Mean Ms Mustard (Or: covert recordings as admissible evidence)

Ms Mustard was injured in a road traffic accident, for which she claims compensation. She was examined by medical experts appointed by the insurer. She covertly recorded two of those consultations deliberately, and a third accidentally. She wants to deploy those recordings as evidence in support of her claim. The insurer objected, arguing that the recordings constituted unlawful processing contrary to the GDPR and the DPA 2018.

Evidence is not necessarily inadmissible just because it was unlawfully obtained, but the insurer argued that the data protection contraventions in this case should tip the scales in favour of inadmissibility.

No, held Master Davison in today’s judgment in Mustard v Flower and Others [2019] EWHC 2623 (QB). For Panopticon fans, the relevant points are short:

  • Master Davison held that the processing fell within the ‘personal purposes’ carve out from the GDPR (see Article 2(c): the GDPR does not apply to the processing of personal data “by a natural person in the course of a purely personal … activity”). He said this: “Recording a consultation with or examination by a doctor would seem to me to fall into this category. I do not think that the claimant supplying the recordings to her advisers took it out of the category. Further, the relevant data relate to the patient (the claimant) not the doctor” (para 21).
  • Master Davison also concluded, albeit via a somewhat tangled and confused reading of the legislation, that the ‘legal proceedings’ exemption under para 5 of Schedule 2 to the DPA 2018 applied here (para 21 again).
  • This case was not like the Latvian Youtube case (on which see my post) (para 22).
  • Ms Mustard had certainly been mean. However, the Judge was sanguine: “I do not think that the covert recordings were so reprehensible as to outweigh the considerations that I set out in the following paragraphs [relevance, probative value, effect on the litigation]. The claimant acted on the advice of her solicitor and her motives were, in the context of adversarial litigation, understandable. Whilst her actions lacked courtesy and transparency, covert recording has become a fact of professional life…” (para 23).

Plenty of eyebrow-raising stuff, but no ground-breaking jurisprudence. Still, nice to see data protection asserting its relevance, rather than simply sleeping in the park, shaving in the dark, trying to save paper, always shouting something obscene, etc.

Robin Hopkins @hopkinsrobin