Ask the judges

Another reader's question - and another answer from the Gazette's panel of District JudgesQ In personal injury claims, defendants' insurers are routinely calling for claimants' full medical records without advancing reasons except that they are entitled to them.

Are they?A Neither the personal injury protocol nor the Civil Procedure Rules 1998 provide for this expressly.

However, the duty to give standard disclosure includes disclosure of documents which adversely affect a party's own case or assist another party's case and the draft letter of instruction in the protocol's appendix C envisages that the expert will have access to all the medical records and will report on any relevant medical history.

It follows that if a defendant is permitted to have his own expert, then that expert should normally see the medical records in so far as they are relevant.

If a claimant took the view that complete disclosure of the records was dispropor-tionate or part of a fishing exercise for material to fuel cross-examination as to credit then the court could be invited to exert control by refusing to order specific disclosure or by limiting standard disclosure under rule 31.5(2).

At the end of the day, the trial judge can exert control by excluding the records under rule 32.1(2) or by limiting cross-examination under rule 32.1(3).

There is additionally a powerful argument that disclosure of the complete records as against relevant excerpts only would offend article 8 of the European Convention on Human Rights.Questions may be e-mailed to: kim.davies@lawsociety.org.ukThe answers are the panel's view and are not binding on any court.

The panel regrets it is unable to enter into personal correspondence.