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Aston Knight Solicitors Bury recently succeeded in a court application on the issue of privilege; the issue raised some interesting points.

The facts were that the Claimant Mrs C suffered her first road traffic accident in 2013 and then a second one in 2014. A different law firm represented her for her 2013 accident; Aston Knight represented her for her 2014 accident.

With regard to her 2013 accident she underwent a medical examination in 2014 however very soon after she decided not to pursue the case, for unrelated reasons. She was never sent a copy of that medical report and so was unaware of the content. Regarding her 2014 accident, the Defendant’s solicitor, using their accident history search database, identified the Claimant had suffered a previous accident in 2013 and so asked for a copy of that medical report i.e. the one relating to her 2013 accident, which she had never seen.

The Defendant’s solicitor then made a court application asking the Court to order that the previous medical report be disclosed and stated:

“[The report] ought to have automatically formed part of the claimant’s disclosure list which they did not.”

Despite Aston Knight Solicitors confirming the Claimant had not been sent a copy of the report at the time, and the 2013 accident was not pursued, the Defendant’s solicitor pressed ahead irrespective.

The District Judge dismissed the application in its entirety holding the report was a privileged document and therefore should not be disclosed.

Comment:

It is often the case that Defendant Solicitors will ask for disclosure of medical reports relating to previous accidents, usually in the hope of finding something to use in alleging the Claimant has been dishonest or tried to cover up a previous accident.  Often these reports will be disclosed to the Defendant in the hope of resolving the issue as the Claimant has nothing to hide. Defendant Solicitors therefore appear to have got quite used to getting hold of all possible evidence in a case but there is an important legal concept that can often be overlooked, as was the case in this situation – privilege.

Privilege is basically the rule that certain documents or pieces of evidence do not have to be shown to the other party.  The general rule of litigation is that there should be a “cards on the table” approach i.e. that each party should show the other all of their evidence, even if it damages their own case.  Privilege is the exception to this general rule.  The doctrine of privilege recognises that although there should generally be an open approach, some items of evidence or information must be kept secret to enable each party to have the best opportunity of preparing their case in their best interests.

A party can at any time give up or “waive” their right to privilege by sending the item in question to the other party but it is their choice to do so.

There are two main types of privilege:

  1. Advice Privilege – this means communications between a lawyer and a client should be kept confidential provided they are for the purpose of “seeking legal advice from a solicitor or providing it to a client”.  This does not apply to all communications – they must directly seek or provide advice or bein a legal context; that require the lawyer to use their skills and are “directly related to the performance of the lawyer’s professional duties”.

“Advice privilege” is not usually controversial and it would be highly unlikely for a Defendant insurance company or solicitor to press for such a document as this type of privilege is normally well understood throughout the profession.  The areas of dispute tend to relate to the second type of privilege:

  1. Litigation Privilege – these are items of evidence or communications for “the sole or dominant purpose of litigation”  i.e. the document has been created solely, or mainly, for the case at hand.

It has long been recognised that a report prepared by an expert, such as a doctor, solely for the case (i.e. not part of NHS treatment etc) will be subject to “litigation privilege” and so can be kept confidential unless and until the Claimant gives up that confidentiality by sending to the Defendant’s representatives at which point privilege is waived, permanently.

Although this is the general rule there have been growing concerns the rules regarding litigation privilege have been softening to a degree and in the current climate of personal injury litigation, in which Defendant insurance companies and solicitors are quick to allege fraud/dishonesty on the part of injured people, it is now becoming commonplace to see requests for documents that would normally be privileged often on the basis it is necessary to expose some form of misconduct on the part of the injured person.

A key case here is the Court of Appeal decision – Ricky Edwards-Tubb v JD Wetherspoon PLC [2011]. In that case the Claimant obtained a medical report they were not happy with and so obtained a second opinion which they then chose to rely upon. The Defendant found out about the first report and argued it should be disclosed. The Court of Appeal held that the original report should be disclosed if the Claimant wanted to rely on the second report instead. Contrary to some interpretations, the Court of Appeal did not order that the litigation privilege attached to the original report should be waived – what it said was that if the Claimant wants to switch experts then disclosure of the original report would be a condition of that switch so it would be the Claimant’s decision whether to waive privilege or not.

A worrying feature of that case was the Court of Appeal’s implied criticism of “expert shopping”. “Expert shopping” is the supposed notion that a Claimant can or will obtain a number of reports from different doctors until they find one supportive of their case and then use the best one.  Claimant solicitors know so called “expert shopping” is quite rare, for the simple reason that any unused report will be deducted from the Claimant’s compensation, as the Claimant can only recover the costs of evidence actually used in the case. Some medical reports can cost thousands of pounds and so not many people are willing to risk that deduction from their compensation without very good reason.

If second opinions are sought it is more often for legitimate reasons such as the expert in question has produced a poor or inadequate report – perhaps failing to consider medical records properly, or failing to properly consider the Claimant’s account of the accident, or it becoming clear the expert lacks the requisite expertise.  If a solicitor considers that an expert’s report is inadequate, and the expert in question will not address the issues raised, then he or she can face a difficult situation as each and every solicitor must always act in their client’s best interests.  Is proceeding with an inadequate report in a client’s best interests?  At what point does seeking a second opinion become “expert shopping”?

Defendant insurance companies and solicitors will most likely continue to test the limits of litigation privilege, particularly in the present fraud-centric climate, but practitioners should be aware the doctrine of privilege remains a key principle in our legal system and should ensure clients’ rights are defended in this regard.

If you would like to know more please feel free to contact Aston Knight Solicitors Bury on 0161 399 1231 or info@astonknightsolicitors.co.uk.

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