Christos Tolias v The Medical Defence Union

: Master McQuail

1. The claimant, Mr Tolias, is a neurosurgeon. By this claim Mr Tolias challenges two decisions (the Challenged Decisions) made by the defendant (the MDU) not to grant him discretionary assistance in relation to a clinical negligence clam arising out of surgery that he performed on YL in June 2013.

2. From 1996 until 2013 Mr Tolias was a member of the MDU.

3. The MDU provides services to members including arranging “claims made” insurance policies through external underwriters and a right to request discretionary assistance. The right to make such a request survives cessation of membership if, at the time of the event in respect of which assistance is requested, the requesting party was a member. It is thus an occurrence-based right.

4. On 1 October 2013 the claimant ceased his membership of the MDU and his insurance policy arranged through the MDU and took out indemnity insurance with a broker named PMP. He took out those insurance policies for the year 2013 to 2014 (PMP1) and 2014 to 2015 (PMP2). The policies included a retroactive date which included the date of the surgery on YL.

5. In January 2014 the claimant received a letter from Stewarts Law together with a form of authority signed by YL to release medical records. Those documents together give a clear indication that Stewarts Law were instructed to at least investigate making a professional negligence claim on behalf of YL against Mr Tolias. In March 2014 Mr Tolias was sent notice of funding by YL’s solicitors.

6. In June of 2015 the claimant received a letter before action in respect of the 2013 surgery on YL. His insurers declined cover because (i) Mr Tolias had failed to notify YL’s potential claim before incepting PMP1 or PMP2, (ii) such prior circumstances are excluded from cover under each policy and (iii) the claim was subject to indemnity or assistance provided by another defence organisation.

7. In June or July 2015 Mr Tolias applied to the MDU for discretionary assistance. The request was referred, in accordance with the MDU’s then practice, to a Benefits of Membership Committee (BMC) for a recommendation to be made to the Board of Management of the MDU (the Board). The request was declined. In May 2018 Mr Tolias made a further request via his then solicitors, which was again referred to a BMC for a recommendation to the Board. This request was also declined.

8. In accordance with the MDU’s practice, on the occasion of each request by Mr Tolias an anonymised document headed “Case Summary” was prepared for consideration by the BMC. The BMC’s recommendation to the Board was recorded in that document and a record of the Board’s decision was in due course added. The copy case summaries concerning the Challenged Decisions in the core hearing bundle were further redacted to remove confidential information.

9. By letter dated 27 February 2018 Stewarts Law wrote to the MDU and enclosed a letter from Hempsons Solicitors to Stewarts Law dated 5 June 2017. In the letter of 5 June 2017 Hempsons stated that: “The [MDU] has exercised its discretion not to cover the matter because Mr Tolias had taken out a commercial claims made policy and they take the view that it should have been accepted by the commercial insurer.” On 5 March 2018, the MDU responded to Stewarts Law’s letter by email and said: “Hempsons have summarised the situation in their letter you sent to me. No further clarification is required.”

10. In summary Mr Spearman KC on behalf of the MDU explains that Mr Tolias had “claims made” policies which ought to have answered the claim and (i) on the basis of what was known at the time of the MDU’s first decision: if there had been no reason for Mr Tolias to report the circumstance prior to leaving the MDU, PMP1 or PMP2 should have answered but for any issue arising from failure to report during the currency of those policies. On the other hand if there had been a reason to report prior to leaving the MDU. Mr Tolias and the MDU lost the benefit of the MDU policy and the request was for discretionary assistance when he had failed to notify the MDU prior to termination; and (ii) on the basis of what was known at the time of the MDU’s second decision: there was a serious incident which the claimant had knowledge of and ought to have reported to the MDU prior to termination of his membership and, if he had done so, the claim would have been covered by the MDU Policy but, Mr Tolias not having done so, deprived Mr Tolias and the MDU of the MDU policy and, had it been reasonable not to have reported prior to termination of membership PMP1 or PMP2 should have had no ground for refusing cover on grounds of non-disclosure of the circumstance.

