High Court says solicitor “wrong” to tell client to secretly record medical testing

High Court rules solicitor was wrong to advise covert recording despite agreement not to record

A High Court judge has ruled that a solicitor acted incorrectly when he advised his personal injury client to covertly record neuropsychological testing carried out by the defendant’s medical expert. The ruling came during an application in a £3.25m claim brought by a passenger injured in a road traffic accident.

His Honour Judge Shanks, sitting as a High Court judge, considered whether the claimant should be permitted to rely on the covert recording and on a report prepared by her expert criticising the way the tests were conducted. The dispute arose because both sides had agreed that neither party would record the testing element of their respective neuropsychological assessments. The agreement was noted at a case management conference in February 2024, where the master expressed satisfaction with the arrangement.

The claimant’s solicitor, identified in the judgment as Mr Dickinson, had authorised the agreement. He later advised his client to make a covert recording of the assessment with Professor Gus Baker in March 2025. He told the court he had forgotten about the agreement and believed that recording the session was necessary to guard against what he perceived as the risk of unreliable testing by defence experts.

Professor Baker produced a report containing several observations that were unfavourable to the claimant’s case. After reviewing the covert recording, the claimant’s expert raised concerns about how the tests were administered.

The judge accepted that the claimant herself bore little responsibility for the situation. He acknowledged that she could feel a justified sense of unfairness if the evidence was excluded. However, he was clear in his criticism of the solicitor. He said that although Mr Dickinson had acted out of a desire to protect his client, advising her to make a covert recording was quite wrong. He expressed hope that the solicitor would not repeat this approach in future. He added that even the claimant should have recognised that the recording raised ethical concerns, despite following professional advice.

Judge Shanks noted that the agreement not to record the assessments was not a formal undertaking to the court. Even so, it should not have been breached. He added that if the breach had been deliberate, he would have refused permission for the claimant to rely on the recording.

The judge emphasised the importance of trust between legal representatives in litigation of this type. He said there was a strong public interest in upholding agreements of this nature and that excluding the evidence would normally have been the appropriate response.

A key factor ultimately influenced the judge’s decision to permit the use of the recording. Professor Baker had inadvertently recorded his own assessment of the claimant because of a feature in the software he used. If that recording were disclosable, it would have been provided to the claimant. Judge Shanks concluded that it would make little sense to prevent her from relying on her own tape in those circumstances.

He directed that the claimant’s expert repeat their tests and provide a recording to Professor Baker to ensure fairness.