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OCS Group Ltd v Wells, High Court, 29 April 2008

9 June 2008
The issues

Disclosure of medical records to Defendant – whether medical records should be disclosed pre-action.

The facts

The Claimant had an accident on the 10th May 2005 when lifting a sack of confidential waste from a bin during the course of her employment as a security guard with the Defendant. A letter of claim was sent on the 14th February 2006 indicating that a severe back injury had been sustained. No proceedings had yet been issued. Primary liability was admitted on the 8th June 2006. The issue of contributory negligence remained and had not yet been resolved. By March 2007 the Defendants were facing a claim for continuing loss of earnings but had received no medical report or Schedule of Damage, although on the 30th August 2006 it had been agreed that the Claimant could instruct a Consultant Orthopaedic Surgeon. The Defendants indicated an intention to apply for pre-action disclosure by letter dated 5th March 2007 and requested that the medical report upon which the Claimant intended to rely, her medical records and documents relating to her application for a license from the Security Industry Authority be disclosed to them. An Application for disclosure was made on the 18th June 2007. The Judge decided, in respect of the Licensing Authority documentation that since no Application had been made, no Order could be made in respect of any documents relating thereto. In respect of the medical report, the Judge concluded that the report, having been unilaterally obtained, was privileged and not disclosable. As for the medical records, the Judge held that they should not be disclosed, firstly because they were private records covered by Article 8 of the European Convention of Human Rights and, secondly, because it had been established that they were relevant “at this stage”. The Defendant appealed in respect of the Judge’s decision in relation to medical records.

The decision

The Judge had jurisdiction to make an Order for pre-action disclosure of the medical records under CPR Part 31.16(3)(a); 31.16(3)(b); 31.16(3)(c) and 31.6. The parties were both likely to be parties to subsequent proceedings, if brought. The duty by way of standard disclosure under CPR 31.6 would extend to medical records. The medical records would tend to confirm the injuries and their consequences or question them or refute them or their extent. The records would either support the Claimant’s case or support the Defendant’s case. The general relevance of medical records in personal injury claims, especially where a continuing loss of earnings or loss of earnings capacity was claimed was well established. Records were essential for the preparation of the Claimant’s own medical report and, where continuing loss of earnings or reduced earnings capacity was claimed, such documents would be relevant as to what financial loss had resulted from the accident and as to what injury was caused by the accident and the extent of the pain, suffering and disability flowing there from.

The Judge was wrong to say that the records were not relevant “at this stage”, in other words, before the issues had been defined by the service of the Claimant’s medical report. Once a Claimant had put forward a claim, which included a claim for damages for reduced earning capacity, the medical records would be disclosed under standard disclosure if proceedings had started. It was artificial and inappropriate to state that a Claimant did not currently rely on medical records or that it was too early to say whether medical records would adversely affect hers or the Appellant’s case. Part 31.16 required the Court to look ahead to see what would happen if proceedings had started. Once a Claimant had indicated a claim for damages, which included a claim for reduced earnings capacity was inevitable if proceedings had to be issued because the matter could not be settled without them, then the medical records would become disclosable. Part 31.16(d) however presented greater difficulties for the Defendant. The Court was required to consider the matters set out there and had to exercise its discretion in considering the details of the particular case before it. Part 31.16(d) stated that the Court could only make an Order for pre-action disclosure if disclosure would dispose fairly of the anticipated proceedings; assist the dispute to be resolved without proceedings; or save costs. It was doubtful that it could be said that disclosure before proceedings had started was desirable, either to dispose fairly of the anticipated proceedings or to assist the dispute to be resolved without proceedings. Enforced disclosure of private material might increase contention between the parties and make proceedings more likely and thus might not save costs.

The Court would follow the approach of the Court of Appeal in Bennett v The Compass Group as to whether private medical reports should be disclosed to the Defendant’s solicitors and insurers. Although it might be said that if a Claimant brought a claim he or she had to be prepared to reveal records to the opposition, this would be so only at the appropriate time and to the appropriate people. Such records should not, in the Court’s judgment be disclosed before the Claimant had had an opportunity of considering them him or herself and their effect upon the claim. If necessary, the medical expert will then have considered them for the purposes of preparing the report. An Order for disclosure before that stage had been reached would not be desirable for disclosing fairly of the anticipated proceedings, nor would it assist the dispute to be resolved without proceedings or save costs.

Appeal dismissed.

Comments

This is a disappointing case for Defendants. The Court found that the disclosure of medical records would not assist in early resolution. I feel sure that many insurers feel that an early accurate evaluation of a Claimant’s case might well assist them, not merely with their reserving, but also with their commercial decisions as to settlement or otherwise, to that extent might well led to the early resolution of cases.

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