Clough v Tameside & Glossop Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Year | 1997 |
| Court | Queen's Bench Division |
Discovery – Legal professional privilege – Waiver – Consultant’s report referring to earlier medical report prepared for use in litigation – Whether privilege attaching to earlier report waived when consultant’s report disclosed – Whether production of document may be ordered for fair disposal of cause or matter – RSC Ord 24, rr 10(1), 13(1).
The plaintiff, who had given birth to a child suffering from Down’s Syndrome, issued proceedings against the defendant health authority, claiming damages in respect of the negligent failure to give her an amniocentesis test. The defendants conceded that an amniocentesis was not performed but denied negligence, and in the course of preparing the case for hearing, obtained a report from Dr P, the senior house officer, who had been actively involved with the treatment of the plaintiff during her ante-natal care. That report was disclosed to a consultant psychiatrist for the purpose of preparing a report as to what injuries, if any, the plaintiff had suffered as a result of the alleged negligence and her condition and prognosis. The defendants disclosed the psychiatrist’s medical report, which recited the receipt of the communication from Dr P, to the plaintiff with the intention of relying on it at trial. The plaintiff applied for disclosure of Dr P’s report, but the defendants resisted the application. The plaintiff applied to the district judge under RSC Ord 24, rr 10(1) and 13 requiring the defendants to produce the document for their inspection on the ground that it was necessary for the fair disposal of the case and the district judge ordered the disclosure of the document. The defendants appealed, contending, inter alia, that since Dr P’s report had been prepared for the purpose of litigation it was privileged and remained so, despite mention in the psychiatrist’s report, as the service of an expert’s report did not waive privilege in connected documents, until the report had been put in evidence at the trial.
Held – Where an expert in his report referred in passing to material supplied to him by the instructing solicitor as part of the background documentation in the case on which his expert opinion was sought, any privilege attaching to that material was waived on the service of the report on the other party. Thus, in the instant case, although Dr P’s report was privileged as it had been obtained for use in litigation, since it had been supplied to the consultant psychiatrist in order for him to consider it as part of the background
information in formulating his opinion, and since his report had been served on the plaintiff, the privilege in respect of both reports was waived. In any event, fairness dictated that the plaintiff should not be forced to meet a defence based on an expert’s opinion which was based on documents that the plaintiff was not privy to. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentBalkanbank v Taher (1994) Times, 19 February.
Balkanbank v Taher [1995] 2 All ER 904, [1995] 1 WLR 1067, CA.
Booth v Warrington Health Authority [1992] PIQR P37.
Comfort Hotels Ltd v Wembley Stadium Ltd (Silkin and ors, third parties) [1988] 3 All ER 53, [1988] 1 WLR 872.
Fairfield-Mabey Ltd v Shell UK Ltd (Metallurgical Testing Services (Scotland) Ltd, third party) [1989] 1 All ER 576.
General Accident Fire and Life Assurance Corp v Tanter [1984] 1 All ER 35, [1984] 1 WLR 100.
Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 2 All ER 716, [1987] 1 WLR 1027, CA.
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 3 All ER 177, [1979] 1 WLR 1380, CA.
National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68.
Naylor v Preston Area Health Authority [1987] 2 All ER 353, [1987] 1 WLR 958, CA.
Waugh v British Railways Board [1980] AC 521, [1979] 2 All ER 1169, [1979] 3 WLR 150, HL.
Youell v Bland Welch & Co Ltd (No 3) [1991] 1 WLR 122.
Interlocutory appealThe defendants, the Tameside and Glossop Health Authority, appealed from the decision of District Judge Harrison sitting at the Manchester District Registry given on 2 September 1996, whereby he ordered the defendants to disclose to the plaintiff, Angela Clough, a copy of the statement of Dr Pandy, a senior house officer who had been actively involved with the treatment of the plaintiff during her ante-natal care, and referred to in the report of Dr George Hay, a consultant psychiatrist, prepared for the purpose of identifying the injuries, if any, the plaintiff had suffered as a result of the defendant’s alleged negligence, her condition and prognosis. The appeal was heard in Manchester. The facts are set out in the judgment.
Nicholas Braslavsky (instructed by Hempsons, Manchester) for the defendants.
Margaret de Haas (instructed by Linder Myers, Manchester) for the plaintiff.
BRACEWELL J.In this case, the defendants appeal from an order of District Judge Harrison, dated 2 September 1996, whereby he ordered the defendants,
within 28 days, to disclose to the plaintiff a copy of the statement of Dr Pandy, referred to in the report of Dr George Hay, dated 20 May 1992.
The background circumstances are that by a statement of claim in the...
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