BL-2023-000620 - [2025] EWHC 2465 (Ch)

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.

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.

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).