In the recent decision of Mustard v Flower et al, the English High Court confirmed that there is no hard rule that evidence obtained unlawfully or improperly must be excluded; rather, the question will turn on the relevance and probative value of the evidence and the effect that admitting or not admitting it would have on the overall fairness of the litigation.

The ongoing case concerns a road traffic accident in which the claimant alleges to have suffered serious brain damage. The defendants accept liability, however contest the severity of the brain damage. It was agreed the claimant would be examined by a number of medical experts for each side. In doing so, the claimant secretly recorded the examinations by the defendants’ experts but did not make any recordings of her own experts. The claimant then relied on the recordings to file supplemental expert reports discrediting the evaluation conducted by the defendants’ neuropsychology expert.

The defendants accepted that the mere fact the recordings had been obtained unlawfully, or at least improperly, did not render them inadmissible in and of itself, however argued that fairness warranted the exclusion of the evidence due to: the nature in which the recordings were obtained; the fact they impaired the evaluation, as subsequent evaluations were no longer possible; and, that they gave rise to an uneven playing field as the claimant’s experts had not been recorded.

The Court ultimately rejected the defendants’ arguments and admitted the evidence on the basis that it was both probative and highly relevant to the central issue as to the reliance to be placed on the defendants’ expert report. Furthermore, once it was known that the conduct of the evaluation was in question, it would be highly artificial (on both sides) to proceed as if it was not a live issue.

Although the Court considered the covert nature of the recordings reprehensible, it took the view that they were not unlawful, and in fact accepted that “covert recording has become a fact of professional life”. The fact the recordings impaired the evaluation was only a marginal consideration in regard to admissibility; and, as the defendant did not raise any query regarding the claimant’s expert report that could be resolved by a recording, the level playing field point was merely theoretical.

Taking all factors into consideration, the Court considered the balance clearly favoured admitting the evidence.