Adam Hughes & Ors v World Rugby Limited & Ors [2025] EWHC 3382 (KB)

“2. The purpose of taking sample claimants is twofold. First, to ensure that issues that are common to all the claimants’ claims can be decided in such a way as to bind them all; and, second, to decide other factual and legal issues where the decision will not necessarily bind other claimants but is likely to give a very clear indication of the way that their cases too will be decided if tried, with the expected consequence that the parties will then be able to settle the remaining claims. 3. It is not, of course, necessary to have very many sample claimants in order to decide common issues. The purpose of a broader selection of sample claimants, beyond what is needed to try the common issues, is to generate sufficiently broad guidance for the likely disposal of all the other claims, whose particular facts will vary, while at the same time not overcomplicating or encumbering or significantly adding to the cost of the trial.”

“18. Secondly, in relation to numbers, in my judgment, having regard to the issues, the conditions and the allegations in the Particulars of Claim, each side should nominate 28 claims as possible lead claims. That will then produce a pool of 56 claims. The next issue is whether the Defendants should medically examine each of those 56 claimants in the pool. I have concluded, despite the persuasive arguments put forward by Mr Kent and Mr [Audland], that there should be no medical examination at this point.”

“19. I do so [refuse defendant examination of claimants], on the basis that the full disclosure of the relevant medical records and brain imaging will have been given, which together with the appropriate thumbnails and disclosure should be sufficient to enable the parties to choose the lead claims. To do otherwise, in my view, would not be consistent with the overriding objective. It would increase costs and cause more delay.”

“The essential question is whether it was a direction which Vos J could properly have given. Given that it was a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree” as Lewison LJ expressed it in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51].”

“I accept, without reservation, that this court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

“I CASE MANAGEMENT The court’s general powers of management 3.1 … (3) When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.”

“36. The third consequence is that before making conditional orders, particularly orders for the striking out of statements of case or the dismissal of claims or counterclaims, the judge should consider carefully whether the sanction being imposed is appropriate in all the circumstances of the case. Of course, it is impossible to foresee the nature and effect of every possible breach and the party in default can always apply for relief, but a conditional order striking out a statement of case or dismissing the claim or counterclaim is one of the most powerful weapons in the court's case management armoury and should not be deployed unless its consequences can be justified. I find it difficult to imagine circumstances in which such an order could properly be made for what were described in Keen Phillips v Field as ‘good housekeeping purposes’.”

“It would be unusual for “unless” orders to be made without some previous default by the party subjected to the orders. However, the default need not be failing to comply with a previous court order. If the party has failed to comply with a relevant pre-action protocol, or failed to comply with the provisions of a rule or practice direction, or even failed to co-operate with another party, that could be sufficient for a procedural judge to impose an “unless” order. … The onus is thus on the defaulting party to seek relief. In Marcan Shipping v Kefalas, the Court of Appeal said that it should now be clearly recognised that a sanction embodied in an “unless” order in traditional form takes effect without the need for any further order if the party to whom it is addressed fails to comply with it in any material respect.”

“Practitioners who contend that they have complied with the “unless” order should strongly consider making an application in the alternative for relief from sanctions should the primary argument not succeed.”

“An order in unless form must be proportionate. In Al-Subaihi v Al-Sanea [2020] EWHC 3206 (Comm) the second claimant (“C2”) failed to comply fully with an order for disclosure and the defendants sought a further order in the unless form. Cockerill J ruled that C2’s breach had been unrepentant and uncontrite and, had the circumstances remained unchanged, she would have had little or no hesitation in imposing an unless order. However, the circumstances had altered in two respects. C2 now accepted that he had been at fault and had expressed his willingness to provide the remaining disclosure. Also, C2 had recently been taken into detention in Saudi Arabia which plainly gave rise to the possibility of difficulties even though C2 believed that he could provide the disclosure sufficiently speedily. An order in the unless form was therefore disproportionate and inappropriate. However, if the non-compliance continued, an unless order would be made on a renewed application unless C2 could then establish an extraordinarily good excuse.”

“Some “unless” orders are clear-cut: if a sum of money has to be paid by 4pm on a given day, then it is easy to prove whether that order has been complied with. In other cases, compliance is more a matter of fact and degree—for example, where the order requires full disclosure of documents in various categories or, alternatively, a full explanation of what has happened to documents that are not disclosed. In the first instance, care has to be taken when drafting the order that it is clear what steps have to be taken to comply with it. In Keith v CPM Field Marketing, the Court of Appeal warned that if parties are going to seek to enforce court orders in a draconian way, it obliges them to ensure that the relevant court orders are drawn up in clear and specific terms, so that the other side can see on the face of the order what they are required to do. Subsequent disputes about whether a party is in breach of an “unless” order are unlikely to be a profitable use of court time. However, if there is a dispute as to whether the purported compliance is sufficient, then technical breaches will not suffice for the case to be struck out. There will have to have been a gross breach of the order. For example, in Carlco v Chief Constable of Dyfed Powys Police, the Court of Appeal said that the disclosure given was far from satisfactory but as the breaches could not be characterised as “gross”, the claim should not have been struck out. In such cases, the court will usually then go on to give one final chance for the party to comply exactly with the “unless” order, and no further mercy is likely. However, in Marcan Shipping v Kefalas the Court of Appeal said that Carlco failed to consider the point that the sanction had already taken effect by virtue of CPR r.3.8. In future, it would seem, a party who might be found to have been in technical breach of the “unless” order should also apply for relief from sanctions to protect his position.”

