DEFENDANT’S APPLICATION FOR PRE-ACTION DISCLOSURE REFUSED: AN ORDER WOULD NOT SAVE COSTS OR ASSIST THE DISPUTE TO BE RESOLVED WITHOUT PROCEEDINGS

January 10, 2019 · by · in Appeals, Applications, Damages, Disclosure

In Lacey v Leonard [2018] EWHC 3528 (QB) Mrs Justice Slade DBE upheld a decision refusing the defendant’s application for pre-action disclosure.  The primary ground for refusal was that disclosure of medical records, and various documents relating to employment, would not lead to a saving of costs. The matter could not be resolved without medical evidence.  The defendant’s application did not meet the requirements of CPR 33.16.

“…the evidence before the court does not suggest that pre-action disclosure of medical records relating to the accident would assist in resolving the dispute without proceedings, nor lead to a saving of cost”

THE CASE

The claimant was involved in an accident in September 2016. Liability was admitted. The claimant’s solicitors advised the defendant that the claim had a value “in the region of £750,000”. No further particulars were given by the defendant.   The defendant applied for pre-action disclosure of medical records, documents relating to pre-accident earnings, evidence relating to pre-accident job offers.

The defendant’s application was refused by the Master who gave permission to appeal.

THE RULES

The relevant rule is CPR 31.16.

CPR 31.16

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.

(2) The application must be supported by evidence.

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

(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.

THE MASTER’S DECISION

The Master refused to make an order on the basis that the application did not come within 3(d):

“4. In conclusion I can say that I am not persuaded disclosure pre-action as is sought by the applicant can be reconciled to the requirements in CPR 31.16(3)(d). Disclosure will not, in my estimation, dispose fairly of the anticipated proceedings; it will not assist the dispute to be resolved without the need for those proceedings and it will not necessarily save costs.
5. I say this in light of the submissions made by the respondent to the application – the would be claimant – which in my view have sufficient force to weigh against an exercise of discretion: principally it is argued that having regard to the nature of the documents sought as well as the nature and value of any claim the respondent may pursue, the parties are unlikely to reach an agreement to settle the claim without the crucial benefit of expert medical evidence. Clearly the provision, by way of pre-action disclosure, of wage slips, tax returns, medical records and job offers, cannot enable the parties to be as critically informed of the risks and the potential value of the claim or the fair disposal of it, as will their having to hand relevant, expert, medical opinion. The limited pre-action disclosure that remains in issue in this instance is unlikely by itself to lead to saving of costs or capable of resolving or disposing fairly of the anticipated proceedings.
6. Without the conditions to be found in CPR being present I am refusing the application in relation to what relates back to paragraph 3 of the application notice and it is 1(a), (e) and (f) in particular I am refusing at this stage”

THE DEFENDANT’S UNSUCCESSFUL APPEAL

The judge upheld the Master’s order.

  1. In my judgment the evidence before the court does not suggest that pre-action disclosure of medical records relating to the accident would assist in resolving the dispute without proceedings, nor lead to a saving of costs. As the parties have recognised and as explained by Nelson J in OCS it is expert medical reports and not raw data which may or may not be relevant which are likely to form a basis for settlement.
  2. With regard to the making of an interim payment, the evidence before the court is that £25,000 was requested by Mr Lacey. On behalf of Mr Leonard £10,000 was offered subject to conditions set out in a letter from his solicitors of 10 October 2017. There is no evidence that the parties moved from their respective positions. Mr Mazzag was right to point out that neither in Mr Adams’ statement nor in correspondence was it said that an interim payment would be made if medical records were provided.
  3. The contention that providing medical records would assist in agreeing a rehabilitation provider which in turn may assist recovery and reduce loss does not bring the application within CPR 31.16(3)(d). This string of reasoning is far removed from establishing a basis for saying that disclosure of relevant medical records would be likely to lead to the saving of costs or the resolution of the claim.
  4. As for requests 1(e) and (f), solicitors for Mr Lacey have explained in correspondence his lack of employment in the relevant period. In paragraph 20 of his statement of Mr Slade says that there had been no job offers or acceptances.
  5. Whilst there must be some sympathy with the insurers of Mr Leonard in being faced with an unparticularised claim for the large sum of £750,000, their application for pre-action disclosure does not satisfy CPR 31.16(3)(d) and is dismissed.
Tags: