England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COUNTY COURT
(His Honour Judge Rubery)

		Royal Courts of Justice Strand London WC2
		18th April 2002

18th April 2002
LORD JUSTICE CLARKE:

The Claim

1. The claimant was employed by the first defendant as a catering assistant at the premises of the second defendant in Stoke on Trent. On 26th January 1998 the claimant fell down some stairs and suffered an injury. On that occasion she was carrying a tray laden with hot liquid, crockery and biscuits. On 28th September 1998 the claimant fell down the same stairs and suffered a further injury. On that occasion she was carrying a bag filled with rubbish in each hand. She claims damages against both defendants in respect of both accidents. In the case of the first defendant she alleges both negligence and breach of statutory duty, namely breaches of duties contained in various regulations with which we are not concerned. In the case of the second defendant, she again alleges both negligence and breach of statutory breach, namely breach of a common duty of care in section 2 of the Occupiers Liability Act 1957 and also various other regulations.
2. The particulars of injury alleged in the particular of claim are pleaded by reference to a report of Mr D J McBride, a consultant orthopaedic surgeon, dated 12th July 2000. The claimant is 56 years of age. In his report Mr McBride says that the claimant advised him that she had persistent discomfort in the middle part of her lower back which radiated to the right buttock and the right thigh. It is not necessary for me to set out her complaints any further.
3. Mr McBride described the condition of her lumbosacral spine in some detail and identified some of the problems which he found that she was having with her spine. Mr McBride also quoted fairly extensively from the claimant's GP records and hospital records, and expressed a number of overall conclusions at the end of his report. This appeal is not concerned with the detail of the claimant's injuries.

The Proceedings

4. The particulars of claim were dated 19th April 2001. Before that, in September 2000, a copy of Mr McBride's report, was provided to both defendants. After the proceedings had been issued in April 2001, defences were served by both defendants and the second defendant made a Part 20 claim against the first defendant.
5. On 14th August 2001 the matter came before Deputy District Judge Collis on a case management conference. The deputy district judge gave detailed directions as follows:

"1. Parties to give standard disclosure to all parties by serving copies with a disclosure statement by 10^th September 2001.

2. The latest date for service of any request to inspect or for a copy of the document is by 17^th 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 30^th November."

6. There followed a number of other specific directions. Paragraph 11 of the order is in these terms:

"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."

7. As can be seen all those directions should have been completed by now. In fact, as I understand it, except for paragraph 11, they have in fact been substantially complied with. The claimant was in fact examined by the defendant's expert in October. By that time some of the documents referred to in paragraph 11 had been made available, followed subsequently by the remainder.
8. This appeal is therefore academic, since the defendants have now seen all the documents referred to in paragraph 11, viz the relevant GP and hospital records. We were told that there is to be a further case management conference on Monday. It thus appears that, happily, this appeal has not affected the progress of the action.

The Appeal

9. As can be seen, the district judge refused permission to appeal from paragraph 11 of his order. The claimant subsequently sought permission to appeal from His Honour Judge Rubery who granted permission but dismissed the appeal on 12th October 2001, which, as it happens, was three days after the claimant had been examined by the defendant's doctor.
10. The claimant now appeals to this court pursuant to permission granted by Hale LJ who said:

"The point is obviously of practical importance and clear guidance from the Court of Appeal would be helpful."

11. Mr Cliff submits on behalf of the claimant that the district judge had no jurisdiction to make the order in the form which he did, and/or that, if he did, it was wrong in principle to do so.

Jurisdiction

12. The order relates to "GP and hospital records". As indicated earlier, Mr McBride referred to entries in both sets of records in his report dated 12th July 2000 annexed to the particulars of claim. The report appears to me to be an expert report within the meaning of CPR 31.14(e) which provides:

"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)."

13. Rule 30.10(4) is thus not relevant here. It follows that the defendants were entitled to inspect documents referred to in Mr McBride's report, namely the claimant's GP and hospital records.
14. In the ordinary way I would expect the defendant's solicitors to ask the claimant's solicitors to produce the documents for inspection. It would then be for the claimant's solicitors to obtain them from the claimant's GP and the hospital as appropriate and to make them available to the defendant's solicitors.
15. It is, I understand it, accepted by Mr Cliff on behalf of the defendant, in my opinion correctly, that the defendant's right to inspect the GP and hospital records also arises under rule 31.3 which provides:

"(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."

