POWERS OF HIGH COURT EXERCISABLE BEFORE COMMENCEMENT OF ACTION (Hansard, 9 July 1981)

§ Sir Walter Clegg
I beg to move amendment No. 2, in page 25, line 35, leave out 'legal advisers' and insert 'solicitors'.

Mr. Deputy Speaker
With this we may take the following amendments:
No. 3, in page 25, line 36, leave out 'legal advisers' and insert 'solicitors'.
No. 4, in page 25, line 37, leave out 'legal adviser' and insert 'solicitor'.
No. 5, in clause 34, page 26, line 16, leave out 'legal advisers' and insert 'solicitors'.
No. 6, in page 26, line 17, leave out 'legal advisers' and insert 'solicitors'.
No. 7, in page 26, line 19, leave out 'legal advisers' and insert 'solicitors'.

§ Sir Walter Clegg
This is a simple matter, which was debated in another place. The term "legal advisers" in the clause is used, and it appears to have no legal definition. It is very wide. The Law Society feels that it would be better to insert the word "solicitors". If the word "solicitors" were inserted it would be able to communicate the contents of these reports to members of the Bar. The argument is that the word "solicitors" is legally defined and the term "legal advisers" is not. It is a small point, but I should like to hear my hon. and learned Friend's reaction to it

§ The Solicitor-General
My hon. Friend the Member for South Fylde (Sir W. Clegg) is right in saying that it is a small point, in the sense that the argument about it falls within a small compass. However, no one should be misled by that into thinking that it is not an important point. It is important to get it right.
In Committee I undertook gladly to reconsider the provision. My view is that the Lord Chancellor and his predecessor, Lord Elwyn-Jones, were right in what they said about this issue on Third Reading in another place. The term "legal advisers" had been used in the Bill from its inception and without any query on it, though the Law Society has, to its and our advantage scrutinised the Bill closely from start to finish. The Lord Chancellor expressed the view that "legal advisers" meant the solicitors on the record and counsel if instructed. Lord Elwyn-Jones echoed that view. I think that that is what it means. I think that it means exactly what we intend the provision to mean, namely, that documents shall be disclosed to the solicitor and counsel, if there is a counsel.
We are considering an unusual provision. We are not talking merely about the production of documents. In the usual course of events, once documents are disclosed they are available to the lay client, to anybody in the solicitor's office, and to counsel.
We are talking about disclosure in special circumstances in which it is not intended that the lay client should see the documents. We are specifically giving the court the power to say "No. We will not have these documents disclosed to the applicant alone, in which case everyone will see them." The court may say "We do not want the documents disclosed to the applicant. We shall say that, they shall be disclosed to the legal advisers." My advice 668 to the House is that that means that they shall be disclosed to the solicitor on the record and to counsel, if counsel has been instructed, or as and when he is instructed. I am sure that it would be the wish of the House to choose such wording that includes both solicitor and counsel. I do not believe that the wording includes anybody else.

§ Mr. Ivan Lawrence (Burton)
What is the position of the legal executive, either qualified or unqualified? There may be a reason why a qualified solicitor and a qualified barrister should be restricted persons for the purpose that my hon. and learned Friend intends. The words "legal adviser" seem to go wider and to cover both the qualified and unqualified legal executive.

§ The Solicitor-General
I have given my advice on what the words mean. I do not think that the wording may be extended to legal executives or to a secretary in a solicitor's office. It means the solicitor on the record. If we were to accept the amendment, the provision would be extremely narrow. I think that it would be too narrow. My hon. and learned Friend the Member for Burton (Mr. Lawrence) may say "Are you going too wide?" I do not think that we are. There is the fall-back, that it is entirely for the court to ask, within the limitations that we allow in the Bill, "Who shall see these documents?" As I said, it would not be right to limit the court to saying that only solicitors may see the documents. It is right to give the courts extra scope. That is given to them by using the term "legal advisers". I do not believe that I am wrong in the advice that I have given to the House, but if I am the remedy lies in the hands of the court. It may say specifically "We mean in this instance the solicitor on the record and/or counsel".

