The Court of Appeal held that a County Court judge erred in granting leave under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 to subpoena a plaintiff's treating psychotherapist's records in a historical sexual abuse claim, because the judge failed to identify any specific fact in issue or explain why the records contained evidence of 'substantial probative value' as required by s 32D(1)(a), rather than merely evidence that was relevant. The Court emphasised that the s 32D(1)(a) threshold is a high hurdle requiring positive satisfaction that the evidence will be capable of rationally affecting the assessment of the probability of a fact in issue to a substantial extent, and that failure to properly assess s 32D(1)(a) precluded meaningful assessment of the remaining cumulative requirements in s 32D(1)(b) and (c). The Court left open the possibility that a future application under s 32C could succeed at a later stage of the proceeding, and strongly endorsed the use of the s 32CF inspection power to enable judges to examine the documents before ruling on leave.
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