Christos Tolias v The Medical Defence Union

Extended disclosure must be reasonable and proportionate, having regard to the overriding objective and the factors identified in PD57AD. The party seeking extended disclosure bears the burden of showing that it is justified. In a claim challenging the exercise of a discretion, disclosure of a decision-maker’s entire history will ordinarily be disproportionate. Comparative disclosure should be confined to decisions involving materially similar circumstances and considerations. Disclosure of policies and internal guidance should focus on material applicable when the challenged decisions were made, together with evidence of departure from those policies. Wider requests for historical policy development, general operational changes or diffuse training material should be refused where they have no sufficient relevance or probative value.

The claimant, a neurosurgeon and former member of the defendant medical defence organisation, challenged two decisions refusing discretionary assistance with a clinical negligence claim. The defendant argued that the claimant’s commercial insurance should have responded and that relevant circumstances ought to have been notified before membership ended.

At a case management hearing, the court determined disputed disclosure issues concerning comparative decisions, policies and guidance governing discretionary assistance, the defendant’s later decision to cease cover for spinal surgery, and a proposed Model C request. The central question was what disclosure was reasonable and proportionate to the pleaded challenge to the defendant’s exercise of discretion.

1. General approach. The court held that disclosure under PD57AD, or under CPR 31.6, is premised on a reasonable search for relevant documents. Extended disclosure must be reasonable and proportionate, considering the nature and complexity of the issues, the importance of the case, likely probative value, document volume, search expense, the parties’ financial position and the need for expeditious and proportionate determination. The requesting party bears the burden of justification. Confidentiality, privilege, redaction and the possible need for a confidentiality club are relevant to proportionality at the stage of deciding the order.
2. Issue 3. Disclosure of every substantive decision made over six years was unjustifiably wide. Any material comparative evidence was likely to exist only in cases involving similar requests and similar considerations. The court therefore approved the defendant’s narrower formulation, covering former-member clinical negligence cases in which the potential availability of other insurance was identified as a relevant factor. The additional wording proposed by the claimant would capture decisions based on unrelated matters and was disproportionate. The timing of notification relative to cessation of membership could be evaluated within the narrower cohort.
3. Issue 4. Disclosure of the applicable stated policy or standard approach concerning the potential availability of other insurance, together with documents evidencing departures from it, was sufficient. The formulation also captured relevant internal guidelines and would enable inconsistency with public statements to be assessed. Earlier policy versions and wider categories concerning policy development were not shown to be necessary.
4. Issue 6 and Model C request. The proposed issue concerning the defendant’s later decision to cease providing cover for spinal surgery was directed to general operations and had no application to the challenged decisions. It was therefore excluded. The proposed wide-ranging request for training documents, instructions and other diffuse materials was also unnecessary and disproportionate after the decisions on Issues 3 and 4.