Finn Selman, pupil barrister at 12KBW, discusses the issues of medical examination and fairness between the parties in the latest application for the ongoing proceedings of Clarke v Poole.

This judgment concerns an application under CPR 52.30 for permission to reopen a decision of Nicola Davies LJ refusing permission to appeal against a decision of HH Judge Gargan sitting as a deputy High Court judge.

Factual Background

The Claimant, who was then 31 years of age, sustained a severe brain injury in a road traffic accident, which has left her with a range of very serious and life-changing physical and cognitive impairments. The Claimant has weakness in her right upper and lower limbs which, together with spasticity, impacts upon her balance and mobility. The Claimant has impairments in memory, mental flexibility and speed of processing. The Claimant also suffers from psychological symptoms, sleep disturbance, fatigue, and pain.

Liability was admitted, and judgment was entered by consent on 4 December 2020.

The Claimant’s provisional schedule of loss valued the claim at over £22 million, of which the largest element (circa £15 million) is for the cost of future care, support and case management.

It is common ground between the medical experts that the Claimant exhibits a drooping of the eyelids which is known as ptosis and possibly also frontalis overactivity, these are symptoms which may indicate active Myotonic Dystrophy (MD).

The Defendant’s case is that there is reason to believe that prior, and unrelated to the accident, the Claimant was already suffering from MD, and more particularly a form of the condition called DM1. MD is a progressive multi-system genetic disorder which gives rise to muscle weakness and wasting. The Claimant’s mother and maternal grandfather have been found to carry the DM1 gene. There is, therefore, a 50% chance that the Claimant also carries the gene. Even if the Claimant carries the gene, it is not certain that that she would have active MD i.e. be symptomatic or seriously symptomatic.

The parties agree that it would be possible to determine whether the Claimant has active MD by carrying out electromyographic neurophysiological (EMG) testing. This form of testing is routine for patients thought to have nerve or muscle problems and involves the insertion of a fine needle through the skin into the muscle to measure electrical activity.

The Claimant is not prepared to undergo EMG testing and had refused it prior to the accident, when her mother was diagnosed. The Claimant has three main objections:

  1. Diagnosis- She does not wish to know whether she has MD because such a diagnosis will have lifelong implications for her health, travel and life assurance;
  2. Personal Autonomy – The invasive nature of the testing is yet another insult to her body which has been so damaged by the accident;
  3. Psychiatric Injury- Any pressure to undergo such testing would likely have a detrimental impact on her mental health.

HHJ Gargan’s Judgment

HHJ Gargan in his judgment, Clarke v Poole [2024] EWHC 1509 (KB), stayed certain elements of the Claimant’s claim for personal injury unless she consented to undergo a form of diagnostic testing. In his judgment HHJ Gargan applied a modified version of the two stage test expounded by Kennedy LJ in Laycock v Lagoe [1997] PIQR 518 with the addition of a third stage. The test applied by HHJ Gargan was consequently:

  1. Do the interests of justice require the test which the defendant proposes? If the answer to that is in the negative, that is the end of the matter.
  2. Whether the party who opposes the test has put forward a substantial reason for that test not being undertaken; a substantial reason being one that is not imaginary or illusory;
  3. Where there is a substantial objection, the Court must balance the competing rights, namely:
  4. the defendant’s right to defend itself in the litigation; and
  5. the claimant’s right to personal liberty.

HHJ Gargan refused permission to appeal. For a full analysis of the judgment of HHJ Gargan please see this previous article written by Cressida Mawdesley-Thomas.

Application for Permission to Appeal

The Claimant filed an Appellant’s Notice to the Court of Appeal on 25 July 2024 on the grounds that, by ordering a stay, the Court had reached a conclusion which was contrary to the evidence and wrong in law. The Notice contained five grounds of appeal, namely:

Ground 1: Failed to apply the principle, laid down by the Court of Appeal in Laycock v Lagoe [1997] PIQR P518, that a stay will not be granted if a Claimant has an objection to testing which is real, i.e. not imaginary or illusory;

Ground 2: In doing so, failed to distinguish the decision in Starr v National Coal Board [1977] 1 WLR 64, which addresses a different question, namely whether and when a Claimant can refuse to be examined by a particular named expert;

Ground 3: Failed to take into account that a stay would have the effect of requiring an interference with the Claimant’s personal autonomy and/or bodily integrity;

Ground 4: Failed to have regard to the finding that the Claimant would be likely to sustain injury in the event of testing;

Ground 5: Failed to have regard to the limited nature of the benefit to be achieved by requiring the Claimant to undergo testing.

