Siobhan Tiffany Tubb & Anor v Rosmellyn Surgery [2025] EWCC 23

[2025] EWCC 23Case No L00TR356
IN THE COUNTY COURT AT TRURO
Date 19 May 2025
Courts of Justice, Edward St, Truro TR1 2PB
Before
District Judge Field
Between
(1) SIOBHAN TIFFANY TUBBClaimants(2) MELANIE META ESDALEClaimantROSMELLYN SURGERYDefendant
Ms Elizabeth Atkinson (instructed by Pender Law Limited) for ClaimantMr Matthew Hill (instructed by The Medical and Dental Defence Union of Scotland) for DefendantHearing Hearing date: 12 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 19 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesDistrict Judge Field:
[1]This is my Judgment following the hearing of the Claimants’ Part 8 Claim for an order pursuant to section 8 of the Access to Health Records Act 1990 (‘AHRA 1990’) that the Defendant must provide copies of the medical records which they hold in respect of Sheila Patricia Mary Esdale, who died on 2 November 2023.[2]The case concerns the correct interpretation of section 3(1)(f) of the AHRA 1990 which permits an application to be made for access to a health records by: “where the patient has died, the patient’s personal representative and any person who may have a claim arising out of the patient’s death”.[3]The interpretation of section 3(1)(f) of the AHRA 1990 has already been the subject of a decision of Sir Andrew McFarlane P, sitting in the High Court of Justice, Family Division, in the case of ReAB (Disclosure of Medical Records) [2020] EWHC 691 (Fam). In Re AB the court was concerned with whether a person seeking access to health records under section 3(1)(f) in their capacity as a deceased person’s personal representative had to also show that they had a “claim which may arise out of the patient’s death”. That was answered in the negative. A personal representative has a free standing right to request access to health records under section 3(1)(f).[4]However, the issue in this case is a different one: whether a person, who may not be a personal representative but may have a claim to pronounce for or against a will in solemn form, has a “claim arising out of [a] patient’s death”, such that they are entitled to access the deceased’s medical records.[5]It is an issue of considerable importance, both to parties involved in contentious probate disputes where the question of testamentary capacity may often turn to a significant extent on medical evidence, and also to medical practitioners who are rightly concerned to ensure patient confidentiality is properly protected.[6]It is perhaps surprising therefore that there appears to be no authority on this issue, whether binding or otherwise. The First Preliminary Point: The Defendant’s Permission To Take Part In This Hearing[7]The claim and the Claimant’s evidence in support was served on 16 October 2024, with the result that pursuant to CPR 8.3, the Defendant was due to file an acknowledgment of service and any evidence in response by 30 October 2024. They did not do so. Pursuant to CPR 8.4, the Defendant was not entitled to take part in this hearing without the permission of the court. The Defendant applied for permission to do so on 22 November 2024.[8]CPR 8.4 provides for an automatic sanction and as such, that application fell to be considered under CPR 3.9. The Claimant confirmed that they did not oppose the application.[9]Applying the familiar three stage test in Denton and others v TH White and others [2014] EWCA Civ 906, I concluded that the failure to file an acknowledgment of service was a serious and significant breach and that there was no good reason given. However, having regard to all the circumstances of the case, including that the Claimant did not oppose the application, the application was made promptly, and that the case was proceeding on submissions alone, I granted the Defendant relief from sanction so that they would be permitted to take part in the hearing. The Second Preliminary Point: Reference to Parliamentary Materials[10]Mr Hill on behalf for the Defendant contended that Section 3(1)(f) of the AHRA 1990 was ambiguous such that, pursuant to the rule in Pepper v Hart [1993] AC 593, the court could consider parliamentary materials to assist in establishing Parliament’s intention, including statements made to Parliament by the promoter of the legislation in question.[11]In particular, the Defendant wished to direct the court to statements made by Baroness Ewart-Biggs, the promoter of the bill in the House of Lords, during its second reading.[12]Ms Atkinson on behalf of the Claimants contended that Section 3(1)(f) of the AHRA 1990 was not ambiguous, such that the court would not be entitled to refer to parliamentary materials when interpreting the Act. She invited me to determine whether or not the section was ambiguous as a preliminary point before proceeding with the hearing, on the basis that once I had heard submissions on the parliamentary materials, it would be “difficult to put it out of mind” (Pepper v Hart at 643C).