Celikdemir v PGR Timber Limited & Anor [2025] EWHC 3118 (KB)

Ref. KB-2023-001895

[2025] EWHC 3118 (KB)

IN THE HIGH COURT OF JUSTICE

KINGS BENCH DIVISION

Venue Royal Courts of Justice

Strand

London

Before HIS HONOUR JUDGE SHANKS (Sitting as a Judge of the King’s Bench Division)

IN THE MATTER OF

CELIKDEMIR (Claimant)

-v-

PGR TIMBER LIMITED AND ANOTHER (Defendant)

MR M GRANT appeared on behalf of the Claimant

MR P BLAKESLEY KC appeared on behalf of the Defendant

JUDGMENT

7 th NOVEMBER 2025

__________________

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JUDGE SHANKS:

Between

CelikdemirClaimant

PGR Timber Limited & AnorDefendant

Date 2025-11-07

[1]This is an application by the claimant in a personal injury action whereby she seeks to rely on a covert recording of neuropsychological testing which was carried out by Professor Gus Baker on 19 March 2025, and on a report based thereon by her expert neuropsychological doctor Professor Morris, which relates to the way Professor Baker’s tests were administered. The case has been argued with great skill and restraint by Mr Grant for the claimant and Mr Blakesley KC for the defendant, both counsel clearly very experienced in this field.

The background

[2]The claimant’s claim arises out of a road traffic accident on 19 March 2022 at Gants Hill roundabout. The claimant was a front seat passenger in a stationary car driven by her husband. A lorry belonging to PGR Timber Limited drove into the back of the stationary car at about 15 miles an hour. The claimant suffered a whiplash type injury. Liability for the accident was admitted by the defendants on 25 May 2022. Particulars of claim were served on 1 August 2023 and they included a schedule of loss which raised a claim provisionally of over £3.25 million.

[3]There is no issue that the accident has had severe effects on the claimant’s functioning but there is an issue as to whether she suffered a traumatic brain injury or whether the effects of the accident are non-organic and therefore psychological or psychiatric. The trial of quantum is set for 2 February 2026 and there is an ADR meeting arranged for 12 December 2025.

[4]Doctors in several relevant disciplines have been instructed on both sides and in the normal way there are a number of joint statements which have been prepared. This application concerns doctors instructed in the discipline of neuropsychology - Professor Morris for the claimant and Professor Baker for the defendant.

[5]I am quite satisfied both men are eminent in their field and they are obviously very familiar with giving expert evidence, often it seems against each other. They and the lawyers involved in the case are well aware of an issue that it seems keeps arising but has not been generally resolved, ie whether a recording should be made of the administration of tests carried out by neuropsychologists. In this case this very issue came up at the case management conference before the Master which was held on 1 February 2024. Mr Eccles, the defence solicitor, described what happened at paragraphs 15 and 16 of his witness statement in bundle 2 at page 186. He said this:

“Before entering court, counsel for the defendants raised with counsel for the claimant the question of recordings of expert assessments. The matter was discussed and agreement reached between respective counsel that in relation to the parties’ neuropsychological assessments the interview section of the assessments would be recorded but that the testing would not be recorded. Accordingly, at the hearing itself counsel for the defendants submitted to the Deputy Master details of that agreement and I was told that the Master expressed satisfaction with that outcome.”

[6]The claimant’s solicitor, Mr Dickinson, was present at court on that occasion with Mr Grant and he accepts that he authorised the making of that agreement. However, his evidence is that he had forgotten about this agreement when, before the claimant was due to see Professor Baker on 19 March 2025, he advised her to record the testing covertly. His reason for giving this advice is described in his third statement, dated 5 November 2025. It related to events in other cases where he had represented claimants and the danger as he perceived it of injustice resulting from unreliable test results being put forward on behalf of defendants. At the time he gave the advice he knew that the claimant had already undergone her tests with Professor Morris which had not been recorded, but he considered that he should nevertheless give the advice to record Professor Baker’s tests, knowing that if the claimant ever wanted to rely on the recording there would be likely to be an issue about it, as there is, based on the argument that this was unfair to the defence and that it involved “an unlevel playing field”. Although surprising, I think I must accept this evidence at this stage, although I note that he says the following in the course of his statement at paragraph 15:

“At the time I made that decision I was oblivious of the agreement at the CMC a year earlier not to record the neuropsychological testing. Had I been cognisant of that agreement, that would have swayed me into advising the claimant not to record and simply to run the risk of not having the backup of a recording.”

[7]The claimant saw Professor Baker who was helped by a Dr Duncombe on 19 March 2025. She was asked to turn off her phone at the testing stage and did so but she then covertly recorded the testing, using, I am told, a watch. The recording was kept safe and not listened to.

