Komori v Tayside Health Board [2010] ScotCS CSOH_30 (12 March 2010)

Komori v Tayside Health Board [2010] ScotCS CSOH_30 (12 March 2010)

Documents generated during the NHS complaints procedure in response to a patient's complaint, and not in contemplation of litigation, are not covered by the post litem motam rule and are recoverable by the pursuer. The investigation was for the benefit of the pursuer, not for the defenders' preparation of their case, and at the time of creation, litigation was neither threatened nor contemplated.

Citation
[2010] ScotCS CSOH_30
Parties
Pursuer: Marika Nina MacPherson Komori; Defender: Tayside Health Board
Jurisdiction
Scotland
Judgment Date
12 March 2010
Procedural Posture
Medical Negligence Action / Interlocutory Motion for Commission and Diligence for Recovery of Documents
Outcome
Motion granted
Legal Topics
Recovery of Documents, Privilege and Confidentiality, Post Litem Motam Rule, NHS Complaints Procedure
Civil Procedure Medical Negligence Recovery of Documents Privilege and Confidentiality Post Litem Motam Rule NHS Complaints Procedure

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Parties

Marika Nina MacPherson Komori

Pursuer

Tayside Health Board

Defender

Procedural Posture

Medical Negligence Action / Interlocutory Motion for Commission and Diligence for Recovery of Documents

Legal Issues

  1. 1 Whether documents generated during an NHS complaint investigation are privileged and confidential under the post litem motam rule and thus not recoverable by the pursuer in a medical negligence action.

Ratio Decidendi

Documents generated during the NHS complaints procedure in response to a patient's complaint, and not in contemplation of litigation, are not covered by the post litem motam rule and are recoverable by the pursuer. The investigation was for the benefit of the pursuer, not for the defenders' preparation of their case, and at the time of creation, litigation was neither threatened nor contemplated.

Court Disposition

Motion granted

Orders

  • Commission and diligence for recovery of documents relating to the investigation of the pursuer's complaint granted.