§ Mr. Richard Alexander (Newark)
I accept what my hon. and learned Friend says, but is there not a possibility that "legal advisers" include, and often include in the general term, those who are not qualified? As they are not qualified solicitors, they are not subject to any of the disciplines that apply to solicitors on the record. They may deal with such information as they receive in a way that the court does not expect of them, in a way that is reprehensible, and in a way that would never be entertained by a solicitor.

§ The Solicitor-General
I am sorry if I failed to make the position clear to my hon. Friend. I do not believe that only the people to whom he refers are legal advisers. Even if I were wrong, the court is not obliged to say that those documents shall be disclosed to the applicant's legal adviser. It may say that those documents shall be disclosed to the solicitor on the record or the solicitor and counsel. The courts can say both those things within the wording, but they do not have to.
If anyone appearing on such an application fears the consequences to which my hon. Friend refers, it is open to him to say that he has doubts and to request that the wording be used. I do not believe that it is necessary, but it is open to someone who fears that that may happen to say that it would be unfortunate, because he did not want the documents to go to the legal executive or to anyone else, and to ask that they be limited to the solicitor on record and counsel? If the amendment were carried the court would have no scope save to say that the documents should go to the solicitor. I do not believe that anyone wants that.

§ Sir Graham Page (Crosby)
The background to the clause lies in the production of medical reports to overcome the difficulty that the courts and litigants or prospective litigants have had in the past of the doctors and hospitals refusing to produce the medical notes—rightly so—unless subpoenaed and put in the box so that they can be produced. It became a part of the law that an application could be made for a restricted production. That is now being put into statute, whereas up to now it has merely been case law.
The whole point of such an order is to prevent one of two things. The first is what we refer to in not quite legal terms as "fishing." If an applicant is fishing for a cause of action, I believe that the court would probably refuse such an order. However, if the court is satisfied that the applicant has some grounds for an action, usually those against the surgeon or the hospital for a form of negligence, in practice the court orders the notes to be produced, generally speaking to the medical adviser of the applicant.
The other reason for not producing the medical notes or reports is that it may be damaging for the applicant to see. It may be a matter of grave damage, where it would be wrong to allow the applicant to see those notes. Therefore, the restrictive order has been made in the past to produce the notes generally to the medical adviser of the applicant through the solicitor.
If it does not matter about the applicant seeing the notes, and if the court is satisfied that it is not a case of fishing for a cause of action, the court will make an order for production of those notes to the applicant, and the applicant can then go to whatever adviser he chooses. However, if it is desired to make a restrictive order and there is good reason for thinking that the applicant should not see the notes, for his or her own good, the order should be restrictive. It is now being provided in a statutory form that a court can order the notes to be produced to someone who is not on the record as a solicitor or who would not be on the record as a solicitor if the action started. It is giving the courts a much wider power than at present. It is a wider power than is granted according to the present convention. It is saying that the court can make an order for production of those medical notes to anyone who claims to advise the applicant on legal matters.
I suppose that it is out of date now, but in my early days of practice we had gentlemen called ambulance chasers, who were immediately on the scene after an accident to encourage the injured person to take action. An ambulance chaser, who was not a solicitor, passed the action on to some firm. He would have called himself a legal adviser. He advised the injured person where to go for legal advice, and that is advising, in law.
However, in this case it may be any person. Therefore, the clause puts into statutory form permission to the court to make orders that are outside the orders that are at present made.

§ The Solicitor-General
Yes. The clause gives these powers in the hope that they will be helpful to people who have suffered personal injury. That is the intention. That is why something different is being done, and I said so in Committee.
It is not simply a matter of logic. We want to help people who have suffered personal injury which may be serious. I agree that these are wider powers, but we must 670 remember that they apply only when there is some reason for not ordering production to the applicant. With respect, even as a form of words, I do not believe that the clause goes as far as my right hon. Friend suggests, but even if it did, we have tried to leave with the court the power to say who shall see, and everyone has agreed with that all the way through.
I am sure that the court will bear in mind the reason why we are giving this power. We want to help people who have suffered injury, but simply by having an open order for production, we do not want to do the opposite and to cause distress by producing documents that would distress them.
I take note of the concern that has been expressed. It is good that it has been expressed, and I am sure that the judges who will have to administer this provision will take note of it. However, I commend the Bill as it stands rather than as it would be as amended.