McIvor v Southern Health and Social Services Board
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 18 May 1978 |
| Judgment citation (vLex) | [1978] UKHL J0518-3 |
| Date | 18 May 1978 |
| Court | House of Lords |
[1978] UKHL J0518-3
House of Lords
Lord Diplock
Lord Edmund-Davies
Lord Russell of Killowen
Lord Keith of Kinkel
Lord Scarman
Upon Report from the Appellate Committee to whom was referred the Cause McIvor and another against The Southern Health and Social Services Board, That the Committee had heard Counsel for the Appellants on Tuesday the 11th day of April last upon the Petition and Appeal of the Southern Health and Social Services Board of 20 Seagoe Industrial Area, Portadown, Craigavon, County Armagh praying that the matter of the Order set forth in the Schedule thereto namely an Order of Her Majesty's Court of Appeal in Northern Ireland of the 29th day of September 1977 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered and that the Petitioners might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet (which said Appeal was heard ex parte as to the Respondents Francis James McIvor and Derek Reid, they not having lodged a Case in answer to the said Appeal though ordered so to do); and due consideration had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal in Northern Ireland of the 29th day of September 1977 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondents the Costs incurred by them in respect of proceedings in this House between the 7th day of October 1977 and the 15th day of December 1977 inclusive, the amount thereof to be certified by the Clerk of the Parliaments if not agreed between the parties.
My Lords,
This is an interlocutory appeal in an action brought by the plaintiff, Mr. McIvor, against the defendant, Mr. Reid, for damages for personal injuries which he sustained in a motor accident on 25th September 1975. One of the medical issues in the action is whether the plaintiff's alleged total incapacity for work since the accident and in future was caused by injuries sustained in the accident or by a pre-existing cardiac or vascular condition.
It is not disputed that hospital notes X-rays and reports ("the hospital records") relating to the treatment of Mr. McIvor are in the custody of the appellant, the Southern Health and Social Services Board ("the Hospital"), and are relevant to that issue. As the Hospital is not a party to the action, the defendant applied under section 32(1) of the Administration of Justice Act 1970 ("the 1970 Act"), for an order that the Hospital should disclose whether such hospital records were in its possession, custody or power and to produce them to the defendant.
The order made by Mr. Justice Murray on the application was for production of the hospital records to "the legal advisers of the defendant". From that order the Hospital appealed to the Court of Appeal in Northern Ireland, to vary the judge's order by substituting for production to the defendant's legal advisers, production to "medical advisers nominated by the Defendant and the Plaintiff respectively".
The Court of Appeal (Lowry L.C.J. and Jones L.J.) dismissed the appeal. They held that there is no jurisdiction under section 32(1) of the 1970 Act to make an order for the production of documents to be made only to a medical adviser nominated by the applicant and not to the applicant or to his legal representatives in the action.
The practice followed in England since the 1970 Act came into force, as laid down by the English Court of Appeal, is to make orders confining the production of hospital records, at any rate in the first instance, to medical advisers of the applicant. This practice applies both to orders under section 32 (Davidson v. Lloyd Aircraft Services, Ltd. [1974] 1 W.L.R. 1042) and also to orders under section 31 which provides for discovery before proceedings are commenced and is couched in similar terms. (Dunning v. United Liverpool Hospitals [1973] 1 W.L.R. 586 and Deistung v. South West Metropolitan Regional Hospital Board [1975] 1 W.L.R. 213.)
In none of those cases in the English Court of Appeal, however, does the question appear to have been raised whether the court had power to make an order restricting the production of documents to the medical advisers of the parties to the exclusion of the applicant himself and his solicitor and counsel.
The Court of Appeal in Northern Ireland in the instant case was of opinion that the only order for the production of documents which the court had jurisdiction to make under the section was an order for production to the applicant which, in the ordinary course of litigation in which the applicant is legally represented, would be carried out by producing the documents to his solicitor as the appropriate agent on his behalf. Both members of the court considered the words of the section too plain to permit of any other construction. I respectfully agree.
Section 32(1) of the Act of 1970 is in the following terms:
"On the application, in accordance with rules of Court, of a party to any proceedings in which a claim in respect of personal injuries to a person or in respect of a person's death is made, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising out of that claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce to the applicant such of those documents as are in his possession, custody or power."
The power under this section to order production of documents by a person who is...
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