Causton v Mann Egerton (Johnsons) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ROSKILL |
| Judgment Date | 15 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1015-1 |
| Date | 15 October 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1015-1
The Master of The Rolls (Lord Denning),
Lord Justice Stamp and
Lord Justice Roskill
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from order of Mr. Justice Milmo on Friday, 15th June, 1973
Revised
Mr. JOHN BLOFELD (instructed by Messrs. Pounder, Brown and Gethin of King's Lynn, Norfolk) appeared on behalf of the Appellant Plaintiff.
Mr. MICHAEL WRIGHT (instructed by Messrs. Jaques & Co., agents for Messrs. Hill and Perks of Norwich) appeared on behalf of the Respondent Defendants.
The question in this case is whether the plaintiff is entitled to see medical reports on him which the other sides have obtained. The facts are a little complicated. It may help to divide them into the position before the writ was issued, and afterwards.
I Before writ issued.
On 2nd July 1969 the plaintiff was injured at work. A piece of metal flew into his eye. He has lost nearly all the sight in it. He complained that it was due to the fault of his employers. They referred it to their insurance company. On 18th August 1969 those insurers wrote asking his solicitors to "detail the exact nature of the injury"; and adding "Please confirm that it will be in order for us to arrange for him to be medically examined on our behalf." On 19th August 1969 the plaintiff's solicitors replied:
"Our client's right eye was damaged and he has lost the sight of it. There is a risk that the eye may have to be removed. He has no objections to a medical examination on the usual terms."
At that time, in 1969, the "usual terms" were simply that the defendants would pay for the expenses of the plaintiff for his attendance.
Accordingly the plaintiff was examined by a Dr. Seattle for those insurers. He gave reports in or about October 1969 and April 1970. The plaintiff's solicitors asked those insurers if they would let them have copies of those medical reports; but they replied on 30th June, 1970: "It is not our practice to exchange medical reports." At that stage the plaintiff had not disclosed his medical reports to the defendants. So the defendants wore quite entitled to say that they would not disclose theirs, nor exchange them. See Worrall v. Reich (1955) 1 Q. B. 296.
Meanwhile the plaintiff had been examined by doctors on his own behalf. These were Mr. Hucknall, an ophthalmologist of King's Lynn, who made reports on 9th October 1969 and 2nd February 1970: and Mr. Cairns, a consultant ophthalmic surgeon of Cambridge, who made a report dated 8th March 1971.
II After writ issued.
On 20th September 1971 the plaintiff's solicitors issued a writ. On 27th January 1972 the District Registrar made an order for directions including this order:
"A medical report be agreed upon, if possible, and that, if not, the medical evidence be limited to two witnesses for each party."
Now comes the important step in the case. In pursuance of the Registrar's order, the defendants' solicitors wrote on 28th June and 25th July 1972 to the plaintiff's. solicitors enquiring "whether it is your intention to submit to us copy medical reports with a view to possible agreement."
On 30th August 1972 the plaintiff's solicitors replied: "We agree that it may well be possible to agree the medical evidence and we are arranging to compile a full medical report and shall submit it to you shortly."
In November 1972 the plaintiff was again examined by Mr. Cairns who made a report dated 6th November, 1972.
Afterwards the defendants' solicitors spoke to the plaintiff's solicitors and asked them to supply the defendants with their medical reports. The plaintiff's solicitors promised to do so; but, by some oversight, they did not forward them promptly. On 5th February 1973 the defendants' solicitors wrote saying that unless they received them they would makean application to stay the proceedings. The plaintiff's solicitors at once corrected their oversight. On the very next day the plaintiff's solicitors sent to the defendants' solicitors the medical reports of Mr. Cairns dated 8th March 1971 and 6th November 1972. The earlier reports of Mr. Hucknall were not sent at that time as they had been mislaid. On 23rd February 1973 the defendants' solicitors insisted that the plaintiff's solicitors must reveal them. On 15th March 1973 the plaintiff's solicitors sent them to the defendants' solicitors. So by that time the plaintiff's solicitors at the insistent request of the defendants' solicitors had disclosed all their medical reports. I emphasise all their medical reports.
