PATRICK DOCHERTY AGAINST BABCOCK INTERNATIONAL & OTHERS
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF COURT
[2017] SC EDIN 33
PN2537/16
NOTE BY SHERIFF KENNETH J MCGOWAN
In the cause
PATRICK DOCHERTY
Pursuer
Against
BABCOCK INTERNATIONAL & OTHERS
Defenders
Pursuer: Shields (sol adv)
Defender: Anderson QC
NOTE
Introduction
[1] This case came before me on the second defenders’ motion, 7/1 of process, to approve a specification of documents and grant commission and diligence for recovery of documents referred to therein. This was opposed by the pursuer. I granted the motion. As the matter raised an important point of principle, I indicated that I would give my reasons in writing for granting the motion.
[2] In the course of the submissions, I was referred to the following authorities/sources:
a. Greig v Crosbie (1855) 18 D 193
b. Sheriff Court Practice, MacPhail, 3rd edition, paras 15.51, 15.53
c. Hendry v Alexander Taylor & Sons 2008 Rep LR 38
d. McLean v Argyll & Clyde Health Board [2010] CSOH 54
e. Williamson v Advocate General for Scotland 2006 SLT 611
f. Jean Lamb v Alison Wray 2014 SLT (Sh Ct) 2
g. MacRae v British Transport Commission 1957 SC 195
h. Rogerson v Rogerson 1964 SLT (Notes) 89
i. Z v Finland (1998) 25 EHRR 371
j. Bennett v Compass Group [2002] EWCA Civ 642
k. Dunn v British Coal Corporation [1993] ICR 591
l. Paterson v Paterson 1919 1 SLT 12 and
m. Harris v The Advocate General [2016] CSOH 49
Submissions for second defenders
[3] Mr Anderson took me to the terms of the specification. The first three calls were directed at information in the hands of the Department for Work and Pensions; call 4 was directed at GP records; and call 5 was directed at hospital records.
[4] The grounds of opposition appeared to be that recovery was premature and unnecessary; and that the calls were too wide and not supported by averments.
[5] The pursuer was a 68-year-old former welder who had developed pleural plaques. He claimed damages on the basis of a provisional award or, alternatively, final decree. His claim for damages was set out in Article 6 of the initial writ. There was an averment about attendance at the Victoria Infirmary, Glasgow on 25 November 2013. That was a significant date.
[6] The approach taken by Lord Boyd of Duncansby in Harris was relevant.
[7] The second defenders’ position was set out in answer 6. As might be apparent from the terms of the averments at line 6 and following, the second defenders had had access to some hospital records. In addition, a medical report commissioned by the pursuer’s agents from Dr Sproule had been disclosed: number 5/1/2 of process.
[8] There was information available which showed that the pursuer had had a CT scan in April 2013. That was potentially relevant to the question of limitation.
[9] In accordance with the approach taken in Harris, the pursuer had a 0.2% risk of developing asbestosis and a 5% risk of developing mesothelioma.
[10] In this case, the pursuer had put in issue questions of future loss and life expectancy. The second defenders had thus far pled their case as fully as they could, based on information currently available to them.
[11] Turning to the timetable, the proof was due to commence on 27 June this year; the period for adjustment ended on 13 February; and the defenders’ statements of valuation had to be lodged by 13 March. Thus, time was short.
[12] The pursuer’s Form P12 specification for recovery of medical records in the hands of the pursuer’s GP, Dr Johnston and Victoria Infirmary (but restricted to the period from 25 November 2013) was granted on 23 November 2016, but it was not served for some seven weeks. The GP records recovered by that process had only been disclosed recently. It appears that they had not been seen by the pursuer’s own medical expert.
[13] The pursuer’s position was that all relevant medical records to show the circumstances leading to the diagnosis of asbestos related disease; the nature and extent of the condition; the risk of future progression or development of asbestos related disease; and detail of all medical conditions which the pursuer suffers, or has suffered, would be disclosed which will enable the parties’ instructed medical experts to consider the pursuer’s life expectancy. That was in essence the critical issue to be determined by the court in relation to this motion.