“Sanctions have effect unless defaulting party obtains relief 3.8 (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.”

“I do not think that the power to attach a condition to an order can be exercised only if there is a history of repeated failures to comply with orders of the court or the party in question is not conducting the litigation in good faith. I do think, however, that before exercising the power given by rule 3.1(3) the court should identify the purpose of imposing a condition and satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose having regard to the order to which it is to be attached.”

“ … rule 3.1(3) is deliberately drafted in quite general terms and I think that this court should be reluctant to lay down any hard and fast rules about the circumstances or manner in which the power can be exercised. Experience shows that cases are infinitely variable and the rule does not place any limit on the nature of the conditions that may be imposedor the circumstances in which the power may be invoked, other than providing that a condition may be imposed as an adjunct to an order.”

“5. The Claimants shall disclose to the Defendants as soon as reasonably practicable and in any event by 4 pm on 31 October 2024, for all existing claims, all documents referred to as part of the “testing process” set out in paragraphs 13 to 21 of the witness statement of Richard Boardman dated 15 May 2024 including but not limited to: a. Neurology interviews; b. Neuropsychological assessments; c. Brain scans i.e. MRI with imaging and reports thereon; and d. letters of diagnosis. 6. Disclosure of documents (1) By 31st October 2024 or, if later, within 8 weeks of service of a claim form, for all existing claims in this litigation (being the claims brought by claimants represented by Rylands Garth Limited against the Defendants, hereinafter referred to as “the Rugby Union Litigation”), the Claimants shall disclose those documents referred to in paragraphs 4 and 5 (above). (2) The representatives of the Claimants in the three proceedings shall send forms of authority for the release of medical records (including GP records, hospital records and club records) and club/team records at all levels to the Claimants and/or their litigation friends as soon as reasonably practicable and in any event within 8 weeks of service of a claim form. Upon their return, the Claimants’ representatives shall supply them to the Defendants representatives as soon as reasonably practicable.”

“2. Unless by 4pm on 26th September 2025: (1) The Claimants in Claim Forms 1- 5 do properly and fully comply with paragraphs 5 and 6 of the Court Order dated 17 June 2024; and (2) The Claimants’ Solicitor do file and serve an affidavit giving full particulars in respect of each Claimant named on Claim Forms 1 – 5 of: a. All medical reports/letters, brain scanning and reports thereon (for the avoidance of doubt to include all MRI, DWI and DTI reports), and medical assessments, obtained, prepared or undertaken, as part of testing the Claimants as referred to in paragraphs 5 and 6 of the order of 17 June 2024. the claims of any Claimants in Claim Forms 1-5 in respect of whom there remains default of paragraphs 5 or 6 of the Court order dated 17 June 2024 be struck out pursuant CPR3.4(2)(c) and the costs of their claims be paid by the Claimants to the Defendants to be assessed if not agreed. The issue of the timing of the assessment and enforcement is reserved.”

“2. By 4pm on 17 October 2025, the Claimants (save for those in the Fourth Claim Form) shall comply fully with the following: a. paragraphs 2 and 3 of the Order dated 23 February 2024 (sealed on 19 March 2024); and b. paragraph 8 of the Order dated 14 June 2024. 3. By 4pm on 17 October 2025, the Claimants’ solicitor shall serve an affidavit setting out in detail and verifying with reasons compliance with paragraph 2 of this order. For the avoidance of doubt, this document shall address all breaches identified by the Defendants in their application dated 24 June 2025 and their skeleton argument (and appendices) for the CMC on 22 and 23 July 2025. 4. Any claims for which there is default with paragraphs 2 or 3 this Order shall be struck out pursuant CPR3.4(2)(c) without further order of the Court. 5. For any claims so struck out: a. The Claimants whose claims have been struck out do pay the Defendants’ costs of their claims, to be assessed if not agreed. The issues of the timing of the assessment and enforcement are reserved. b. Any application by the Defendants for a costs order against the litigation funder(s) of said Claimants shall be notified to the litigation funder(s) and to the Court by 4pm on 12 December 2025. The Court will notify the Defendants and the litigation funder(s) of the time of a hearing to consider directions for any such application. 6. The Claimants (save for those in the Fourth Claim Form) shall pay the Defendants’ costs of and occasioned by the Defendants’ application dated 24 June 2025, to be assessed if not agreed. The issues of the timing of the assessment and enforcement are reserved.”

“The Learned Judge erred in law and misdirected himself by making final or peremptory Orders with the ultimate sanction of striking out each individual Claimant’s action without further order when such Orders are disproportionate and oppressive, irrational and perverse for the following reasons.”

