OCS Group Ltd. v Wells

This is an appeal from the order of His Honour Judge Brasse of 3 August 2007 rejecting the Appellant’s application for pre-action disclosure of the Respondent’s medical records.

The claim from which this appeal arises is for personal injury arising out of an accident on 10 May 2005. Davinia Wells, the Respondent/Claimant, injured her back whilst lifting a sack of confidential waste out of a bin during the course of her employment as a security guard with the Appellant/Defendant OCS Group Limited. The letter of claim was sent on 14 February 2006 and indicated that a severe back injury had been sustained and treatment sought both from the general practitioner and local hospitals. The Claimant’s solicitors indicated that they proposed to follow the pre-action protocol for personal injury claims. No proceedings have yet been issued. The Defendant admitted primary liability by open letter of 8 June 2006. The issue of contributory negligence remains and has not been resolved between the parties.

The course of negotiations between the parties has not been smooth. It was agreed on 30 August 2006 that the Claimant could instruct Mr Hoad-Reddick a consultant orthopaedic surgeon but by January 2008 the Claimant had still not been examined by him. The delay was said to be due to the fact that the Claimant’s solicitors were awaiting copies of the Claimant’s X-rays, MRI scans and hospital notes which had been requested over a year earlier. Final details of the Claimant’s wages were provided by the Defence in October 2006 but no schedule of special damage had been served by the time the appeal was heard in January 2008. It had been said in correspondence by the Claimant’s solicitors in August 2006 that her current inability to attend work was due to the index accident and on 21 November 2006 it was said that the Claimant had been unable to work since the accident had occurred and was having severe financial difficulties. This, as His Honour Judge Brasse said in his judgment, puzzled the Defendants as the Claimant had returned to work full time without any absences for four months until September 2005 before going off sick. When the matter came before Judge Brasse in August 2007 it was still contemplated that there would be a substantial loss of earnings claim but by letter of 8 January 2008 the Defendant’s solicitors were informed that the claim for loss of earnings would be for a finite period with a potential for a Smith and Manchester claim. The claim was valued as fast track or at the lower end of multi track. It transpires that the Claimant returned to work with the Defendants in about December 2006 and sometime thereafter set up her own business in the security industry and has been employed ever since.

In March 2007 the Defendants were apparently facing a claim for continuing loss of earnings but had received no medical report or schedule of damage. They indicated an intention to apply for pre-action disclosure by letter 5 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 licence from the Security Industry Authority be disclosed to them. The Claimant’s solicitors stated that the pre-action protocol did not apply to medical records or medical reports and hence the application for their disclosure was made on 18 June 2007. When the matter came before His Honour Judge Brasse he was informed that no application to the licensing authority had been made by the Claimant and accordingly held that no order could be made of any documents relating to such an application. The appeal against the Judge’s decision on the licence documents was abandoned before me.

The Judge concluded that a medical report unilaterally obtained was privileged and not disclosable. That part of the decision is not appealed.

As to the medical records the Judge held they should not be disclosed, firstly because they were private records covered by Article 8 and Article 8(2) of the European Convention of Human Rights and secondly because it had not been established that they were relevant ‘at this stage’. The basis of his finding on relevance was that the Respondent did not currently rely on any report in existence nor on medical records as she expected to rely on the report when it was obtained. He said that he believed it was too early to say whether the medical records would adversely affect her case and too early to say whether the medical records would adversely affect the other party’s case. It was pure speculation whether the medical report or medical records would support the Defendant’s case. The Judge expressed sympathy for the Defendant having been kept waiting for information they should have been given a long time ago, especially as the explanation for the delay was vague. He did not however consider that the Defendant were prejudiced and concluded that although he was left with an after taste of dissatisfaction with the way in which the Claimant had conducted negotiations with the Defendant he was ‘not satisfied that I have the jurisdiction under Part 31.16 of the CPR to order disclosure and the application is therefore rejected.’

The grounds of appeal assert that the Judge erred in holding that the medical records would not be relevant and in holding that they were privileged from disclosure because they were private by reference to Article 8 ECHR.

