KB-2023-000278 - [2025] EWHC 2536 (KB)

The Claimant seeks specific disclosure of the (presumed draft) report of Dr Mullin (“the draft report”), the neuropsychologist instructed on behalf of the Defendant pursuant to CPR 31.14(1)(b) and (2). The Claimant seeks disclosure of that report because, she says, that Dr Mullin has materially changed his position on a central issue in the case, namely the effort applied by the Claimant to neuropsychological tests performed by Dr Mullin. The Claimant says that this change of position has come to light as Dr Mullin’s served reports do not contain passages of text quoted firstly in the Defendant’s original draft Amended Defence (“the first AD”) pleading fundamental dishonesty and second in the served report of Dr Jarman, the neurologist instructed on behalf of the Defendant. The Defendant has served two reports from Dr Mullin, dated December 2024 and 4 February 2025 respectively. Dr Jarman’s report is dated January 2025. I understand that the Defendant opposes the application on the basis that the draft report is privileged given that it was in draft; regrettably, no witness evidence has been served by the Defendant on this issue. I also received very little by way of oral submissions on this issue from counsel given the time taken to deal with the surveillance issues addressed above. I do not say that by way of criticism of counsel, but just as an explanation that the positions advanced were not argued with any detail. The Defendant has put little before the Court about this issue in writing.

The first AD contained the following passage as part of the material going towards a pleading of fundamental dishonesty:

“f.

Dr Mullin: ‘Ms Perrin passed the embedded indicators of Performance Validity. However, Ms Perrin failed two of three trials of the TOMM test administered. The trial, which was failed by an unusually large margin, is not used when determining whether an individual has passed or failed this test. Ms Perrin also failed the third trial of this test, although her score was just below the point set by the test authors as required for adequate performance upon this test. I therefore consider that this pattern of performance upon tests of Performance Validity overall is a borderline failure with regards to Performance Validity… Due to this repeated borderline failure upon a test of Performance Validity, I do not consider that the possibility of intentional underperformance upon testing can be ruled out…’ [Dr Mullin Report para.9.1.3 / 10.2.5]”. (Ms Ashworth’s emphasis)

It is accepted that this passage is not found in Dr Mullin’s served reports.

Dr Jarman’s served report refers to the instructions that he received and lists “Neuropsychological report of Dr Mullin” in the list of documents available to him to prepare his report, later stating that the report was dated August 2024. Dr Jarman’s report refers to Dr Mullin’s August 2024 report and Dr Mullin stating that the Claimant “failed a test of performance validity” and that whilst Dr Mullin did not consider this to be compelling evidence of underperformance on testing, this could not be ruled out and that the results of neuropsychological testing should be interpreted with caution based on the failure of performance validity testing. This, Ms Ashworth argues, demonstrates that “Dr Jarman has used this report upon which to base his opinion” and in any event that the Claimant is entitled to the draft report as it was provided to Dr Jarman as part of his instructions.

Paragraphs 9.1.3 and 10.2.4 of Dr Mullin’s served December 2024 report contains the following paragraphs:

“9.1.3.

Performance Validity was assessed using the TOMM, a dedicated measure of Performance Validity upon psychometric tests, and via indicators of Performance Validity embedded within the CVLT test. Ms Perrin passed the tests of Performance Validity administered, though her score upon the first trial of the TOMM test was unusually low, this element of the test is not used to directly assess performance validity”

“10.2.4.

Ms Perrin’s performance upon tests of Performance Validity was reported to be borderline by Dr Kinch. This is similar to Ms Perrin’s performance upon tests of Performance Validity within the current assessment: while Ms. Perrin did pass the tests of Performance Validity her score upon the first subtest of the TOMM test was unusually low. However, this does not constitute a failure with regards to performance validity and there is therefore no indication of intentional underperformance upon testing.” (My emphasis)

This should also be read alongside Dr Mullin’s review of Dr Jarman’s evidence, within his served February 2025 report, which states at paragraph 4.6 that:

“I note that Dr Jarman reports having found no evidence that Mrs. Perrin’s symptoms were feigned or exaggerated. I note that this is consistent with the results of my assessment, as Mrs. Perrin passed the tests of Performance Validity incorporated into my neuropsychological assessment. I agree with Dr Jarman that it is ultimately for the Court to determine intention, or the lack of it.” (My emphasis)

The TOMM scores are set out at paragraph 13.6 of Dr Mullin’s December 2024 report, which suggest that the Claimant failed one of the tests/trials, rather than two.

Ms Ashworth argues that this is not a change of opinion by Dr Mullin, as the results of neuropsychological testing are objective and the outcome binary. Ms Ashworth argues that the results are not something that Dr Mullin could have an opinion on as the answer is simply ‘pass’ or ‘fail’. Ms Ashworth argues that it is not understood how this error could have happened, and it casts doubt over Dr Mullin’s whole testimony.

Dr Mullin’s position does seem to have changed from there being two tests/trials failed to one test/trial that was failed. I have of course heard no evidence from Dr Mullin about this. Whilst I agree with the submission about objective and binary results in part, it may be too simplistic, given that testing results can presumably be within a range, albeit with a threshold below which the tests would be counted as a ‘failure’. This appears to be what the draft report is alluding to. In any event, whilst the results from the testing themselves may have a large degree of objectivity depending on the test scoring matrix, to my mind Dr Mullin has seemingly changed his opinion when considering the above paragraphs in relation to whether the Claimant has intentionally underperformed and/or whether there is any evidence of the same.

The Claimant further raises concern that Dr Mullin’s served December 2024 report is 120 pages long, whereas Dr Jarman refers to the draft report as being 188 pages long. Ms Ashworth goes as far as stating that, “…there are reasonable grounds to find that these 68 pages were considered to be inaccurate or they would not have been deleted from the final version”. I had no evidence from the Defendant about this issue, albeit Ms Reynolds sought to reassure the Court that the reduction of 68 pages in report length was due to the removal of duplicated appendices to the report.