16. The duty to disclose documents is, of course, governed by rules 31.6, standard disclosure, and 31.12, specific disclosure.
17. Rule 31.8 limits the duty of disclosure as follows:

"(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."

18. In this case Mr Brunning submits, on behalf of the defendants, that the claimant's GP and hospital records are documents of which the claimant "has or has had a right to inspect or take copies" within rule 31.8(2)(c). Mr Cliff concedes that the claimant has that right, so that we are not concerned here with a case in which it might be said that a doctor or hospital is entitled to refuse to disclose a patient's records to the plaintiff.
19. In fact the relevant GP and hospital records were discloseable and have now been disclosed as part of standard disclosure, which by rule 31.6 provides:

"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 ..."

20. It follows that the combined effect of rules 31.3, 31.6 and 31.8 is that the defendants have a right to inspect the relevant GP and hospital records.
21. Rule 31.12 provides:

"(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)."

22. Rule 3.1 provides, so far as relevant, as follows:

"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."

23. By rule 1.1(1) the overriding objective is that of:

"Enabling the court to deal with cases justly'"

24. In my judgment, the combined effect of rules 31.3 and/or 31.14 confer a right to inspect. The effect of rule 31.12(3), even though on its face it appears to refer to documents referred to in rule 31.3(2) and of rule 3.1(2)(m), is to give the court power to order a claimant to permit a defendant to inspect any document which the defendant has a right to inspect. Such a power is necessary in order to give effect to that right.
25. It appears to me that the rules contemplate that ordinarily the appropriate order will be to order the party concerned, here the claimant, to permit inspection of the relevant document or documents. In most cases an order in those terms will meet the case. However, it may not always do so.
26. An order in those terms may need refinement on the facts of a particular case. There may be cases in which the appropriate order would require the party to give specific authority to the solicitors for another party to inspect documents in the custody of a third party, say a warehouse man, or, in a shipping case, a classification society. In my judgment, the court has jurisdiction to make such an order, having regard to the wide terms of the provisions of CPR to which I have referred, including rule 3. l(2)(m).
27. I note in passing that, before the days of the CPR, this court upheld a similar order in Dunn v British Coal Corporation [1993] PIQR 275, albeit on a somewhat different basis. In that case Stuart-Smith LJ, with whom Mann LJ and Nourse LJ agreed, said at page 280:

"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."

28. The order in that case, which had been made by a district judge and which was restored by this court, was in these terms:

"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."

29. Although the juridical basis for that decision was different from the suggested juridical basis for this order, given that that decision was before the advent of the CPR, the decision does show that there is nothing wrong in principle with an order in those terms. Whether an order should be made on the facts of any particular case will be a matter for the exercise of the discretion of the judge at first instance. However, for the reasons I have given I would hold that the deputy district judge had jurisdiction to make the order he did. It is plain that Judge Rubery was of the same opinion.
30. It follows that I would dismiss the appeal on the jurisdiction point. Discretion
31. One of the problems in this case has been to ascertain what happened before the district judge and the precise basis on which he exercised his discretion. This case thus emphasises the importance of a proper note or record being taken, or kept, of the reasons given by district judges in cases of this kind.
32. The defendants did not accept Mr McBride's opinion and wished to have the claimant examined by a different expert. For that purpose they naturally wished that expert to consider the claimant's GP and hospital records, so far as they were relevant to the issues in the action. We have been told that to that end the defendant's solicitors sent forms of authority to the claimant's solicitors on 25th May 2001, requesting the return of the completed forms to allow the defendants to obtain the medical records themselves. An appointment was obtained for the claimant to be seen by the defendant's expert in early October 2001.
33. No written response to the request in the letter of 25th May was received from the claimant's solicitors, nor was any response received to a reminder written on 29th June. So, on 25th July, the defendant's solicitors wrote to the claimant's solicitors requesting:

"If you have any intention of returning the forms of authority for the release of your client's medical records."

