Siobhan Tiffany Tubb & Anor v Rosmellyn Surgery (Costs)

This judgment relates to the costs of the action in which I gave judgment in May of this year, Tubbs and Esdale v Rosmellyn Surgery [2025] EWCC 23. It was a claim made by two daughters to access their mother’s health records pursuant to section 8 of the Access to Health Records Act 1990 (‘AHRA1990’).

The Claimants were two of three daughters. The Claimants were contemplating a challenge to the validity of their mother’s last will, which appointed their sister, Stephanie Esdale, as the sole executor and residuary beneficiary (‘the Probate Claim’). In order to investigate and obtain advice on that claim, the Claimants sought their mother’s medical records which they considered might contain material which was relevant to the Probate Claim.

They submitted a request to the Defendant, their mother’s GP practice, to request her medical records pursuant to section 3(1)(f) of the AHRA 1990 stating that they were “investigating the possibility of a claim against the Deceased’s estate”.

The Defendant refused to disclose those records. In correspondence with the Claimant’s solicitors, the Defendant’s position was that in order to release the Deceased’s medical records, they required the consent of the Deceased’s personal representative or a court order providing for their release. They did not accept that the Probate Claim was “a claim arising out of the patient’s death” for the purposes of section 3(1)(f) of the AHRA 1990.

Whilst never made entirely clear in correspondence, it appears that the Defendant would have been prepared to accept an authority given by all three of the Deceased’s daughters, since these were the only people who could be the personal representatives of the Deceased, regardless of the outcome of the Probate Claim. I am told that the Claimants sought Stephanie Esdale’s consent, but it was not forthcoming. I observed in the Judgment given previously that “the ACTAPS Guidance for the Resolution of Probate and Trust Disputes provides that, unless there is a good reason not to do so, the parties to a probate dispute should submit a joint request for medical records. Had that happened, it would seem the need for this litigation would have been avoided.”

The case came before me and I concluded, having reserved judgment, that the Probate Claim was “a claim arising out of the patient’s death”, such that the Claimants were entitled to the Deceased’s health records.

The case was listed for a hearing to deal with costs and any other consequential matters on 2 October 2025. On 6 June 2025, I had ordered that the Defendant should disclose those medical records which it considered it was required to disclose pursuant to the court’s earlier. I had ordered that the hearing on 2 October 2025 should be used to consider:

Unfortunately, it became apparent early in the hearing on 2 October 2025 that there was a very substantial dispute as to the Defendant’s compliance with its disclosure obligations. In particular, the Claimants asserted that the Defendant had applied redactions to records to withhold information, beyond that which is permitted by section 5 of the AHRA 1990. Further the Claimants stated that in a number of instances the digital redactions had been applied ineffectively, such that the redactions could be removed, revealing the text underneath.

The Claimant’s solicitors adopted the position in correspondence that, if the Defendant did not provide a satisfactory justification for the redactions, they would unilaterally remove them. The Defendant’s solicitors objected in this respect, in response to which the Claimants’ solicitors agreed not to remove the redactions in advance the hearing on 2 October 2025.

In the Claimants’ skeleton argument, their position was that “without prejudice to this position [the Claimant’s position that the documents had been excessively redacted], in the interests of saving costs, Cs do not at this time seek a further order from the Court. Should D advance any alternative position or seek to retract records which have already been disclosed, Cs’ position will change accordingly.”

It became apparent during the hearing however, that the reason the Claimants sought no further order was that they considered they would be entitled to remove the redactions following the hearing on 2 October 2025.

The documents in question were not put before me at the hearing and so I was in no position to determine whether the redactions were appropriate. The Defendant maintained its position that the Claimants were not entitled to access the redacted information (whether by removing the redactions or at all). I enquired whether the Claimant’s solicitors were prepared to give an undertaking not to remove the redactions, and they were not.

