OCS Group Ltd. v Wells

Under CPR 31.16, medical records may satisfy the requirements for pre-action disclosure where a personal injury claim includes reduced earning capacity. The court must nevertheless decide whether disclosure is desirable before proceedings. Disclosure of private medical records to the defendant or its advisers will generally be inappropriate before the claimant has considered the records, usually through the claimant’s medical expert. Delay and resulting investigative prejudice should ordinarily be addressed through costs, rather than premature disclosure. The appeal was dismissed because the records were relevant in principle, but pre-action disclosure would not fairly dispose of the anticipated proceedings, assist settlement or save costs.

The claimant brought a proposed personal injury claim against her employer after injuring her back at work. Primary liability was admitted, but the claim included loss of earnings or reduced earning capacity and the parties had not received a medical report or schedule of loss. The defendant applied for pre-action disclosure of the claimant’s medical records under CPR 31.16.

The County Court refused the application, holding that the records were private and protected by article 8 of the Convention and that their relevance had not been established at that stage. The defendant appealed, challenging the findings on jurisdiction and relevance. The central issue was whether the records fell within the hypothetical standard-disclosure obligation and, if so, whether pre-action disclosure was desirable.

1. The appeal was dismissed. The judge had jurisdiction under CPR 31.16(3)(a) to (c). The parties were likely to be parties to subsequent proceedings, and the medical records would probably fall within standard disclosure under CPR 31.6.

2. Medical records could support either side. They might establish normal pre-accident health and support the claimant’s claim, or reveal a condition capable of affecting earning capacity independently of the accident. Their general relevance in personal injury claims, particularly claims for continuing loss of earnings or reduced earning capacity, was established.

3. Relevance under CPR 31.16(3)(c) is assessed hypothetically by asking what disclosure would be required if proceedings had started. It was therefore artificial to say that the records were not yet relevant merely because the claimant had not served a medical report.

4. The requirement in CPR 31.16(3)(d) created greater difficulty. Pre-action disclosure was not desirable where the claimant had not yet considered the records with her medical expert and the precise damages claim remained undefined. The records might cause the claimant to limit or withdraw part of the claim. Disclosure to the defendant’s insurers or solicitors could increase contention and might not save costs.

5. The claimant’s delay had prejudiced the defendant’s ability to value and investigate the claim. The appropriate remedy was an order for costs, not premature disclosure of private medical records. Consistently with Dunne v British Coal Corporation and Bennett v Compass Group UK and Ireland Ltd, the records should initially be considered by the claimant’s medical adviser and then by the claimant before disclosure to the defendant’s representatives.

6. The court preferred the approach in Bennett v Compass Group UK and Ireland Ltd to the relevant obiter observations in Black v Sumitomo Corpn. The County Court had reached the correct result, albeit for slightly different reasons.

• High Court (Queen's Bench Division): appeal from the order of His Honour Judge Brasse dated 3 August 2007. The appeal was dismissed.
• Clerkenwell and Shoreditch County Court: application for pre-action disclosure of medical records refused.