34. However, no response was received in writing before the date of the hearing of the case management conference on 6th August.
35. On the morning of 6th August the first defendant's solicitors told the claimant's solicitor on the telephone that the claimants would make the records available. There was no suggestion that there were any potentially relevant records which the claimant was not willing to disclose on the grounds of confidentiality or otherwise. This is not, therefore, a case in which it was being said that some of the requested records were discloseable, but some were not. I recognise that such cases may give rise to particular problems.
36. In the course of the hearing before the district judge the claimant's solicitor made a somewhat similar statement to the representative of the second defendant. However, the defendants sought and obtained the order from the district judge which I have set out. It is right to say that no notice of the application had been given in advance. It was made orally before the district judge, butso far as I am aware no application was made for an adjournment of that application on the ground of lack of notice,. As I understand it, the order was sought in the light of the claimant's solicitors' previous failure to respond to the requests in the correspondence to which I have referred and, in particular, to ensure that the defendant's expert was fully briefed when he saw the claimant in October.
37. We have been told that the district judge was told that the claimant was willing to provide the documents, but he nevertheless thought it right to make the order. He gave little by way of reasons for his decision. As I understand it, based upon what was said to Judge Rubery, he simply said that he could make the order and was going to do so.
38. Given the fact that the claimant's solicitors had not previously replied to the defendant's solicitors' request in the correspondence, and to the fact that the defendants reasonably wanted the documents in order for their expert to examine the claimant as effectively as possible, I can see no objection to the district judge including a direction that the claimant permit inspection of the records by some specified date. Indeed, it is expressly conceded by Mr Cliff before us, in my judgment correctly, that if the district judge had made an order in those terms no proper objection could be taken to it. Thus it is not submitted that the district judge should not have made the order on the ground that such an order was premature in the light of paragraphs 1 and 2 of the order which I quoted earlier.
39. It is correctly conceded that it would have been perfectly proper for the district judge to order the claimant to permit inspection of the GP and hospital records by a specified date well in advance of the proposed examination of the claimant in October. This concession is, to my mind, important, because before the judge the claimant's argument, then put by a representative of her solicitors, namely Mr Adams, was essentially one of jurisdiction. Indeed it may be that it was initially solely one of jurisdiction. As I read the transcript of the proceedings, the only point upon which it was suggested that the district judge had erred in the exercise of his discretion was that such an order was premature because, as the judge put it:

"An order would not normally be made at that stage in the proceedings i.e before disclosure having taken place."

40. As I have indicated, that point is not now being taken. What is said is that, assuming there was jurisdiction to make an order of this kind, such an order should only be made in exceptional circumstances because in principle a patient should retain control over his or her own medical records. I entirely agree that a judge should think long and hard before making such an order because a defendant should only be allowed to see a claimant's medical records in carefully defined circumstances.
41. Moreover, where an order is made that the claimant authorise a third party to permit an opposing party to inspect medical records, the order must be very clearly and carefully drafted and must ensure that none of the claimant's rights, whether under the European Convention on Human Rights or otherwise, are or could be infringed. The precise nature of the authority must be very carefully delineated so that there is no doubt what it is that the defendants are to be permitted to see. Thus it must be quite clear to the person, or body, to whom the authority is given precisely what it is the claimant is authorising them to disclose and what he or she is not authorising them to disclose. For these reasons I would expect an order in these similar terms to be rare.
42. But the question is whether, in making this order in this particular casze, the district judge erred in principle. There is no evidence that he took into account an irrelevant circumstance, or that he failed to take into account a relevant circumstance. Was he plainly wrong?
43. It is submitted that the terms of paragraph 11 of the order are too wide, since, on the face of the order, the claimant was to supply both defendants with:

"All authority to enable them to obtain for their medical expert copies of both GP and hospital records."

