Dr Geoffrey William Guy & Ors v Nihal Mohammed Brake & Ors (Moratorium cancellation directions)

In an application to cancel a mental health crisis moratorium, the court may direct focused disclosure and expert evidence where those steps are reasonably required to determine eligibility or prejudice issues. The court provisionally considered that eligibility under regulation 28(2)(e) may involve an objective assessment of whether the debtor had a serious mental disorder and was receiving crisis, emergency or acute care or treatment, rather than merely accepting the professional’s opinion. The issue was left for the substantive hearing. Disclosure of confidential medical information may be ordered where it is relevant, proportionate, legally authorised and protected by appropriate confidentiality safeguards. The court also has jurisdiction to require a party seeking to maintain the moratorium to submit to a suitable medical examination, subject to appropriate sanctions or procedural consequences for refusal.

The applicants sought directions for their substantive application to cancel the first respondent’s mental health crisis moratorium under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020. They relied on unfair prejudice and material irregularity concerning eligibility. The respondents included the debt advice provider and the mental health trust involved in the moratorium process.

The principal disputes concerned disclosure of medical records, examination of the first respondent by an expert instructed by the applicants, the proposed nephrology evidence, the sequence of factual and expert evidence, and the hearing timetable. The judgment determined those case-management issues only; the merits of cancellation remained to be decided.

1. Directions and disclosure. The application was directed to a two-day final hearing, conducted over four consecutive half-days. The second and third respondents were ordered to disclose documents likely to support or adversely affect the application on the first respondent’s symptoms, referral, assessment, diagnosis, seriousness of disorder, prescribed treatment and treatment actually received.
2. Disclosure jurisdiction. Although the application was not a Part 8 claim and no statements of case existed, CPR Part 31 was the appropriate procedural regime. CPR rule 31.12 supplied jurisdiction for specific disclosure in a discrete application. The order was appropriate and proportionate because the relevant patient files were likely to contain probative material and were unlikely to be extensive. Practice Direction 57AD would have led to Model D disclosure if it applied. The court’s inherent jurisdiction supplemented, but could not contradict, applicable procedural rules.
3. Eligibility issues. The substantive application would require consideration of whether the first respondent had a mental disorder of a serious nature and whether the treatment received was crisis, emergency or acute treatment. The court provisionally considered that regulation 28(2)(e) might require an objective assessment based on the evidence, with the professional opinion being relevant but not conclusive. That question was left open.
4. Medical examination and expert evidence. The court had jurisdiction to make an unless order or other appropriate order where a defendant’s refusal to undergo a suitable medical examination would prevent the just determination of the case. Here, an examination by an appropriate mental-health expert was reasonably necessary and the interests of justice required it. CPR rule 35.1 was satisfied because the evidence was reasonably required to resolve issues in the proceedings and was likely to assist the court. The absence of a cost estimate did not invalidate permission for expert evidence.
5. Other evidence and Article 8. Nephrology evidence was not required because renal failure was not itself in issue and the relevant questions concerned psychiatric diagnosis, seriousness and treatment. Disclosure of medical information interfered with Article 8, but an order under CPR Part 31 or the court’s inherent jurisdiction would be lawful, necessary and proportionate where confined to relevant material and accompanied by confidentiality safeguards. The directions were accordingly made, with liberty to apply and costs in the application.

First-instance directions decision. The substantive application to cancel the moratorium remained outstanding.