A v X & B (Non party) (2004)

Disclosure of a non-party's medical records to determine a genetic causation issue would not be ordered.

The defendant's (X) application under CPR r.31.17 for disclosure of medical records by a non-party (B). The claimant (C) was injured in a car accident in which X was the driver. C sustained head and brain injury as a result of which it seemed he would be permanently unemployable and was unable to finish his university degree.

Judgment on liability was entered against X with quantum to be determined. C's main psychiatric problem was a bipolar mood disorder or hypomania. B was C's brother. The disorder could have had a genetic origin and B seemed to be suffering from the same disorder. In order to reduce C's claim for damages, X sought disclosure of B's medical records so as to prove that C's condition was genetic and would have occurred sooner or later in any event. X submitted that though an order for disclosure would be an infringement of B's rights under the European Convention on Human Rights 1950 Art.8, that could be eased by asking B's psychiatrist to determine what material from B's records was relevant to the genetic causation issue.

HELD: Only in a very exceptional factual situation would a court be justified in civil proceedings in ordering disclosure of a non-party's confidential medical data and this was not such a case. X had established that the disclosure of B's medical records was likely to support his case and adversely affect C's case. There was ample material in the experts' reports that there was a serious issue on the causation of C's mental state and consequently on the validity of his large claim for loss of earnings.

There was clear evidence that C was mentally disturbed while at university. Disclosure was not necessary for a fair disposal of the claim. The burden of proof was on C to establish that his post-traumatic mental state was wholly or partly caused by the accident. There was material already available to X upon which C's case could be undermined. B's psychiatrist could not be asked to determine what material in B's records was relevant to the genetic causation issue as he would not have the training as to relevance in legal proceedings. A further matter which was relevant to the exercise of discretion was X's delay in making the application. X had known of B's condition in 2001 and had not made the application until 2003.

Application refused.

Civil Procedure - Civil Evidence - Personal Injury

QBD (Morland J) 25/3/2004

LTL 6/4/2004 (Unreported elsewhere)

Document No.: AC0108080

A v X & B (Non party) (2004)

Disclosure of a non-party's medical records to determine a genetic causation issue would not be ordered.

The defendant's (X) application under CPR r.31.17 for disclosure of medical records by a non-party (B). The claimant (C) was injured in a car accident in which X was the driver. C sustained head and brain injury as a result of which it seemed he would be permanently unemployable and was unable to finish his university degree.

Judgment on liability was entered against X with quantum to be determined. C's main psychiatric problem was a bipolar mood disorder or hypomania. B was C's brother. The disorder could have had a genetic origin and B seemed to be suffering from the same disorder. In order to reduce C's claim for damages, X sought disclosure of B's medical records so as to prove that C's condition was genetic and would have occurred sooner or later in any event. X submitted that though an order for disclosure would be an infringement of B's rights under the European Convention on Human Rights 1950 Art.8, that could be eased by asking B's psychiatrist to determine what material from B's records was relevant to the genetic causation issue.

HELD: Only in a very exceptional factual situation would a court be justified in civil proceedings in ordering disclosure of a non-party's confidential medical data and this was not such a case. X had established that the disclosure of B's medical records was likely to support his case and adversely affect C's case. There was ample material in the experts' reports that there was a serious issue on the causation of C's mental state and consequently on the validity of his large claim for loss of earnings.

There was clear evidence that C was mentally disturbed while at university. Disclosure was not necessary for a fair disposal of the claim. The burden of proof was on C to establish that his post-traumatic mental state was wholly or partly caused by the accident. There was material already available to X upon which C's case could be undermined. B's psychiatrist could not be asked to determine what material in B's records was relevant to the genetic causation issue as he would not have the training as to relevance in legal proceedings. A further matter which was relevant to the exercise of discretion was X's delay in making the application. X had known of B's condition in 2001 and had not made the application until 2003.

Application refused.

Civil Procedure - Civil Evidence - Personal Injury

QBD (Morland J) 25/3/2004

LTL 6/4/2004 (Unreported elsewhere)

Document No.: AC0108080