44. I see the force of the submission that the order was too widely drawn if those words are read literally, but, like any document, this order must be read in its context. In my view, there was no doubt what was referred to by the expression "GP's and hospital records". Moreover, there was no doubt that the records were to be obtained for the limited purpose of being submitted to the defendant's medical adviser in connection with the examination of the claimant. No one had any doubt what was required. No one suggested to Judge Rubery that the order was objectionable on the grounds that it had been too widely drawn. I have little doubt that if there had been any real suggestion that the order was too widely drawn that fact would have formed part of the grounds of appeal to Judge Rubery.
45. In the event, the documents the subject of paragraph 11 were, as I understand it, obtained by the authority of the claimant through her solicitors from her GP and the hospital and there was no difficulty about the nature of the documents sought or obtained. Equally, as I indicated earlier, those documents have been supplied to the defendants and, so far as I am aware, no problem has arisen in relation to the extent of the documentation disclosed.
46. In these circumstances, while I am firmly of the view that great care should be taken both as to the circumstances in which orders of this kind should be made and as to the terms in which they should be made, I have reached the conclusion that this court could not properly say that in making this order in these circumstances the deputy district judge strayed beyond the bounds of the legitimate exercise of his discretion. In short, in my view, we cannot properly say that he was plainly wrong. In these circumstances, I would dismiss the appeal on this ground also.
47. I would only add this. As I see it, paragraph 11 of the order is now spent, so that there is no question of the claimant being under any obligation to comply with paragraph 11 of the order in the future. Like many points in this appeal that is all, as they say, water under the bridge.
48. However, for the reasons which I have given, I would dismiss the appeal.
49. LORD JUSTICE CHADWICK: I agree that the appeal should be dismissed and I agree with that all that my Lord, Clarke LJ, has said. In the circumstances that I understand Pill LJ to take a different view on the question whether the Deputy District Judge was entitled to exercise his discretion as he did, it is appropriate that I should give a short judgment of my own.
50. The appellant, Mrs Bennett, was employed by the first respondent, Compass Group, as a catering assistant at the premises of the second respondent, British Ceramic Research. On two occasions in 1998, in January and again in September, she slipped and fell while descending a spiral staircase at those premises. In these proceedings she claims in respect of the injuries which she suffered against the first respondent, as her employer, and against the second respondent, as the occupier of the premises. The particulars of those injuries are set out in the medical report prepared by Mr McBride, a consultant orthopaedic surgeon, on 12th July 2000. The report contains reference to the claimant's GP records and hospital records and sets out excerpts from those records.
51. The proceedings were commenced in April 2001. On 29th May 2001 the defendant's solicitors wrote to the plaintiffs solicitors enclosing forms of authority which, if signed, would enable them to obtain the GP and hospital records. There was no response to that request for authority. The defendant's solicitors wrote again on 29th June 2001 repeating their request. There was no response to that letter either.
52. An appointment was arranged for the claimant to attend the defendant's medical expert, Mr Weyhill. On 25th July 2001 the defendant's solicitors wrote:

"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."

53. There was no response to the second limb of that request.
54. I should add that copies of the letters to which I have referred have not been put before us, but I take their contents from the transcript of the proceedings in the court below. I do not understand the contents to be in dispute.
55. These proceedings came before Deputy District Judge Collis at Stoke on Trent County Court on 6th August 2001 for what was, I think, a case management conference. By the order which he made on that day he directed that the parties give standard disclosure by serving copies with a disclosure statement by 10th September; that the latest date for service and any request to inspect, or for a copy of the document, be seven days later; and that expert reports be exchanged by 30th November. There were further directions made with the evident object of bringing the matter to a state in which it could be tried some time in this year.
56. Paragraph 11 of order of 6th August 2001 was in these terms:

"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."

57. The claimant appealed to the county court judge against that paragraph. She did so as a matter of principle; not, it seems, because she had any objection to permitting inspection of her relevant medical records. That was made clear by her solicitor, Mr Adams, in the appeal proceedings before the county court judge. He said this (transcript of proceedings page 4 letter G):

"... 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."

58. The hearing to which Mr Adams is referring there is the hearing before the deputy district judge.
59. The claimant's submission to the county court judge (through her solicitor) was put succinctly in a passage at page 3 letter D in the same transcript:

"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."

60. He reaffirmed, at page 17 letter E, that his complaint was that the order made by the deputy district judge was simply one that cannot be made.
61. That appeal came before His Honour Judge Rubery on 12th October 2001. He did not accept the submission that there was no jurisdiction to make an order in the terms of paragraph 11; nor did he accept that the order made in paragraph 11 was an order which, as a matter of discretion, should not have been made. It may, perhaps, be said that this judgment draws no very clear distinction between jurisdiction and discretion.
62. The claimant sought permission to appeal to this court. The first of the grounds of appeal, in section 7 of the appellant's notice, is in these terms:

"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."

