ABSTRACT
The defendant in a clinical negligence action may claim privilege in respect of some or all of the documents sought. According to CPR r 31.19, he may refuse to hand over documents on the ground that they are privileged communications, that is, that the documents represented communication(s) between the defendants (as clients) and their legal representatives. In Waugh v British Railways Board [1980] AC 521, the House of Lords, in a non-medical case, ruled that, where the prepared document had two objectives (to communicate with solicitors and to improve matters internally), then the document’s main purpose had to be the communication to the solicitor for the privilege to exist. If the main purpose was not that but rather to improve matters within the organisation in question, as in Lask v Gloucester HA (1985) The Times, 13 December, the privilege will not attach; furthermore, the court showed in that case that it was prepared to go behind the veil of privilege to examine the true purpose of the communications. Consequently, patients could feel quietly confident about the way in which the law on privilege was being interpreted. But in Lee v SW Thames RHA [1985] 1 WLR 845, the Appeal Court handed down a ruling which, in some respects, gave the initiative back to the defendants. There, a claimant, who was badly burnt, was taken to a hospital run by Health Authority A. On the same day, he was transferred to the burns unit of a hospital run by Health Authority B. After he developed respiratory problems, he was put on a respirator and sent back to the first hospital in an ambulance whose service was in the control of Health Authority C. Three days later, he was found to have been severely brain damaged, very likely through a lack of oxygen when he was in the ambulance. The claim was brought against Health Authority C, but pre-action discovery was sought from all three health authorities. It soon became evident that one vital piece of evidence was a memorandum which had been prepared by the ambulance crew at the request of Health Authority B in the event of litigation against them; Health Authority C (the defendants) claimed privilege for the memorandum. In effect, what Health Authority C was claiming was the privilege of Health Authority B, since at no time was it ever suggested that the memorandum in question was prepared for impending litigation against Health Authority C. The Court of Appeal held that privilege did exist. It ruled that the action against Health Authority C arose out of the same set of circumstances which made Health Authority B a likely defendant; it went on to argue that, to say evidence was privileged if the action was against Health Authority B but not if the action was against Health Authority C, would be to defeat the whole purpose of privileged communications. For the claimant this was a harsh decision; the real evidence as to what may have caused the brain damage was not available and so the decision about whether to bring an action had to depend on less weighty evidence.
