The High Court has discharged an order requiring a woman who brought a personal injuries action to disclose medical records, finding that the defendants had not shown the records were relevant and necessary to the issues in the case.
Mr Justice Garrett Simons gave judgment on 27 March 2024 on the plaintiff’s application to set aside a Deputy Master’s discovery order. The underlying action arises from a road traffic accident on 27 June 2019. The defendants conceded liability; the remaining issue was the assessment of damages.
The defendants sought three categories of records: the plaintiff’s GP records from the date of the accident to June 2021; records from therapists or counsellors who treated her with cognitive behavioural therapy or counselling over the same period; and records, including referral letters, relating to proposed spinal surgery in Romania.
The defendants said the records could clarify the timing and course of the plaintiff’s psychological treatment and her prospects for spinal surgery. They also relied on information reportedly given to two psychiatrists who examined the plaintiff. The judge said the defendants had not exhibited those psychiatrists’ reports, so the court could not assess their significance. He also noted that the alleged assault by the plaintiff’s husband had already been disclosed in updated injury particulars, but the defence had not been amended to plead that it broke the chain of causation.
For the GP and therapy records, the judge said many of the matters the defendants sought to establish could be addressed through further particulars. He found that confidential therapy-session notes had no direct relevance to the damages assessment on the case presented: the diagnosis and referral were relevant, but the details of treatment were not shown to be. The surgery-record request likewise did not identify a pleaded issue for which disclosure was necessary; the defendants had not alleged that the plaintiff failed to mitigate her loss by not undergoing the proposed surgery.
The judge discharged the Deputy Master’s order of 22 November 2023. He said his provisional view was that the plaintiff should recover the costs of the motion, to be adjudicated if the parties could not agree. Either party could file written submissions proposing a different costs order by 19 April 2024. The judgment did not make a final costs order.