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A v X and B, High Court, 25 March 2004

15 April 2004
The issues

Medical records – non-party – whether Defendant entitled to disclosure of non-party’s medical records to prove related Claimant’s condition was genetic.

The facts

A and B were brothers. In July 1997, A was a rear seat passenger in a car driven by X, which collided with a tree. A had serious injuries involving including head and brain injury. Liability was not in issue save as to contributory negligence. A’s main psychiatric problem was a bipolar mood disorder or hypomania. The evidence was that these might have a genetic origin. The Claimant’s brother B, may have been suffering from a psychiatric disorder, which might have been the same condition. The Defendant wished to show that A’s disorder would have occurred sooner or later for generic reasons. The Defendant therefore applied under Civil Procedure Rules 17 for disclosure by B of medical records. (Civil Procedure Rules.17 provides that a non-party may be ordered to make disclosure where the documents were likely to support the case of the applicant or adversely affect the case of one of the other party’s to the proceedings and disclosure was necessary in order to dispose fairly of the claim or to save costs).

The decision

1. There was ample material in the experts reports that there was a serious issue on the causation of the Claimant’s current mental state and lack of academic progress and therefore the validity of his speculative claim for loss of earnings. There was evidence that the Claimant had been mentally disturbed while at University before the road traffic accident and some evidence that there was a similarity between A and B’s psychiatric problems. The Defendant had therefore established that the disclosure of these medical records was likely to support the Defendant’s case and adversely affect the Claimant’s case.

2. The next issue to be decided was whether disclosure was necessary to dispose fairly of the claim or to save costs. Disclosure would increase costs, but however would make adjudication of the issue of causation more reliable with the consequence that the assessment of damages in what was a huge claim would be more reliable.

3. However, disclosure was not necessary for a fair disposal of the claim. The burden of proof lay upon the Claimant, who established that his post-traumatic mental state was wholly or partly caused by the accident. There was already evidence available to the Defendant to undermine that case.

4. Even if disclosure had been necessary, it would not have been ordered. An Order for disclosure woul be an infringement of B’s rights under Article 8. The Defendant had argued that that infringement could be dealt with by safeguards. There were difficulties with this however. The process of redacting the documents would be lengthy and GP’s, hospitals and other Consultants might wish to be heard as to their reasons for objecting to disclosure. The suggestion that B’s treating Consulting Psychiatrist should determine what was relevant would be time consuming and costly, even if as the Defendant accepted, costs would be paid by the Defendant on an indemnity basis.

5. Coupled to this delay was the fact that the Defendant had himself delayed in making the application. His Solicitors had had knowledge of B’s condition as long ago as June 2001, but the application was not made until September 2003.

Application dismissed.

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