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

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).

The MDU’s proposed wording is as follows:

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.

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.

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.