Dunning v United Liverpool Hospitals’ Board of Governors: CA 1973

Mrs D had been treated at hospital, and sought release of her records to establish whether she had any basis for a claim in negligence. The court considered whether an application under section 31 of the 1970 Act for pre-action discovery had been properly made. Given the delay, the court was asked whether a claim was ‘likely’ to be made.
Held: Whether the parties are likely to be parties in subsequent proceedings does not depend on the state of affairs prior to pre-action discovery. If one concentrates solely on things as they stand prior to pre-action discovery then it will often be impossible to say that anyone is likely to be a party to any subsequent proceedings.
Lord Denning MR said: ‘One of the objects of this section is to enable a plaintiff to find out – before he starts proceedings – whether he has a good cause of action or not’. ‘likely’ must be given its more extended and open meaning. A more restricted meaning would defeat the purpose of the statute.
James LJ said: ‘In order to take advantage of the section, the wording of which is no different from that of s 33(2) of the 1981 Act the applicant for relief must disclose the nature of the claim he intends to make and show not only the intention of making it but also that there is a reasonable basis for making it. Ill-founded, irresponsible and speculative allegations or allegations based merely on hope, would not provide a reasonable basis for an intended claim in subsequent proceedings.’
Stamp LJ dissented, saying that the expert’s opinion was that proceedings were unlikely, and disclosure was unlikely to produce anything to justify it.


James LJ, Lord Denning MR, Stamp LJ


[1973] 1 WLR 586, [1973] 2 All ER 454


Administration of Justice Act 1970 31


England and Wales

Cited by:

CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Evidence, Health Professions

Updated: 18 June 2022; Ref: scu.416038