Can parties make a valid Part 36 offer without disclosing the claimant’s clinical records?

When faced with claims of negligence, healthcare professionals seek access to patient records. Without such access, assessment of the claimant’s condition, prognosis and the extent of the defendant’s potential liability may be futile.

Part 31 of the Civil Procedure Rules (CPR) puts parties to litigation under a continuing duty of disclosure. This briefing explores the position where a claimant makes an offer to settle under CPR Part 36 and that offer strategically precedes disclosure of their patient records.

What is the purpose of a Part 36 offer?

CPR Part 36 was introduced to encourage settlement of disputes between parties to litigation through the use of sanctions and financial incentives. It is a tactical mechanism that is used to incentivise acceptance of reasonable offers.

When can I make a valid Part 36 offer?

With the exception of the Small Claims Track (claims less than £10,000) where Part 36 does not apply, offers can be made at any time before judgment and even before proceedings are issued. Accordingly, attempts have been made to undermine the duty of disclosure by making an offer under Part 36 prior to disclosure.

Can I make a valid Part 36 offer on the basis of condition and prognosis before I disclose my records?

The starting point is that there will not be a departure from the rule unless the Court is satisfied that it would be unjust not to do so. In considering whether the costs consequences of Part 36 are unjust, the Court will consider the information that was accessible to the parties at the time of the offer and the conduct of the parties in facilitating such access.

In Shaw v Skeet (1996) where the Claimant sought to impose conditions on the Defendant’s solicitor liaising with the Claimant’s doctors, it was held that:

‘a plaintiff who sought to bring an action but by his own actions prevented material evidence being obtained by the other side was impeding the process of law and if necessary, courts would entertain an application to stay proceedings.’

Plainly, the opposing party will face real difficulty in establishing the claimant’s condition without access to clinical records. This information is often in the claimant’s possession and it may be considered unjust for the defendant to be penalised for not accepting a Part 36 offer pending access to the relevant information.

Defendants should not assume that such an argument will always find favour. The question of whether it would be unjust not to depart from the ordinary cost consequences will be determine on the facts of the particular case.

Can I make a Part 36 offer and refuse disclosure on the basis of confidentiality?

In Nicholson v Halton General Hospital NHS Trust (1999) the defendant was refused permission to liaise with the claimant’s operating consultant on the basis of their confidential relationship. The Court held that it ‘could not order the Claimant to waive the right of confidentiality which existed between patient and doctor but could stay proceedings until the Claimant waived the right of confidentiality.’

Evidently, a Part 36 offer accompanied by a refusal to disclose relevant records cannot rely on the relationship of confidentiality for validation.

Practical takeaway

A claimant may be deprived of the benefits of Part 36 until the defendant has been provided with the claimant’s clinical records to enable them to properly evaluate the claim. Each case will be considered on its own facts and the Court will apply the Part 36 costs consequences unless it considers that it would be unjust to do so.

The practical message for claimants is that it is in their interest to give early disclosure of their clinical records to allow an assessment the quantum of the claim, as this is conducive to an early disposal of the case with a proportionate expenditure on costs.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.