“1(a): the Learned Judge took account of irrelevant matters in finding that there had been ‘misapprehension’ of the meaning of the orders in rugby union, when this was a finding made solely in respect of paragraph 3 of the Order of 23 February 2024 (medical records) in the Rugby League Litigation. 1(b): made the Orders notwithstanding no finding of non-compliance on the part of any RU Cs and 1(e): failed to have regard to Schedule of 59 Alleged Non-Compliant RU Cs. 1(c): failed to give reasons for any non-compliance. 1(d) failure to make findings relating to non-compliance with paragraph 6 of the Order of 17 June 2024. 1(f): making a final order in relation to “DTI reports and DTI imaging or sequences” when a separate order at paragraph 7 already dealt with the matter.”

“Ground 6 In respect of medical record disclosure, if “all means all”, para 3 of the February 2024 order is “disproportionate and oppressive, irrational and perverse”

“Testing Process 13. For the Court's assistance, I will now set out our testing process for each of the Claimants. 14. When a player contacts us to say they are symptomatic and would like to join the action, we aim to give each individual, i) a neurology interview; ii) a neuropsychological assessment, and iii) a brain scan, i.e., an MRI with imaging. There are some exceptions to this namely where, a) an individual has already been diagnosed with dementia/Parkinson's disease/Motor Neurone Disease by the NHS or privately and may not require additional testing; b) an individual has already been in part tested by a credible organisation; or c) where we represent the estate of a deceased player, which we now do on behalf of six rugby players. The focus for the estates of the deceased is to review the clinical and post-mortem records, and have a neuropathologist produce a report. 15. However, for a large majority of new joiners, it costs between £10,000 to £15,000 to be fully tested by us. That figure varies depending on the time taken to perform the neurology interview and neuropsychological assessment, and the type of brain scan. I provide some of the (redacted) invoices at Exhibits RB6 to RB8. Often, the neurologist and/or neuropsychologist may request that they speak to the individual on several occasions. In other cases, the Claimant (or often their concerned partner and/or Litigation Friend) may wish to speak to the neurologist several more times to process the diagnosis they have been provided. 16. We also ask that the neurologist draft a letter of diagnosis to assist the individual with getting urgent clinical support as often the players are suffering from chronic depression, anxiety and/or suicidal tendencies. We have already notified the Court of the suicide of two Claimants we represented, and since the last CMC on 1 December, a further three rugby players have died. We anticipate several more deaths during these proceedings.”

“4. I make this statement as one of the legal representatives of the Claimants, and in respect of my disclosure obligations in this matter as per paragraphs 4(4), 5 and 6 of the Court Order of 31 July 2024 ('the Documents'). 5. I hereby provide an undertaking to the Court that we, Rylands, have disclosed all the Documents in our possession. I am comfortable providing this undertaking because: • We have contacted all our medico-legal experts and their administrative teams to ensure that they have provided all relevant documents in their possession. • We conducted our own extensive review of our case files, including our email archives”

“1. The Claimants’ solicitor, Richard Boardman, shall within 7 days of the date of this Order being sealed, file and serve a witness statement to verify that the disclosure obligations required by paragraphs 4(4) [relating to two specific claimants, Messrs Bishop and Evans] and 5 of the Order sealed on 31 July 2024 have been complied with.”

“Selecting Lead Claimants 4. The Claimants and Defendants shall each select 28 claims in the proceedings which together shall form a pool of 56 individual claims (the ‘Pooled Claimants’) as soon as practicable and in any event by 4pm six weeks prior to the November / December CMC. For the avoidance of doubt, the claims selected by the Defendants shall be 28 in total across all three Defendants. 5. The number of Lead Claimants to be drawn from the Pooled Claimants shall provisionally be 21 (the ‘Lead Claimants’).”

“Alleged Failure To Comply With Court Order The Order of Senior Master Fontaine dated 23 June 2023 (sealed 11 May 2023) para 4b, ordered that the Claimant do file/serve condition and prognosis medical reports. This was completed. Later, by the Order of Senior Master Cook dated 17 June 2024 (sealed 31 July 2024) para 4 (4)(b), the Claimants were required to serve medical reports in accordance with PD16.4 and to disclose all documents referred to as part of the ""testing process"" by 31 October 2024 (later extended). All documents in possession of Rylands Garth have been disclosed. Furthermore, as the Claimants' solicitors, we have used our best endeavours to achieve compliance with the Order, in circumstances where we are involved in a large group action, with clients suffering permanent and debilitating brain injuries, who are themselves dependent on third parties and medical experts to assist them in complying with their disclosure obligations.”

“Disclosure obligations The requirement to disclose documents is not limited to those which may be physically in your offices or your possession. We refer you to CPR 31 .8(2) which provides as follows: 2) For this purpose a party has or has had a document in his control if - a) it is or was in his physical possession; b) he has or has had a right to possession of it; or c) he has or has had a right to inspect or take copies of it.”

“Our complaint with regard to disclosure is first of all that Mr Boardman seeks to limit his compliance with your order to documents that are at any time within Rylands Garth possession. Secondly that if there is a document that comes within the scope of the 2024 order, but for some reason Mr Boardman feels it appropriate to say the claimant is not relying on that document, then he thinks he has no obligation to comply with the order.”