The power to order pre-action disclosure in the County Courts derives from Section 52(2) of the County Courts Act 1984, and the criteria for making such an order are set out in CPR 31.16 and 31.6.

CRP 31.16 states:-

“(1)

This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2)

The application must be supported by evidence.

(3)

The court may make an order under this rule only where –

(a)

the respondent is likely to be a party to subsequent proceedings;

(b)

the applicant is also likely to be a party to those proceedings;

(c)

if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d)

disclosure before proceedings have started is desirable in order to –

(i)

dispose fairly of the anticipated proceedings;

(ii)

assist the dispute to be resolved without proceedings; or

(iii)

save costs.

…”

CPR 31.6 provides:-

“Standard disclosure requires a party to disclose only –

(a)

the documents on which he relies; and

(b)

the documents which –

(i)

adversely affect his own case;

(ii)

adversely affect another party’s case; or

(iii)

support another party’s case; and

(c)

the documents which he is required to disclose by a relevant practice direction.”

The pre-action protocol for personal injury claims is designed to encourage more pre-action contact between the parties, better and earlier exchange of information and the fair and early settlement of cases without litigation. The ‘cards on the table’ approach advocated by the protocol is applicable to claims such as the present. There is no obligation on a Claimant to disclose documents under the personal injury pre-action protocol. There is such an obligation upon Defendants. The only reference to medical records in the protocol is at para 3.15 which states that where a medical expert is to be instructed the Claimant’s solicitor will organise access to relevant medical records. Annex C sets out a specimen letter of instruction to the medical expert stating that such records are being obtained and will be forwarded to him so that he can give a full and detailed report on relevant pre-accident medical history, the injuries sustained, treatment received, present condition and capacity for work.

The pre-action protocol for the resolution of clinical disputes does require the disclosure of records but such disclosure is by health care providers to the patient who is the proposed claimant.

CPR 31.16 sets out three jurisdictional thresholds and when those have been crossed the court has to exercise its discretion. The three jurisdictional thresholds are firstly, are the respondent and the applicant likely to be parties to subsequent proceedings if brought (31.16(3)(a)(b), secondly, would the documents fall within standard disclosure if proceedings had started (31.16(3)(c), and thirdly, is there a real prospect in principle of an order of pre-action disclosure being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. 31.16(3)(d). Black v Sumitomo Corpn and others [2001] 1 WLR 1562, paragraphs 37 and 81. There are, as Lord Justice Rix pointed out in Black and Lord Justice Waller said in Bermuda International Securities Limited v KPMG [2001] Lloyds Rep Prosecution 392, 397 paragraph 26, two stages in the test of ‘desirable’ under 31.16(d). The first is the jurisdictional test created by the word ‘only’ under 31.16(3) and the second is the exercise of discretion in deciding whether such an order is desirable on the facts of the individual case. Black paragraphs 81 – 83. The jurisdictional test under 31.16(3)(d) requires the court to consider the matters set out there under in principle and thereafter it must exercise its discretion by considering the details of the particular case before it. It is not surprising in such circumstances that the questions of jurisdiction and the exercise of discretion can become conflated.

It is well established that once proceedings have been issued medical records are disclosable in personal injury cases, certainly where there is a claim for loss of earnings or impaired earning capacity - see Dunne v British Coal Corporation [1993] ICR 591. The onus is on a claimant who alleges that the accident has caused loss of future earnings or earning capacity to prove those matters. He must prove that he is in normal health and does not suffer from any condition which might cut short his working life. Where the claim for damages is in issue on the pleadings, documents which show that the employee had never suffered anything more serious than for example, an attack of influenza would be relevant to the issue of damages just as much as documents which can show that he was suffering from some condition or disease which was likely to have shortened his working life in any event. (Dunne 597G – 598C).

The medical records are in accordance with the protocol, provided to the claimant’s medical expert so that they can be considered for the purpose of preparing the medical report upon which the claimant will rely. It is inevitable in the circumstances that once proceedings have been issued and hence the medical report served, that the medical records will become, save in very exceptional circumstances, disclosable.