11. The key question in the proceedings is whether the decisions were permissible exercises of discretion.

12. At a CMC hearing on 16 June 2025 I was asked to make decisions about disclosure questions which the parties had been unable to agree. I determined a number of issues during the hearing but reserved judgment in relation to others at the conclusion of the hearing. On 20 June I received a letter informing me that the parties were close to agreeing matters. On 30 June I was told that, although some matters had been agreed, the remaining differences were unbridgeable and that I would need to make decisions on those differences. On 8 July a revised draft DRD was submitted setting out the respective positions of the parties.

13. The remaining differences between the parties are over the wording of Issues 3 and 4 of the DRD, whether Issue 6 should be an issue for the DRD at all, and a question about one Model C request.

14. Issue 3 concerns the reasons why the MDU exercised its discretion as it did when considering the claimant’s requests for assistance. Issue 4 concerns the policy or approach of the MDU in considering requests for assistance generally. Issue 6 concerns the reasons for the MDU deciding in about 2017 to cease providing cover for future spinal surgery occurrences. In addition there is a disagreement whether a Model C request for disclosure in respect of Issues 3 and 4 is necessary, as Mr Tolias contends, or whether the relevant documents will be captured by the drafting of Issues 3 and

4.

15. Dr Fryar, who is the MDU’s professional services director signed a witness statement dated 9 June 2025. In that statement she explained: (i) the need to respect the confidentiality of third party patients and medical practitioners and the privilege of third parties in the MDU’s documents relating to decisions other than those concerning Mr Tolias as well as the commercial interests of the MDU; (ii) there are 1,059 case summaries for matters referred to the relevant committees in the period 2012 to 2018, and the cost of accessing and assessing all of them is estimated as £80,000. The further cost of review for confidentiality and privilege will depend on the width of the criteria for disclosure and therefore the number answering. The additional cost might be £240,000 if all documents answered. By contrast if the disclosure issue includes a criterion “the potential availability of other insurance covering the alleged circumstance” the estimated costs for sifting the approximately 50 cases involved and considering redactions would be some £15,000; (iii) so far as concerns policy documents the MDU is willing to provide documents evidencing policies or standard approaches to requests for assistance in which the potential availability of other insurance was a relevant factor at the time of the Decisions as well as departures from such policies. She went on to explain that the broader categories of documents sought by Mr Tolias do not fall into categories of documents stored in such a way as to be readily searched. It is accepted that the two documents exhibited to her witness statement entitled “MDU Service Specifications” applicable at the dates of the Challenged Decisions should be disclosed, but they include irrelevant sections which should be redacted. Disclosure

16. That the approach to disclosure should be reasonable and proportionate is a recurring theme through the various provisions of PD57AD.

17. Paragraph 6.4 of the PD57AD provides as follows: “In all cases an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors – (1) the nature and complexity of the issues in the proceedings; (2) the importance of the case including any non monetary relief sought; (3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence; (4) the number of documents involved; (5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any cost estimates). (6) the financial position of each party; (7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.

18. Paragraph 6.5 places the burden on the party requesting an extended disclosure order to show that what is sought is reasonable and proportionate. Paragraph 6.6 makes clear that the objective of the relation of disclosure models to issues for disclosure is to limit the searches to be made and the volume of documents and cautions against using disclosure models that will increase costs or complexity.

19. The disclosure regime – whether under CPR31.6 or PD57AD – is premised on each party conducting a reasonable search to identify relevant documents. Paragraph 16 of PD57AD envisages redaction of irrelevant and confidential information. If a party is concerned that the other side has failed to make proper disclosure, an application for specific disclosure may be made.

20. In determining what orders to make about disclosure I must weigh the various considerations to reach reasonable and proportionate results. I have taken account of all the submissions made in the parties’ skeleton arguments, their submissions at the hearing and in the correspondence that passed between the parties following the hearing.

