SUCCESSFULLY RESISTED NON-PARTY DISCLOSURE OF PERSONAL MEDICAL RECORDS
LIBEL : NON-PARTY DISCLOSURE: REPRESENTATION OF THE PEOPLE ACT 1983 s.106 : CIVIL PROCEDURE RULES 1998 r.31.17(3)(a), Pt 31 r.31.17(3)(a), r.31.17
HELAL UDDIN ABBAS (Claimant) v SHAH YOUSUF (Defendant) & SALEHA ALI (Respondent) (2014)
 EWHC 662 (QB)
QBD (Tugendhat J) 18/03/2014
DEFAMATION – CIVIL PROCEDURE
An application by the defendant to a libel action for a non-party disclosure order was premature: he had not served a defence, meaning that he had as yet no “case” for the purposes of the CPR r.31.17(3)(a).
Also considered whether the disclosure sought, being personal medical records of the Respondent, were properly disclosable where, amongst other matters, the documents were confidential and the Applicant had not shown a public interest reason for granting such disclosure at all.
The libel action had arisen from an advertisement published in a newspaper called the London Bangla, of which S was the editor. The meaning which C had attributed to the relevant words (and which was not in dispute for the purposes of the instant application) was that he had “a history of committing violent assaults upon women close to him, in particular upon his former wife”. C’s former wife had denied that he had been violent towards her. At the time of the publication of the advert, C had been the Labour candidate for the office of Mayor of Tower Hamlets. As a result of the publication, S was charged with an offence under the Representation of the People Act 1983 s.106. However, the CPS discontinued the prosecution. They stated as follows in a letter to S: “Shortly before the trial I obtained medical notes of a witness in the case. This material undermined the prosecution case and caused its discontinuance”. The CPS would not disclose the identity of the witness referred to, but S believed that witness to be C’s former wife. He sought the disclosure of medical records held by her GP, asserting that they would provide him with a defence of justification.
HELD: S’s application had to fail on the basis that it was premature. He had not as yet pleaded a defence to C’s claim and until he had done so he had no “case” within the meaning of the CPR r.31.17(3)(a) which the documents sought could support (see para.30 of judgment).
For the claimant: Robert Dougans
For the defendant: In person
For the respondent: Michael Hartman
In the Khans Case: CofA and Sedley LJ reviewed the old authorities and concluded that:
1. Where a litigant/Client discharges his advocate / solicitor after,
2. the Client has won damages and costs against a 3rd Party after a trial and
3. the Client settles costs directly with the losing 3rd Party, and is paid them, and disappears, and,
4. the advocate / solicitor had previouisly informed the 3rd Party of his right to receive payment of costs
5. then the advocate / solicitor may exercise what is his lien over the costs payable by the 3rd Party irrespective of the fact that as between the 3rd Party and the client costs were settled.
Without explaining why, the LJs took the view that the award of costs was a chose in action and incapable of constituting property for purposes of an assignment; which may be wrong as a matter of law. See the Zabihi case at first instance.
At last the Privy Council in Crawford Adjusters (Cayman) Ltd and others v Sagicor General Insurance (Cayman) Ltd UKPC 17;  WLR (D) 229 has ruled that malicious prosecution constitutes itself as a tort for purposes of civil as well as criminal proceedings.
Need I say more than that the court was constituted by Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond, Lord Kerr of Tonaghmore, Lord Wilson, Lord Sumption JJSC: 13 June 2013
Lewison LJ in M v M:
44. Lastly we were referred to extracts from Magnus and Mankowski: Brussels IIbis Regulation which states at p 8:
Judgment Approved by the court for handing down.
―But whereas the [Judgments Regulation] establishes a system of provisions, in particular on jurisdiction, the outcome of which must be ―highly predictable and excludes the Common Law doctrine of forum non conveniens wholehandedly ………… An alteration of the approach prevailing under [the Judgments Regulation] as the role model would certainly have to be followed in the epigonic field of [BIIR].
45. (―Epigonic: does not feature in my dictionary, but an ―epigone is a less distinguished successor of an illustrious generation)….
Trust Brussels to find a word for it and Lewison LJ to explain what it must mean.
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