“I am bound to say Mr Block, because it is abundantly clear to me that Mr Boardman has been proceeding under – or labouring under a very grave misapprehension as to what this order actually meant. I do not intend to go into that, but I have made it clear what the order meant. I hope the order was clear on its face, but he was wrong. And if necessary, I will so find and the proposal put forward by Mr Block seems in the circumstances, a most sensible one because the solicitor who is conducting the disclosure exercise in this case was required to do something which he did not do and which he now should do. And I stressed at the last hearing the importance of filing that with the statement because it means that certain applications may or may not be forthcoming. And the fact that they were in this case, is largely seemed to me, down to his interpretation of the order. And there will be other reasons, but that as a – certainly as far as the Union claims are concerned, seems to me to be an eminently sensible way to move through that unfortunate incident.”

“If the Unless Order is to apply to documents and claimants beyond Appendix A, then in the absence of any specific findings the claimants do not know what more the claimants are required to do. Can the Court now please confirm the specific non-compliance that is required to be cured for each individual claimant.”

“The Defendants’ wording accurately reflects the decision of the court. The court decided that there had been widespread non compliance with the order of 17 June 2024 which was primarily due to Mr Boardman’s misunderstanding of the previous order. In the circumstances it did not make detailed findings of breach in respect of each claimant as to do so was not necessary or proportionate, what was required was compliance with the existing order by all C’s. The unless order was made to ensure that the existing order was complied with. As the Court made clear, it is not merely the documents which Cs “rely upon” that must be disclosed, or the documents in the possession of Cs’ solicitors, that must be disclosed, but all documents generated as part of any testing process. This information is within the knowledge of Mr Boardman.”

“a. its removal altogether or, in the alternative, b. its replacement by an order merely requiring “the Claimants’ solicitors … to use their best endeavors (sic) to obtain any neuropsychological tests results relating to the players as set out in the Defendants' re-Amended Schedule titled ‘Claimants for whom unless orders are sought & the missing document type’ attached at Annex A to this Order.”

“4. The court now wishes to ensure that there is active progress in this litigation, so that it can arrive at a point in November/December, probably December of this year where directions to trial can be made in respect of the test cases, and I will say more about that process later. 5. To that end, I proposed, and the parties have accepted, that case management conferences should be listed, one in late July and another in December. I propose that both case management conferences be listed with two-day estimates.”

“37 The effect of the order made on 21 July 2006 was that in default of compliance the claim stood dismissed and Marcan became liable to pay the defendants’ costs in an amount to be assessed. As a result the defendants became entitled to obtain judgment in their favour, but since the party in default in this case was the claimant, it was necessary for them to make an application to the court in order to do so (see rule 3.5(5)); and since there was a dispute about whether Marcan had failed to comply with the order, it was necessary for that application to be supported by evidence setting out in sufficient detail the nature and extent of the alleged default. In its opposition to the defendants’ application Marcan relied on a witness statement made by Mr Yamvrias on 11 August 2006 in which he sought to demonstrate that all relevant documents had been disclosed and on correspondence between the parties’ solicitors culminating in a letter from Marcan's solicitors to the defendants’ solicitors dated 1 September enclosing further documents relating to the Greek proceedings. 38 The only matters the judge had to decide when the matter came before him on 5 September, therefore, were whether the evidence was sufficient to establish a breach of the order of 21 July, and if so, whether the order being sought by the defendants properly reflected the effect of the sanction which that order had contained.”

“Mr Block KC: It occurred to me when listening to these exchanges between yourself and other counsel this morning, that we and the Court really need to be satisfied when Mr Boardman is told by his counsel and members of his staff are here, that his interpretation of the order is incorrect. That he goes away, doesn't necessary work, thinks about it, and confirms to the Court that he has complied with the order according to the correct interpretation and is very clear in the White Book what disclosure means.”

“MR BLOCK KC: So, against the background that it is absolutely clear from the exchanges, if one takes Mr Tracey’s witness statements and Mr Boardman’s, and then one sprinkles in some of Mr Burton, that there are ships that pass in the night and there shouldn’t be. And that’s the way to deal with that. It’s also absolutely clear that the date that the assurances were given to you orally at the last hearing [February 2025 regarding RU] and subsequently in the witness statement [from Mr Boardman] that those are based on a misapprehension as to what the order said. And if you are with me that far, then it would seem sensible because the one thing that we do not want it to be doing in the future is arguing about what the order means. It would be sensible for paragraph two to make an order in the terms set out there. And I would suggest that to make it absolutely clear, it would say the claimant solicitor files and serves a further witness statement.”

“(2) The Claimants’ Solicitor do file and serve an affidavit giving full particulars in respect of each Claimant named on Claim Forms 1 – 5 of: a. All medical reports/letters, brain scanning and reports thereon (for the avoidance of doubt to include all MRI, DWI and DTI reports), and medical assessments, obtained, prepared or undertaken, as part of testing the Claimants as referred to in paragraphs 5 and 6 of the order of 17 June 2024.” of 17 June 2024.”

“Appellant’s notice 52.12 (1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice. (2) The appellant must file the appellant’s notice at the appeal court within— (a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing (which may be longer or shorter than the period referred to in sub-paragraph (b)); or (b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.”

“Paragraph 3, the Court will note that an application to vary this Order has now been issued. Can the Court please confirm that time for permission to appeal this part of the Sealed Order is extended until after determination of the application to vary”

“the necessity of making appeals became increasingly apparent as the Claimants’ legal team have set about determining what is required to meet the terms of the Orders.”

