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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bennett v Compass Group UK & Ors [2002] EWCA Civ 642 (18 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/642.html Cite as: [2002] EWCA Civ 642, [2002] ICR 1177 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COUNTY COURT
(His Honour Judge Rubery)
Strand London WC2 |
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B e f o r e :
LORD JUSTICE CHADWICK
and
LORD JUSTICE CLARKE
____________________
BENNETT | Claimant | |
- v - | ||
COMPASS GROUP UK | Defendants | |
and | ||
IRELAND LIMITED and ANOTHER |
____________________
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020-7421 4040 Fax No: 020-7831 8838
(Official Shorthand Writers to the Court)
MR BRUNNING (instructed by Beachcroft Wansboroughs, Birmingham B12 2HE) appeared on behalf of the Defendant
____________________
Crown Copyright ©
18th April 2002
LORD JUSTICE CLARKE:
The Claim
The Proceedings
"1. Parties to give standard disclosure to all parties by serving copies with a disclosure statement by 10th September 2001.
2. The latest date for service of any request to inspect or for a copy of the document is by 17th September 2001.
3. Each party shall serve on every other party the witness statements of all witnesses of facts on whom he intends to rely. ...
4. The parties have permission to instruct one medical expert each.
5. The parties shall exchange reports as to medical matters. ...
6. The exchange shall take place simultaneously by no later than 30th November."
"The claimant do within 14 days supply both defendants all authority to enable them to obtain for their medical experts copies of both GP's and hospital records. Appeal on this order refused."
The Appeal
"The point is obviously of practical importance and clear guidance from the Court of Appeal would be helpful."
Jurisdiction
"A party may inspect a document mentioned in ...
(e) subject to rule 35.10(4) an expert's report.
(Rule 35.10(4) makes provision in relation to instructions referred to in an expert's report)."
"(1) A party to whom a document has been disclosed has a right to inspect that document except where —
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold inspection of it; or
(c) paragraph (2) applies.
(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of documents disclosed under rule 31.6(b) —
(a) he is not required to permit inspection of documents within that category or class; but
(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate."
"(1) A party's duty to disclose documents is limited to documents which are or have been in his control.
(2) For this purpose a party has or has had a document in his control if —
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it."
"Standard disclosure requires a party to disclose only —
(a) the documents on which he relies; and
(b) the documents which —
(i) adversely effect his own case;
(ii) adversely affect another party's case; or
(iii) support another party's case ..."
"(1) The court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of the following things:
(a) disclose documents or classes of documents specified in the order;
(b) carry out a search to the extent stated in the order;
(c) disclose any documents located as a result of that search.
(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2)."
"3.1(1) the list of powers in this rule is in addition in to any powers given to the court by any other rule or practice direction or any other enactments or any other powers it may otherwise have.
(2) Except where these rules provide otherwise the court may ...
(m) take any other step, or make any other order, for the purpose of managing the case and furthering the overriding objective."
"Enabling the court to deal with cases justly'"
"Since 1970 the position is almost always dealt with by the plaintiff consenting to the production of the relevant documents to the defendant's medical advisers. Those holding the documents have no interest in preventing the defendant's doctor seeing them; but they cannot do so in the absence of the plaintiffs consent, since the information in them may well have been given in confidence. In my experience plaintiffs almost always consent. If they do not and they withhold their consent unreasonably, then rather than making an application under section 34 of the Supreme Court Act and Order 24 rule 7 A the defendant can apply for a stay of the action until the plaintiff does consent. This procedure is adopted if the plaintiff unreasonably refuses to submit to medical examination: See Edmeades v Thames Board Mills Limited [1969] 2 QB 67."
"Unless the plaintiff provide written authority for release to the defendant of all his medical records and notes held by (i) his general practitioner (ii) the hospital that treated him and (iii) the defendant's own medical officer the action be stayed."
"If you have any intention of returning the forms of authority for the release of your client's medical records."
"An order would not normally be made at that stage in the proceedings i.e before disclosure having taken place."
"All authority to enable them to obtain for their medical expert copies of both GP and hospital records."
"Please clarify once and for all whether your client will attend the appointment with Mr Weyhill and if you have any intention of returning the forms of authority for the release of your client's medical records."
"The claimant do within 14 days supply both defendants all authority to enable them to obtain for their medical experts copies of both GP and hospital records."
"... I had indicated orally earlier than on the morning of the hearing to the first defendant's solicitors that we would be producing copies of the GP notes and hospital records, and that we had no objection to that. That was the case at the start of the hearing."
"My main contention simply is that Deputy District Collis' order was wrong because the court does not have jurisdiction to order in this case the claimants to sign a bit of paper, hand that paper over to his or her opponents, which bit of paper gives those opponents the right in effect to direct access to documents to which the defendants would not otherwise have direct access."
"The court in the course of giving case management directions has no authority/jurisdiction/discretion whatsoever to order a party to sign medical authorities and/or to provide such signed documents to that party's opponents. It was therefore wrong of the learned deputy district judge to order as he did."
"The point is obviously of practical importance and clear guidance from the Court of Appeal would be helpful."
"An important point of principle or practice." (CPR 52.13).
"Parties to give standard disclosure on all parties by serving copies with the disclosure statement by 10th September 2001.
2. The latest date for service of any request to inspect, or for a copy of a document, is by 17th September 2001 "
"The claimant do within 14 days supply both defendants all authority to enable them to obtain for their medical experts copies of both GP's and hospital records."
"In principle it seems to me that it cannot properly be the legal and medical advisers [who decide the question]; it must be the court. The example has been debated in this case where a plaintiffs general practitioner's records disclose that, say, 20 years ago the plaintiff had a sexually transmitted disease, but that she recovered fully from it, and does not suffer any effects from of it. One can understand the plaintiffs advisers not wanting to disclose that particular record. In those circumstances, they could simply say, 'We object to the production of the record of such-and-such a date, 20 years ago. Faced with that claim of non-relevance the defendants' legal advisers would no doubt ask their medical advisers whether that particular entry, without enquiring as to its contents, had any relevance to any issue in the case. If told 'no' they might well accept that advice. If they chose not to they would be entitled to go to the court and say, 'Please decide'.' The district judge or master would look at the record and would enquire of them, if they seriously suggested that a disease, whatever its nature, suffered 20 years ago, but completed recovered from, was of any relevance. That is how I for my part would envisage the matter being determined by the district judge or master."
"Where a medical expert is to be instructed, the claimant's solicitor will organise access to relevant medical records: see specimen letter of instruction at Annexe C."
"... a party considers that it would be disproportionate to the issues in the case to permit inspection of documents ..."
"The normal order for disclosure will be an order that the parties give standard disclosure."