Lord Justice Rix, obiter in Black, expressed the view that if the case was a personal injury claim and the request was for medical records, it was easy to conclude that pre-action disclosure ought to be made. Black paragraph 83. Lord Justice Rix referred, in paragraph 85, to “medical records or their equivalent (as indicated by pre-action protocols) in certain other kinds of dispute”. The personal injury pre-action protocol does not require medical records themselves to be disclosed save to the claimant’s own medical advisor for the purposes of preparing the medical report.

In Bennett v Compass Group UK and Ireland Limited & anr [2002] EWCA Civ 642, a case concerning post action disclosure, a district judge ordered the claimant to supply both defendants with an authority to enable them to obtain for their medical experts copies of both the GP’s notes and the hospital records. This order was appealed against and Lord Justice Clarke at paragraph 40 said:-

“What is said is that, assuming there was jurisdiction to make an order of this kind, such an order should only be made in exceptional circumstances because in principle a patient should retain control over his or her own medical records. I entirely agree that a judge should think long and hard before making such an order because a defendant should only be allowed to see a claimant’s medical record in carefully defined circumstances.”

Lord Justice Chadwick expressed a similar view at paragraph 72 stating that the normal and most satisfactory course was for the medical records to be produced by the claimant’s advisers for inspection and consideration by the defendant’s expert. It should not be necessary for the defendant’s advisers to approach the GP or the hospital directly. He envisaged that it would however be possible to make such an order in order to break through a wall of unresponsive silence. Lord Justice Pill in his dissenting judgment also expressed the view that medical authority should deal with the claimant’s solicitors rather than his opponent’s solicitors.

It is also to be noted that in the case of Dunne it was recognised that a patient might justly object to some totally unrelated but perhaps embarrassing condition being disclosed to the employer and described that as a perfectly understandable and legitimate concern. It could be dealt with by limiting the disclosure to the employer’s medical adviser.

The Defendant/Appellant submits that the Judge was wrong in saying that there was no jurisdiction and in finding that it was too early to say whether the medical records would be relied upon or adverse to either party’s case. The medical records would be disclosable under one or other clause of Part 31.6 if proceedings had been commenced. The medical records would be relevant. The Judge fell into error in finding that the issue of privacy in relation to the medical records went to the question of jurisdiction. As he did not go on to consider discretion he must have considered that this issue was relevant to the issue of jurisdiction. The Defendant accepted that the records were private but they were not privileged. It may be that the Judge conflated the questions of jurisdiction and discretion but the real basis of his decision is that he thought he had no jurisdiction.

As to discretion which the Defendant/Appellant invited me to exercise de novo Mr Roy submitted that the Claimant’s failure to provide information had been grave. The Respondent’s insurers ran a proactive scheme seeking early disclosure of medical evidence to facilitate speedy resolution of claims without the need for proceedings. This sensible scheme would be adversely affected if a claimant could simply refuse to supply the relevant information. It was inevitable that some privacy would be lost or impinged upon when medical records had to be disclosed as in the ordinary course of events after proceedings they did. He was not contending that medical records should be routinely disclosed but said that they should be here because there was a claim for loss of earnings or loss of earning capacity, a refusal by the Claimant to provide the relevant information, and a controversy in respect of loss of earnings. As the medical records would have to be disclosed upon the commencement of proceedings in any event it could not be said that the impingement on the Claimant’s privacy was serious. On the other hand the Defendant’s insurers would be prejudiced because they couldn’t assess the claim, they couldn’t make an offer to protect their position, and they couldn’t decide what investigations to carry out.

The Respondent/Claimant conceded that medical records were relevant once proceedings were commenced and when the medical report had been served. It was only then that the extent of injuries claimed for could be defined. There was nothing wrong in the Judge’s finding that the records were not relevant ‘at this stage’. Without the medical report it was too early to say whether the documents would fall within 31.6. Furthermore in isolation of the medical report insurers could not value the claim or assess causation.