[14] The second defenders relied on the approach taken in Hendry. The specification in that case was framed in similar terms to the specification in this case and the circumstances were on all fours. Much was being made in this case of the suggestion that this was a “fishing diligence”, but it was not for the reasons set out in Hendry.
[15] The approach taken in Hendry had been followed in McLean and the court was invited to follow that approach in the present case.
[16] Turning to the question of necessity, the agents for the second defenders had made enquiries by email of the consultant they proposed to instruct for an expert report, asking whether he thought it necessary to see the full medical records. His position was that it would be folly for him to comment on future life expectancy without a full review of medical records. This was because features such as a person’s (prior) lifestyle (such as smoking) would be relevant in that assessment.
[17] In so far as it was suggested that the calls were framed more widely than necessary, that was also dealt with in Hendry.
[18] In so far as it was suggested that the specification was not supported by averments, that was simply not right: Answer 6.
[19] Without recovery of the records now sought, the second defenders would be at a disadvantage in terms of their preparation. It was legitimate to ask what the pursuer was trying to hide. This had the flavour of the pursuer’s agents refusing access to prior medical records as a matter of policy.
[20] There were two further matters. Firstly, Dr Sproule’s report identified a potentially crucial date in April/May 2013. The initial writ was not warranted until November 2016. Accordingly there was a possible issue of time bar. It was not being asserted at this stage that the claim was time-barred, but that was clearly an issue which the second defenders were entitled to investigate. If there turned out to be a live issue about that, it was in the interests of both parties to know that now, rather than in the middle of the proof.
[21] Secondly, the more information which was shared between parties, the more likely it it was that the case would settle. Pleural plaques cases tended to settle in any event. That was in the interests of both parties and court.
Submissions for pursuer
The Action
[22] This was an action for damages arising from the pursuer’s development of asbestos related disease.
[23] The pursuer was employed by the defenders from August 1964 to September 1969. As an apprentice welder with them, he alleges exposure to dust including asbestos fibres while working alongside other workers working with asbestos based materials.
[24] The pursuer avers that his pleural plaques were discovered as an incidental finding in the course of review of his former pancreatitic condition while attending the gastroenterology clinic at the Victoria Infirmary. After a CT scan was performed, he was referred to the respiratory clinic at the hospital. He attended there on 3 April 2014 and was informed of the finding of pleural thickening, pleural plaques and atelectasis. He has subsequently attended his General Practitioner.
Timetable
[25] The action was presently at the adjustment stage. The adjustment period was due to end 13/2/2017; pursuer’s valuation due 13/2/2017; Record due 27/2/2017; defenders’ valuation due 13 March 2017.
[26] The pursuer was granted Form PI2 specification of documents in accordance with Rule 36.D1 (2) to recover medical records relating to the pursuer and held by (i) the pursuer’s General Practitioner, Dr Johnston; and (ii) Victoria Infirmary, from 25 November 2013.
[27] The pursuer has served the Form PI2 on the General Practitioner and Queen Elizabeth University Hospital (who hold the records for Victoria Infirmary). The pursuer’s agents had received the GP records and those had been or were being lodged in process. The hospital records were expected imminently and would be lodged in process once received and in accordance with Rule 28.3.
[28] The pursuer was not attempting to conceal relevant medical records from the defenders. The defenders have already had sight of relevant medical records. The second defender avers in Answer 6 details of the pursuer’s smoking history; history of type 2 diabetes; glaucoma; pancreatitis; weight loss; angina; osteoarthritis; hip, knee and joint pain; that he suffers from exertional breathlessness; he suffered a myocardial infarction around 1994; underwent coronary angiography on 29 August 1994; and that he has been diagnosed with ischaemic heart disease and single vessel coronary artery disease.
[29] The pursuer would lodge in process all relevant medical records to show the circumstances leading to the diagnosis of asbestos related disease; the nature and extent of the condition; the risk of future progression or development of asbestos related disease; and detail of all medical conditions which the pursuer suffers, or has suffered, from which will enable the parties’ instructed medical experts to consider the pursuer’s life expectancy.
[30] The pursuer was entitled to an opportunity to consider disclosure of private and confidential medical records held on his behalf by a third party to a defender’s medical expert before a defender resorts to an application for recovery of his medical records by way of commission and diligence: Bennett para 85.
