Mr Ahmed Elkholy v D R Beatham [2018] CC (Manchester) 17 May 2018



Background

The Claimant sustained an injury in a road traffic collision in August 2016, and was known to have had previous and subsequent accidents in August 2015, April 2016 and September 2016.

A medical report was obtained in March 2017, albeit the expert did not review the Claimant's medical records. Our request for sight of the medical records was refused.

The Claimant attended an appointment with an orthopaedic surgeon in September 2017. However as of March 2018, a report had not been disclosed, and no explanation for the delay given. It was our view that the delay prevented discussions on causation and quantum. We made an application for disclosure of the medical records.

At the hearing, we relied upon the judgment of Kearsley v Klarfield in which the Court of Appeal determined that where it is suspected a claimant may not have suffered the injuries alleged as a result of the accident, his legal representatives should give early disclosure of contemporaneous medical notes.

Counsel for the Claimant relied upon the decision in OCS Group v Wells, which sets out that records should only be disclosed at the appropriate time; to the effect that now was not the appropriate time. As to the orthopaedic report, Counsel gave assurances to the Court that the report would be disclosed shortly, as it was being 'perfected'.

Outcome

The Judge ordered the disclosure of the Claimant's GP, hospital and ambulance records for a period of 2 months before and after the accident. He expressed scepticism regarding the justification for the delay, and emphasised that reports should not be re-written.

Whilst the Judge reiterated the test for pre-action disclosure per 31.16 and the decision in Wells, the circumstances of our application were distinguished from Wells.

What can we learn?

  • This case clearly distinguishes circumstances in which a pre-action disclosure application for medical records may be successful. The decision in Wells usually gives defendants pause for thought when considering such an application. The Claimant sought to rely on that precedent
  • However, the Claimant had obtained a medical report in which the expert did not consider the records, and was in the process of obtaining a further report, which had been delayed significantly. The fact that the claimant had previous accidents in the periods preceding and following the index accident were relevant to the issue of causation and quantum, and therefore the records were relevant
  • Had the Claimant's first expert considered the records, then the application might well have been rejected in line with Wells
  • The Judge noted the assurance by Counsel for the Claimant that the orthopaedic report was "about to be disclosed", and this made it inappropriate to compel the release of the full set of records. It is unclear whether the Judge would have ordered the disclosure of the entirety of the records in the absence of this assurance

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