[13]I had already read the parties’ skeleton arguments, including the Defendant’s which quoted the passage from Hansard which the Defendant would rely upon. Considering that the hearing was listed for 2 hours and I intended to reserve judgment to give a written judgment, I determined that it would not be in accordance with the overriding objective to hear submissions and give judgment on the ambiguity or otherwise of the section before turning to deal with the remainder of the case. To do so would have risked the remainder of the case being part heard, resulting in delay and further costs for the parties.[14]I accepted that, in the event I concluded that section 3(1)(f) AHRA 1990 was not ambiguous, I would need to be particularly careful to disregard the extracts from Hansard which the Defendant had referred me to. The Background To The Substantive Claim[15]The Claimants, Siobhan Tubb and Melanie Esdale, are two of three daughters of the Deceased. The third Daughter is Stephanie Esdale. She is not a party to these proceedings.[16]The Deceased died on 2 November 2023. To date, probate has not been granted. The Claimants have lodged a caveat in respect of her estate.[17]There are potentially three relevant wills said to have been made by the Deceased. The first was a will made on 31 August 2010. That will appointed all three of the Deceased’s daughters as her executors. It left her residuary estate to the 3 daughters in equal shares.[18]The second is dated 3 May 2016. I do not have a full copy of that will, but I have a cover sheet which confirms that it appoints the three daughters as executors. I am told that its terms are substantially similar to that of the 2010 Will.[19]The third is a will dated 8 June 2023. It appoints Stephanie Esdale as her sole executor and leaves her residuary estate to Stephanie Esdale absolutely.[20]The Claimants consider that there are reasons to doubt the validity of the 2023 Will, on the grounds that the Deceased lacked testamentary capacity, or that it was procured by undue influence. They anticipate making a claim under Part 57 of the Civil Procedure Rules to propound the 2016 will in solemn from. It is also conceivable that Stephanie Esdale may make her own claim or counterclaim to propound the 2023 Will.[21]The Claimants instructed Pender Law to investigate and advise them in respect of the validity of the various wills. In order to do so, on 2 January 2024 Pender Law wrote to the Defendant GP Surgery and Treliske Hospital to request copies of the Deceased’s medical records. The letter stated that the request was made pursuant to section 3(1)(f) of the Access to Health Records Act 1990. It stated that the claimants were “investigating the possibility of a claim against the Deceased’s estate”. It enclosed forms of authorities signed by each of the Claimants.[22]Whist the letter refers to a claim “against the Deceased’s estate” the claim which is actually envisaged is a probate claim under Part 57 of the CPR to propound a particular will.[23]Treliske Hospital complied with the Claimants’ request, the Defendant GP Surgery did not.[24]The Defendant and Pender Law proceeded to exchange correspondence between January and June 2024 that does not need to be recited in full. In short, the Defendant’s position was that in order to release the Deceased’s medical records, they required the consent of the Deceased’s personal representative or a court order providing for their release.[25]The Defendant’s position was that “the contesting of a Will is not a claim arising from the death of a patient” and did not therefore fall within the provisions of section 3(1)(f) of the AHRA 1990.[26]I understand that it is the Defendant’s position that, had the Claimants and Stephanie Esdale consented to the release of the records, they would have complied. I am told, although I have not seen the correspondence, that the Claimants approached Stephanie Esdale to obtain her consent, but that consent was not forthcoming. Having not seen that correspondence I will do no more than comment that The ACTAPS Guidance for the Resolution of Probate and Trust Disputes provides that, unless there is a good reason not to do so, the parties to a probate dispute should submit a joint request for medical records. Had that happened, it would seem the need for this litigation would have been avoided. The Access To Health Records Act 1990[27]When interpreting any particular provision in an Act, that provision is to be read within the context of the whole Act. In this case, the most relevant provisions within the AHRA 1990 are set out below.[28]As originally enacted, section 3 provided: (1) An application for access to a health record, or to any part of a health record, may be made to the holder of the record by any of the following, namely a) the patient; b) a person authorised in writing to make the application on the patient’s behalf; c) where the record is held in England and Wales and the patient is a child, a person having parental responsibility for the patient; d) where the record is held in Scotland and the patient is a pupil, a parent or guardian of the patient; e) where the patient is incapable of managing his own affairs, any person appointed by a court to manage those affairs; and f) where the patient has died, the patient’s personal representative and any person who may have a claim arising out of the patient’s death.