In the circumstances, I had little option but to treat the Defendant’s objection as an oral application for an interim injunction to prohibit the removal of the redactions in light of:

I heard submissions on that issue and gave an ex tempore judgment. Applying the American Cyanamid test, I did make an interim injunction prohibiting the Claimants from removing the redactions. When giving thatjudgment, I explained that I considered there was a serious issue to be tried in this respect. In particular, I considered that there was a real prospect that disapplying the redactions would be a breach of confidentiality in circumstances where:

I also considered that there was an analogy to be drawn between what had occurred and cases where a party inadvertently provides inspection of privileged documents which did not appear in a disclosure list. Such instances are governed by CPR 31.20 (which prohibits use of the document without permission of the court) and the principles set out in Al-Fayed v Commissioner of Police of the Metropolis [2002] EWCA Civ 780 (the court has jurisdiction to prevent a party relying on mistaken disclosure, particularly where it is the result of an obvious mistake)

Having given that judgment, the Claimant gave an undertaking that they and their representatives would delete the documents with the ineffective redactions and await repeat disclosure by the Defendant.

As a consequence, the hearing which had been listed for 1 hour, lasted 2 hours and much of it was taken up with the issue of the redactions and the interim injunction, which was ultimately not required. Whilst I was able to hear submissions on the principle of costs, I was forced to reserve this judgment, simply by reason of the time available. I was unable to hear submissions on their assessment.

Pursuant to section 51 of the Senior Courts Act 1981 and CPR 44.2, the court has discretion to may any order concerning:

When exercising that discretion, the general rule is that the unsuccessful party shall pay the successful parties’ costs, but the court can make a different order (CPR 44.2(2)).

Pursuant to CPR 44.2(4) and 44.2(5), the court should have regard to “all the circumstances” including:

Pursuant to CPR 44.3 and CPR 44.4, the court may either order that costs be assessed on the “standard basis” or the “indemnity basis” and when deciding the basis of assessment, the court must also consider the conduct of the parties. There is guidance to be drawn from the cases of Excelsior Commercial and Industrial Holdings Ltd [2002] EWCA Civ 879 and Esure Services Ltd v Quarcoo [2009] EWCA Civ 595, that for conduct to warrant the making of an award of costs on the indemnity basis, there should be conduct which is “out of the norm”, meaning “outside the ordinary and reasonable conduct of proceedings”.

Whilst there was no application made for a third party costs order, for the reasons which are set out below, it is relevant also to say that the court’s discretion extends to making an order against a non party. Pursuant to CPR 46.2, where the court is considering making such an order, the third party must be added as a party to the proceedings for the purposes of costs only and must be given a reasonable opportunity to attend the relevant hearing.

Notwithstanding, the observations made within my earlier judgment that this litigation appeared to have been brought about by Stephanie Esdale’s refusal to consent to the release of the Deceased’s medical records, neither party applied for or otherwise sought any costs order against her as a third party. As a consequence, I have not had the benefit of submissions from either party or, importantly, from Stephanie Esdale on this issue.

The Claimants sought an award of costs against the Defendant in respect of both the period up to the handing down of the earlier judgment, and the costs incurred since in respect of the Defendant’s compliance with the order for disclosure contained within my order dated 6 June 2025. They asked that those costs be assessed on the indemnity basis.

Beyond reliance on the general rule that having succeeded they were entitled to their costs, the Claimants sought to rely on the following as relevant conduct by the Defendant:

The Defendant rejected that there had been any misconduct on its part which should sound in costs, and instead argued that there was good reason to depart from the general rule that it should have to pay the Claimants’ costs:

Having regard to all of the circumstances of the case, I do not consider that there is a proper reason for the court to depart from the general rule that the unsuccessful party should pay the successful party’s costs, save for in one limited respect as set out below.

I do not accept that the fact that the Defendant had no interest in the Probate Claim and was said to be acting only with a view to protecting the Deceased’s right of confidentiality, is an answer to its liability for costs. There were other avenues available to the Defendant in this case. The Defendant could have adopted an entirely neutral stance and simply allowed the Claimant to argue its case. In these circumstances, its position in respect of costs might be more attractive. Instead however, the Defendant forcefully argued against disclosure and, in doing so, exposed itself to greater costs risk. Indeed, it went so far as to apply for relief from sanction to allow it to defend the claim (having previously been debarred pursuant to CPR 8.4). It seems likely that the Defendant was motivated not only by a desire to protect the Deceased’s right to confidentiality, but also out of concern for the burden which would be placed upon it and other holders of health records if it were to be determined that probate claims fell within section 3(1)(f) of the AHRA 1990. These being submissions that were in fact made by the Defendant.

Neither do I accept that the lack of authoritative case law justifies a departure from the general rule. There are many instances in which a claim concerns a novel or difficult legal point, but the parties nonetheless embark on that litigation with the understanding that the provisions of CPR 44.2 will apply. Again, had the Defendant adopted a neutral stance to the application, this argument might have carried more weight.

