Lee v South West Thames Regional Health Authority
| Jurisdiction | England & Wales |
| Judgment Date | 1985 |
| Date | 1985 |
| Court | Court of Appeal (Civil Division) |
Practice - Discovery - Privilege - Injury to plaintiff while in care of one of three health authorities - Ambulance report obtained by one authority to defend possible action - Pre-action discovery claim against second health authority - Whether report privileged from production -
The defendant regional health authority was responsible for the ambulance service covering the areas of the London health authorities. The infant plaintiff was severely scalded in a domestic accident and was admitted to a London hospital in the area of another regional health authority. He was later transferred to a burns unit of a hospital in the area of Hillingdon health authority. The plaintiff developed respiratory problems and was sent back to the first hospital on a respirator in an ambulance provided by the defendant health authority. When he was weaned from the respirator he was found to have very severe brain damage, probably due to lack of oxygen. In order to find out what, if anything, had gone wrong the plaintiff's advisers made use of the pre-action discovery provisions of R.S.C., Ord. 24, r.7A. The hospital notes disclosed by the two hospitals suggested that there had been “a problem in the ambulance transfer.” The defendant health authority disclosed a memorandum prepared by the ambulance crew which had been sent to the Hillingdon authority with a view to their obtaining legal advice on their liability to the plaintiff. The defendant authority claimed the right to withhold inspection of the memorandum, which had not been disclosed by the Hillingdon authority, on the ground that it came into existence after the possibility of litigation had become known to them and was prepared for the sole purpose of enabling legal advice to be given with reference to such litigation. On the plaintiff's originating summons Master Hodgson refused to order that the plaintiff be at liberty to inspect and peruse the memorandum. Skinner J. dismissed the plaintiff's appeal.
On appeal by the plaintiff: —
Held, dismissing the appeal, that the cause of action being asserted against the defendant authority was not an independent cause of action but arose out of the same incident which rendered the Hillingdon authority a likely defendant; that, accordingly, the principle that a defendant or potential defendant should be free to seek evidence without being bound to disclose the result of his researches to his opponent applied; and that, since the Hillingdon authority had not waived their rights to privilege, there would be no way of protecting their rights as potential defendants if disclosure of the memorandum were to be ordered against the defendant authority (post pp. 849H–850A, C–D, E, G).
Per curiam. There is something seriously wrong with the law if it cannot be ascertained on the plaintiff's behalf exactly what caused his brain damage. The appeal concerns a hospital-patient relationship and there appears to be no reason why a similar duty to that of a doctor to answer his patient's questions as to proposed treatment should not, subject to the exercise of clinical judgment, apply to hospital staff. It is for consideration whether specific performance of the duty to inform could not be enforced (post, pp. 850G–851C).
The following cases are referred to in the judgment:
Buttes Gas and Oil Co v. Hammer (No. 3) [
Home Office v. Harman [
Schneider v. Leigh [
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [
The following additional cases were cited in argument:
Calcraft v. Guest [
Jenkyns v. Bushby (
Minet v. Morgan (
Pearce v. Foster (
Reeves Brothers Inc. v. Lewis Reed & Co. Ltd. [
INTERLOCUTORY APPEAL from Skinner J.
On 4 December 1984 Skinner J. dismissed an appeal by the plaintiff, Marlon Lee, acting by his mother and next friend Madge Bignall, against Master Hodgson's dismissal on 26 October 1984 of his application by originating summons against the defendant, South West Thames Regional Health Authority, for an order pursuant to section 33 of the
The grounds of appeal were that the judge was wrong in law in holding that a document, the property of the defendant, which...
To continue reading
Request your trial
- Patrick v Capital Finance Corporation (Australasia) Pty Ltd
- Ernest Cheong Yong Yin v Kamarijah Hamdan
-
Karam Salah Al Din Awni Al Sadeq v Dechert LLP
...can claim litigation privilege arising from that litigation. 171 Hollander on Documentary Evidence at 18.01 cites Lee v South West Thames Regional Health Authority [1985] 1 WLR 845 at 850 (Sir John Donaldson MR). Mr Edey submitted that the court did not consider whether a person could clai......
-
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and Others and Other Suits
...Co (1990) 47 CCLI 196 (refd) Jones v Great Central Railway Company [1910] AC 4 (refd) Lee v South West Thames Regional Health Authority [1985] 1 WLR 845 (refd) Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd [2006] 4 SLR (R) 807; [2006] 4 SLR 807 (folld) Minet v Morgan (1873) LR 8 Ch ......
-
Legal professional privilege and deregistered companies: who holds the right to claim?
...operate retrospectively where the privilege in material had been waived. See also: Lee v South West Thames Regional Health Authority [1985] 2 All ER 385 ; [1985] 1 WLR 845; Leif Hoegh & Co A/S (No 2) v Petrolsea Inc (The World Era) [1993] 1 Lloyd's Rep 363. Cf: A presently existing comm......
-
Subject Index
...(Police Investigation: Privilege),Re [1997] AC 16, HL ............... 185, 187, 198Lee v South West Thames Regional HealthAuthority [1985] 2 All ER 385............... 1 99Lego v Twomey, 404 US 477 (1972) ... 140, 224Lenthall v Mitchell [1933] SASR 231 ........ 114Love v HM Advocate (2000) J......
-
Legal Advice Privilege and the Corporate Client
...Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 660.86 See, e.g., Lee v South West Thames Regional Health Authority [1985] 2 All ER 385 at 388 whichinvolved communications between a health authority and third parties. Without access tothese communications the plaintiff was unable t......
-
NEW TWISTS IN LEGAL PROFESSIONAL PRIVILEGE: COMMUNICATIONS FOR THE PURPOSE OF LITIGATION AND BETWEEN THE LAWYER AND CLIENT
...seek evidence without being obliged to disclose the result of his researches to his opponent”. (Lee v South West Thames Health Authority[1985] 1 WLR 845, at 850.) 18 [1985] 1 WLR 845, at 850. 19 Unreported, December 10, 1996. 20 Lord Wilberforce stated in Waugh v British Railways BoardL1980......
-
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: A Litany of Fundamental Flaws?
...Staffordshire NHS Foundation Trust Public Inquiry Volume 3at http://www.midstaffspublicinquiry.com/report, [22.159] 1490.51 ibid.52 [1985] 2 All ER 385, 389 (CA).53 [1987] 2 All ER 353, 360.54 See Powell vBoldadz [1998] Lloyds Rep Med 116.304 C2017 The Author. The Modern Law Review C2017 ......