The defendants made a pre-action application for disclosure of the claimant’s medical records. At first instance the District Judge held that they should not be disclosed because they were private records covered by Article 8 and Article 8(2) of the European Convention of Human Rights, and secondly because they were not relevant “at this stage”.
This was because there was no medical report upon which she was relying. The Judge said he believed it was too early to say whether the medical records would adversely affect her case and too early to say whether the records would affect the other party’s case. It was pure speculation whether the report or medical records would support the defendants’ case. The defendants appealed.
On appeal the Judge, Nelson J, in dismissing the appeal decided the case mainly on CPR 31.16 (3) (d), which says that an order for disclosure can only be made where disclosure before proceedings is desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or save costs.
The records were private and confidential and they may contain information that could be either embarrassing or even disturbing to the claimant. They may also contain information that, after she had 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 to dispose fairly of the anticipated proceedings. He did not consider that an order for pre-action disclosure of the medical records would assist the dispute to be resolved without proceedings.
With regard to discretion, he preferred the approach of the Court of Appeal in Bennett -v- Compass Group & UK (2002) EWCA Civ 642 as to whether private medical records should be disclosed to the defendants solicitors and insurers. While 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, in his judgement, should not be disclosed before the claimant has had an opportunity of considering them herself and their effect upon her claim, and if necessary with her medical expert.
OCS Group Limited -v- Wells (2008) ECHC919 (QB). Nelson J