[8]Professor Baker issued a report based on his assessment in July 2025. He made a number of observations that were unhelpful to the claimant’s case. At paragraph 241 he said that the claimant failed effort tests, both independent and inbuilt; as a consequence her test results have to be treated with caution and are unlikely to be an accurate reflection of her functioning; this means that in her day-to-day functioning she is likely to be functioning better than results would suggest. He also said that her scores on the digit span test were so low as not to make any clinical sense as, if they were taken at face value, the claimant would not be able to perform her job. Then at paragraph 303 he said this:

“I am of the opinion that the claimant has suffered psychological and neuropsychological sequelae secondary to the index event. However, her failure on tests of performance validity make it extremely difficult to determine whether she continues to have psychological or neuropsychological symptoms and if so, how severe they are. I am of the opinion that their cause is non-organic in origin.”

[9]Mr Dickinson, knowing the testing had been recorded and having been told by the claimant that the session had been difficult and in particular that there had been drilling in the vicinity, chose to ask Professor Baker questions under CPR 35. He asked in particular whether there were environmental factors which may have influenced the results of the tests. The answer that came back from Professor Baker included some reference to drilling but was not considered satisfactory overall by Mr Dickinson and he therefore instructed Professor Morris to listen to the covert tape and to consider the assessment made by Professor Baker and Dr Duncan.

[10]Professor Morris produced a report on 16 September 2025 running to 26 pages. It raises a number of concerns about the conduct of the test by Professor Baker, which are helpfully set out in Mr Grant’s skeleton argument for this hearing at paragraph 29. I am not going to go into the detail of it but the conclusion at paragraph 7 of the report on this aspect is as follows:

“The main concern from my review is the potential impact of the assessment procedures on the performance validity tests which were indicated by Professor Baker as causing concern. In my view that interpretation should be considered with caution and it is unsafe to indicate lack of effort regarding her performances. This is also taking into account that she passed the direct measurement of effort when I saw her. It seems more likely to me that there is variability in performance between assessments due to her problems with attention and factors such as fatigue effects, which are on top of neuropsychological weaknesses in everyday life. There is also the issue of whether Professor Baker’s instruction concerning filling in the symptom questionnaire may have biased her responses to indicate more problems, for example the anxiety and depression and so on. If so this could have implications when weighting the evidence in terms of brain injury versus non-organic factors. Specifically greater non-organic psychological difficulties could be used to explain more of her overall symptoms as an alternative to brain injury causation.”

[11]The claimant then applied to rely on the covertly recorded audio tape and the report of Professor Morris to which I have just referred, in a sense anticipating an application to exclude those matters from evidence.

[12]Since the application was made, in another rather surprising development, it has emerged that Professor Baker himself inadvertently recorded the testing. Mr Eccles describes this at paragraphs 28 and 29 of his statement dated 4 November 2025. He says this:

“After the claimant issued her present application Professor Baker informed my firm that the Q-interactive software he uses automatically sound records the testing process and that it would be possible to retrieve that audio recording. He tells me, and I believe, that neither he nor his colleague Dr Duncan nor anyone else has retrieved, let alone listened to the recording of the claimant’s testing and there is no present intention to do so, unless it becomes necessary as a result of the outcome of this application for instance to carry out a comparison of the recordings.”

He goes on:

“Professor Morris does not use the Q-interactive software and there is currently no evidence that his assessment of the claimant was the subject of an audio recording and so it remains the case that there is no possibility of a level playing field being achieved where the assessment of only one party’s expert was recorded.”

I am told today that Professor Baker did not know that the software automatically records the testing process at all, let alone that it had done so in this case.

The test to be applied

[13]I turn to the test to be applied. It seems to me that this is set out very neatly at paragraph 19 of Master Davison’s decision in a case referred to as the Mustard case, which was on a very similar issue and which also involved Mr Dickinson and Mr Grant acting for the claimant. The Master said this:

“It is important to note that [it was not contended] that the manner of obtaining the recording should of itself lead to that exclusion. Counsel accepts 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 to exclude. To put it differently, the issue is whether the public policy interest in excluding evidence improperly obtained was trumped by the important but narrow 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”

The balance in this case

[14]I turn then to consider the relevant factors in this case.

[15]First, it is not disputed that the tape and the report by Professor Morris are relevant and may be of some significance in the case. It is right to say, however,(a) that there is no suggestion that Professor Baker has behaved in some egregious way or that his report would be rendered of no value at all and

(b) that the neuropsychological evidence is only a part of the overall evidence which will bear on the central issue of whether the claimant’s current state is the result of a traumatic brain injury. Also, although I was concerned that it would make it impossible for the neuropsychological evidence to be presented and considered by the court if Professor Morris’s latest report was excluded, it seems that Professor Morris would feel able to put the matter out of his mind and he was indeed proceeding with a joint statement at the time that this application was made on that basis. It is also relevant to note that there would be other material with which counsel at trial could seek to challenge Professor Baker’s conclusions and their reliability.

