Chrichard v Devon County Council, 15 July 2003

Disclosure – Documents – Duty to Disclose under the Protocol – Highways – trip

The Claimant sought discovery of documents in a highway tripping case that were not included within the standard pre-action disclosure list for such claims under the personal injury protocol.

The Defendant queried the relevance of the documents requested and resisted disclosure arguing that the obligations under the protocol were onerous enough particularly as there was no prospect of recovering costs, regardless of the outcome of the claim.

Specifically, the Claimant sought disclosure of post accident inspection and maintenance records and details of the number of inspections the inspector had carried out on the day of the pre accident inspection.

The Claimant argued that it was necessary to have sight of these documents to test the strength of the defence advanced by the Defendant under Section 58 of the Highways Act 1980. The Defendant conceded that the request may seem reasonable in isolation but the Court should have regard to the wider implications of increasing the burden upon the Defendant and their insurers. The Defendant argued that had the protocol envisioned such documents as important for the purposes of determining the issues prior to litigation they would have been included within the standard disclosure list.

It was important to strike a balance between the problems faced by Defendants in terms of expense and whether the information requested came within the spirit of the protocol.

It was accepted that the disclosure list under the protocol was not an exhaustive list. However, it was quite detailed and had other documents been intended to be included they would have been. The documents requested by the Claimant were not within the spirit of the protocol. The Claimant was trying to find something out that at this stage they were not entitled to. The Defendant was entitled to take a policy decision not to disclose documents that were not listed within the standard disclosure list although documents that did fall within the spirit of the list should be disclosed.

For further information please contact Daniel Turner at danielturner@veitchpenny.co.uk

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