Pizzey v Ford Motor Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1993 |
| Date | 26 February 1993 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Nourse, Lord Justice Stuart-Smith and Lord Justice Mann
Evidence - admissibility - medical report disclosed accidentally
Unfavourable medical reports obtained confidentially by a plaintiff for the purposes of personal injury litigation which were inadvertently disclosed on discovery to the defendants could be used by them at the trial. The defendants' solicitor reasonably believed that the plaintiff's solicitor had waived the privilege that attached to the reports so that the plaintiff could not rely on his solicitor's mistake to prevent their use.
The Court of Appeal so held in dismissing an appeal by the plaintiff, Mr Albert Pizzey, from the decision of Judge Goldstein in Bow County Court in July 1992 refusing to restrain the defendants, the Ford Motor Co Ltd, from using at the trial two privileged documents which had been inadvertently disclosed to them on discovery by the plaintiff's solicitors.
Mr Robert P Glancy for the plaintiff; Mr Alan H Jeffreys for the defendants; neither counsel appeared below.
LORD JUSTICE MANN said that the plaintiff's action was for damages for personal injury sustained in the course of his employment. A senior surgeon who had been involved in the plaintiff's case provided the plaintiff's solicitor with two medical reports that were adverse to his case. Shortly after, the surgeon had died.
In response to an order for discovery by Master Hodgson made under section 34(2) of the Supreme Court Act 1981, the plaintiff's solicitor sent medical records to the defendants and inadvertently included the two adverse reports.
Judge Goldstein had described it as "an act of gross carelessness" but refused the application by the plaintiff's solicitor for an injunction restraining the defendants from using the documents.
The appeal depended on an application of the judgment of Lord Justice Slade in Guinness Peat Properties Ltd v Fitzroy Robinson PartnershipWLR ([1987] 1 WLR 1027, 1045) that if on discovery a party or his solicitor either "(a) has procured inspection of the relevant document by fraud, or (b) on inspection, realises that he has been permitted to see a document only by reason of an obvious mistake, the court has the power to intervene for the protection of the mistaken party…"
Had the defendants' solicitor realised that she had been...
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