The Judge clearly exercised his discretion as well as considering the question of jurisdiction, as his comments in relation to relevance, privacy and prejudice to the Defendant all relate to the exercise of a discretion. They are all relevant to 31.16(3)(d) and he made no error in law.

As to discretion the Judge’s decision cannot properly be challenged. If he did not exercise his discretion and did decide the case on jurisdiction then the task of exercising the discretion fell to me de novo. It would be a dangerous precedent, Miss Woodbridge submitted, if a defendant could obtain medical records prior to proceedings. The Respondent/Claimant’s right to privacy in respect of the medical records had to be balanced against the Defendant’s right to have information to assess the claim, but the absence of any obligation to disclose such records in the protocol showed that it was not expected that they would form the subject matter of pre-action disclosure. Were the documents to be disclosed before the service of the medical report, which itself will delineate the extent of the injuries and hence the claim, the Respondent/Claimant would be placed at a disadvantage as those medical records would be examined by non medical people at a time when she herself was not aware of what the doctors say on the issue of causation and the extent of injuries. Disclosure now would not assist the early resolution of the case in the absence of the medical report as until the medical report was available it was not clear what the issues would be. There had been delay albeit no breach of the pre-action protocol. The remedy for the delay was not to order disclosure, but costs should it be thought that was appropriate.

Jurisdiction.

I am satisfied that the Judge did have jurisdiction to make an order for pre-action disclosure of the medical records under 31.16(3)(a)(b) and (c). The Appellant and Respondent were both likely to be parties to subsequent proceedings if brought. The question of whether the duty by way of standard disclosure under 31.6 would extend to the medical records is also, in my view, to be answered in the affirmative. The medical records, whether those recording the accident and subsequent hospital and medical attendances or recording the Claimant’s pre and post accident health, would either tend to confirm the injuries and their consequences or question them or refute them or their extent. The records will either support the Claimant’s case by, for example showing that she was in normal health before the accident and did not suffer from any condition which might have reduced or diminished her earning capacity, or support the Defendant’s case by showing that she had a condition which would or might have restricted her earning capacity in any event even if the accident had not occurred. 31.6(a) or 31.6(b)(i) or (ii) or (iii) would therefore probably be satisfied by the medical records.

The general relevance of medical records in personal injury claims, especially where, as here, a continuing loss of earnings or loss of earning capacity is claimed, is well established. Such records are essential for the preparation of the Claimant’s own medical report as 3.15 of the protocol shows. Whenever continuing loss of earnings or a reduced earning capacity is claimed, such documents will be relevant as to what financial loss has resulted from the injury, (Dunne 595E, 597G) and, in my view, to what injury was caused by the accident and the extent of the pain, suffering and disability flowing there from.

CPR 31.16(3)(a)(b) are therefore in my judgment satisfied. As to CPR 31.16(c) it is not, in my judgment, correct to say, as HHJ Brasse does say in his judgment, that the medical records are not relevant ‘at this stage’, in other words before the issues have been further defined by the service of the Claimant’s medical report. Once a claimant has put forward a claim, which includes a claim for damages for reduced earning capacity, the medical records would be disclosed under standard disclosure if proceedings had started. CPR 31.16(c) requires a hypothetical consideration of what the duty of disclosure would be if proceedings had started, even though, a fortiori, where an application for pre-action discovery is being made, no proceedings can have been started and the obligation to serve a medical report with the particulars of claim has not yet arisen. CPR 31.6 also requires the same hypothetical assessment, when CPR 31.16 (c) is being considered.

It is artificial and inappropriate in such circumstances to state that a claimant does not currently rely on medical records or that it is too early to say whether medical records will adversely affect hers, or the Appellant’s case. 31.16 requires one to look ahead and see what would happen if proceedings had started. In any event once a claimant has indicated a claim for damages which includes a claim for reduced earning capacity it is inevitable, if proceedings have to be issued because the matter cannot be settled without them, that the medical records will be become disclosable.

