pre action disclosure protocol and records
Discussion
Hi Piston Heads
After a lot of difficulties in gaining legal expenses cover and some delays from the solicitors who will be representing me, my solicitors have apparently approached the defendant's insurers to request an extension of limitation for a claim. The solicitor is saying that the defendant's insurer will not agree to the extension until they have seen my health records. I have been told by the solicitor (who I have not signed the CFA with yet) that "this is not unreasonable as they will need to ensure the records are consistent with our allegations."
I find this very strange and unreasonable as although I have nothing to hide I feel it is unfair that the defendant can read my records and then decide whether to grant more time or not. My records obviously contain personal and sensitive data and the defendant and insurer know the details of the case and that another specialist has had to take over my treatment because of the defendant's poor and imo negligent practice.
I would be grateful for your thoughts and advice....
Thank you
24/7
After a lot of difficulties in gaining legal expenses cover and some delays from the solicitors who will be representing me, my solicitors have apparently approached the defendant's insurers to request an extension of limitation for a claim. The solicitor is saying that the defendant's insurer will not agree to the extension until they have seen my health records. I have been told by the solicitor (who I have not signed the CFA with yet) that "this is not unreasonable as they will need to ensure the records are consistent with our allegations."
I find this very strange and unreasonable as although I have nothing to hide I feel it is unfair that the defendant can read my records and then decide whether to grant more time or not. My records obviously contain personal and sensitive data and the defendant and insurer know the details of the case and that another specialist has had to take over my treatment because of the defendant's poor and imo negligent practice.
I would be grateful for your thoughts and advice....
Thank you
24/7
Twentyfour7 said:
Hi Piston Heads
After a lot of difficulties in gaining legal expenses cover and some delays from the solicitors who will be representing me, my solicitors have apparently approached the defendant's insurers to request an extension of limitation for a claim. The solicitor is saying that the defendant's insurer will not agree to the extension until they have seen my health records. I have been told by the solicitor (who I have not signed the CFA with yet) that "this is not unreasonable as they will need to ensure the records are consistent with our allegations."
I find this very strange and unreasonable as although I have nothing to hide I feel it is unfair that the defendant can read my records and then decide whether to grant more time or not. My records obviously contain personal and sensitive data and the defendant and insurer know the details of the case and that another specialist has had to take over my treatment because of the defendant's poor and imo negligent practice.
I would be grateful for your thoughts and advice....
Thank you
24/7
The first thing I'd say is that if you have legal expenses cover you shouldn't be using a CFA. CFA's are used only where the solicitors are taking a risk of not getting paid, and they therefore get a success fee (amounting, I think, to up to 25% of whatever compensation you receive) as a reward for that risk. After a lot of difficulties in gaining legal expenses cover and some delays from the solicitors who will be representing me, my solicitors have apparently approached the defendant's insurers to request an extension of limitation for a claim. The solicitor is saying that the defendant's insurer will not agree to the extension until they have seen my health records. I have been told by the solicitor (who I have not signed the CFA with yet) that "this is not unreasonable as they will need to ensure the records are consistent with our allegations."
I find this very strange and unreasonable as although I have nothing to hide I feel it is unfair that the defendant can read my records and then decide whether to grant more time or not. My records obviously contain personal and sensitive data and the defendant and insurer know the details of the case and that another specialist has had to take over my treatment because of the defendant's poor and imo negligent practice.
I would be grateful for your thoughts and advice....
Thank you
24/7
If you have LEI they will get paid win or lose, so they're taking no risk and don't deserve any success fee.
So far as the request for disclosure is concerned it's you who are asking the insurers for a favour in `extending' the limitation period. They'd be quite within their rights to refuse, and force you to issue your claim, so you really aren't in a position to dictate what happens.
In any case, assuming it's a clinical negligence claim your health records will have to be disclosed at some point, so it's not unreasonable to be asked to produce them at this point, though depending on the nature of the claim there may be an argument for not having to disclose records that would clearly have no relevance - your solicitor would advise you as to this.
But it's critically important that you do agree an `extension' of the limitation period, otherwise you won't have a claim at all.
Just incase anyone is confused about the background, i assume it relates to this thread from earlier in the year:
https://www.pistonheads.com/gassing/topic.asp?h=0&...
https://www.pistonheads.com/gassing/topic.asp?h=0&...