21. The particular considerations that I was referred to by Mr Spearman were these: (i) if similar fact disclosure is sought it must be confined to properly similar cases: Merchants’ and Manufacturers Insurance Company v Davies [1938] 1 KB 196; (ii) in considering the likely probative value of disclosure the court should be alert to fishing expeditions where the benefit of disclosure is speculative; a claimant is not entitled to have disclosure ordered on the basis that something may turn up; (iii) in Portman BC v Royal Insurance [1998] PNLR 672, which concerned a lender's decision to re-mortgage, Simon Brown LJ rejected an open-ended business wide request for disclosure relating to decision making and suggested it should properly be limited to a request that would cater to the “defendant’s proper concern to see anything which might sensibly have influenced [person who took] the lending decision” but not wider; and (iv) where wide and vague categories are sought the ease and expense of disclosure and whether it is necessary to fairly dispose of the action must be considered: Fox v Boulter [2013] EWHC 4012 (QB) at [54-55]; (v) the MDU accepts that confidential, commercially sensitive and privileged documents are not immune from disclosure, but the fact that documents may be so categorised and the measures and the expense of the measures to preserve confidence or privilege (including of third parties) is relevant. It is not suggested that anyone in Mr Tolias’s team would breach the CPR 31.2 prohibition on use of documents for a collateral purpose deliberately, but in circumstances where the relevant commercial world is small enough that Mr Tolias’s current solicitors were previously involved as solicitors for his broker PMP, there is a real risk that commercially sensitive information might inadvertently come to the knowledge of a person who could not forget that information such that a confidentiality club would be the only means of preserving confidence and that would inevitably add expense.

22. Mr Krsljanin submitted that there were three important points of principle which I should have in mind: (i) that issues for disclosure are not the same as issues for trial: McParland v Whitehead [2020] EWHC 298 (Ch); (ii) that in a case concerning an exercise of discretion where Mr Tolias says relevant factors were not taken into account, the court should be alert to a risk that the MDU’s disclosure should not exclude material because of an assessment of relevance determined by its own, possibly wrong, criteria for relevance; and (iii) proportionality is not solely to be determined by the monetary value of the claim but also by its importance to the parties.

23. So far as disclosure by the MDU in this case is concerned Mr Krsljanin submitted that: (i) all documents bearing on the MDU’s actual reasoning for the Challenged Decisions and its policies and practices in relation to requests for discretionary assistance must be disclosed; and (ii) at the stage of determining what is to be disclosed, questions such as the need for redaction or the creation of a confidentiality club at the inspection stage should be put to one side. Issue 3

24. Issue 3 is formulated as follows: “The reasons why D exercised its Discretion in the manner that it did when reaching the Decisions taken in response to C’s requests for assistance in 2015 and 2018. The above to include:”

25. Mr Tolias proposes that there should be a sub- paragraph (a) as follows: (a) The committee case summaries and decisions made by the BMC or its predecessor Committee and the Chairman’s Committee of the Board of Management Committee within the date range 2012 to 2018 as to the provision of assistance (whether granted or not) to former members within the jurisdiction of England and Wales with clinical negligence claims excluding dental claims and pure case management decisions in which (i) the potential availability of other insurance covering the alleged circumstance is identified as a factor for consideration and/or (ii) where the member notified the MDU of the event only after their membership ceased.

26. The MDU proposes that sub-paragraph (a) should be in the following form: (a) The committee case summaries and decisions made by the BMC or its predecessor Committee and the Chairman’s Committee of the Board of Management Committee within the date range 2012 to 2018 as to the provision of assistance (whether granted or not) to former members within the jurisdiction of England and Wales with clinical negligence claims excluding dental claims and pure case management decisions in which the potential availability of other insurance covering the alleged circumstance is identified as a factor for consideration.

27. The parties are in agreement that the following paragraphs (b) to (f) should be included: (b)The documents exchanged between C and D in respect of C’s requests for assistance in 2015 and 2018. (c)The documents considered by D’s committees in reaching its decisions on C’s requests. (d)The documents recording the decisions of D’s committees in response to C’s requests and/or any reasons or basis for those decisions. (e)The documents containing communications between D’s committee members and other staff of D in reaching the decisions on C’s requests (f) C’s conduct in respect of the requests for assistance in 2015 and 2018.