31.16(d) however presents greater difficulties for the Appellant/Defendant’s case. The jurisdictional and discretionary stages of the test under 31.16(3)(d) tend to merge into one, but even in principle, I am doubtful that it can be said that disclosure before proceedings have started is desirable either to dispose fairly of the anticipated proceedings or to assist the dispute to be resolved without proceedings. A claimant will not know the full details set out in her medical records. Such records are, as was conceded, private and confidential and they may contain information which could be either embarrassing or even disturbing to the Claimant. They may also contain information which after she has considered the matter together with her medical expert’s report, could cause her to limit or even withdraw her claim rather than have the medical records and their contents disclosed. It cannot be said in such circumstances that an order for pre-action disclosure of the medical records is desirable in order to dispose fairly of the anticipated proceedings. Furthermore, until the medical expert has considered the medical records for the purposes of drafting the report it cannot properly be determined what shape or form the particulars of claim will take as to the damages claimed. Most claims of any substance cannot sensibly be disposed of until a medical report has been prepared. It may even be, as I have indicated earlier, that a claimant would not merely limit her claim further, but might even withdraw it once she has had the opportunity to consider the contents of and importance of the medical records through her medical expert’s report, and if necessary in consultation with that expert.

Furthermore I doubt whether an order for pre-action disclosure of the medical records would assist the dispute to be resolved without proceedings. Enforced disclosure of private material when the claim has not yet been precisely delineated might, depending on the content of the records increase contention between the parties and make proceedings more likely. Thus it may not save costs.

I am conscious of the fact that others may interpret the jurisdictional stage of the test under 31.16(3)(d) differently and I therefore go on to consider the issue of discretion.

Discretion

There is no doubt that the Respondent/Claimant has been guilty of delay in dealing with her claim. A medical report and schedule of damages should have been served long before January 2008. It is also correct that such delay may have prejudiced the Appellant/Defendant and its insurers in preventing it from being able to value the claim, investigate it properly, and save costs by coming to an early resolution of the matter. Nevertheless the remedy for such prejudice is not in my judgment to order the disclosure of a private medical record before a medical report has been served and the claim fully delineated, but by way of an order for costs against the Respondent/Claimant which is available under the CPR and the protocol. As Mr Roy submits, ascertaining what costs have been lost in such circumstances is not always an easy task but there is no reason why a robust court in appropriate circumstances should not award them.

In any event I do not consider it desirable to dispose fairly of anticipated proceedings, to order the Claimant to disclose her private medical record to the Defendant’s insurers or solicitors. Such records should be disclosed at least initially only to the medical expert as the protocol, Dunne and Bennett envisage. It may transpire that the medical records are relevant but of no significant value to the proceedings and play no part in their resolution. If that turns out to be the case then private medical records will have been disclosed without the Claimant’s consent and without having any beneficial affect upon the proceedings. It is both safer and more appropriate for such records to be considered by the Claimant’s medical adviser, and then the Claimant herself before the Defendant’s insurers or solicitors consider them.

I have considered the obiter dicta in Black as well as that in Bennett. For my part I prefer the approach of the Court of Appeal in Bennett as to whether or not private medical records should be disclosed to the Defendant’s solicitors and insurers. It might be said that if a claimant brings a claim she must be prepared to reveal her medical records to the opposition. This is so, but only at the appropriate time and to the appropriate people. Such records should not in my judgment be disclosed before the Claimant has had an opportunity of considering them herself and their affect upon her claim, and if necessary with her medical expert who will have considered them for the purpose of preparing the report to be served upon the Defence. Until that time has been reached she cannot determine precisely what she wishes to claim by way of damages or even, in some circumstances whether she wishes to pursue a claim for loss of earnings or handicap on the labour market. An order for disclosure before that stage has been reached would not in my judgment be desirable for disposing fairly of the anticipated proceedings, nor would it assist the dispute to be resolved without proceedings or save costs.

I therefore reach, albeit for slightly different reasons, the same conclusion as His Honour Judge Brasse and the appeal is accordingly dismissed.