[29]Subsections 3(1)(a)-(e) have since been repealed by the Data Protection Act 1998.[30]Section 3(2) sets out the obligation on the record holder to allow inspection or to provide a copy of the record “within the requisite period”.[31]Section 3(5) provides (5). For the purposes of subsection (2) above the requisite period is— a) where the application relates to a record, or part of a record, none of which was made before the beginning of the period of 40 days immediately preceding the date of the application, the period of 21 days beginning with that date; b) in any other case, the period of 40 days beginning with that date.[32]Section 3(6) provides (6) Where— a) an application under subsection (1) above does not contain sufficient information to enable the holder of the record to identify the patient or, to satisfy himself that the applicant is entitled to make the application; and b) within the period of 14 days beginning with the date of the application, the holder of the record requests the applicant to furnish him with such further information as he may reasonably require for that purpose subsection (5) above shall have effect as if for any reference to that date there were substituted a reference to the date on which that further information is so furnished.”[33]Sections 4 and 5 set out the exclusions and partial exclusions to the obligation under section 3(2) to provide access to a health record following a request made under section 3(1)(f):
“4.— Cases where right of access may be wholly excluded. [...] (3) Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section if the record includes a note, made at the patient's request, that he did not wish access to be given on such an application.” 5.— Cases where right of access may be partially excluded. (1) Access shall not be given under section 3(2) above to any part of a health record— (a) which, in the opinion of the holder of the record, would disclose— (i) information likely to cause serious harm to the physical or mental health of any individual; or (ii) information relating to or provided by an individual, other than the patient, who could be identified from that information; or (b) which was made before the commencement of this Act. … (3) Access shall not be given under section 3(2) to any part of a health record which, in the opinion of the holder of the record, would disclose— (a) information provided by the patient in the expectation that it would not be disclosed to the applicant; or (b) information obtained as a result of any examination or investigation to which the patient consented in the expectation that the information would not be so disclosed. (4) Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death.” [...] (3) Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section if the record includes a note, made at the patient's request, that he did not wish access to be given on such an application.” (1) Access shall not be given under section 3(2) above to any part of a health record— (a) which, in the opinion of the holder of the record, would disclose— (i) information likely to cause serious harm to the physical or mental health of any individual; or (ii) information relating to or provided by an individual, other than the patient, who could be identified from that information; or (b) which was made before the commencement of this Act. … (3) Access shall not be given under section 3(2) to any part of a health record which, in the opinion of the holder of the record, would disclose— (a) information provided by the patient in the expectation that it would not be disclosed to the applicant; or (b) information obtained as a result of any examination or investigation to which the patient consented in the expectation that the information would not be so disclosed. (4) Where an application is made under subsection (1)(f) of section 3 above, access shall not be given under subsection (2) of that section to any part of the record which, in the opinion of the holder of the record, would disclose information which is not relevant to any claim which may arise out of the patient's death.”
[34]Section 8 of the Act provides the means by which a person entitled to access to a health record under section 3(2) may enforce that right of access through the court: 8.— Applications to the court. (1) Subject to subsection (2) below, where the court is satisfied, on an application made by the person concerned within such period as may be prescribed by rules of court, that the holder of a health record has failed to comply with any requirement of this Act, the court may order the holder to comply with that requirement. … (4) For the purpose of determining any question whether an applicant is entitled to be given access under section 3(2) above to any health record, or any part of a health record, the court— (a) may require the record or part to be made available for its own inspection; but (b) shall not, pending determination of that question in the applicant's favour, require the record or part to be disclosed to him or his representatives whether by discovery (or, in Scotland, recovery) or otherwise.

