfactory to expect the experts to conduct their joint meeting and for them to give evidence without reference to these matters ".

What can we learn? The issues of recordings will remain extremely contentious, particularly in claims where a minor traumatic brain injury is alleged.

For Your Ears Only - The New York Times

Symptoms reported to experts will be heavily subjective to the Claimant, and much of these claims will turn on expert evidence. Master Davison highlighted that had the positions been reversed, it would be " very surprising and an undesirable consequence " that recordings made of claimants - such as surveillance - were found unlawful. However, the Defendant's experts made it clear in very strong terms that the covert nature of the recordings raised issues around proprietary rights of the tests, but also raised significant professional concerns for them.

On balance, Master Davison allowed the recordings. Nonetheless, it is clear that an agreed protocol as that proposed by Master Davison may be the most appropriate way of dealing with issues such as this. However, such a protocol would inevitably create additional work and costs for parties, associated with the preparation and review of transcripts, and possible consideration of those by experts. The Court agreed that the Claimant's motivation was to " protect her interests having regard to her vulnerabilities and frailties she maintains to have been the result of the accident.

The proposed protocol would seek to resolve this issue, particularly as Master Davison stated that " covert recording has become a fact of professional life ". Do you have a Question or Comment? Interested in the next Webinar on this Topic? Click here to register your Interest.

Chris Eccles. Email Firm. View Website. Events from this Firm. More from this Firm. More from this Author. News About this Firm. The Court of Appeal has issued another important ruling on the law on legal advice privilege by overturning the decision of the Upper Tribunal Tax and Chancery. The English High Court the "Court" has refused to enforce an unchallenged arbitral award because doing so would not be in the interests of justice.

Employers who decide to waive legal privilege over documents that support their case risk inadvertently waiving privilege over other documents which may damage their case. In association with.

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