Naturally enough the plaintiff's solicitors thought that, having disclosed all their own reports, the defendants' solicitors would disclose theirs. On 23rd March 1973 the plaintiff's solicitors on the telephone asked for these reports. The defendants' solicitors said that their medical reports "were pessimistic on the chances of the plaintiff recovering his sight". The plaintiff's solicitors asked for disclosure of the defendants' medical reports. The defendants' solicitor said he felt "that the reports should be disclosed but that he would take Counsel's opinion."
On 13th April 1973 the plaintiff's solicitors reminded them of their request and followed it up on 17th April 1973 by another telephone conversation. The defendants' solicitors said they "thought it probable that the plaintiffs would secure an order for their delivery, but were awaiting their clients' instructions".
Not getting the medical reports, the plaintiff's solicitors took out a summons. Eventually on the day before the hearing,9th May 1973, the defendants' solicitors wrote saying:
"We are instructed to oppose the summons. With regard to the medical reports that you have submitted from Mr., Cairns and Mr. Hucknall we are instructed to agree those in total."
In short, the defendants agreed the plaintiff's reports and refused absolutely to disclose their own.
The plaintiff's solicitors applied to the District Registrar for a sight of the defendants' medical reports. The District Registrar refused. The Judge affirmed his decision. The plaintiff appeals to this Court.
Ill The Law.
The law about medical reports has advanced greatly in the last few years. At one time it was thought that the plaintiff was not bound to submit himself for medical examination by the defendants' doctors. But it has been now decided that, if the defendants reasonably so require, he must do so. The Court will order the plaintiff to submit to such an examination and will stay his action until it is had: see Edmeades v. Thames Board Mills (1969) 2 Q. B, 67; S. v. MoC. (1972) A. C. 24, at page 46 by Lord MacDermott; Lane v. Willis 1 W. L. R. 326. Those cases dealt only with the medical examination itself. They did not deal with the medical reports consequent thereon. It has since been decided that, if the defendants ask for the plaintiff to be examined on their behalf, it is only fair that they should submit to the plaintiff a copy of the medical report they obtain: and that the plaintiff can properly refuse to submit to a medical examination unless the defendants do agree to supply a copy: see Clarke v. Martlew (1973) Q. B. 58. The law was carried a stage further in a recent case. Mr. Justice Bean held that, when the defendantsask for the plaintiff to be medically examined on their behalf, and get it on the terms that they show their reports to the plaintiff, then the plaintiff must show the reports on which he intends to rely. The plaintiff must offer reciprocity. He must be prepared to offer his own medical reports in exchange. Mr. Justice Bean said: "There must be fairness between the parties. The plaintiff can insist on seeing a medical report sought by the defendant only by offering his own report in exchange": see McGinley v. Burke (1973) 1 W. L. R. 990, at page 993-G.
Such being the law as it stands at present, I turn once again to the facts of the present case. They can be divided into two stages. The first stage was before the writ was issued. All that happened was that the defendants had a medical examination of the plaintiff "on the usual terms". Nothing was said at that time about medical reports. The "usual terms" referred only to the payment of expenses of attending. At that stage the defendants would not be bound to show the plaintiff the report they received: nor would the plaintiff's solicitors be bound to show the defendants' solicitors their reports. Each side could properly claim that the reports were obtained for the purposes of the litigation and were therefore privileged.
But it was different at the next stage. After the writ was issued the Registrar made an order that "a medical report be agreed upon, if possible". In pursuance of that order, the defendants' solicitors requested the plaintiff's solicitors to show them the plaintiff's medical reports. Moreover they insisted on it and said they would apply for a stay unless they got them. They got the plaintiff's reports - every one of them. Then when the plaintiff's solicitors asked forreciprocity, the defendants declined to show their medical reports.
I think the defendants ought to have shown them. The situation is covered exactly bh the case of Devine v. British Transport Commission (1954) 1 W. L. R. 686. The facts are indistinguishable from those in the present case. I then said:
"A question has arisen as to what should happen when one party gives the other a copy of his medical report. Is there any obligation on the other to reciprocate and also show his report? That must depend on the arrangements made at the time, but in the ordinary case when one party, usually the defendant, intimates that he would like to see the plaintiff's medical reports for the sake of attempting to agree...
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...of a fair trial that, except by agreement, you are not entitled to see the proofs of the other side's witnesses." 24 In Causton v. Mann Egerton (Johnsons) Ltd. [1974] 1 W.L.R. 162 which concerned the disclosure of medical reports in a personal injury action. Roskill L.J. at p. 170 said: "I ......