The Claimants’ Case

[35]The Claimants’ case is that the words used by section 3(1)(f) of the AHRA 1990 are unambiguous and clear. They say that section 3(1)(f) identifies two categories of person who may request access to health records under that provision:a. Personal representatives of the Deceased; andb. Any person who may have a claim arising out of the death of the Deceased.[36]Ms Atkinson relies upon the authority of Re AB in this regard.[37]The Claimants say that they fall in the second category, as persons who have a probate claim to propound the 2016 Will or against the 2023 Will. In this judgment I use the term probate claim to have the same meaning as is set out in CPR 57.(1)(a): “probate claim” means a claim for— i. the grant of probate of the will, or letters of administration of the estate, of a deceased person; ii. the revocation of such a grant; or iii. a decree pronouncing for or against the validity of an alleged will; not being a claim which is non-contentious (or common form) probate business” i. the grant of probate of the will, or letters of administration of the estate, of a deceased person; ii. the revocation of such a grant; or iii. a decree pronouncing for or against the validity of an alleged will;[38]The Claimants say that, since such a claim cannot be brought within a testator’s lifetime, it is axiomatic that a probate claim arises “out of the death” of the Deceased.[39]It may be that the Claimants also fall within the first category (personal representatives) but that cannot be said with certainty until it has been determined which is the last true will of the Deceased.[40]In support of their interpretation of section 3(1)(f) AHRA 1990, the Claimants point to instances where exclusion of probate claims from the ambit of that section would result in no person having a direct right of access to a Deceased person’s medical records, including: a) where a person dies intestate and there are no personal representatives until the grant of letters of administration. They say that, notwithstanding that medical evidence might be required to disprove the validity of a particular will leading to intestacy, there would be no right of access to the Deceased’s medical records under the AHRA 1990; b) where there are no surviving named executors and a beneficiary applies for a grant of probate of a will. In these circumstances the beneficiary would not be a personal representative prior to the grant and they might require medical records to prove the validity of the will in question.[41]Ms Atkinson also submits until a particular will is proven, it would be wrong for a record holder to simply assume that a person named as an executor in a particular will is a personal representative. She says that the role of the court in a probate claim is inquisitorial and that there are instances in which, even though the claim is unopposed, the court will need to be satisfied that the will is valid. She relies upon Re Denning [1958] 1 WLR 462 in this regard. She says that the validity of a will includes the need to prove that the testator had testamentary capacity and that the court may therefore require access to medical records in such cases. She says therefore that it stands to reason that a person bringing such a claim should have a right of access under section 3(1)(f).[42]On the centrality of medical records to many probate claims, Ms Atkinson makes a number of submissions which she describes as “wider considerations”. These can be broken down into four categories:a. That medical records have been relied upon in probate cases where there has been no grant of probate and where the court has not admitted wills in the favour of the named executors. She says that despite the fact medical records have (presumably) been released under section 3(1)(f) to parties who have ultimately been found not to be the Deceased’s personal representatives, no criticism has been made by the courts to that release (Leonard v Leonard [2024] EWHC 321 (Ch); Clitheroe v Bond [2020] EWHC 1185 (Ch); and Re Key [2010] 1 WLR 2020).b. That the leading textbooks in the field of probate practice all proceed on the basis that persons bringing probate claims have a right of access under section 3(1)(f), although she acknowledges that they cite no authority for that proposition (Atkins Court Forms Vol 32(1) Form 116; Theobald on Wills (19th Ed) [4-024]; Tolley’s Administration of Estates [Part L:8]; Tristram and Coote’s Probate Practice [36.27]; and Probate Disputes and Remedies [Sample 14 - Letter Requesting Medical Records and 12.112-114]. Ms Atkinson submits that, if the Defendant is right that section 3(1)(f) does not afford a right of access to those bringing probate claims, it will have a fundamental effect on how probate claims are run and how healthcare providers respond to such requests. It would mean that in many instances medical records have been disclosed by healthcare providers outside the scope of the AHRA 1990.c. That the answer to these problems should not be seen as CPR 31.17 (Orders for disclosure against a person not a party). Such an application can only be made after proceedings have been issued. Ms Atkinson contends that it is against the interests of justice to encourage premature litigation with a view to obtaining a non-party disclosure order under r.31.17. There is statutory provision made under the AHRA 1990 wide enough to allow disclosure so that parties can consider, assess, and formulate their cases. Whilst not a point made by Ms Atkinson, I note that pursuant to CPR 46.1(2), the general rule in respect of an application under CPR 31.17 is that the court will order the applicant to pay the costs of the respondent in respect of the application and complying with the order, whereas no fee is payable in respect of a request under section 3(1)(f) of the AHRA 1990. The Defendant’s Case[43]Before setting out the grounds on which the Defendant disputes the Claimants’ entitlement to the Deceased’s health records, it helpful to make clear at the outset the grounds which have not been put forward by the Defendant to withhold the records.