Scottish Court of Session Decisions

Hardey v. Russel & Anor [2003] ScotCS CSOH_2 (09 January 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD JOHNSTON in the cause JOHN HARDEY Pursuer; against RUSSEL & AITKEN and ANOTHER Defenders:   ________________

 

 

Pursuer: Party

Defenders: Shand; Aitken Nairn, W.S.

9 January 2003

1. For most of the 1990s, the pursuer was engaged in protracted litigation, particularly with his mother, in a number of litigations concerned with the ownership of a plot of land. The principal action went before Lord Macfadyen, at the end of which, His Lordship determined that a particular document relating to the plot of land. had been obtained by the then defender now pursuer under duress and His Lordship accordingly reduced it. These proceedings arise out of an incidental aspect of those proceedings.
2. In the course of the litigation, a Specification of documents was taken on behalf of the now pursuer, then defender, to obtain the medical records relating to the then pursuer, Mrs Russo, from her general practitioner. Both parties to that action were patients of the same general practitioner and in complying with the Specification, it appears that the office of the general practitioner sent not only the mother's general practitioner records but also those of the present pursuer to the solicitors then acting for the mother. Whether inadvertently or deliberately is not clear. The records were copied and in due course, sent to counsel for his consideration. For the record, the general practitioner's office discovered the mistake and demanded the records back. The principals were sent back but the copies were retained.
3. In due course, upon the advice of counsel, the records were lodged in the process, it appears on the morning of the event, and became the subject of argument before Lord Macfadyen in the course of the proof, in relation to their admissibility and the general issue of confidentiality. His Lordship ruled that one entry dated 27 February 1986 of the present pursuer's records could be used for the purposes of cross-examination but no more, it apparently being accepted by counsel for the mother at the proof that the records were in general confidential.
4. Against that background, the pursuer raises the present action, claiming damages from the solicitors acting for his mother in the previous action, based upon, putting the matter generally, alleged breach of confidentiality. As he represents himself, the pleadings are not entirely clear but the substance of his complaint is that the solicitors wrongly used the material that they had obtained albeit by mistake namely, his medical records. They exposed them to their counsel and other solicitors involved in the case acting for the mother thus causing great hurt, disgrace and embarrassment to the pursuer in respect of which he now claims solatium. He makes no claim for patrimonial loss.
5. I heard debate initiated by the defenders in which the following authorities were referred to:
6. Saltman Engineering Co Ltd v Campbell Engineering Ltd 1963 3 A.E.R. 413, Coco v A. N. Clark Engineers Ltd 1969 R.P.C 41, Levin v Caledonian Produce Holdings Ltd 1975 S.L.T. Note 69, Roxburgh v Seven Seas Engineering Ltd 1980 S.L.T. Notes 49, The Lord Advocate v Scotsman Publications Ltd 1989 S.C. (H.L.) 122, Attorney General Guardian Newspapers No. 2 1990 1 A.C. 109 and Quilty v Windsor 1999 S.L.T. 346.
7. The principal submission by counsel for the defenders was that the pursuer's averments disclosed no form of action known to Scotland in the sense that it could not be contractual and did not instruct a relevant delict known to the law. If issues of breach of confidentiality arose at all in the law of Scotland, they were confined to matters relating to the relationship between the confider and the recipient of the relevant information, the latter thereafter abusing his position. This it was submitted, was the position both in Levin and Roxburgh supra albeit different results were achieved. The same was not true, it was submitted, when the information in question reached the hands of a third party by whatever route. Thereafter the issue of confidentiality disappeared. This was focused by the English cases of Eastman and Coco which limited the extent to which any rights relating to confidentiality could be asserted. In any event, counsel submitted that there was no set rule that confidentiality attached to medical records once they were in the so called public domain. In any event, she submitted, the pursuer disclosed no relevant averments of detriment or damnum such as to found an action in delict, it being clear that there was no basis for any contractual claim. There was no substantial or any patrimonial loss being asserted. Furthermore, both in the evidence at the proof and now in this process, full revelation was being made by the pursuer of his medical condition which reduced to nil, any effect that the disclosure might have had in emotional terms. Accordingly the action fell to be dismissed.