63. It was, I suspect, that ground which persuaded Hale LJ to give permission for a second appeal to this court. As she said, the point is obviously of practical importance and clear guidance from this court would be helpful.
64. Ground 2 in section 7 of the grounds of appeal contains the assertion that if the court did have discretion/authority it should not have exercised it in the circumstances. But it is plain from the further grounds, particularly those under paragraphs 4 to 7, that the principal ground was absence of jurisdiction. By way of example, paragraph 7 in section 7 criticises the judge for basing his finding on an issue wholly irrelevant to the matter in hand. That issue was said to be the alleged failure on the part of the claimant's solicitors to respond to correspondence. That failure would, indeed, be a matter irrelevant to jurisdiction; but I find it impossible to see how it can be said that the failure to respond to requests for authority to inspect is irrelevant to the exercise of discretion. Whether or not the failure to respond to requests for authority justifies, as a matter of discretion, the order that was made, it is plainly a matter which the district judge was entitled to take into account in exercising discretion.
65. It had appeared, therefore, that the principal issue on the appeal was whether there was jurisdiction in the court to make an order in the terms of paragraph 11; that is to say, an order which requires an party to litigation to supply authority enabling the other party to obtain for consideration by expert witnesses documents — in this case general practitioner and hospital records — in the physical possession of some third party, in this case the general practitioner and the hospital.
66. The question in this appeal arises in the context of a claim for personal injuries. But it could equally arise in other cases and other circumstances. For example, it could arise in the context of a claim against the customer of a bank where the relevant documents were in the physical possession of the bank. The common features of such a case are: first, that the documents are documents which are under the control of the other party to the litigation: see CPR 31.8(2) and in particular paragraph (c); and, second, that the documents are documents which that party can be required to disclose: see CPR 31.6 or CPR 31.12. It is not in dispute that those features are present in the instant case. It is, if I may say so, beyond argument that medical records relevant to the claimant's injury should be disclosed and should be made available for inspection by the defendant's medical expert.
67. The issue as to jurisdiction, therefore, is whether in circumstances in which documents relevant to issues in litigation between A and B are in the physical possession of a third party, say C, but are documents in respect of which one party to the litigation, say A, has a right to inspect or take copies so as to bring those documents within the control of A for the purposes of CPR 31.8(2), the court can require A to give to B authority which enables B to obtain inspection of the documents, or to take copies, directly from C.
68. In my view, for the reasons which Clarke LJ has explained, the answer to that question is plainly "yes". I can see no basis upon which it could be held that the court does not have jurisdiction, in a case where it is necessary to progress the litigation, to make an order which enables B to obtain inspection, or copies, direct from the third party, C.
69. In the course of argument in this court the thrust of the appellant's submissions changed. They were no longer directed primarily to the question of jurisdiction; but were based upon the assertion that, even if there were jurisdiction, the district judge should not have made an order in this case requiring this claimant to give authority to these defendants to enable them to obtain for their medical experts copies of the GP and hospital records. That, plainly, is a challenge to the discretion exercised by the deputy district judge and, like any other challenge to the exercise of discretion by a court or tribunal to whom the discretion is entrusted under the rules or a statute, it cannot succeed unless it is shown that the judge erred in principle, took account matters which he should not have taken into account, left out of the count matters which should have been taken into account, or reached a conclusion which is plainly wrong. For the reasons that I have indicated, this is not a case in which it can be said that the judge erred in principle. The jurisdiction was there to be exercised in an appropriate case.
70. One of the difficulties for this court is that it is by no means easy to ascertain what matters the deputy district judge did take into account when reaching his decision. It is not suggested that there are any matters which he left out of account. One matter which he is likely to have taken into account — and which as the county court judge was told he had taken into account —, was the forthcoming medical examination by the defendant's expert, Mr Weyhill, and the failure of the claimant's solicitors to respond to requests in correspondence that they take the steps which would be needed to bring the medical records before Mr Weyhill so that he could take them into account when examining the claimant. That, as it seems to me, is a matter which the district judge plainly was entitled to take into account.
71. Having taken that matter into account, can it be said that he was plainly wrong to reach the conclusion that — in the circumstances of this case — the best way of bringing those medical records before Mr Weyhill was to make an order requiring the claimant to give authority for that purpose? Other judges might have taken a different course; but that is not the question before us. The question before us is whether the conclusion was so plainly wrong that we can interfere with the exercise by this judge of his discretion.
72. In my view it is impossible to say that the order made was plainly wrong in the circumstances of this case. I accept — and endorse — the view that courts should be very cautious before making orders of this kind in personal injury cases. The normal — and by far the most satisfactory course — is for the medical records to be produced by the claimant's advisers for inspection and consideration by the defendant's experts. It should not be necessary for the defendant's advisers to approach the GP or the hospital directly. But I cannot say that there are not circumstances in which it may be necessary — in order to break through what appears to be a wall of unresponsive silence — for the court to make such an order; nor can I say that it was wrong of the deputy district judge to do so in this case. He had to consider how best to progress the action in the light of the previous lack of cooperation on the part of the claimant's solicitors — a lack of co-operation which demonstrated an unwillingness to recognise their obligations under CPR 1.3. He had to consider what reliance could be placed on Mr Adams' assurances, at the hearing before him, that the records would be forthcoming. Other judges might have been willing to accept and rely on that assurance; but I cannot say that it was wrong for this judge to take the view that in the light of the history of failure to respond to requests in correspondence, he could not safely do so.
73. For those reasons, as well as for the reasons given by my Lord, I would dismiss this appeal.
74. LORD JUSTICE PILL: This appeal raises an issue upon an order made in relation to the disclosure and inspection of documents. Permission has been given for a second appeal by Hale LJ, who stated:

"The point is obviously of practical importance and clear guidance from the Court of Appeal would be helpful."

75. There is no suggestion that in her grant that Hale LJ was limiting her grant to the jurisdictional question which had arisen. I agree with her that the criterion for a second appeal is satisfied in this case. It does raise:

"An important point of principle or practice." (CPR 52.13).

76. I have the misfortune to disagree with Clarke LJ and Chadwick LJ as to the guidance to be given and as to the principle which applies.
77. The order complained of followed a hearing on 6th August 2001. It provided, paragraph 1:

"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 "

78. The order, as was appropriate to a case management conference, goes on to deal in the following paragraphs with how the expert evidence is to be approached and makes provision for the exchange of medical reports.
79. The paragraph complained of is paragraph 11:

"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."

80. I agree that the deputy district judge had jurisdiction to make that order. What is in issue is the exercise of a power, which I accept he has, to make the order in paragraph 11 in the circumstances of a personal injury case and the disclosure of medical records.
81. In considering the exercise of power by the deputy district judge this court is at a disadvantage, in that there was no tape recording of proceedings and there is no note either of submissions or of the judgment, save that we have been told it was brief. What we do know about the material before the district judge is: (1) disclosure of medical records had been sought on behalf of both defendants; (2) the claimant's solicitor had not replied to letters about disclosure, though the correspondence itself was not before the deputy district judge; (3) at the hearing the claimant's solicitor made apologies for his inaction and offered full co-operation: the duty to disclose appropriate medical records was not questioned before the deputy district judge; (4) there is nothing whatever to suggest that the claimant herself was unco-operative in relation to disclosure of her medical records; (5) the hearing was on 6th August and the records were said to be required on 9th October for a medical examination by the defendant's expert witness: that date is nine weeks after the date of the hearing before the deputy district judge and four weeks after the date by which disclosure of documents was ordered in paragraph 1.
82. There is no doubt that the orders in paragraphs 1 and 2 were properly made. If those orders had not been complied with, ample sanction was available to the court.
83. In my judgment, there was no justification whatsoever in the circumstances for making the further order in paragraph 11. It has, in the event, proved unnecessary. Procedures have been completed without recourse to the order under appeal.
84. The order was upheld by His Honour Judge Rubery. It is of course the district judge's exercise of power which is in question. I refer to the hearing before His Honour Judge Rubery only to note that, while the point on jurisdiction was the first to be taken, the present point was taken. At page 18 the claimant's solicitor is recorded as referring to "the getting of the documents cannot be taken out of the claimant's hands" and "it is the claimant and/or her solicitors who organise or arrange for the provision of copies".
85. The principle involved in this case is the control of disclosure of medical records in a personal injury case such as the present. Disclosure of medical records is a sensitive subject. A claimant is entitled to the advice of her solicitor in matters of disclosure. In my judgment, she is entitled, save in exceptional circumstances, that the disclosure is organised and managed by her solicitor. If disclosure is not made, the rules contain ample and proportionate sanctions for the court to apply, including the power to stay a claim and to strike out a claim. It is, in my judgment, wrong in principle to confer the right of management upon each of the defendants, or their solicitors, as was done in this case. That is the effect of paragraph 11 of the order, as Mr Brunning, in his helpful submissions on behalf of the respondents, has frankly conceded.