[44]In particular, the Defendant does not say that the exclusions under sections 3(4) or 3(5) of the AHRA 1990 apply. Nor could it do so, since the Defendant has not filed or served any evidence and I am told they have not reviewed the Deceased’s records. In the circumstances, they cannot say that either:a. “the record includes a note, made at the patient's request, that he did not wish access to be given on such an application” (section 3(4) AHRA 1990); orb. that they hold an opinion which would give grounds to withhold a part of the record under sections 5(1),(3) or (4) of the AHRA 1990.[45]The sole basis on which the Defendant opposes the Claimants’ claim is that it says the Claimants do not fall within the scope of section 3(1)(f) of the AHRA 1990, and as such they are not entitled to an order under section 8 of that Act. The Defendant says, uncontroversially, that medical records constitute highly sensitive personal information and that access to those records are tightly prescribed by the AHRA 1990.[46]In correspondence with the Claimants’ solicitors, the Defendant’s solicitors have taken the position that “claims arising from the death of the patient” should be interpreted as being strictly limited to claims by dependents under the Fatal Accidents Act 1976.[47]In common with the Claimant, the Defendant says it is not aware of any authority on the interpretation of the meaning of the words “arising out of” in section 3(1)(f) of the AHRA 1990. However, it does say that the court can usefully have regard to how the words “arising out of” have been interpreted in a contractual context, as discussed in the judgment of Burton J in British Waterways v Royal & Sun Alliance Insurance Plc [2012] EWHC 460 (Comm).[48]In that case, the claimant held insurance cover which excluded liability “arising out of… the operation as a tool of the Insured Vehicle [a tractor] or attached plant”. Having considered a number of a “apparently conflicting decisions as to the meaning of ‘arising out of’ in the insurance context” Burton J concluded (at paragraph 47) that the question to ask was whether the use of the insured vehicle with attached plant as a tool was the “proximate cause” of the accident, or if a less stringent approach was to be applied, “whether there is a relatively strong degree of causal connection”.[49]The Defendant contends that the same interpretation should be applied to section 3(1)(f) so that the court must ask itself whether the patient’s death is the “proximate cause” of the claim or “whether there is a relatively strong degree of causal connection” between the death and the claim.[50]Adopting that interpretation, the Defendant says that the reference in section 3(1)(f) to “a claim arising out of the patient’s death” does not include a probate claim. The Defendant contends that a probate claim arises out of events in the testator’s lifetime, namely the making of a particular will, either with or without the requisite testamentary capacity. There is, the Defendant says, an insufficient causal connection between the death and the probate claim.[51]The Defendant draws an analogy with how it says a beneficiary’s rights under a will arise. The Defendant argues that a beneficiary’s right arises from the testator’s stated intention, lawfully recorded and witnessed, that he intends for the beneficiary to inherit. The Defendant describes the testator’s death as a “condition precedent” or a “trigger” for “title to the property to transferred” but states the beneficiary’s legal rights arise not out of the death but out of the making of the will during the testator’s lifetime.[52]As with the Claimants, the Defendant also makes a number of wider submissions which it contends lend support for its interpretation of section 3(1)(f). They are as follows:a. Section 3 and Section 5 of the AHRA 1990 should be considered together and, when one does so, it can be seen that the consequences of bringing probate claims within the ambit of section 3(1)(f) are such that it cannot have been Parliament’s intention to do so. In particular it says that: i. Medical consultations of elderly or vulnerable patients commonly take place in the presence of family members with the result that the notes contain information provided by those family members who may easily identifiable. As such the record holder would be entitled to redact that part of the record pursuant to section 5(1)(a)(ii) of the Act. The Defendant says that this task would be burdensome for the record holder and could, in some cases, result in material that is relevant to a probate claim being withheld. ii. Section 5(3) provides that record holders may withhold part of a record if they are of the opinion that the Deceased had the expectation that the information within that record would not be disclosed to the particular applicant. The Defendant says that in probate disputes which may often involve a degree of a family estrangement, it is more likely that it will be argued that the Deceased would not have wanted their medical records to be shared with a particular applicant. It says that if probate disputes were to be brought within the ambit of section 3(1)(f) it would leave GPs and other holders of health records needing to adjudicate upon family disputes in order to decide who the Deceased would and would not have expected their medical information to be shared with. The Defendant says that this burden is particularly problematic since the record holder would likely only have only heard “one side of the argument”, being that of the party applying for access. iii. Section 5(4) of the Act requires that the record holder should only give access to those parts of the records which, in its opinion, are relevant to the claim which arises from the death of the patient. The Defendant says that, whereas a GP or other medical professional may be in a reasonable position to form an opinion on what records are and are not relevant to a claim under the Fatal Accidents Claim 1976, it would be unreasonable to expect them to form a view on which records may be relevant to a contentious probate action. In circumstances where the legislation provides that no fee can be charged for providing the records and that they must be provided within 21 or 40 days, the Defendant says it cannot have been Parliament’s intention to expect a GP to make such decisions.b. There is another more suitable means by which a party to a probate claim can obtain disclosure, namely an application under CPR 31.17 for disclosure by a third party. The Defendant says that such an application is preferable to the use of section 3(1)(f) of the AHRA 1990 because: i. A court hearing an application under CPR 31.17 will hear the arguments of all parties to the probate claim, as well as the third party; ii. A court is better able to balance the Deceased’s rights of confidentiality against the rights of a litigant to obtain material which is relevant to their case and can act as a filter against fishing expeditions; iii. A court is better placed to determine which records are relevant to the probate claim and it can order disclosure of material which might otherwise be redacted pursuant to section 5(1)(ii).