“46 The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously. There will be some lawyers who have conducted litigation in the belief that what Sir Rupert Jackson described as “the culture of delay and non-compliance” will continue despite the introduction of the Jackson reforms. But the Implementation Lectures given well before 1 April 2013 were widely publicised. No lawyer should have been in any doubt as to what was coming. We accept that changes in litigation culture will not occur overnight. But we believe that the wide publicity that is likely to be given to this judgment should ensure that the necessary changes will take place before long. 47 We recognise that there are those who will find this new approach unattractive. There may be signs that it is not being applied by some judges. In Wyche v Careforce Group plc [2013] EWHC 3282 (Comm), the defendant had failed to comply in all respects with an “unless” order. Walker J acceded to an application for relief under CPR r 3.9 for two failures which he described, at para 61, as “material in the sense that they were more than trivial . . .”

“. . . The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an “unless” order.” 48 We have earlier said that the court should usually grant relief for trivial breaches. We are not sure in what sense the judge was using the word “unintentional”

“Guidance 24 We consider that the guidance given at paras 40 and 41 of the Mitchell case remains substantially sound. However, in view of the way in which it has been interpreted, we propose to restate the approach that should be applied in a little more detail. A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred.

“It will be noted that the court’s conventional powers of case management under CPR 3.1 are very wide indeed and conclude with the power to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”.”

“In short, I find that there has been noncompliance with my previous order … that there has been a serious breach of those orders, that there has been no proper explanation for it …”

“I have more than once said in the course of this litigation that a new way of operating is required and that a high degree of cooperation between the legal teams is absolutely essential if this litigation is to be conducted efficiently and proportionately.”

“In my judgment this court should do everything in its power to support the authority of the judges at the coal face who are using their professional skills and the authority that they possess to ensure that litigation solicitors do not go back to the bad old days that existed before the Woolf reforms were introduced…For my part I would be very slow to interfere with the discretion of a judge exercising her discretion in these circumstances unless I was satisfied that there were any material matters which she had failed to take into account.”

“MS RODWAY: Each of those reports does set out the route by which Dr Alder has concluded that it is the playing career of Mr Thompson, for example, that has led to the cumulative suffering of concussion and sub concussion (inaudible) which itself has been - on the balance of probabilities - the cause of his current condition. And he does look at whether there is anything other than that that he can, as it were, identify --- MASTER COOK: The gaping hole in this is - I mean, just look at prognosis. “As outlined above, the diagnosis I have made in this case based on the evidence made available for review” - which is what? Mr Thompson's own self-reported symptoms, on the face of it. MS RODWAY:· Yes, and the history that is provided of concussions and, as you rightly said, one of the background issues we were trying to obtain - we have gone through trying to obtain disclosure of club records and so on and so forth and that is an unwieldy process and we have put together --- MASTER COOK: But I mean, at the very least, one needs his medical records. I mean, you as well as I know that there can be all sorts of reasons why someone might suffer a particular unfortunate event. … MS RODWAY: Yes, but please specify because to try and produce - how is that going to help, producing 300 medical records. Some of them rightly have no medical records and that --- MASTER COOK: But how do we know which ones are which? MS RODWAY: But I mean this is something that could have been delineated, Judge, on 23 June and it was not --- MASTER COOK: Well, I think it was probably thought that - when one says produce a condition of prognosis report, I mean, does one really need to spell it out that one needs to have the diagnosing doctor --- … MASTER COOK: But what I am thinking is that based upon the thumbnails that we have - the defendants should be permitted to request the forms of authority to look at the medical records to enable them to take a view as to whether the prognosis, that is in much the same form throughout these documents, is one that they can accept unchallenged on the basis of the claimant's account. MS RODWAY: Well, I am not supposing, Judge, that in the end of the day they are going to accept unchallenged --- MASTER COOK: Well, no but --- MS RODWAY: As we go down the line there has --- MASTER COOK: But that will enable them to pick out their cohort of cases that they say will be relevant to enable them to make such arguments --- MS RODWAY: Well, I still do not understand what inhibits them at the present from being able to do that. MASTER COOKE: Well, I do, I am afraid and, as I have said, it is basic. You simply cannot have a medical report in this fashion, it seems to me, as a condition and prognosis report because it does not accurately deal with causation.”

“These medical and club records, in our opinion, now stand in the place of the Condition and Prognosis reports. Once you are in possession of all medical records, you will be in a position to agree or disagree with our proposed list of lead / test Claimants.”

“The Senior Master has arrived at a proportionate way-forward in the Rugby Union Claims that should be followed in the Rugby League Claims 19. … c. That the provision of access to medical records through forms of authority being provided would enable the Defendants to participate in the process of determining the appropriate way forward with respect to case management and the identification of lead claimants and common and related issues under any GLO. 20. This way forward was reflected in the Order made following the 1 December 2023 hearing [101]. Such an approach has the major added benefits in furtherance of the overriding objective in the Rugby League Claims of: a. Providing the Defendants with sight of the majority of the medical records of the Claimants in a timely manner so as to enable them to make more informed decisions regarding all aspects of the case.”

