Ellard: Proportionality is key
By Lois Ellard, a solicitor specialising in occupiers’ and public liability at Legal Futures Associate Express Solicitors [1]
Disclosure is an essential component of civil litigation. It enables parties to identify and address the evidence relevant to the issues in dispute and assists the court in determining cases fairly.
But disclosure is not an end in itself. Nor does bringing a personal injury claim mean that a claimant’s entire medical history becomes available for inspection.
An application in a straightforward fast-track personal injury claim I recently handled illustrates the point. The claimant had suffered a relatively simple electrocution injury. The defendant nevertheless applied for an order requiring disclosure of the claimant’s entire medical records.
The application was successfully resisted.
The case raises an important question for practitioners: how far should a defendant be permitted to go in seeking a claimant’s historic medical records where there is no demonstrated connection between those records and the injury pleaded?
The legal framework
CPR 31.12 provides that the court may make an order for specific disclosure, including an order requiring a party to disclose specified documents or classes of documents, carry out a search to a specified extent, or disclose documents located as a result of that search.
That power, however, must be exercised consistently with the overriding objective.
CPR 1.1 provides that the overriding objective is to enable the court to deal with cases “justly and at proportionate cost”. The rule expressly identifies saving expense and dealing with cases proportionately to the amount involved, the importance of the case and the complexity of the issues.
CPR 31.7 is particularly relevant to applications of this nature. It provides that the reasonableness of a search is to be assessed by reference to factors including the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval and the significance of documents likely to be located.
The practice direction supplements this. Paragraph 5.4 of PD 31A provides that, when considering an application for specific disclosure, the court will take into account all the circumstances of the case and, in particular, the overriding objective.
The question is therefore not simply whether medical records might contain something of interest. It is whether the disclosure sought is necessary and proportionate to the issues which the court actually has to determine.
A simple injury does not justify a fishing expedition
The factual context of the claim was critical.
This was not a complex claim involving multiple injuries, disputed pre-existing conditions, significant accident-related psychiatric injury, or an extensive claim for future loss of earnings in which a claimant’s wider medical history might arguably bear upon the assessment of damages.
It was a straightforward claim arising from an electrocution injury. Against that background, the defendant sought disclosure of the claimant’s entire medical history.
The breadth of the request was difficult to reconcile with the overriding objective. A search extending across a claimant’s entire medical history inevitably carries costs, both financial and otherwise. Yet the defendant had not demonstrated a corresponding need for such a wide-ranging search.
The principle in CPR 31.7 is instructive. The court is expressly required to consider not only the nature and complexity of the proceedings, but also the significance of documents likely to be located.
In a relatively straightforward fast-track claim, the proportionality of a request for many years of medical records must therefore be examined particularly carefully. Fast-track litigation is intended to be managed proportionately. CPR 28.14 identifies disclosure and expert evidence amongst the matters dealt with by case management directions.
The disclosure exercise should serve the resolution of the dispute. It should not become a dispute in itself.
Relevance cannot simply be asserted by solicitors
There was a further difficulty with the defendant’s approach.
Where the alleged relevance of historic medical records depends upon a medical proposition – for example, that a previous condition may affect causation, prognosis or the assessment of the injury – there should be an evidential basis for that proposition.
It is important to distinguish between the roles of the solicitor, the expert and the court.
The court ultimately decides what disclosure is required. A solicitor cannot, of course, determine the scope of disclosure unilaterally. However, neither should a defendant be permitted to obtain a claimant’s entire medical history simply because its solicitors consider that potentially relevant information might be contained somewhere within it.
That approach is problematic: rather than identifying the issues, identifying what evidence is reasonably required to determine those issues and then seeking appropriately targeted disclosure, the defendant begins with the widest possible disclosure and leaves the relevance question until afterwards.
That is particularly unjust where the material sought concerns highly sensitive matters entirely unrelated to the pleaded injury.
CPR 35.1 provides that expert evidence should be restricted to that which is reasonably required to resolve the proceedings.
Accordingly, where a defendant contends that historic medical information is medically relevant to the claim, there should be a proper explanation of why it is relevant and what issue it is said to assist the court in determining.
The human consequences of ‘just in case’ disclosure
The application in this case had a particularly troubling consequence.
The claimant’s medical records contained an extensive history of childhood sexual abuse. There was no material connection between that history and the straightforward electrocution injury which formed the subject matter of the claim.
The significance of this cannot be reduced simply to the fact that the information was sensitive. Medical records routinely contain private information. But a claimant should not be required to expose deeply traumatic and highly personal aspects of their history merely because a defendant wishes to conduct an unrestricted review of their medical records in the hope that something relevant may emerge.
That is precisely why proportionality matters.
There is an important distinction between relevant medical evidence which a defendant reasonably requires to defend a claim and an unrestricted entitlement to investigate a claimant’s medical history.
The former is an ordinary and legitimate part of litigation. The latter risks turning disclosure into a fishing exercise.
What should practitioners take from the decision?
There are practical lessons for both sides.
For defendants seeking medical records, the better approach is to identify the precise issue which the records are said to address. If a particular historic condition is relevant to causation or prognosis, explain why. If expert evidence supports that proposition, identify it.
For claimants resisting an application, the response should similarly avoid an overly broad assertion that historic medical records are automatically irrelevant. Instead, identify the issues in dispute, the evidence required to determine them and why the defendant’s proposed search goes beyond what is reasonably necessary.
The court can then undertake the exercise required by CPR 1.1 and CPR 31.7 – balancing the likely evidential benefit against the burden, expense, complexity and intrusion involved.
Conclusion
Successfully resisting this application was not a rejection of proper disclosure.
It was a recognition that disclosure must remain connected to the dispute the court is actually being asked to resolve.
In a straightforward electrocution claim, requiring disclosure of a claimant’s entire medical history would have created a significant additional evidential and costs exercise without a demonstrated corresponding benefit.
More importantly, it would have exposed deeply personal records concerning childhood sexual abuse despite there being no material relevance to the injury in issue.
The case is therefore a useful reminder that a claimant’s decision to litigate a personal injury does not amount to a waiver of all medical privacy.
The defendant is entitled to the evidence it reasonably requires to defend the claim. It is not entitled to embark upon an unrestricted search simply because the records exist.
The right question is not, ‘What else might we find?’ It is: ‘What medical evidence is reasonably required to resolve the dispute before the court?’
That distinction lies at the heart of proportionate disclosure.