[53]Finally, in the event that I were to find there to be ambiguity in the meaning of section 3(1)(f) of the AHRA 1990, the Defendant invites me to consider the statements of Baroness Ewart-Biggs, the promoter of the bill in the House of Lords, during its second reading. The Defendant contends that the statement quoted in Mr Hill’s skeleton argument lends support for the Defendant’s contention that Parliament’s intention was for section 3(1)(f) to allow dependents bringing claims under the Fatal Accidents Act 1976 to access relevant health records.[54]In anticipation that this judgment might be the subject of appeal by either party, I have not reproduced the quote relied upon by the Defendant in this Judgment. In this way, any appeal court faced with task of reviewing my decision is not faced with the same issue as I have, namely already having read the passages in question prior to determining their admissibility. Analysis and Decision Approach to Statutory Interpretation

Analysis and Decision

[55]The task of the court when undertaking the interpretation of statute is to seek “the meaning of the words which Parliament used” (Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591).[56]As is set out by Lord Hodge DPSC in R. (on the application of O (A Child)) v Secretary of State for the Home Department[2022] UKSC 3 “Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained.”[57]It is permissible for the court to consider external aids to interpretation, including having regard to the consequences of competing interpretations, where it assists in identifying the purpose of the legislation or its objective meaning, but they are secondary to the words used in the act.[58]Since hearing this case on 12 March 2025, the Supreme Court has handed down its judgment in For Woman Scotland v The Scottish Ministers Ltd [2025] UKSC 16. In addition to referring to the passage from Re O quoted from above, at paragraph 160 it states that “An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the legislature”. It emphasised the importance of ascertaining whether a particular interpretation contended for was workable within the context of the Act itself.[59]Pursuant to the rule in Pepper v Hart [1993] A.C. 593, the court may refer to parliamentary materials to assist in the interpretation of legislation where:
“(a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.”

The Meaning of “a claim arising out of the death of the patient”

[60]The objective meaning of the words “arising out of” must be wider than that the claim has been caused by the death. If Parliament had intended that there must be a direct causal link then, applying the presumption of an ideal legislature, it would have used the words “caused by”, rather than “arising out of”.[61]That said, it must require something more than a claim that is tangential or merely associated with the death. Regard must be had also to the use of the words “arising out of”, rather than “arising on”. It is not enough that a claim crystalises and becomes actionable at the time of the death.[62]I conclude that the words “arising out of” means something wider than directly caused by, but more than associated with or concomitant with the death of the patient. The death of the patient should:a. have a degree of causal connection with claim; andb. be a necessary ingredient without the which the claim cannot be brought.[63]That interpretation would be consistent with the insurance cases considered by Burton J in British Waterways v Royal & Sun Alliance Insurance Plc [2012] EWHC 460 (Comm) and in particular the words of Pill LJ in Dunthorne v Bentley [1999] Lloyd’s Rep I & R 560 at 563:
“arising out of extends the test, with a result that it includes less immediate consequences. It still excludes the use of the vehicle being causally concomitant but not causally connected with the act in question”
[64]The interpretation I have reached is essentially the interpretation contended for by the Defendant. It is also not necessarily inconsistent with the Claimants’ case. It simply means I must still decide whether the death of a person has a degree of causal connection with a probate claim and whether the death is a necessary ingredient of the claim.[65]In this sense, I do not consider the words used within section 3(1)(f) are ambiguous so as to engage to the rule in Pepper v Hart. The fact that two parties argue for different interpretations of a particular statute does not necessarily mean that it is ambiguous.[66]In this case however, the parties are not arguing for mutually exclusive interpretations of the statute, the dispute between them is about the very nature of a probate claim and whether it can be said to have a degree of causal connection to the death of the patient.[67]That being the case, notwithstanding that the text of the Act is the primary source from which its meaning should be ascertained in any event, it would not be permissible to cross reference my interpretation with the parliamentary materials relied upon by the Defendant.[68]However, I can still have regard to the consequences which would flow from my interpretation, including whether my interpretation would bring a probate claim within the ambit of section 3(1)(f). The purpose in doing so is to ensure that my interpretation would not result in an absurd result or one which is inconsistent with the Act as a whole. Nevertheless, I must be mindful of the words of Lord Diplock in Duport Steels v Sirs [1980] 1 WLR 142, at [157]:
‘… Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.’