[31] Prior to intimation of the motion for commission and diligence, no such request had been made by agents for either defender.
Discretion of the Court
[32] Whether commission and diligence should be granted is a matter for the discretion of the court. “In granting diligence, it is a matter of discretion on the part of the [court] how far diligence should be granted”: Greig, per Lord Curriehill at page 196.
Object of Recovery
[33] The object of a commission and diligence to recover documents under Rule 28.2 is either (a) to enable a party to make more specific a case which has already been stated; (b) to answer averments or calls of the opponent; or (c) to recover, for purposes of the proof, documents which have a bearing on the pleadings: Sheriff Court Practice, para 15.51.
[34] Where a party seeks diligence for recovery of documents, it was for that party to show cause why the diligence should be granted.
[35] The underlying rationale of commission and diligence procedure was to restrict recovery to documents only if they are relevant to an issue in the pleadings: Hendry.
[36] Furthermore, the party seeking the diligence must show that the documents sought to be recovered were required to serve the purposes of the pleadings as those pleadings stand at the time the diligence is sought: McLean, para 12, citing Boyle.
[37] It was for the party seeking diligence to explain to the court the basis on which he asks the court to make the order; why he believes the documents exist and how they would be likely to assist him: Williamson, para 13. Although brevity and simplicity of pleadings are encouraged, fair notice of the claim must be given: Lamb, para 13; Sheriff Court Practice Note 3 of 2016, para 3.
Speculative or Fishing Diligence
[38] An application for the recovery of documents which were not relevant to the case which had been pleaded, but which it was expected would be relevant to the case which it was hoped to make with the assistance of those documents, was known as a “fishing” or speculative diligence, and will be refused: Sheriff Court Practice, para 15.53.
[39] In no circumstances would the court grant at any stage a “fishing” diligence for the recovery of documents which a party hoped would disclose material for a case which he had not yet averred: McLean, para 11, citing the Lord President in Boyle.
[40] The Courts had always been careful to guard against the granting of a fishing diligence dressed up as a diligence to recover documents to enable the party to make his existing averments more specific: MacRae, per LP Clyde, page 199.
The Privacy and Confidentiality of Medical Records
[41] The wider point was that Hendry and Williamson (which took their lead from Wilkie) should not be followed. They had all followed Dunn which had predated the introduction of ECHR into the law in 1998. None of the judges in Hendry, Williamson or Wilkie had been referred to the issue of Convention rights.
[42] Everyone had the right to respect for their private and family life, their home and their correspondence: Article 8, European Convention on Human Rights; Human Rights Act 1998.
[43] A defender’s medical expert was entitled to see a pursuer’s medical records which are relevant to the extent of his injuries, treatment and consequent amount of reparation: Rogerson; Bennett. The defenders’ solicitors were not entitled to see them.
[44] Having regard to the acutely sensitive and intimate nature of medical records, and the general interest in maintaining confidentiality in the patient-doctor relationship, the court must consider whether the reasons adduced to justify their recovery were relevant and sufficient, and that any authority granted to a defender to recover those records was proportionate and struck a proper balance between the interests of proper administration of justice and the pursuer’s right to respect for his private life: Z v Finland, paras 93 and 103.
[45] The Court of Appeal acknowledged the highly personal and intimate nature of medical records: Dunn, page 600; which judgment preceded enactment of the Human Rights Act 1998, noting that medical record disclosure could be limited to medical advisers, who must respect the confidential nature of the medical records, except insofar as is necessary to refer to matters relevant to the litigation.
[46] Medical records relevant to the pursuer’s injury should be made available, if requested, for inspection by the defender’s medical expert. However, a pursuer was entitled to the advice of his solicitor in matters of disclosure of medical records. Both in principle and for practical reasons, it was the pursuer’s solicitor who should organise access to relevant medical records: Bennett, para 85.
[47] A patient should retain control over their own medical records. Defenders should only be allowed to see a pursuer’s medical records in carefully defined circumstances. Any authority given to a defender to recover medical records from a third party for the purpose of their inspection must be very clearly and carefully drafted to ensure the pursuer’s rights were not infringed. A grant of commission and diligence to allow a defender to recover the pursuer’s medical records should only be made in exceptional circumstances: Bennett, paras 40, 41, and 85.