28. Mr Spearman placed some reliance on the remarks of the judges in R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) and Bucpapa v Secretary of State for Justice [2017] EWHC 1895 (Admin) [40] about comparisons between different decisions of the same decision maker. I accept Mr Krsljanin’s submission that those remarks are primarily directed at the original decision maker not being required to compare all its own previous decisions when making the decision under scrutiny by the court. However, I do accept that it is instructive that neither side’s counsel were able to find a case concerning a frequently used discretion where either disclosure relating to all other exercises of that discretion were ordered or the court had regard to or compared all other exercises of the discretion.

29. The MDU’s position is that no other case decisions are material to the claim, but it offers limited disclosure of the cohort of decisions reached on referrals to the committees on a similar criterion to that of Mr Tolias. The difference in wording between the parties is that Mr Tolias seeks disclosure of case summaries “and/or (ii) where the member notified the MDU of the event only after their membership had ceased.” The MDU’s position is that this extra wording would capture requests referred to the committees under different criteria to Mr Tolias’s requests, where no alternative insurance considerations are in play but where decisions were reached on the basis of other factors such as non-payment of subscriptions or criminal conduct and which could have no relevance to Mr Tolias’s requests.

30. Mr Tolias’s position is that the particulars of claim plead that the decisions took into account an irrelevant factor which was the fact that Mr Tolias had ceased to be a member and had left the MDU at the time of his requests. Since the defendant’s response in the defence is that while “membership status itself is not relevant, the circumstances of the request for assistance arising from the membership status may properly be relevant”, the timing of the notification to the MDU is relevant.

31. The MDU’s response to this is that the cohort of decisions of which it offers disclosure were referrals on similar grounds and specifically concerning former members. It says decisions on different referral grounds are not relevant and will obscure rather than clarify the position. Conclusion – Issue 3

32. As a matter of first impression one would not expect that a court considering whether a discretion had been lawfully or fairly exercised in making a decision would generally be assisted by looking at evidence of the decision maker’s decision making history.

33. The claimant’s initial position was to seek extremely wide-ranging disclosure of every substantive decision made in a 6 year period, without a proper focus on relevance. The evidence about the possible cost of the exercise as initially proposed was indicative of its unreasonableness and lack of proportionality. I do not agree with Mr Krsljanin that I should ignore the further costs involved in extensive redactions to protect the confidentiality of patients and medical practitioners or the possibility that a confidentiality club may need to be established at this stage in determining what is a reasonable and proportionate order to make now. Just because Mr Tolias has reined in the extent of his proposal does not make it reasonable and proportionate.

34. I consider that the likelihood of there being any material generated in relation to the requests for assistance of other members or former members of the MDU that would have any probative value is small. If there is any such relevant material it could only realistically exist in cases which are of a similar type and therefore involve similar considerations to Mr Tolias’s case. The formulation of (a) as now advanced by the MDU, without prejudice to its primary position on relevance, would appear to be a reasonable and proportionate proposal that will capture documents of potential relevance and probative value. Mr Tolias’s extra wording would introduce an extra cohort of requests which would include ones involving entirely different considerations. Since the words agreed already limit disclosure to requests by former members, the wording will capture any cases where the relevant criterion was availability of other insurance and, in each of those cases, any issue of the time of notification of the event relative to cessation of membership will be very likely to be apparent. It will accordingly be possible to evaluate the manner in which the time of notification was taken into account. I accordingly approve the MDU’s version of (a). Issue 4

35. Mr Tolias proposes the following formulation of Issue 4: “Whether, between 2012 and 2018, there was any stated policy or standard approach to considering requests for assistance made by Members/Former Members. To include but not be limited to: (a) Any policy or standard approach, including instructions or guidelines enshrining them (including any Referral Criterion documents e.g. ‘MDU Service Specifications’), within the date range 2012-2018, identifying factors to be considered by a Committee considering any request made by Members/Former Members for discretionary assistance with the defence of a clinical negligence claim. (b) Any review or consideration undertaken by D of such documents identified in paragraph (a) above and changes made to them, within the same period. (c) Notes or minutes of any meetings at which the policy (or policies) or approach to be taken to requests for discretionary assistance for the defence of clinical negligence claim were discussed. (d) Any statements made by D to its members/prospective members relating to the above, by way of ‘circulars’ (i.e. correspondence sent to all members/prospective members).