[69]I shall return to the consequences of my interpretation of section 3(1)(f), and in particular whether the result it produces is workable within the context of the Act, after addressing whether a probate claim falls within that interpretation. Is there a degree of causal connection between the death of a testator and probate claim?[70]In order to answer this question, it is necessary to say something of the nature of wills and probate claims.[71]In general terms, a will is a document, complying with formalities prescribed by the Wills Act 1837, by which a person may appoint executors and trustees and dispose of their estate as they wish upon their death.[72]As set out in Williams on Wills (11th Ed) at 1.02 and 1.08 “A will is a document which is of no effect until the testator's death and until then is a mere declaration of his intention and is at all times until such death subject to revocation or variation. … An interest under the will or intestacy of a living person is a mere expectation which is not capable of being disclaimed”[73]Where a valid will exists, the powers and duties of an executor derive from that will and the interest of the deceased in all of their estate vests in the executor automatically and immediately upon the death of the deceased.[74]Where a valid will exists, the only purpose of a grant of probate is to prove the executor’s title.[75]In the absence of a valid will or an executor with power to obtain a grant, then the estate of the deceased vests in the public trustee, until an administrator obtains the grant of letters of administration.[76]In a probate claim (as defined by CPR 57.1(a)) the court is being invited to pronounce for or against the validity of a particular will, having heard evidence, and to order the issue of grant of probate.[77]The court’s order in a probate claim to pronounce a will does not have the effect, for instance, of putting the executors in post or vesting property in them. The property has been so vested since the moment of the Deceased’s death. The grant of probate serves as evidence that this is the case.[78]The position in respect of a probate claim for the grant of letters of administration is slightly different, the court is being invited to declare that there is no valid will, having heard evidence, and to order the issue of letters of administration. Upon the grant of letters of administration, the estate of the Deceased which has until that time been vested in the public trustee, vests in the administrators.[79]To the extent it needs stating therefore, a probate claim cannot be brought whilst the testator is alive, because there is no entitlement to a grant in these circumstances. In this way, the deceased’s death is a necessary ingredient to the probate claim.[80]Similarly it is clear that, temporally speaking, the right to bring the probate claim arises on the death of testator.[81]However, the matters with which the court in such a probate claim will be concerned are matters which occurred during the Deceased’s lifetime including, for example:a. Whether the will was executed in compliance with the formalities of the Wills Act 1837b. Whether the testator had testamentary capacity when making the will;c. Whether the testator had knowledge and gave approval to the contents of the will;d. Whether the will is the product of undue influence.[82]Evidentially therefore, aside from it being proven that the testator has died, the court’s inquiry will focus entirely on events preceding the death.[83]Whilst it is the events during the testator’s lifetime which are evidentially the subject of a probate claim, I conclude that there is a very significant degree of causal connection between the death and the probate claim for the following reasons:a. The relevant events during the Deceased’s lifetime have no legal effect and give rise to no legal or beneficial interests or choses in action unless or until the testator’s death. In this way the death is not simply a temporal trigger. It is the event which causes the executors’ rights and interests under the will to arise. Everything prior to the death is “mere expectation”.b. The outcome of a successful probate claim propounding the validity of a particular will is the production of a grant of probate, the purpose of which is to evidence the executors’ rights and interest arising on death.c. It is not simply the case that, because the contents of a will are most likely to become known to third parties following a person’s death, probate claims are usually brought at this time (i.e that probate claims are concomitant with death). The death is inextricably linked to the probate claim and is an integral and necessary aspect of that claim.[84]I also note that, it could not be said that there are any lifetime events which could be said to give rise to a probate claim for letters of administration in cases of intestacy. I consider it would produce an arbitrary result, which cannot have been the intention of Parliament, if probate claims in cases of claimed intestacy would fall within section 3(1)(f), whilst probate claims to propound a will fall outside of its ambit.[85]As a consequence, subject to the crosscheck of considering the consequences of my conclusion and whether it produces a workable outcome in the context of AHRA 1990, I conclude that the Claimants’ proposed probate claim arises from the death of the Deceased within the meaning of Section 3(1)(f) of that Act.

Is This Conclusion Workable and Consistent With the Remainder of the Act?