“17 … commented on the fact that the experts required sight of the Claimants’ medical records in order to prepare meaningful condition and prognosis reports. He gave the hypothetical example of a Claimant who had been hit by a car and suffered a head injury; such a history would obviously be a relevant consideration for any medical expert opining on condition and prognosis in the Current Litigation. The short form condition and prognosis reports provided to date were inadequate precisely because there was no consideration given to the Claimants’ medical history. 18. The Senior Master stated that disclosure of the Claimants’ medical records would enable the RFL Defendants to begin the process of identifying whether the proposed Lead Claimants were suitable or whether the RFL Defendants may wish to propose their own Lead Claimants.”

“MS RODWAY: It is now patently clear, we say, that that is an exercise that is empty in the absence of medical records. … MASTER COOK: The two issues as regards to medical records; I mean, the claimants have got access to their own medical records, and I would hope if anyone was producing a condition and prognosis report that they would have access to the individual claimant’s medical records … And in those circumstances, where what was important was that the defendants were put in position where they could participate in the overall scheme of identifying potential claimants … I know you have access to them anyway, but to make sure the defence, in advance of getting a proper condition and prognosis report, could at least have access to the raw material which would give a fairly good insight into the medical background of each of the claimants. I think that was the, that was my thinking anyway. … MASTER COOK: Well, that is medical records. What progress has been made on conditional and prognosis reports? MS RODWAY: We cannot deal with those until the medical records. What has happened is that the Rugby League players have been examined, and I think we have got through pretty much the whole report, so that is an objective imaging examination, followed by a face-to-face examination. But we are not in a position to do anything more at present then produce condition of prognosis that is similar to the ones that were thought to be, claimed of being inadequate – MASTER COOK: Totally inadequate, because you cannot have conditional prognosis report unless – MS RODWAY: Well exactly. MASTER COOK: - the author of the report has properly taken into account the circumstances of the claimant. … MASTER COOK: … The litigation has to progress in a timely fashion, and sometimes deadlines have to be set with consequences; otherwise, you know, it just gets completely out of control. … MS RODWAY: Well, as I understand it, and I need to have direction from the Court here, both the defendants and the Courts are finding it unacceptable that any condition of prognosis report is finalised or sent/completed without having access to all the medical records. MASTER COOK: Well, it need not have access to all of the medical records, but it has to take into account that the claimant’s medical history and/or be based on a proper clinical interview with the claimant. I mean there maybe all kind of likely events that you have to go through, things that you have to explain in the usual way of reaching a diagnosis, and without that the process is simply suspect. MS RODWAY: That was the process that was undertaken. MASTER COOK: Yes. MS RODWAY: A doctor had already set out his discussions and interviews with the claimants, and that was considered, and you accepted, that that was not sufficient in the absence of the actual physical medical records; and so, we would say, in order to keep things running smoothly, the records have to be produced first. … MS RODWAY: Providing the defendants with the medical records enables them to begin the process of identifying whether those candidates are suitable lead candidates or whether they wish to put up candidates of their own. … MR AUDLAND: … But what would not be right is only to serve anything other than the reports for the test claimants, and then to give us the onerous duty of obtaining all the records, and then to let us guess what the diagnosis or symptoms of all these missing, unidentified claimants whose diagnoses are yet to be set; and we have to work that out. … MR AUDLAND: Because it is not true that there has been no disclosure. There was a contract relating to an agreed parameters of pre-action disclosure, and that has been given. MASTER COOK: Right. MS RODWAY: We had no disclosure prior to 2000, of course, there was a problem with – MASTER COOK: Well, I am not going to get into disclosure now. MS RODWAY: Yes. MASTER COOK: There is a process of discussing this has begun, and, as you will be well aware, the parties are encouraged to discuss and agree these issues in advance of any full-scale assault on the Court. So, I will leave disclosure with you firmly for the moment. But I can see that there has been some progress in this case. MS RODWAY: In the Rugby Union decision/order, Judge, you ordered that the defendants had carriage of assimilating and bundling of the medical records, and hence why the forms of authority were being sent to them. So, I do not quite understand what Mr Audland is saying, perhaps he does not – MASTER COOK: Well, that was mainly in the Rugby Union case because they had nothing, and they wanted to get on with the job, and they had resources to do that. MS RODWAY: Well, in the present case what we had assumed was the same pattern would be followed, because the, we have been sending the forms of authority across to the defence. I do not know what they wish now, because if they are wishing us to simply produce bundles, then so be it; but I think that seeks some clarity. MR AUDLAND: Well, I think the answer to that is that we will be happy, if claimant is not doing it, then we will certainly will. MASTER COOK: Yes. MR AUDLAND: And