PI Brief Update

Managing the Recorded Joint Expert Conference - Dr Mark Burgin

08/03/22. Dr. Mark Burgin BM BCh (oxon) MRCGP explains that recording a meeting alters the behaviours that are acceptable and changes the rules.

The first rule of joint expert conferences is ‘what happens in the conference stays in the conference’ as this allows full and frank discussion of the evidence.

Guidance 2014 78. The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)).

There is a danger in allowing recordings of the conference as courts may take an interest with consequent increasing regulation.

The possibility of a covert recording being played to the court would be in the back of the expert’s mind when considering how to present their thoughts.

Formal language

Most experts use an informal language when discussing the material issues at the joint conference to simplify the concepts and shorten language.

Some experts consider that it is better to use formal and precise language and including every reservation when discussing issues.

Other experts opine that looking at the issues from different angles and putting forward ideas to test them assists the court to a greater extent.

My opinion is that insufficient evidence is available as to the most effective strategy or strategies in a Joint Expert Conference.

Data Protection

As a professional the expert making the recording may be in breach of their obligations under the Data Protection Act 2018 or GDPR or professional regulations.

The recorded expert could request a copy of the recording and ask for a written transcript of the recording to prevent cherry picking of parts of the recording.

Transcribing costs about £2 per minute so that the cost of a 3-hour expert conference would be £360 which would act as a significant deterrent.

The courts have previously accepted evidence that was obtained by covert means so it is unlikely that recorded evidence will be completely excluded from the process.

Raising an objection.

There have been attempts by experts to use evidence from sources such as previous drafts of the joint report or notes of the meeting to challenge their colleagues.

I consider this behaviour as inappropriate as it is better to have the other expert’s best arguments than to trick them into saying something that they do not believe.

Audio records could be sprung on an expert at the last moment to undermine their credibility and unnecessarily complicate a case.

Now that experts have lost immunity it is essential that they are given the protections that are afforded to other parties in the legal process.

Conclusions

My belief is that it is rarely possible to turn back the crocodile of time and covert audio recording will soon be put before the courts.

The court should impose a clear set of rules from ordering transcripts at the recorder’s expense to expanding the ‘Discussions between Experts’ guidance.

Experts who put down the phone, use swear words, refuse to engage and try to decide the case perhaps should consider how things could look if their actions were recorded.

Research is needed into the issues that experts face in Joint Conferences so that protections can be built into the rules.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Image ©iStockphoto.com/Igor Kutyaev