[86]It was Mr Hill’s submission on behalf of the Defendants that if probate claims were to be brought within the ambit of Section 3(1)(f) this would be impractical, burdensome and unworkable, particularly in the context of section 5 of the AHRA 1990.[87]I do not accept those submissions (as summarised at paragraph 52 of this judgment), for the following reasons:a. The submission that medical consultations with elderly or more vulnerable patients are more likely to undertaken in the presence of family members who might be identified in the notes (meaning that appropriate redactions should be made under section 5(1)(a)(ii)) does not mean that bringing probate claims within the ambit of section 3(1)(f) would be unworkable or unduly burdensome. Firstly, whilst I have not been referred to any statistics indicating the average age of the deceased in Fatal Accident Claims, it must be the case that some such persons will be elderly or vulnerable, as such there is no additional burden beyond that which would be present in some requests in the context of fatal accident claims. Secondly, if it is the Defendant’s position that they are obliged to review the notes before forming an opinion (for the purposes of section 5(1)(a)(ii)) as to whether a part of a record would disclose information related to or provided by an identifiable third party, then they would be obliged to undertake that review in relation to every records request received. The exercise of redacting such information is not particularly time consuming as compared with the time spent on the review. As such, any additional burden when undertaking a review of elderly or vulnerable patients would be minimal, regardless of the likelihood of there being third parties named in any particular deceased person’s notes.b. The Defendant’s submission in relation to section 5(3) of the Act proceeds on an overstatement of the record holder’s obligations when dealing with a request. Section 5(3) requires part of a record to be withheld where the record holder is of the opinion that the record would disclose information provided by or obtained from the deceased in the expectation that the information would not be disclosed to a particular applicant. In doing so, the record holder will never be required to adjudicate upon a family dispute or weigh competing sides of an argument. The record holder is only required to reach a rationally held opinion on that issue. It is not required to canvas argument on the issue. Neither is it required to make enquiries with interested parties to inform that opinion. It simply has to review the records and form an opinion as to whether particular information was provided by or obtained from the deceased under a positive expectation that it would not be provided to a particular applicant, beyond a more generalised expectation that medical records would be confidential. If that results in a risk that records which are relevant to a claim may be withheld, then that is a matter for the person applying for the records to consider and act upon accordingly.c. Neither do I accept that the record holder’s task under section 5(4) of the Act is made unworkably onerous if probate claims are brought within the ambit of section 3(1)(f). The record holder’s obligation under section 5(4) is not to determine which information is relevant to a particular claim, it is to withhold disclosure where it holds a positive opinion that a particular part of the record is not relevant. If a record holder has a limited understanding of a particular claim then it will simply be less likely to be in a position to form such an opinion, with the result that disclosure will not be withheld.d. More generally in connection with section 5 as a whole, if a record holder is in doubt over whether disclosure of a particular part of a record should be withheld then either: i. it can err on the side of caution, withhold disclosure and leave the applicant to make an application to court under section 8 of the Act; or ii. it can make its own application pursuant to section 3(6) to determine whether a particular part of a record should be disclosed.e. As a whole therefore, I am satisfied that bringing probate claims within the ambit of section 3(1)(f) is consistent with, and workable in the context of, the remainder of the AHRA 1990 and that the Act provides a mechanism for dealing with any instances where difficulties may arise, in the form of sections 3(6) and 8. Wider Considerations[88]I will deal briefly with the wider consequences referred to by both parties, summarised at paragraphs 42 and 52(b) above. I do not accept that the fact there might be alternative means by which records might be obtained pursuant to CPR 3.17 could be sufficient to displace the interpretation of section 3(1)(f) which I have reached, particularly given the primacy of the words of the Act (Re O).[89]The fact that a court may be better placed to make an assessment in difficult cases as to whether a particular part of a record should be disclosed does not assist the Defendant. The AHRA 1990 provides a mechanism in the form of section 3(6) and section 8 whereby either party can seek a determination by the court where required.[90]The fact that many legal texts in the field of contentious probate proceed on the basis that probate claims do fall within section 3(1)(f) of the AHRA 1990 is not relevant to my interpretation of the Act, but may fortify me in respect of the conclusion I have reached. Conclusion[91]It follows from all of the above that I am satisfied that the Claimants are entitled to copies of the Deceased’s health records held by the Defendant pursuant to section 3(1)(f) of the AHRA 1990 and that an order should be made under section 8 of that Act.[92]I would therefore invite the parties to agree the form of an order.[93]To the extent that there are consequential matters arising from this judgment which require a further hearing, the draft order should provide for that further hearing to be listed and indicate the matters to be considered and an estimated hearing length. When filing the draft order, the parties should file their combined dates of availability.

Cited in 1 later judgment