McLean v. Argyll And Clyde Health Board [2010] ScotCS CSOH_54 (27 April 2010)

McLean v. Argyll And Clyde Health Board [2010] ScotCS CSOH_54 (27 April 2010)

The court refused the pursuer's call 1 in the specification of documents on the basis that it constituted a fishing diligence, seeking documents to discover if there was a case rather than to make existing averments more specific. The specification was also found to be unduly wide and unintelligible. Commission and diligence was granted only in respect of the new, more specific calls 2 and 3 and the fallback call 4.

Citation
[2010] ScotCS CSOH_54
Parties
Pursuer: Mrs Julie Anne McLean; Defender: Argyll and Clyde Health Board
Jurisdiction
Scotland
Judgment Date
27 April 2010
Procedural Posture
Civil (medical Negligence) / Interlocutory Motion for Commission and Diligence (document Recovery)
Outcome
Motion for commission and diligence granted in part; refused in respect of call 1 as fishing diligence; granted for calls 2, 3, and 4.
Legal Topics
Commission and Diligence, Fishing Diligence, Document Recovery, Specification of Documents, Hospital Management Negligence
Civil Procedure Medical Negligence Commission and Diligence Fishing Diligence Document Recovery Specification of Documents Hospital Management Negligence

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Parties

Mrs Julie Anne McLean

Pursuer

Argyll and Clyde Health Board

Defender

Procedural Posture

Civil (medical Negligence) / Interlocutory Motion for Commission and Diligence (document Recovery)

Legal Issues

  1. 1 Whether the pursuer's specification of documents constitutes a fishing diligence
  2. 2 Whether the specification is too wide or unintelligible to be granted
  3. 3 Whether commission and diligence should be granted at this procedural stage

Ratio Decidendi

The court refused the pursuer's call 1 in the specification of documents on the basis that it constituted a fishing diligence, seeking documents to discover if there was a case rather than to make existing averments more specific. The specification was also found to be unduly wide and unintelligible. Commission and diligence was granted only in respect of the new, more specific calls 2 and 3 and the fallback call 4.

Court Disposition

Motion for commission and diligence granted in part; refused in respect of call 1 as fishing diligence; granted for calls 2, 3, and 4.

Orders

  • Commission and diligence granted for calls 2 and 3 (specific patient records and theatre logs) and call 4 (copies/drafts).
  • Leave to reclaim interlocutor in respect of refusal of call 1 granted.