[48] Failure on the part of the pursuer to respond to a defender’s request for access to medical records was a matter for the court to take into account in exercising its discretion to grant commission and diligence: Bennett, para 72.
Cost and Inconvenience
[49] The court must consider the cost and inconvenience created for the haver in granting commission and diligence: Paterson; McLean.
Other issues
[50] It was only on 10 January that the defenders’ agents had said that they wished recovery of the records for review by their medical expert. It was accepted that their expert was entitled to review the records. The pursuer was prepared to consent to that subject to “controlled disclosure” to the expert only.
[51] Bennett was still good law; see also Wilkie, paragraph 7.
[52] The motion should be refused in its entirety. Call 1 was not necessary. The defenders knew that IIB was not payable in respect of pleural plaques. Calls 2 and 3 were unnecessary. The pursuer had already lodged a specification for recovery of the medical records prior to Christmas. It had been dropped but had been re-enrolled on 16 January.
[53] If the defenders wished their expert to have sight of the records, the pursuer was prepared to do that subject to the appropriate expert being identified and the pursuer remaining in control of the records which were to be disclosed.
Reply for second defenders
[54] The case of Z v Finland took the pursuer nowhere. Article 8 rights do not prevent disclosure of private material such as medical records. All ECHR rights are subject to the test of proportionality and are not absolute. In any event, in that case, disclosure had been permitted: paragraph 127. That was entirely consistent with the approach taken in Hendry, paragraph 5.
[55] So far as Bennett was concerned, the English rules about recovery were different as was the process by which this was achieved. Much of that was done by mandate and it was relatively unusual for it to be achieved by orders of court: see paras 72 and 85.
[56] In respect of the proposal to disclose the records to the defenders’ nominated expert only, it was appropriate that solicitors be relied on by the court to deal with such material responsibly. Moreover, the records contain material which was potentially not purely medical only in the sense that it bore on the question of time bar. That was a question which the defenders were entitled to have their solicitors investigate on their behalf.
[57] As for the timing of the request, the original request for disclosure of full medical records was made on 24 July 2016.
[58] The opposition was misconceived. Bennett does not amount to any kind of authority in Scotland. The distinction between it and Dunn is that the approach in the latter was discussed and approved by the Court of Session.
Discussion
[59] Before discussing the motion and opposition thereto, it is useful to summarise the nature of the claim and what is sought by way of recovery of documents.
[60] As already noted, the pursuer seeks provisional damages, or, in the alternative, final decree. There are two defenders to the action. The pursuer avers that he was employed by the first defender between August 1964 and 2 May 1967; and by the second defenders between October 1967 and September 1969. He says that during both periods of employment, he was exposed to asbestos fibres; that as a result of that exposure he has developed pleural plaques; that he is at risk of both (i) serious deterioration in his current condition and (ii) the development of malignant disease including asbestos related lung cancer and mesothelioma. He blames both defenders and has claims for (i) solatium; (ii) in the event of deterioration of his health (a) services provided by him and to him (personal care) and (b) patrimonial loss; and (iii) in the event of death, funeral costs.
[61] He says that he is in receipt of State Retirement Pension and Disability Living Allowance and has no income from the Railways Pension Scheme.
[62] In response, the second defenders aver the following matters (i) the pursuer has a history of (a) smoking, potentially stretching back at least as far as 1994 (b) other health problems including exertional breathlessness and a myocardial infarction in 1994; (ii) has been diagnosed with ischaemic heart disease; and (iii) the pursuer discussed his asbestos exposure; was provided with information on Clydeside Action on Asbestos; and was told of the need to make a claim within three years, all in April 2014. It is also about that the pursuer is in receipt of Industrial Injuries Disablement Pension, the records which are held by the Department for Work and Pensions (“DWP”).
