Passing The Buck: Payment Of Productions In Personal Injury Litigation

• Published date: 26 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Civil Law
• Law Firm: McCague Borlack LLP
• Author: Mr Garett Harper and Conner Sipa

In the recently released Endale v. Parker,¹ the Superior Court of Justice has clarified which party ought to pay for obtaining documents, whether by undertaking or otherwise. This case will hopefully serve to settle this all too frequently contested issue in personal injury litigation.

In Endale, the Court granted the defendant's request for an order for the plaintiff to answer undertakings consisting of various medical records, pay the costs associated with answering undertakings and to produce a further and better affidavit of documents. The defendant previously agreed to pay the reasonable costs associated with reproduction but argued the plaintiff ought to pay the remainder of the expenses associated with production.

Of the Rules of Civil Procedure,² Rule 30.02³ provides that every document relevant to the issues of the litigation that is in the party's power, control, or possession, must be produced. Rule 30.01⁴ provides that a document is in a party's power when requesting party is not entitled to obtain the original, and the other party is entitled to retrieve it.

The Court found that the documents requested by the defendant were clearly relevant, and that the plaintiff had power over them. The plaintiff's submission that the documents were not in their power on the basis that the physician(s) could conceivably deny the request based on the best interests of the plaintiff was not accepted, as there was no evidence advanced that any requests had been denied.⁵ The Court held that "...each party must fund its own case. The obligation to produce documents as required by Rule 30.01(1) cannot be the responsibility of an adverse party who may have better financial means to source the documents."⁶ The plaintiff's argument that there ought to be...