After a claim is made, each party should be able to carry out their own investigations without having to worry about showing their hand to the other side. To uphold this principle, the courts will not generally order parties to produce documents which have been prepared in contemplation of litigation. But how do we tell when litigation is being contemplated? Routine accident reports produced immediately after the event are generally recoverable, but what about more extensive investigations undertaken as part of an organisation’s general risk management policy?

The issue arose recently in the unusual case of Neil Cumming v Tayside Health Board (2016). Mr Cumming had been acquitted, by reason of insanity, for his wife’s murder. The day before her death, he underwent an examination by his psychiatrist when it was agreed that he should be admitted to hospital. There were no available beds in the local psychiatric hospital, but there was one in Perth.  He claims that his psychiatrist negligently failed to tell him about this bed. Had he known, he would have agreed to be admitted there and would not have killed his wife. The health board insists that Mr Cumming was told about the bed, but declined to accept it, preferring instead to wait until his local hospital had a place for him.

The case went before the court on Mr Cumming’s application to recover documents used to compile a Significant Clinical Event Analysis Review. This review was carried out by the health board into the events surrounding his wife’s death. The final report from the review had already been disclosed. It concluded that he had been offered a bed in Perth, but had declined it. He wanted the court to order the health board to produce the documentation used to compile the report and reach this conclusion.

Mr Cumming argued that an analogy could be drawn with the 2010 case of Komori v Tayside Health Board. There, the health board had investigated a patient complaint. The claimant sought sight of documents created during that investigation.

The health board’s position was that the facts in Komori were plainly different. There could only be an investigation if the complainant was not taking legal action. Accordingly legal action was not being contemplated when the health board made it investigations and the documents were recoverable by the other side. Moreover there was only one exception to the general rule that documents prepared for litigation were irrecoverable. That arbitrary exception related exclusively to accident reports by employees to employers at the time of an accident.

The judge refused to order the health board to produce the documentation. There was a strong policy against disclosure: “An organisation should not be inhibited from carrying out legitimate investigations and it would be undesirable to paralyse the taking of remedial measures” which might be identified from that investigation. He did however, go on to say that he may have decided the matter differently if Mr Cumming had reworded his application to cover only the kind of “spontaneous reporting” by employees. That, he concluded, would fall within the recognised exception.

This decision is a sensible one, underscoring that organisations should feel free to carry out detailed investigations without being under compulsion to turn over their findings to a litigious patient. The exception to the rule is helpfully, narrowly defined. But how does this sit with the duty of candour? Will the litigious patient in future years use that as a swifter - and cheaper - means to the same end?

Katie Fraser, Trainee Solicitor