[63] In terms of the specification, the second defenders seek documents held by
a. the DWP showing/tending to show
i. the date on which the pursuer’s pleural plaques was diagnosed;
ii. the cause, nature, extent and consequences of any such pleural plaques;
iii. any benefits received by the pursuer as a consequence [all Call 1];
iv. the State Retirement Pension paid or due to the pursuer as
1. at 1 December 2016
2. from 1 June 2017 [both Call 2];
v. the Disability Living Allowance paid or due to the pursuer as
1. at 1 December 2016 and
2. from 1 June 2017 [both Call 3];
b. the whole of the pursuer’s GP records [Call 4]; and
c. the whole of the pursuer’s hospital records held by the Queen Elizabeth University Hospital, Victoria Infirmary and Sutherland General Hospital, all Glasgow [Call 5].
Timing
[64] In my opinion, it could not be said that when this application was made, it was premature. Actions in this court operate to a tight timetable. Parties and their advisers are encouraged – if not required – to carry out their investigations promptly. Failure to do so can put them in difficulty.
[65] In passing, I observe that in terms of OCR 36.G1(1A)(b) and Schedule, Appendix 3 to the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (SSI 279/2010), a specification of documents granted under OCR 36.B1(2)(b) and 36.D1(2) is supposed to be executed not later than 28 days after defences have been lodged. That is, of course the latest date for execution of such. Accordingly, it appears to me that if commission and diligence has been granted to recover documents conform to such a specification that has not been executed, it will be difficult for pursuers to come to court and object to the granting of a similar specification in favour of other parties.
[66] I note the terms of OCR 28.3(4)(a) et seq. This rule appears to be regularly overlooked.
Privacy and disclosure to nominated medical expert
[67] It appears to me that these two issues overlap to some extent. I accept that a person’s medical records may contain information which is private and confidential. But the right to privacy is not absolute; and parties who are sued, have rights also: see, for example, Starr v NCB 1977 [WLR] 63 at 70H.
[68] I do not say that there are no cases where the disclosure of medical records to a nominated expert would not be adequate. But that is not the practice in Scotland and in particular, there may be issues arising (such as time bar in this case) where legal advice about the factual content of medical records is needed.
[69] In addition, it appears to me that such a restriction could be unsatisfactory in other ways. Let us assume that a pursuer agrees to disclosure of his whole medical records to his own solicitors; and in turn authorises them to disclose these to the medical expert whom they select to provide a report; and that the whole medical records are disclosed to the defenders’ nominated medical expert: is the latter restricted in reporting the content of those records to those instructing him? If he does so report, are the defenders’ solicitors to cross examine the pursuer’s nominated expert on the pursuer’s prior medical history on the basis of material in the records which they have not actually seen?
[70] These points suggest that the arrangement proposed by the pursuer’s agents risk introducing a level of complication which is unnecessary and which could have unintended consequences.
[71] In any event, the pursuer is not without rights as to privacy. In my opinion, it is clear that the defenders’ solicitors are not at liberty to start publicising material which comes to them in the context of the litigation. Apart from anything else, in what circumstances is it thought they might do so and why?
[72] Finally on this point, I agree with Mr Anderson: Bennett has no standing as authority in Scotland.
Discretion of the Court
[73] It was common ground that whether commission and diligence should be granted was a matter for the discretion of the court.
Object of Recovery
[74] The object of a commission and diligence to recover documents is not controversial. But in my view, a careful reading of what is stated in Sheriff Court Practice, para 15.51 and in Hendry supports recovery in situations like the present one. The former specifically refers to material apt to enable a party to answer averments of the opponent; and in the latter, Lord Malcolm said:
“The underlying rationale of our procedure is that recovery is allowed in respect of documents if, and only if, they are relevant to an issue raised on record. Thus in Paterson v Paterson, Lord Hunter said, ‘The recovery of documents in a cause is allowed in order that the court may be put in possession of documentary evidence bearing upon the issues of fact that have to be determined.’ In Dunn, it was observed that when a pursuer in a personal injury action claims future wage loss he is putting in issue his state of health at the time of the accident, since he must prove that any such loss was caused by the accident. Even if the pre-accident records reveal no illness or medical condition of note, that itself is relevant, albeit unhelpful to the defender. I agree with Stuart Smith LJ that this demonstrates that in such claims calls seeking pre-accident medical records are not in the nature of a speculative or fishing diligence. They are aimed at an issue which the pursuer has raised in the pleadings simply by putting forward a future wage loss claim. Thus the present defenders, who presumably have no knowledge whatsoever of the pursuer's state of health before the accident, are not obliged to make averments which ex hypothesi they cannot make unless and until they see the relevant records…” (Emphasis added).