OP, everything that Pro Bono says above is correct (the fact that your insurer has not supported the claim wasn't apparent on this thread until after PB posted).
The other side is reasonable in asking that you request for more time is supported by disclosure of information which you will inevitably have to provide if your claim goes ahead.
You cannot run what is I assume a medical negligence claim without disclosure of medical records. To be blunt: you have to put up or shut up.
The other side is reasonable in asking that you request for more time is supported by disclosure of information which you will inevitably have to provide if your claim goes ahead.
You cannot run what is I assume a medical negligence claim without disclosure of medical records. To be blunt: you have to put up or shut up.
I am aware my records would need to be disclosed, this is not my concern, it is that they are wanting to see them prior to deciding whether to grant more time. I feel it is unreasonable because I haven't been given a rationale explanation as to why they need to see my records upfront.I don't see how I can give "informed" consent to the disclosure if they aren't open with me. I feel there must be some tactical reason to the insurer's request as I thought the onus was usually on the defendant to disclose records
When I made a complaint to the defendant directly, a long time before a legal claim came into the equation, the defendant on his insurer's advice requested to see my records under the guise of concern and wishing to help. I felt he was not being open and transparent as to why he needed my personal information, as it was clear his practice was at fault, not my health. As I thought it was a strange request, I could only think he wanted to find something to try to say he was not to blame.
The delay in putting forward my intention to make a claim is not my fault.
When I made a complaint to the defendant directly, a long time before a legal claim came into the equation, the defendant on his insurer's advice requested to see my records under the guise of concern and wishing to help. I felt he was not being open and transparent as to why he needed my personal information, as it was clear his practice was at fault, not my health. As I thought it was a strange request, I could only think he wanted to find something to try to say he was not to blame.
The delay in putting forward my intention to make a claim is not my fault.
Your position is very unreasonable. Your are asking for an indulgence but are unwilling to co-operate with the slightly early provision of information that must be provided in any event. The other side would be bound to keep the information confidential and use it only for the dispute.
The onus is on both sides to disclose all relevant information. Your one sided me me me me me view of dispute resolution is wrong.
Anyway, you plainly don't want to hear any advice that does not accord with your views, so no more from me.
The onus is on both sides to disclose all relevant information. Your one sided me me me me me view of dispute resolution is wrong.
Anyway, you plainly don't want to hear any advice that does not accord with your views, so no more from me.
Edited by anonymous-user on Monday 14th December 09:18
As above, you need to agree to this request.
You say "I am aware my records would need to be disclosed, this is not my concern" - if that is the case then just get on with it and give consent.
If you need more time to issue the claim, you are on the back foot and you need the Defendant's cooperation.
"I feel there must be some tactical reason to the insurer's request as I thought the onus was usually on the defendant to disclose records". No - remember, this is your claim and it is for you to prove your case. In practice however, the Defendant will be in possession of the most documentary evidence so it is common for them to have more to disclose.
Personally, if you're unrepresented, I'd be running you all over the place to force you to give up and miss limitation. Unfair? Perhaps, but by leaving things until the eleventh hour and fifty ninth minute, you've given them a free swing at a knock-out blow. Litigation is a blunt instrument and their goal is to bludgeon you into submission (within the confines of the CPR and professional conduct rules).
Good luck!
You say "I am aware my records would need to be disclosed, this is not my concern" - if that is the case then just get on with it and give consent.
If you need more time to issue the claim, you are on the back foot and you need the Defendant's cooperation.
"I feel there must be some tactical reason to the insurer's request as I thought the onus was usually on the defendant to disclose records". No - remember, this is your claim and it is for you to prove your case. In practice however, the Defendant will be in possession of the most documentary evidence so it is common for them to have more to disclose.
Personally, if you're unrepresented, I'd be running you all over the place to force you to give up and miss limitation. Unfair? Perhaps, but by leaving things until the eleventh hour and fifty ninth minute, you've given them a free swing at a knock-out blow. Litigation is a blunt instrument and their goal is to bludgeon you into submission (within the confines of the CPR and professional conduct rules).
Good luck!
If the hold up is around the funding you're losing sight of the bigger picture. It isn't worth labouring. My insurer's legal policy had some small print to exclude my specific circumstances so I went straight in with a CFA without caring less. We also issued protectively near the end of the limitation period to buy a little more time, but a lot had already taken place by that time. Listen to what the lawyers on here are telling you. Good luck.
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