When is a document covered by legal privilege ?

[Beaten]

To cut a long story short , injured in an accident, the accident caused a severe bone injury which was present on an early MRI.

The defendants wanted an updated MRI. ( They didn’t request an updated MRI with radiologist report just an MRI and images)

i arranged my MRI and supplied them with the MRI images.

*not the separate radiologist report of the images though”

they asked for the radiologist report prior to the court court cmc. I offered to provide the report post their orthopaedic expert reporting on the MRI images.

they refused to accept this.

the judge ordered me to release it to the defendants at the cmc today . My Barrister had argued the report was privileged information and it was my choice as to whether I released it.

the judge over ruled him saying MRI images always come with a radiologist report.

my Barrister still insists the report it is privileged evidence.

The judge has ordered me to release it in seven days.

who is right the judge or the Barrister ? The Barrister said I have seven days to appeal the court order.

to be clear this was a simple private MRI arranged entirely for the case. It does not form part of my medical records.

thanks in advance for your opinions

[R0b]

Short answer, we can't really tell you who is right since we have limited information and your barrister will be awar of things we aren't.

I believe your barrister may be referring to litigation privilege (I'll refer to this as LP). Simply put, LP applies where communications or something prepared with litigation in mind i.e. a document and that communication or document is considered confidential.

I'm not familiar with PI claims but in relation to LP generally, if you instructed a third party to provide a report of sorts in contemplation of litigation, then that would ordinarily be deemed to be privileged unless and until you had chosen to waive privilege through communications, conduct or something else. For example, making a reference to a document in your witness statement would constitute a waiver.

So the starting point to look at it is that the report is covered by LP and, is there anything done that might have meant you waived privilege to that report? The answer is yes, possibly. As you agreed to the defendant's request for an updated MRI and assuming the report formed part of the whole arrangement, privilege at that point could have been waived. The courts don't generally allow you to waive privilege in part, and any documents or other materials associated with it will come into play - that means the report since they are both interconnected.

However, if the report was commissioned separately to the MRI images i.e. you had the scans but following those scans you instructed the radiologist to commission a report based on the updated MRI scans, it is possible that the report is privileged.

Another point where you may have waived privilege is by offering to provide the report after their own expert has commented on the images. Not sure what difference that would make but in any event the facts and surrounding circumstances might dictate that privilege was waived.

So, the judge basing their decision solely on the fact that a report is usually associated with the MRI images might be flawed but nonetheless it may be deemed that privilege has been waived.

I'm not saying who might be right or wrong, but you should really speak to your barrister on the prospects of success since as I said above, he/she will have all the facts to hand. Privilege and waiving of privilege is not easy to determine and will require full knowledge and background of the facts in order to decide the outcome.

[Beaten]

Thanks, for the easy to read/ understand reply.

1. I only offered to supply post report to my Barrister never to the defendants when we went out of court for ten mins to discuss the situation privately.

2. The MRi was carried out by company a. and the report was separate to it from company b.

3. Which was the point the Barrister made. Which the judge didn’t accept.

Thanks again for the answer..

[R0b]

In that case I would be inclined to agree with your barrister on the face of it and say that the report itself would be privileged, since it was commissioned separately and you didn't appear to have waived privilege.

Sounds like a judge perhaps not up to speed on the law surrounding privilege.

[charitynjw]

Imho, the court would/should look at the dominant purpose of the report.

[Beaten]

The dominant force of the whole exercise was to provide the defendants with a complete set of MRI images
and for them to have their own expert form his opinion of them. ( They only requested a “MRI scan” not an “MRI scan with accompanying radiologist report”).

The radiologist report was for my/ my legal team to assess. We assessed it and decided not to release it even to our own medical expert.

Thanks for your opinion.

What would be the best course of action now?

[R0b]

Either disclose the report or appeal the judge's order.

[Beaten]

Hi,
The order was made on Monday, I can’t afford the Barrister anymore and I have seven days to appeal the decision.

What form would I need to fill in to appeal the court order?

When would the form need to be submitted by?

If anybody can help, thanks in advance .

[Beaten]

Hi,
The order was made on Monday, I can’t afford the Barrister anymore and I have seven days to appeal the decision.

What form would I need to fill in to appeal the court order?

When would the form need to be submitted by?

If anybody can help, thanks in advance .

Sorry I have just received the court order in the post and the document must be served by the 8th of July.

So do I need to appeal by this Monday or by the 8th ?

[pt2537]

you have 21 days from the date the decision was made to appeal,so whatever date the judge orally made that order when you were in court, that is when your 21 days runs.

[Beaten]

Sorry I have just received the court order in the post and the document must be served by the 8th of July.

So do I need to appeal by this Monday or by the 8th ?

Thanks for the advice, but I have read the info below and as it is a case management decision I think I only have the 7days to appeal.

If you are appealing against a case management decision or interim care order, you must appeal within 7 days of the decision. If you are appealing against a final decision, you must appeal within 21 days. In limited circumstances, the first judge will give you a different timescale for when you have to appeal by.

[pt2537]

Im not sure where you found that, but below is CPR rule 52.12 which is quite clear in my view unless the court orders otherwise its 21 days from the date of the decision

Appellant’s notice

52.12

(1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice.

(2) The appellant must file the appellant’s notice at the appeal court within—

(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or

(b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.

(3) Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent—

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

[R0b]

I think what beaten might be referring to is where a court makes an order of it's own initiative without parties present in which case you have 7 days to apply.

Otherwise PT I believe its 14 days as per CPR 29.6.2(2).

(2) The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.

[Beaten]

Thanks , for the posts and advice .

form N161 is interesting and complicated to say the least !