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Pre-litigation document disclosure- Case study

This claim relates to slip and fall incident occurring at a client’s premises in December last year. A third party solicitor privacycontacted us requesting for the incident report, CCTV footage and cleaning contract.

 

We responded by asking for medical information about their client’s injuries. They declined to provide any information stating that: “…we do not hold any medical material at this stage and are not prepared to quantify any possible claim until we firstly decide if a claim is available”. We compromised by providing a re-dacted copy of the incident report but declined handing over the CCTV footage or cleaning contract on the grounds of privacy. They responded with Summons seeking production of the footage and contract.

 

At the Summons Hearing, the Registrar accepted our argument that the Australian Privacy Principles needed to be taken into account and that personal information about third parties could not be disclosed in the absence of a Court order. This is particularly the case for CCTV footage where other unrelated individuals may be identified and without the possibility of obtaining their consent.

 

It is not uncommon for a third party solicitor to undertake some form of “fishing” to try and ascertain their prospects of success, before actually obtaining any medical evidence or quantifying their claim. We have found them to be quite demanding and insistent for this information even after being repeatedly declined. The Registrar’s opinion is encouraging as it supports our stance and gives guidance as to how to respond to such requests in future.

 

As a general rule, if it is agreed to provide a third party solicitor with an incident report or any other document relating to a claim – details of individuals (e.g. staff members) and sensitive commercial information should be redacted. CCTV footage where unrelated individuals may be identified should not be disclosed without a Court order. A compromise to this (particularly if it is beneficial for the party to view the footage) is to allow them to view, but not remove a copy of the footage.

Written by Glenn Pereire

 

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