UK: The Importance Of Proper Pre-Action Disclosure In Medical Cases

Last Updated: 21 September 2016
Article by Ali Malsher

As a clinical negligence solicitor, I am sadly familiar with the problems of getting the medical records disclosed in time and indeed even complete. Although the Data Protection Act works on the basis that medical records are disclosed within 40 days, it is quite often the case that that disclosure can take up to 3 or more months before it is anything like complete.

In addition, different hospital departments have different policies. It can, therefore, be the case that radiology records are disclosed at a different time and emergency departments often keep their records completely separate. In clinical negligence, this is the normal practice with which all solicitors end up working.

In a normal case, with plenty of time to investigate, this presents irritation rather than specific difficulties. However, when short of time or you are relying on other hospital documents this can be a real problem.

A recent case has made the point that potential injury claim defendants have a duty to disclose appropriately and completely at the time of the initial request. This can now have costs consequences. As such this was an unusual case because it was looking at costs incurred by a claimant in investigating a matter.

In Chapman -v- Tyneside Hospital NHS Foundation Trust (2016) the district judge was asked to review the costs that had arisen as a result of non-disclosure. The issue in the case was that the claimant alleged that she had slipped on a leaflet on the floor of the defendants' emergency department. She fell and incurred injuries. In accordance with the pre-action protocol, she wrote a letter to the NHS Litigation Authority. They confirmed that they completed their investigations, liability was denied and that the trust had no documents to disclose.

As a result and in reliance of this assertion that no documents were to be disclosed, the claimant then commenced proceedings. During the course of the case, the defendants then went on to provide risk assessments; trust assessments for slips, trips and falls; policies in relation to the same; and standard cleaning schedules for the emergency department. Thereafter, the defendant continued to provide further documentation, including details of the cleaning contract on an ad hoc and fairly irregular basis.

After reviewing all of these documents, the claimant, with the assistance of her legal advisors, decided to discontinue the claim. However, having taken the claim forward, the claimant then applied for the defendants to pay for the costs. Normally a claimant who discontinues a case must bear their own costs and may also be required to pay those of the defendant.

The court had to look at whether costs were payable. The issues were:

  1. did the accident actually occur as claimed and
  2. what documentation should have been disclosed before proceedings began

The judge confirmed that he would have expected documentation to have been disclosed by the defendant before proceedings including their system for cleaning. This was only done after proceedings had been issued. The claimant had therefore relied on the fact that it appeared that there was no system of cleaning in the emergency department when deciding to commence court proceedings.

The judge decided that the defendant's behaviour (that is the behaviour of the NHS litigation authority) in the conduct of the litigation was entirely unacceptable. The judge was satisfied that the defendant was in possession of the documents at the time when they stated in writing that they did not have any documentation to disclose and clearly considered therefore there was misconduct on the part of the defendant. Ultimately, it was determined that the NHS was liable for the wasted legal costs.

Late, a chaotic and poor disclosure of documents is common from NHS trusts in general. Sometimes, there are valid reasons for the difficulties. For example, if the patient is continuing to attend out-patient appointments, their records are often removed for the clinicians. Sometimes the records are lost and sometimes the records are so enormous that it is inevitable that some pages or documents will go missing.

Notwithstanding that, however, it is really rare to find any case where the documents are disclosed as requested at the outset in the form requested within the time required by the legislation. Some hospitals (and they will remain nameless) are so poor that my clients are routinely advised that it may take up to 5 months to receive their records. I often have to threaten court action in order to get proper disclosure.

We often investigate cases which are not taken forward because the medical records are not supportive. This is part and parcel of claimant clinical negligence practice. However, there are cases which are taken forward because no medical records have been disclosed which indicate a non-negligent explanation for what occurred. If such records then become available at a later stage then, unless there is a proper explanation for the previous non-disclosure, it is possible that the costs of the proceedings may be recoverable from the defendant. This might encourage defendants to actually produce what they are supposed to at the time they should.

Anything that pressurises defendants to deal with disclosure properly at an early stage has to be applauded. Claims which may have no merit may proceed longer without proper information, causing expense and worry for both claimants and defendants. Anything that saves time and costs on both sides must be advantageous to all.

I doubt however whether this will change the practice of most hospitals with which I deal...

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.