Trundling through the courts are two linked group actions brought by rugby players from both codes. It’s reported that over 1,000 players have joined the actions, 313 from rugby league and 787 from union, alleging they suffered brain damage from collisions they were involved in as part of the game.
With Brain Injury Awareness month having just passed, consideration of the ongoing group seems very timely. Whilst much public commentary has focused on the science surrounding concussion, the litigation has faced a more fundamental battle. That is the duty of record keeping and disclosure. For defendant organisations, clinicians and legal advisers these claims provide a stark illustration of how deficiencies in documentation retention and disclosure can threaten the viability of claims and materially affect outcomes.
The court has repeatedly emphasised that proper disclosure is not a technicality but central to justice. Recent reporting highlights ‘serious and widespread failures’ in disclosure compliance with approximately 90% of claims having incomplete medical records.
Furthermore, Master Cook, who is managing the group action for rugby players, considered the claimants’ legal representative had misunderstood their responsibilities for disclosure, providing only documents relied upon rather than all relevant material. This misunderstanding goes to the heart of the disclosure principles at CPR Part 31 requiring a party to disclose not only helpful but adverse documents.
The consequences of this misunderstanding have been profound, prompting Rugby Football League and Union to apply to strike out claims against them and the court imposing cost sanctions.
The court has reinforced that erroneous inclusion of claimants in lead cohorts risks distorting the entire action and failures in disclosure are not merely procedural defects but impact the credibility and sustainability of the claims themselves. Equally, one defendant has failed to disclose records relating to international careers, prompting the court to make clear that disclosure obligations apply concurrently.
From a defence perspective, the litigation underscores a critical point - that the quality of contemporaneous record-keeping may ultimately create a liability risk more than expert evidence. Claims rely heavily on quality medical records. In these matters GP records, neuroimaging, concussion protocols and return to play decisions are all relevant. Where such records are incomplete, inconsistent or retrospectively reconstructed, the ability to defend allegations of breach, causation and foreseeability can be compromised.
Equally important in this matter are historical concussion protocols, risk assessments, match day medical procedures and internal communications. Absent or poorly archived governance records expose organisations to adverse inference arguments and limit the ability to demonstrate evolving and responsive standards of care.
For governing bodies, clubs, insurers and legal advisers several strategy lessons emerge:
Despite this, defendants must balance tactical advantage with judicial expectations of proportionality and cooperation.
This litigation is not confined to legal departments. It has direct operational consequences. For clinicians it reinforces the need for contemporaneous, structured and standardised medical records, along with audit trails for clinical decision making. For sporting organisations it highlights the need to implement centralised and interoperable medical records systems, along with the retention of historic policy documentation and risk assessments. Additionally, there must be an alignment between clinical practice and documented protocols.
As the court continues to press for early proactive case management, the organisations best positioned to withstand scrutiny will be those that can demonstrate complete, coherent and contemporaneous records which are disclosed properly and on time. This is now not only from a clinical, but a governance perspective.
Adele Fletcher - Associate
Louise Jackson - Partner, Healthcare & Sport North West Lead
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