[75] The decision in Hendry derived from the decision of the Court of Appeal in England in Dunn and I think it is useful to set out the relevant part of Stuart-Smith LJ’s judgement at page 597 et seq:
“In my opinion the [plaintiff’s pre-accident medical records] are relevant to the second broader issue which I have defined, whether or not they actually contain information that leads to the conclusion that the employee would not, but for the accident, have worked until normal retiring age. The employee must prove that the loss of future earnings or earning capacity was caused by the accident. The onus is on him. Strictly speaking therefore he must prove that he is in normal health and does not suffer from any condition which might cut short his working life. In the absence of evidence to the contrary, this is usually not contested by defendants at trial. But the claim for damages is in issue on the pleadings, and documents which show that the employee has never suffered anything more serious than an attack of influenza are relevant to this issue, just as much as documents which show that he is suffering from some condition or disease which is likely to cut short his working life. If that is correct, then this is not “fishing” discovery at all, although the employer will only be interested if the documents disclose the latter condition. This consideration only applies where there is a claim for continuing loss of earnings or impaired earning capacity. It will not apply in the great number of cases where a plaintiff has made a full recovery. If the documents in question had been in the possession or power of the employee, which they are not, in my view they would have been discoverable documents, whether or not they contained anything that was adverse to the employee's claim for continuing loss. They would not be subject to legal professional privilege since they did not come into existence for the purpose of litigation…”
[76] Thus, the key question appears to me to be: is the material which a party seeks to recover relevant to an issue in the case? That falls to be determined not only by what the person seeking recovery avers, but more broadly by determining what the issues in the case are – which may in turn depend on what the other party avers.
Speculative or Fishing Diligence
[77] For the same reason, an application for the recovery of such documents is not a “fishing diligence”. The situation here is very far removed from that in Greig where the pursuer was seeking material to enable him to ascertain what his grounds of action really were.
Concluding remarks
[78] In my opinion, Hendry was correctly decided and I respectfully adopt the reasoning and conclusions set out therein. I should say that I would go further and say that I see no reason why the recovery of pre-accident medical records should be necessarily be restricted to those cases where future wage loss is claimed. Where, for example, a pursuer’s case is that his life expectancy has been reduced, he is putting that in issue. Since questions of pre-existing illnesses and/or lifestyle might be relevant to that, it appears to me that the recovery of pre-accident medical records may legitimately be sought. That may be true also in cases where the pursuer attributes long-term sequelae to the effects of an accident.
[79] For my own part, I think that the issue of relevance (or potential relevance) to an issue in the case should be the determining factor; and that in turn should be determined not by reference to a technical requirement about averments but instead by a broader analysis of what the case is really about and what the issues are: Williamson, paragraph [11] – [13].
[80] I conclude by making reference to two of the authorities which were cited to me. In Paterson, Lord Hunter said:
“The recovery of documents in a cause is allowed in order that the Court may be put in possession of documentary evidence bearing upon the issues of fact that have to be determined. The draughtsman of a specification, as it appears to me, ought to frame the articles of his call with distinct reference to the issues of fact upon which the documents are supposed to have a bearing. Unfortunately that practice is too often not followed, and a general call is made for all documents, wherever they may be or in whose hands they may be, that are supposed to have any bearing upon any question that is mentioned upon the record. The result is that processes are frequently encumbered by quite useless documents and an enormous amount of unnecessary expense is caused to litigants.”
[81] In McLean, Lord Brodie said at paragraph [16]:
“A grant of commission and diligence is a warrant empowering the commissioner to act on behalf of the court and requiring havers to appear before him. The specification which requires to be lodged in process in terms of Rule of Court 35.2 (2) is intended to identify what it is that the commissioner is empowered to require the haver to produce. It therefore defines the scope of the powers conferred. It is incorporated by reference into the interlocutor which the court pronounces. It defines an entitlement to recover and an obligation to produce. It follows that it must be intelligible and that it must be precise.”
[82] These principles should be borne in mind when specifications are being framed.