8. The pursuer represented himself and submitted to me an articulate but lengthy written submission which he then proceeded to read. At the outset however, he indicated that he was only insisting in the conclusion for damages and the third conclusion requiring return of the records still in the possession of the defenders, presumably as copies. His position was essentially based upon the duties of confidentiality that can arise in the hands of a third party once receiving the relevant information by whatever means. These were the issues, he submitted, canvassed particularly in Scotsman and Guardian supra both in Scotland and England. His action, he submitted, was based on the actia injuriam claiming damages for a delictual wrong committed by the defenders to him in respect of the use of the record, which they had obtained, and should have retained as confidential. Both the law of England and Scotland to a greater or lesser extent recognises a duty owed to the confider of the original information by a third party who came by the information, not to disclose it or use it if it could be regarded properly as confidential. The Inner House and the House of Lords in Scotsman and the House of Lords in Guardian both recognised this and there was no reason why it should not be extended or applied in the present situation in relation to the pursuer's medical records which he maintained retained their confidentiality at all times.
9. I should say that some questions seem to turn in the mind of the pursuer as to the issue of evidential admissibility of the records which had been obtained at least inadvertently but I do not consider that that arises in the present case. It is perhaps of more significance that counsel for the mother in the original proof during the debate in front of Lord Macfadyen recognised that in general terms the medical records of the pursuer remain confidential to him. Thus he limited his use of records to one entry which appeared to relate to information given to the doctor by the father, who was not party to the action.
10. I recognise that an issue of possible mixed fact and law arises as to the status of medical records once they have passed out of the hands of the doctor who made them upon information given to him by the patient. However, I am not prepared to rule at this stage that confidentiality cannot remain attached to the documents, which in turn may depend on how they are used. In the present case whether deliberately or inadvertently, the solicitor's the now defenders passed the material to counsel who then gave certain advice as to their use. In this respect, I do not consider that the solicitors are protected if in any other respect they were in breach of a duty that they owed to the pursuer not to disclose the records by simply the fact that thereafter counsel advised as to how they should be used. The breach of confidentiality was the handing over the records by them to counsel. At this stage the pursuer cannot know whether it was done deliberately or inadvertently and that raises an issue which seems to me to warrant enquiry in itself.
11. As a matter of the general law, it is clear to me that both England and Scotland have recognised the principle that a third party obtaining information which is confidential to another person and who thereafter uses it, may breach a duty owed by him to the original confider so not to do. I cannot therefore say at this stage that the pursuer's case is irrelevant.
12. Furthermore, I consider that on the basis that such a duty exists, it must be delictual one and delictual duties generally, in my opinion, can base an action simply for solatium. There is, therefore, in my opinion, an issue to try as to whether or not the pursuer's claim for injured feelings founding a claim for solatium is warranted and I do not consider that the fact that he has been forced, as he says, to reveal the contents of the records in this action reduces that quantification of damages to nil. The issue would be one of assessment by the judge hearing the evidence.
13. In these circumstances it would seem to me inappropriate for me at this stage to rule absolutely that the records once in the hands of the solicitor, lost their confidentiality which plainly existed as between doctor and patient. Nor am I prepared to rule at this stage that the obtaining of the records in the hands of the solicitors could not base a duty as between the pursuer and solicitors in delict, the handing over of which in turn amounted to a breach of that duty. How the records came to be handed over is also a matter which, to my mind, requires to be determined by evidence rather than by any conclusion at this stage based upon the pleadings.
14. In these circumstances it is my opinion that it is going too far too fast to dismiss this action at this stage. There is at least a prima facie issue to try on the questions I have considered.
15. A secondary question arose as to whether there was any substance left in the third conclusion since the original records had been returned and if any copies still existed they were mirrored by the averments in the pleading. I see force in this point but since the pursuer remains serious concerned that copies of his records may be in somebody else's possession, I am not prepared to dismiss that conclusion at this stage.
16. I should add further that, after lunch in the course of the debate, counsel for the defender sought to amend to add two pleas introducing an issue of prescription. While I allowed such amendment to be received, I am not prepared to grant it so as to cause the pleadings to be amended. If the issue of prescription is to be introduced, it should be properly focused in the pleading. It is, of course, still open to the defenders so to do if they wish.

[17 In these circumstances I shall simply allow a proof before answer with the defender's pleas on the existing Record standing.