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Disclosure of documents in the event of a compo claim
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Posted By Darren (Daz) Fraser
Morning fellow safety bods
There is a discussion taking place at this moment in time between the H&S dept, HR dept and other interested parties, that in the event of a claim from an employee what documents must / need to be disclosed.
The very word disclosure has a specific meaning in the Civil Justice Rules, however HR seem to think that the company should just hand over all that is asked for.
I am of the opinion that we should only hand over what we disclose, not just hand over everything.
I would appreciate your views on this subject, and if anyone has a definitive list of documentation required int he event of a compensation claim, that would also be very much appreciated.
By the way this is a hypothetical question, there are not any pending compensation cases at this moment in time, just trying to put together a procedure for management to follow in the event of a claim, that is standardised.
Many thanks
Daz
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Posted By Robert K Lewis
Unless a document has been specifically prepared in contemplation of legal proceedings, and there are tight definitions around this, then they are disclosable on request.
You do not have any choice on what to disclose
Bob
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Posted By GavinR
Sorry to jump onto this thread but its an interesting question. Bob, if a claim was placed for a trip incident and it was identified through the accident investigation that a contributing factor was poor lighting or maintenance to lighting would this information need to be disclosed if not requested by claimant?
I have come across this before and through our honesty we have basically provided all the information to the claimant which sometimes feels like giving them a rope to hang us with. I'm totally for providing info to employees where we are at fault or have failed to protect them but sometimes claims are for the most trival and minor incidents, a fact that drives me mad.
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Rank: Guest
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Posted By Robert K Lewis
The short answer is yes - on request. In order to assert what is often simply termed "legal privilege" it requires more than simply sticking a form of words on the front of the document. The courts have set out what it regards as the requiremetns to be fulfilled and the defendant will need to demonstrate that these have been followed. In essence there needs to be a clear specific instruction from the legal adviser that the investiogation etc is required and why - from this further protocols need to be developed to ensure the information remains only in the hands of those who should hold it. Once the information is in the public domain then it is no longer subject to privilege.
For minor accident investigations the costs can exceed the claim value but clearly major accidents and regulatory threats can justify the effort. At least the legal adviser is then able to judge what are the issues involved without being second guessed by others.
Bob
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Rank: Guest
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Posted By Dave B
Why not leave it up to your insurance firm to decide what to disclose? After all, it's them that will fight it and pay out.
Dave B
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Posted By Mark Farrell
I have a basic strategy for this.
Once the letter of claim is submitted I forward this to our insurers. I then at this stage also forward a brief history of the accident / incident with the initial report(including maintenace record, RIDDOR report, first aid report, accident book entry and specific training records).
Our insurance company will then contact the other party's insurance company.
Once this has taken place any other documents that are required will be submitted on request.
Once liability is established our insurance company will either disclose (to enable us to fight the case) or not disclose and admit liability.
I hope this helps.
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Rank: Guest
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Posted By steve e ashton
Firstly - in most instances - refer all letters through your insurers and let them decide whether documents (and which documents) need to be produced.
Secondly - be aware that many letters are received from the 'no-win/no-fee' brokers which are 'fishing' for information that could be used in a possible future claim. These are NOT a legal claim for damages, and you are under no obligation to respond in any way - although it is usually polite to reply saying something obscure and non-committal.
Finally - if a claim IS lodged - then the rules on what can be withheld from disclosure are very tightly drawn - there are very few documents that can be kept secret. HOWEVER - it is my understanding that the documents do not just need to be 'handed over' - they need to be specifically identified and requested, they need to be directly relevant to the specific claim made, and I do not believe it is necessary to identify 'unrequested material' (unless your rebuttal of the claim is going to depend on the material in which case disclosure rules apply).
If you have one, speak with your insurer or your broker - they are usually well informed and should be able to provide specific advice.
Steve
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