I do not accept that the Defendant should avoid liability for costs simply because those costs might be recoverable from Stephanie Esdale in the Probate Claim if it succeeds. That argument overlooks that part of the reason for obtaining the health records is to undertake an investigation into, and assessment of, the merits of the Probate Claim. The first letter from the Claimants’ solicitors to the Defendant nearly said as much. It is entirely conceivable that following a review of the records, the Probate Claim might never be brought in which case there would be no means for Claimant’s to recover the legal costs which they incurred in obtaining the records which they were entitled to access. If the Defendant considered that Stephanie Esdale should be liable for the costs of these proceedings, it could have made an application under CPR 46.2 (costs orders against non parties). It did not do so.

Whilst there is an analogy to be drawn between this case and the provisions within CPR 31.17 and CPR 46.1, it can only be taken so far. Firstly, the AHRA 1990 contains no provisions which would entitle the holder of a record to charge for complying with a request. In any event, CPR 46.1(3) provides that the court may make a different order than that set out in CPR 46.1(2), having regard to all the circumstances including whether it was reasonable to have opposed the application. Here, the Defendant’s decision to forcefully oppose the application rather than to adopt a neutral stance is relevant once more.

As to the conduct of the Claimants’ solicitors, I have read the inter-partes correspondence to which I was referred and I do not consider that there is anything in that correspondence which goes beyond the sort of correspondence often seen and expected in litigation. However, as alluded to above, there is one area in which I do consider there was conduct by the Claimants which should be reflected in the order which the court makes about costs.

As I have already set out, much of the hearing on 2 October 2025 was taken up by the need to deal with the Claimants’ surprising position that they would be entitled to, and indeed would intend to, unilaterally remove the redactions which the Defendants had applied to the records disclosed.

Whilst I do not consider it was necessarily unreasonable for the Claimants to dispute that the redactions were appropriate (I have not seen the redactions in question), I do consider it was unreasonable for the Claimant to effectively ambush the court and the Defendant by saying that they were entitled to, and would be prepared to, unilaterally remove those redactions without an order of the court. That position inevitably resulted in the majority of the hearing on 2 October 2025 being lost to this issue. It meant that the court had insufficient time to give an ex tempore judgment in respect of the issue of costs or to summarily assess the costs of the claim as had been intended.

That has in turn meant that I had to give this written judgment and there will now have to be a provisional assessment of costs, in the absence of agreement between the parties.

Having regard to all of the above, and the consequence of the Claimants’ conduct in relation to the redactions, I consider that the appropriate order is that:

The order at (b) reflects the fact that, but for the Claimants’ unreasonable position concerning the unilateral removal of redactions, the proceedings and the assessment of costs would now be concluded. Instead, the hearing was to a very great extent wasted dealing with that issue. As a consequence, the assessment of costs remains outstanding and the parties may both be put to additional cost in this respect.

The Claimants’ costs, and the Defendant’s costs thrown away relating to the hearing on 2 October 2025, should be assessed on the standard basis.

I do not consider that the Defendant’s conduct in requiring an order permitting disclosure of the records fell outside the realms of the ordinary conduct of litigation. Both parties acknowledge that there was no authority on the issue. Whilst, I have observed that actively defending the claim has detracted from the Defendant’s argument that it should avoid costs liability altogether, I do not think it was unreasonable for the Defendant to do so when the issue is clearly of some considerable importance to record holders more generally.

Neither do I think that any alternation or shift in the grounds for the Defendant’s opposition justifies the imposition of an indemnity costs award, when there was genuine uncertainty as to the legal position and any changes to the Defendant’s case did not result in delay or further evidence being required.

As to the Defendant’s skeleton argument containing quotes from Hansard which I ultimately concluded were not admissible under the rule in Pepper v Hart, this had no impact on the conduct or the cost of the litigation. As such it is not conduct which would warrant the making on an indemnity costs award.

Whilst, I do consider that the Claimants’ conduct in asserting that they were entitled to unilaterally remove the redactions was unreasonable, I consider that this conduct is already adequately censured thought the making of a costs order in favour of the Defendant in respect of that hearing.

Finally, since I have not adjudicated on the disputed redactions, I cannot say whether they were appropriate or overzealous and this does not feature in my decision in respect of costs.