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A recent case has raised its head in the High Court on the use of covert recordings and the rare application of the exemptions under the GDPR and the Data Protection Act 2018.
Mustard was injured in a road traffice accident and had agreed to be seen by the insurer's medical experts. She recorded the examinations without the knowledge or consent of those doctors and then wanted to use those recordings in court. Insurers argued that they are not admissable, for various reasons and in particular, the recordings constitued unlawful processing of personal data.
High Court held that the recordings were admissable albeit reprehensible. In particular:
Access to the judgment
Mustard was injured in a road traffice accident and had agreed to be seen by the insurer's medical experts. She recorded the examinations without the knowledge or consent of those doctors and then wanted to use those recordings in court. Insurers argued that they are not admissable, for various reasons and in particular, the recordings constitued unlawful processing of personal data.
High Court held that the recordings were admissable albeit reprehensible. In particular:
The test to be applied
19. It is important to note that Mr Audland QC did not contend that the manner of obtaining the recordings should, of itself, lead to their exclusion. He accepted the proposition that evidence that had been unlawfully or improperly obtained might still be admissible. What was required was that the court should consider the means employed to obtain the evidence together with its relevance and probative value and the effect that admitting or not admitting it would have on the fairness of the litigation process and the trial. The task of the court was to balance these factors together and, having regard to the Overriding Objective, arrive at a judgment whether to admit or exclude. To put it slightly differently, the issue was whether the public policy interest in excluding evidence improperly obtained was trumped by the important (but narrower) objective of achieving justice in the particular case. This approach, from which Mr Grant did not dissent, seems to me to be fully in line with the authorities to which I was referred and which I need not set out. I do, however, note that in the majority of such cases the balance has been struck in favour of admitting the evidence.
Conclusions
21. I reject the proposition that the recordings were a breach of the Data Protection Act or the GPDR and I do not propose to give the submission detailed attention. Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data "by a natural person in the course of a purely personal … activity". 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. (I mention that this is apparently the view of the General Medical Council – see the article in the Medico-Legal Journal referred to above – and also the Information Commissioner's Office, whom Mr Dickinson consulted on this matter). Both the Act and the GPDR contain exceptions or "carve-outs" for data which is gathered or processed or disclosed for the purposes of exercising or defending legal rights, (I use that expression loosely and compendiously). The provisions are contained in Article 6 as read with section 8 of the Act and in section 5 of Schedule 2 and, if recourse to them were needed, would apply in this case. I note that all objections based on the legality of the recording were abandoned in the case of Chairman & Governors of Amwell View School v Dogherty UKEAT/0243/06/DA, which was similar on its facts to the present one. Although the data protection regime was then contained within the 1998 Act, I have not been alerted to any material difference so far as the point under consideration is concerned. Finally, I note that if Mr Audland QC's submission were correct it would have the very surprising and undesirable consequence that covert video recordings of claimants by insurers would be equally unlawful.
19. It is important to note that Mr Audland QC did not contend that the manner of obtaining the recordings should, of itself, lead to their exclusion. He accepted the proposition that evidence that had been unlawfully or improperly obtained might still be admissible. What was required was that the court should consider the means employed to obtain the evidence together with its relevance and probative value and the effect that admitting or not admitting it would have on the fairness of the litigation process and the trial. The task of the court was to balance these factors together and, having regard to the Overriding Objective, arrive at a judgment whether to admit or exclude. To put it slightly differently, the issue was whether the public policy interest in excluding evidence improperly obtained was trumped by the important (but narrower) objective of achieving justice in the particular case. This approach, from which Mr Grant did not dissent, seems to me to be fully in line with the authorities to which I was referred and which I need not set out. I do, however, note that in the majority of such cases the balance has been struck in favour of admitting the evidence.
Conclusions
21. I reject the proposition that the recordings were a breach of the Data Protection Act or the GPDR and I do not propose to give the submission detailed attention. Article 2(c) of the GPDR provides that the Regulation does not apply to the processing of personal data "by a natural person in the course of a purely personal … activity". 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. (I mention that this is apparently the view of the General Medical Council – see the article in the Medico-Legal Journal referred to above – and also the Information Commissioner's Office, whom Mr Dickinson consulted on this matter). Both the Act and the GPDR contain exceptions or "carve-outs" for data which is gathered or processed or disclosed for the purposes of exercising or defending legal rights, (I use that expression loosely and compendiously). The provisions are contained in Article 6 as read with section 8 of the Act and in section 5 of Schedule 2 and, if recourse to them were needed, would apply in this case. I note that all objections based on the legality of the recording were abandoned in the case of Chairman & Governors of Amwell View School v Dogherty UKEAT/0243/06/DA, which was similar on its facts to the present one. Although the data protection regime was then contained within the 1998 Act, I have not been alerted to any material difference so far as the point under consideration is concerned. Finally, I note that if Mr Audland QC's submission were correct it would have the very surprising and undesirable consequence that covert video recordings of claimants by insurers would be equally unlawful.
Comment