36. The MDU’s proposed wording is as follows: Any stated policy or standard approach applicable at the time of the challenged decisions to requests for assistance in which the potential availability of other insurance covering the alleged circumstance is identified as a factor for consideration. Whether such stated policy or standard approach was departed from by those processing and making the decisions for the MDU in respect of the Claimant’s requests for assistance and if so why.

37. It is agreed that the MDU Service Specifications applicable at the dates of Mr Tolias’s requests are to be disclosed (subject to redactions of irrelevant matters) so that policies relevant to the decision in Mr Tolias’s case in which the potential availability of other insurance is a relevant factor are identified. Documents evidencing departures from stated policies or approaches are also covered by the MDU’s proposal.

38. The MDU does not agree that earlier versions of any such documents or that documents in categories (b) and (d) which concern changes to policy documents have any relevance to the Challenged Decisions. In addition the MDU relies on Dr Fryar’s evidence in relation to the difficulty of searching for these documents and accordingly the proportionality and reasonableness of any order extending to categories (b) and (c), and says that documents in these categories go wider than a party’s “proper concern to see anything which might sensibly have influenced the attitude of” the decision maker, per Portman BS. So far as concerns category (d) the MDU says that while Mr Tolias was a member in 2012-2013 such relevant documents that were sent to him would be captured by IFD2 or IFD3 or the MDU’s version of IFD4. In addition the MDU is content to disclose all material sent to Mr Tolias while a member and the annual Member Guides for the period 2005-2018 and a model C request can be included to reflect that position. It is my understanding of the MDU’s position as explained in its solicitor’s letter of 10 June 2025 that “general internal guidelines applicable to [the Challenged Decisions] at the time the decisions were taken” will be disclosed and that its wording of IFD4 is intended to include such documents.

39. Mr Krsljanin emphasised that internal policy documents need to be disclosed in order that any inconsistency with public statements may be identified and that what was sought was formal policy documents. Conclusion – Issue 4

40. I conclude that the MDU’s formulation of Issue 4, as acknowledged to include internal guidelines, sufficiently captures the relevant categories of documents of which it is reasonable and proportionate to order disclosure, bearing in mind the point about the limit on the width of appropriate disclosure made in Portman BS. I consider that the internal documents to be disclosed will enable any inconsistency with public statements to be identified. Issue 6

41. The claimant proposes Issue 6 as follows: “The reasons for MDU ceasing to provide cover for spinal surgery/surgeons performing spinal surgery in or around 2017 (including any memos, minutes of policy or management meetings discussing the same).”

42. The MDU objects to the inclusion of this issue as it is directed to the MDU’s general operation and to a change of policy to stop funding matters arising from spinal surgery incidents occurring after June 2017 and which had no application to the Challenged Decisions. The MDU says that any properly disclosable documents would be captured by Issue 3 or

4.

43. I am entirely unpersuaded that this is an issue for disclosure in the instant claim. Model C Request

44. Mr Tolias proposes that there should be a Model C Request so far as concerns Issue 4 as follows: “Copies of any training documents, instructions, mission statements, memos or other materials provided in the period 2012-2018 to individuals working for MDU and/or MDU staff which set out the MDU’s policy and/or guidance in relation to dealing with requests for discretionary assistance; and the approach to be applied by decision-makers considering such requests.” As I understand the correspondence it is said that this is an alternative to IFD4 not an addition.

45. The MDU does not agree with what it describes as an expansive Model C request and says that the relevant disclosable documents are captured by Issues 3 and

4.

46. Having made my decisions about Issues 3 and 4 for the reasons I have given, I am not persuaded that there is any need or reasonable and proportionate purpose to ordering this wide-ranging request for a diffuse collection of documents as described in this proposed Model C Request.