Bennett v Compass Group UK and Ireland Ltd

Where relevant documents are held by a third party but are within one litigant’s control because that litigant has a right to inspect or copy them, the court may order that litigant to provide authority enabling the opponent to obtain inspection or copies directly. That power should be exercised cautiously. In personal injury claims, the usual course is for the claimant’s solicitors to organise disclosure of medical records. A direct-authority order should be rare, clearly drafted, and confined to the documents and purpose in issue. The appellate court will not interfere with the first-instance exercise of discretion unless there is an error of principle, an irrelevant consideration, a failure to consider a relevant matter, or a plainly wrong conclusion.

The claimant brought personal injury claims against her employer and the occupier of premises after two falls on a staircase. Her orthopaedic expert’s report referred to GP and hospital records. During case management, the defendants sought authority enabling them to obtain copies of those records for their medical expert. The deputy district judge made the order, despite the claimant’s solicitor indicating at the hearing that the records would be provided. The county court judge dismissed the claimant’s appeal. The central issues before the Court of Appeal were whether the court had jurisdiction to make such an order and, if so, whether the discretion had been exercised improperly.

1. Appeal dismissed by a majority. Clarke LJ gave the leading judgment, with Chadwick LJ agreeing. Pill LJ accepted that the jurisdiction existed but dissented on its exercise and would have allowed the appeal.
2. The combined effect of CPR 31.3 and CPR 31.14 was that the defendants had a right to inspect the relevant GP and hospital records. CPR 31.8(2)(c) brought documents within the claimant’s control where she had a right to inspect or copy them. CPR 31.12(3), read with CPR 3.1(2)(m) and the overriding objective in CPR 1.1(1), empowered the court to order the claimant to provide authority permitting the defendants to obtain inspection or copies directly from third-party record holders.
3. The jurisdiction was not confined to medical records. It could apply where documents relevant to litigation were physically held by a third party, but were within one party’s control and disclosable by that party. The normal order should require the party concerned to permit inspection. A direct-authority order may be appropriate where necessary, but should be rare, carefully drafted, and limited to the specified documents and purpose. It must protect the claimant’s legal and Convention rights.
4. The deputy district judge was entitled to consider the defendants’ reasonable need for the records before an impending medical examination and the claimant’s solicitors’ repeated failure to respond to requests. The order was not premature. The judge had not erred in principle, taken account of an irrelevant matter, omitted a relevant matter, or reached a plainly wrong conclusion.
5. Pill LJ considered that, save in exceptional circumstances, medical-record disclosure should be organised and managed by the claimant’s solicitor. He regarded paragraph 11 as an unjustified and plainly wrong transfer of control to the defendants on these facts. That reasoning was dissenting.
6. The appeal was dismissed. Costs were awarded to the respondents in the sum of £3,164.10.

• Court of Appeal: Appeal dismissed by Clarke LJ and Chadwick LJ; Pill LJ would have allowed it: [2002] EWCA Civ 642.
• Stoke on Trent County Court: His Honour Judge Rubery granted permission to appeal from the deputy district judge’s case-management order but dismissed the appeal on 12 October 2001.
• Stoke on Trent County Court: Deputy District Judge Collis ordered the claimant to provide authority enabling the defendants to obtain copies of the GP and hospital records.