86. It was right on the present facts, he submits, for the two defendants' solicitors to be "in charge" of disclosure. They should have the right to go to the general practitioner's surgery or to the hospital, show an authority of the claimant and themselves arrange with the medical authorities the disclosure of the claimant's medical records. I do not exclude the possibility that there could be a case where such an order is appropriate, but, in my judgment, the need for it would only very rarely arise.
87. Both in principle and for practical reasons it is the claimant's solicitors who should organise disclosure. That ensures proper protection of the claimant's interests in this sensitive area. Moreover, medical authorities are likely to be less than fully co-operative if they know they are dealing, not with the claimant's solicitor, but with the claimant's opponents in litigation.
88. In an appropriate case it is open to a party to obtain an order directly against a third party: CPR 31.17. The need for such applications is, in my judgment, much more likely if the medical authorities are dealing, not with the claimant's solicitors, but with her opponents. Such satellite litigation as an application under CPR 31.17 is far more likely if they are dealing with someone else.
89. This court is dealing with the order in fact made and it is made in the most general terms. I am not able to accept that it can be justified on the narrower basis accepted in the present context by Clarke LJ. The fact that no harm was done by the order does not justify the making of it.
90. Difficulties will arise in cases such as these as to what disclosure should properly be made and how disputes as to disclosure and inspection are to be resolved. The question was considered in this court in Hipwood v Gloucester Health Authority and others [1995] PILR 447 at 452. McCowan LJ, with whom Simon Brown LJ agreed, stated:

"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."

91. That approach plainly contemplates a management of disclosure by the solicitor acting on behalf of the claimant and subject to the court.
92. In Dunn, to which Clarke LJ referred, the order was made in a context where the plaintiffs solicitors had declined to disclose certain medical records and that refusal was challenged. The issue was the substance of the disclosure. The present issue turns, not upon that on the then existing rules, but upon the procedure to be followed.
93. There is a Pre-action Protocol for Personal Injury Claims which provides, among other things, the manner in which expert evidence should be obtained and dealt with. At 3.15 it is stated:

"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."

94. That paragraph deals specifically with the party's own expert, but the principle stated reflects, and in my judgment was intended to reflect, a general principle that it is the claimant's solicitor who will organise access to relevant medical records.
95. Moreover, the rules plainly contemplate that parties should have the advice of their own solicitor in relation to disclosure. For example, CPR 31.3(2) provides that a party is not required to permit inspection of documents where:

"... a party considers that it would be disproportionate to the issues in the case to permit inspection of documents ..."

96. If dispute arises, the matter can be resolved in the manner indicated by McCowan LJ in Hipwood.
97. The Practice Direction in relation to disclosure provides at 1.1:

"The normal order for disclosure will be an order that the parties give standard disclosure."

98. That was what was contemplated in the first two paragraphs of the order of the deputy district judge, and, in my judgment, that was all that was required in this case and there was an error of principle in making the order in paragraph 11. It was also plainly wrong. I am somewhat reassured by the acknowledgment by Chadwick LJ that an order of the kind in paragraph 11 should not normally be made.
99. The court does not know upon precisely what basis, and for what reason, the district judge exercised his discretion as he did. Upon the information the court has, there is nothing which justifies an order which has the effect of conferring on the defendants, or their solicitors, the organisation of the disclosure of the claimant's medical records. It is for those reasons that I would allow the appeal.
ORDER: Appeal dismissed. Costs awarded to the respondent in the sum of £3,164.10.