Prior to the commencement of legal proceedings in a personal injury claim the parties will engage in pre-action correspondence with a view to narrowing any issues and seeing if it is possible to resolve the claim amicably without the need to issue legal proceedings. Sometimes one of the parties may wish to have sight of documentation which the other party has but is not prepared to voluntary disclose at that stage. The Court has the power to make an order for pre-action disclosure before any main litigation action is commenced. In a personal injury claim this request for disclosure could for example be a request for sight of the injured persons medical records.
Before the Court will make an order for pre-action disclosure it will need to be satisfied that “disclosure before proceedings has started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.” – (CPR 31.16).
In the matter of Lacey v Leonard  EWHC 3528 (QB) the defendant Mr Leonard (by his insurers) applied for pre-action disclosure of Mr Lacey’s medical records in relation to an accident in which Mr Lacey was involved on 14th August 2016 and as a result of which he suffered personal injury. Mr Leonard was the proposed defendant. Mr Lacey’s letter of claim indicated that the claim had a value in the region of £750,000. By January 2018 no medical evidence had been served and the Defendants solicitors made an application for copies of the claimants medical records. Mr Lacey objected to disclosure, his solicitors said that medical reports would be served in due course together with a schedule of loss and supporting documentation. Mr Lacey was not yet in a position to disclose medical evidence but there would be ample opportunity to consider settlement before any proceedings needed to be issued. The defendants solicitors argued that in view of the high valuation of the claim it is almost inevitable that the defendants would need their own medical evidence before they were able to consider any settlement and allowing them to obtain their own medico-legal evidence at this stage would help narrow the issues and allow more effective negotiations to take place. It would reduce any delay in the resolution in the claim.
At the hearing for pre-action disclosure the Court was not satisfied that pre-action disclosure of medical records relating to the accident would assist in resolving the dispute without proceedings, nor lead to saving of costs. The parties recognise that it is expert medical reports and not raw data, which may or may not be relevant, which are likely to form a basis for settlement. Whilst there was sympathy for Mr Leonard’s insurers being faced with an unparticularised claim for the large sum of £750,000 their application for pre-action disclosure does not satisfy the Court rules (CPR31.16(3)(d)) and should be dismissed.