Pre-Action Disclosure of Medical Records in Portal Cases

Even in cases where breach of duty and some degree of loss or injury is admitted, Defendants will commonly have doubts about medical causation regarding a claim intimated under the  Pre-Action Protocol for Low Value Personal Injury  in Road Traffic Accidents from 31 July 2013 and the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims [“the Pre-Action Protocols”]. As in any case, these doubts can be compounded by developments later in the process; where the Claimant fails by a considerable distance to recover within the expected prognosis period, for example, leading to long periods of inaction and significant increases in potential value. Defendants will regularly in such circumstances seek voluntary disclosure of the Claimant’s full medical records for the purposes of further investigation, which are often acceded to by the Claimant and their representatives.

It may surprise some to learn, however, that the Pre-Action Protocols themselves do not endorse this approach. In fact, paragraph 7.4 of the Protocols expressly limits the scope of medical disclosure and provides that the Claimant’s medical expert will be the sole arbiter in determining which records, if any, are sent to the Defendant:

(1) The medical expert should identify within the report—

(a) the medical records that have been reviewed; and

(b) the medical records considered relevant to the claim.

(2) The claimant must disclose with any medical report sent to the defendant any medical records which the expert considers relevant.

The pitfalls of this mechanism are not difficult to see:

1. First, there is no requirement under the Protocol for the Claimant to have provided the expert with all of his medical records[1] – only that the expert identify those which have been reviewed and, of those, identify which are relevant.
2. Second, and perhaps more significantly, the Defendant is reliant upon the expert’s assessment as to which are (as opposed to ‘may be’) relevant records, from which there is no right of review or challenge.

Following the Pre-Action Protocols, then – notwithstanding that the Defendant may have legitimate concerns about causation, and even in circumstances where the parties are facing a significant delay before a prognosis will be finalised and there is therefore no prejudice in terms of delay – the Claimant is under no obligation disclose fuller records.

If the Claimant is to refuse access, the Defendant is faced with a dilemma, as to withdraw the admission of causation under Paragraph 7.36 [EL/PL] would inevitably see a claim issued under Part 7, bringing with it a significantly increased costs liability. One naturally wonders whether an application for pre-action disclosure provides a potential remedy.

In answering the question, it is first useful to consider the approach of the Court to pre-action disclosure of medical records generally; the most significant case being OCS Group Ltd –v- Wells [2008] EWHC 919 (QB) [‘OCS’]. C alleged that she had sustained injuries to her back in the course of her employment by the Defendants, and further intimated pre-action a significant loss of earnings on the basis that she had been unable to work and was suffering from severe financial difficulties. This puzzled the Defendants, as C had been able to return to work full time without absence for some months before going off sick. The Defendants admitted primary liability in June 2006, but by the time of the hearing in January 2008 had not received a medical report or schedule of damage. Having been refused access to C’s medical records to aid their investigation, the Defendants applied for pre-action disclosure. The application was refused at first instance.

Dismissing the appeal, Nelson J noted [at 25] that ‘the general relevance of medical records in personal injury claims… is well established. Such records are essential for the preparation of the Claimant’s own medical report’ and were integral in understanding ‘what injury was caused by the accident and the extent of the pain, suffering and disability flowing there from.’ Thus, it was inevitable the Claimant’s medical records would be disclosed under standard disclosure if proceedings had started, and this was particularly so in cases where the Claimant was asserting some loss of earnings or reduced earning capacity.

However, when it came to the fourth limb of the test under CPR 31.16, disclosure was not deemed desirable either to dispose fairly of the anticipated proceedings or to assist the dispute to be resolved without proceedings. Per Nelson J [at 33]: ‘It might be said that if a claimant brings a claim she must be prepared to reveal her medical records to the opposition. This is so, but only at the appropriate time and to the appropriate people. Such records should not in my judgment be disclosed before the Claimant has had an opportunity of considering them… and their affect upon her claim, and if necessary with her medical expert who will have considered them for the purpose of preparing the report… Until that time has been reached she cannot determine precisely what she wishes to claim…’

Although the decision is now over 15 years old, it remains persuasive. OCS was followed in the more recent Lacey v Leonard [2018] EWHC 3528 (QB), where Master Gidden confessed having ‘some sympathy with the insurers… being faced with an unparticularised claim for the large sum of £750,000’, but held that an application prior to medical evidence being served was premature and did not satisfy CPR 31.16(3)(d).

Given the weight of the case law above, and the limited disclosure obligations contained within the Pre-Action Protocols (themselves intended to be self-contained procedural codes), is an application for pre-action disclosure a non-starter?

The short answer is ‘no’ – nothing within the Pre-Action Protocols can be construed as limiting the general power of the Court to grant relief under s52 County Courts Act 1984, and the Court can and has exercised this power to the benefit of Defendants in Portal claims. An application at a juncture where the Claimant’s claim has been, in the words of Nelson J, ‘fully delineated’ (even if a final prognosis has not been reached), can and should be made if there are features of the case which so call for it, and it is not merely a fishing expedition. As a general rule, disclosure is more likely to be ordered where the Applicant can identify some combination of the following:

1. The medical report does not consider the Claimant’s medical records, in their entirety or at all;
2. The accident by its very nature tends give rise to doubts regarding causation (e.g. LVI);
3. The injury complained of is one where there is more likely to be a relevant medical history or organic cause (e.g. lower back pain);
4. There are indications in the medical records disclosed with the report/s which tend to suggest a relevant medical history or prior injury, or give an inconsistent account of the index accident;
5. There are inconsistencies between the medical report and CNF as to either accident circumstances or injury;
6. There are no objective signs of injury upon examination by the medical expert (so-called ‘self-reporting’ cases);
7. The recovery period extends well beyond the initial prognosis given by the medical expert;
8. The Claimant does not have a pre-existing relationship with the Defendant (the Claimant is less likely to be embarrassed by the records being shown to a non-interested third party, such as a motor insurer, for example).

The applicant should remind the court that the stated aim of the Protocols is to ensure that the parties reach settlement without the need for the claimant to start proceedings [3.1]. If the Applicant can show that there is a legitimate line of enquiry which will likely assist them in finalising its position on causation and making a suitable offer without issue of proceedings, an application may well be granted.

However, a prospective applicant would do well to heed the lessons of OCS regarding the timing of an application. It would seem that an application cannot be made until at least the point at which a prospective claimant has served their initial medical report. Applications for pre-action disclosure of medical records at the initial liability response stage are unlikely to be successful. At this stage, the records remain private and confidential, containing information that could be either embarrassing or even disturbing to the Claimant. This is particularly so where the prospective Defendant is the Claimant’s employer or similarly closely connected to her. Claimant solicitors should be very cautious about consenting to any request, especially if there is material contained therein which could jeopardise an early admission.

It is finally worth noting that, even in circumstances where an application is successful, the default position under CPR 46.1 is that the applicant will pay the respondent’s costs of the application and complying with the order (usually limited under CPR 45.29H to £250+VAT).

[1] Indeed, in most claims less than £10,000 proceeding under the RTA Protocol, it is expected that the medical expert will not need to see any medical records at all. [7.5]