we will obviously share that disclosure; with the claimants, but what I am saying is that is no replacement for – MASTER COOK: For a condition of prognosis report. MR AUDLAND: For a condition of prognosis report. MS RODWAY: We discussed previously the 23, and I sought the time period that I have required or requested for those. If we are looking at a further 150 condition of prognosis reports, then clearly you will understand we need a considerable length of time, longer than July. MASTER COOK: Yes. MS RODWAY: So, we are quite happy for this to be, as it were, in a two-stage process, but focusing first of all on the 22 or 23 that we have identified that pretty much cover all bases, and certainly all potential diagnoses. But we do need some guidance, Judge, as to what happens the remaining 150 or more, because we do not know [inaudible], but there is going to be medical documents, GP documents, hospital records such as they are, club records, and both parties are going to have those available to them. In those circumstances, for the purposes of the condition of prognosis report we would look to seek an order that they are very similar to the ones that were produced [inaudible], they are a relatively short form, setting out what is seen, what happened on examination, and what the diagnosis of the condition and prognosis is. I do not know if you remember seeing some of those. MASTER COOK: Well, I did not. I thought the short form reports that I saw were pretty inadequate, which is why I made the order that I did. MS RODWAY: All right. We need an identification, because clearly if there are to be very comprehensive – MASTER COOK: Well, it is not a question of “comprehensive”; it is question of complying with the Rules of Court. I think I pointed out on the last occasion, these are personal injury claims. MS RODWAY: Yes. MASTER COOK: And there are certain basic rule requirements of claiming a personal injury claim. And those requirements must be met. MS RODWAY: My understanding was that the inadequacy related to not referring to medical records. MASTER COOK: That was because there was simply no indication that any consideration at all – MS RODWAY: Yes. MASTER COOK: - had been given to the claimant’s past medical history. And I think I remember posing, posing an example, let us assume that the claim of X had been hit by a car whilst crossing the road and had been knocked to the ground and suffered a head injury, would that not be a relevant matter – MS RODWAY: Obviously. MASTER COOK: - to put in a condition and prognosis report in a case like this? Answer, obviously. And if there is no indication that something like that has been given any thought, you question the value of that short form of report. [emphasis provided] And least rule that sort of thing out; if you can that is fine. But if it has happened, then that incident, or any other similar incident, must be referred to. MS RODWAY: Referred to. MASTER COOK: And fed into the conclusion as what is the operative cause or the predominant cause, or how do you care to define it. MS RODWAY: I would not have thought that is a most, that comes under the [inaudible], under the reviewing of medical records; and I will not comment on the content of otherwise for things that are not. MASTER COOK: Yes. MS RODWAY: It is really a question of what is reasonably going to assist the Court and the defendants in respect of all of these players, because it is a question really of diagnosis, Judge, is it not? It is a question of, is there are – MASTER COOK: It can be simply wider, Ms Rodway, it can be simply wider than diagnosis. Because as I looked at the conditions here, I mean dementia, there could be genetic factors there as well it runs in families. MS RODWAY: No no – MASTER COOK: I mean these things have to be feed in. MS RODWAY: Yes. MASTER COOK: And understood, you know, just because it is there does not mean there is cause– MS RODWAY: Doctor [inaudible] had already been setting out his view as to the origins and the causation of the diagnosis, and that has – MASTER COOK: Absolutely, and again that was something that was lacking from the previous – As long as that is understood, then those reports will be of utility. The last thing I want to happen is that you get Doctor [inaudible] to produce 170 short form reports which then have to be duplicated because there are omissions in the methodology. And then you have to do it again at great cost; and in case like this it should be done right the first time around, and that is really what I am diving at here. The exercise must be done properly, and it is done, there is no need to go over it again, and then the defendants know that the job has been done properly, and that can then feed into their decision-making process; we can then narrow down the issues and then get on and consider how best these claims should be managed. … MASTER COOK: … as the parties will realise, they are under a duty to co-operate with each other and the Court to further the overriding objective. And that duty is even stronger in multi-party litigation such as this, because, as you all know, it takes up an enormous amount of Court resource, the parties incur an enormous amount of cost, and it is controlling that and bringing it forward in a proportionate and sensible manner which should be at the fore front of everybody’s minds, and I mean everybody’s minds. And I will almost certainly want to hear that those words have been taken into account when we next meet, and that we have some constructive proposals on the table, and that we have narrowed down and got a plan, or at least competing plans, about how we go forward. So, I will shut up now. I have said enough, and I have said it many times before; but I do not think it can be said too often. MS RODWAY: Given what you have said, Judge, it does occur to me that, at the moment, we can probably agree to word as such by further order in relation to this, because we have to be pressing on.”