[16]Having said all that, I am still left with a feeling that this would be unsatisfactory and that the claimant, who is relatively blameless in all this, may find herself left with a justifiable sense of injustice if this evidence was excluded.

[17]On the other side of the equation, first, the tape was obtained covertly. Although I have no doubt that Mr Dickinson’s motivation was to help his client, who he considers deserving, and to prevent the potential injustice that he perceives from defence experts not doing their job properly, I consider it was quite wrong of him to advise his client to do what she did. I hope he will never do it again. The claimant personally was obviously doing what she was told or advised to do but nevertheless in my view she must, or should have, had misgivings about it.

[18]Second, the recording was made in direct breach of an agreement which was made in the circumstances that I have recited. I do not consider that that agreement amounted to an “undertaking to the court” (and we have had what I consider a rather arid debate about that) but in any event it was an agreement made between lawyers in the context of litigation about how that should be conducted. As Mr Dickinson recognised, the agreement should not have been breached and had it been deliberately breached the evidence would certainly not have been admitted. Trust between lawyers is essential to the running of this kind of litigation and there is a heavy public interest in upholding such an agreement. The way to do that would have been by preventing the claimant relying on the fruits of the breach. However, although it is surprising, I accept for the purposes of this application that Mr Dickinson genuinely forgot about the agreement and of course there is no suggestion at all that the claimant herself knew about it.

[19]The third factor against allowing reliance on this evidence is that it seems to me that if it is admitted, there is a strong possibility of it diverting attention from the real issues in the case and that time will be taken up with an unnecessary dispute between experts and solicitors who may have axes to grind in a wider context of this kind of litigation: that would be, in my view, undesirable.

[20]The fourth factor I mention is this. There is obviously a debate about whether these tests should routinely be recorded and there appear to be valid arguments against recordings being made: first, the proprietary interests of those who own the rights in the format of the tests are put at risk; second, knowledge of recording is taking place can influence the performance of the test taker; third, if a recording is in existence, it can be used to coach claimants in the relevant case or other litigation. The British Psychological Society has issued guidance, incidentally under Professor Baker’s name, that personal recordings should not be allowed and that any recordings that do take place should only be shared between the expert neuropsychologists. Tempting as it may be, I am not going to express any view on these arguments or make any general observations about how this issue should be addressed (it seems to me the issue is one that needs to be sorted out by the professionals) but these arguments against recording are obviously relevant.

[21]Weighing up the factors in favour of admitting the evidence and against admitting it, it seems to me the question is very finely balanced and quite difficult and I may well have ruled that the evidence could not be relied on. However, there is a feature of the case that has led me firmly to the conclusion that I should admit the evidence which is the fact which has emerged, as I have said, that Professor Baker himself is in possession of a recording of the test. It seems to me that, assuming the recording is the same as the claimant’s and that it does indeed disclose matters of concern as Professor Morris says it does, it would be disclosable by the defendant and I can see no good argument to the contrary. If it is disclosable and was then disclosed, that would mean that even if the test process had not been covertly recorded by the claimant she would or should have been provided with a tape which could have been used for the very purposes her recording has been used. In those circumstances it does not seem to me it makes sense to prevent the claimant relying on her own tape and I would therefore allow that to happen.

[22]That conclusion leaves an obvious concern: Professor Baker’s results are open to review and criticism based on his administration of the test, while the results relied on by Professor Morris are not. The obvious answer is that Professor Morris should undertake a new set of tests on the claimant and the process should be recorded and the tape provided to Professor Baker to check the validity of those tests and the new results. I was told that this would be possible and that Professor Morris would be able to do this in the month of December. That may mean that the ADR fixed for 12 December is put in jeopardy but one would hope that the trial date in early February 2026 should still be possible and the neuropsychologists able to produce a joint report in time. I propose therefore to make an order that should happen and that it should be a condition of allowing the evidence based on the claimant’s tape to be admitted.

[23]I very much hope that proceeding in this way does not take up an inordinate amount of time before or at trial, if one is necessary, and that the parties can concentrate on the real issues which concern the claimant and the defendant rather than the solicitors and the experts.

[24]The claimant has therefore succeeded on the application to allow the evidence in, subject to the condition that there is a further test carried out by Professor Morris and that that is recorded and the recording is supplied to the defence. --------------- This transcript has been approved by the Judge