“1. The application before the Court this afternoon, is for a variation of the existing directions. 2. The core of the claimants’ difficulty is that the process of obtaining condition and prognosis reports, which had been ordered for all claimants, is a process that is going to take them a lot longer than, I think, had been envisaged at the previous hearings. In these circumstances, the claimants seek a variation of the existing directions to provide for an extension of time and provision of, firstly, the medical records in respect of each of the claimants and secondly, a restriction on the requirement to provide condition and prognosis reports, the claimants’ case being that it is only necessary to restrict such reports to the potential lead claimants as put forward by them.”

“Medical records We are willing to concede that the Senior Master only ordered the forms of authority and disclosure in relation to “medical records” and that there is no duty on you to recover the club playing/non-medical records. We had hoped that you might see the sense of dealing with this in order to advance the litigation in the manner suggested, however, we are content to gather the club medical and non-medical records ourselves. We do hope you can agree to the principal of us, now, being the first Party to send out the forms of authority in order to access the records from medical providers and the clubs. Experience tells us that being first to do so will provide us with the records in hand as quickly as is possible for the purposes of expeditiously producing the C and P reports. If you could agree to hold off doing so, we would be grateful (the same not of course being amenable to inclusion in an order).”

“Medical records: We can agree to your having conduct and disclosing all records [emphasis provided] by the same date as reports but we would like to receive two interim tranches of disclosure so we can get going with the records reviews in phases rather than being landed with more than a hundred reports and records in late October. I have also corrected the date of the CMC to 20th May in the draft order. Please let me know whether the above and the attached draft proposed order can be agreed.”

“3. The Claimants’ solicitors are by 4 p.m. on 31 October 2024 to disclose to the Defendants copies of all medical records (including GP records, hospital records, club records, and if applicable all post mortem and inquest records) for each Claimant; and to give interim disclosure of all such records as are in their possession by 1 May 2024 and 1 July 2024 respectively.”

“On 1.5.2024 C disclosed the first interim batch of medical records which consist of the incomplete records for 73 players”

“31. We have been working towards this task since the CMC hearing on 23 February 2024. The process is as follows: We have the Claimant sign the Form of Authority for medical and club records. We send the completed form to the GP, hospital and clubs. Given the many injuries suffered by players, they have often attended several hospitals. Due to their poor memories, multiple Claimants struggle to recall where they have attended. The GP / hospital / club records are then delivered to us either in hard copy or electronically. If the former, those records need scanning. Using the timings it took the rugby union Defendants to collate the medical records, it appears to take up to three to four months for a GP / hospital to provide records, even though, according to data protection legislation, they have one calendar month in which to provide them. I provide at Exhibit RB9, a table setting out how long it took the rugby union Defendants to provide these documents (and are still to provide in many cases) and highlight in yellow where the process took them three months or more. We cannot commence the condition and prognosis reports in the rugby league litigation until we have collated these records.”

“3. I wrongly interpreted this Order to mean that I had to disclose all medical records in my possession. I took it as my duty to obtain the records on behalf of the Claimants and then to disclose what I had obtained. 4. Following the case management hearing of 22 and 23 July 2025 it has become clear that the Order required me to find every single medical and other record created on behalf of every Claimant in Claim Form One, and then to copy the same to the Defendants. 5. I can assure the Court that it was never my intention to mislead the Court, and I can now see I was wrong in my interpretation of the wording of the Order. I am very sorry.”

“(4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule – (a) is binding on all persons represented in the claim”

“(2) Except where these Rules provide otherwise, the court may – … (p) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”

“Paragraph 2. Reflects the order made by the court which applies to all C’s not just those on Claim form 1. All claims are being managed together and are subject to the case management directions made from time to time.”

“1. I will deal with the strikeout application conclusions, which will be short and brief. I will [be] provided more detailed written reasons if required by the parties, however it is important that my conclusions are expressed and parties can make progress with his litigation. … In short, I find that there has been noncompliance with my previous order, that the applications were properly made, that there has been a serious breach of those orders, that there has been no proper explanation for it, but not withstanding that standing back and doing justice as I must, and having regard to my other powers and the stage at which this litigation has reached, the importance of it to the claimants, it is not appropriate to exercise the draconian remedy of strike out. However, as I have said, there will be unless orders to ensure that the existing orders to which the claimants have subscribed are complied with. Therefore, I will flesh that all out in detail if the parties required me to, but essentially that is my reasoning for coming to that conclusion.”

“21. It does seem to me at the very least, that Mr Boardman must make, under pain of strike out, an affidavit verifying that he has now complied with the claimants’ disclosure obligations and or properly explain any difficulties or shortfall in that disclosure. I have asked him to do that once, he has failed to do it, he has failed to give any explanation, and he has failed to be before the Court with an affidavit now confirming compliance. That affidavit is but one thing, the next thing to do is to ensure that the documents the defendants are entitled to and already covered by the existing orders for disclosure are provided. 22. We will discuss in due course the precise wording necessary to achieve that, but it seems to me it must proceed on the basis that there is a recognition that there still remains a large quantity of documentation that has been identified and which has not yet been provided. The fact of the matter is I have stopped somewhat short of the draconian remedy strike out, but I have concluded that both applications were in the circumstances properly bought. Therefore, in those circumstances, it seems to me that the defendants are both entitled to the costs of their respective applications.”

“4. Any claims for which there is default with paragraphs 2 or 3 of this Order shall be struck out pursuant CPR3.4(2)(c) without further order of the Court.”

“Paragraph 4. Reflects the order made by the Court. The order was made in this form to ensure compliance with the order of 23 February 2024. It is for the C’s to ensure that their reports are compliant with the order and deal with the causation issues. It is not for the court to declare compliance. (I note that the C’s have now sought to vary this order, I say nothing about the merits of such an application at this stage). The order applies to all Cs and as submitted by Ds it is not for the court to specify the specific non-compliance which is required to be cured but for the Cs to ensure they have complied with the existing orders. If there are any gaps or difficulties these should be addressed by Mr Boardman in his witness statement.”

“whilst we had a methodology for testing claimants, not every claimant would have the same testing, and it is obvious from that that not every claimant will have the same disclosure”

“It is clear that 5 of the 19 immediately fall away on the basis that they relate to MRI raw data which was in any event provided on 4 July 2025 (para 112). The Learned Judge failed to engage with the explanations provided by Mr Boardman in respect of the outstanding 14.”