Refusal of Permission to Appeal

Nicola Davies LJ refused permission to appeal, by an order dated 23 August 2024, on the basis that the appeal had no real prospect of success and there was no compelling reason for the case to be heard by an appellate court. Her reasons (“The Reasons”) were:

  1. HHJ Gargan’s analysis of Laycock was careful and did not demonstrate any error of law. The Judge was correct to find at [83] that the test requires the Court to undertake a balancing process (the third stage). The Judge rightly identified the overarching question (in ‘modern terms’) at [84] as whether it is just and proportionate to order a stay unless the claimant undergoes medical testing;
  2. HHJ Gargan did not fail to apply the test to the facts of the Claimant’s case;
  3. There is no principled distinction between the authorities of Laycock and Starr;
  4. HHJ Gargan did take account of the effect which a stay would have upon the Claimant’s personal autonomy and bodily integrity and addressed these matters at [94] to [98]. The Claimant now seeks to rely upon authorities and submissions (paragraphs 51 and 52 of the skeleton argument) which were not raised, nor relied upon, before the Judge;

There was no substance in the grounds of appeal. The effect upon the Claimant of testing was specifically addressed by HHJ Gargan. The Claimant’s counsel had accepted that the issue of whether or not the claimant had MD was fundamental to the case. It was a realistic acceptance and is reflected in the significant difference in value between the two potential awards of damages.

The Application to Reopen

The Claimant made an application under CPR 52.30 to reopen on 13 September 2024. The reasons she gave for why Nicola Davies LJ’s decision should be reopened were as follows:

  1. This is an appeal of substantial public importance;
  2. There were serious flaws in the Order refusing permission to appeal:
    • The Reasons fail to address or deal with the principle, expressly set out by this Court in Laycock, that a stay will not be granted if a Claimant has an objection to testing which is real, i.e. not imaginary or illusory;
    • The Reasons describe this as a case of genetic testing, but the Defendants have never sought genetic testing. This application related rather to neurophysiological testing. That is a fundamental error;
    • The Reasons appear to misunderstand what the testing would involve, describing ‘the insertion of a needle into a muscle’, in circumstances where the testing involves the insertion of many needles into muscles to measure electrical activity. There is no reference in the Reasons to the fact that this testing ‘can be a painful procedure’;
    • The above failings contributed to the Court’s failure to distinguish the decision in Starr, which addresses a different question, namely when a Claimant can refuse to be examined by a particular named expert, rather than whether she has to undergo invasive and painful diagnostic testing that she has always objected to undergoing. This is a case about personal and bodily integrity, which Starr was not;
    • The Reasons fail to address the central issue of law and wrongly describe the testing in issue, such that the Court has failed adequately or at all to protect the Appellant’s personal and bodily integrity;
  3. The decision in the instant case has received a significant amount of attention and has had a significant impact on the approach taken by Defendants to applications for a stay in cases where the question of genetic or other testing may arise. The refusal of permission is likely to have consequences for other disabled and/or vulnerable Claimants.

The application came before Whipple LJ on the papers. On 17 January 2025, Whipple LJ directed an inter partes hearing which would determine both the question of whether permission to reopen should be granted and, if so, the question of whether permission to appeal should be granted. That hearing took place before Underhill LJ and Whipple LJ on 24 February 2025.

The Test Under CPR 52.30

The test for an application to reopen under Rule 52.30 reproduces the effect of the decision in Taylor v Lawrence [2003] Q.B. 528 that the Court of Appeal or the High Court would not reopen a final determination of any appeal unless it was necessary to do so to avoid real injustice, the circumstances were exceptional and there was no alternative effective remedy. The same approach applied whether the application was to reopen a refusal of permission to appeal or to reopen a final judgment reached after full argument, Lawal v Circle 33 Housing Trust, [2015] H.L.R. 9 and R. (on the application of Goring-on-Thames Parish Council) v South Oxfordshire DC [2018] 1 W.L.R. 5161. The question is not whether the judge whose decision was impugned made the wrong decision, but whether something had happened to undermine the integrity of the process.

Judgment on Reopening

Underhill LJ decided that the Claimant’s challenge to HHJ Gargan’s analysis of the reasoning in Laycock had been fully addressed by Davies LJ in the Reasons, therefore the application to reopen could not succeed on this ground.

In relation to the Claimant’s challenge that HHJ Gargan had overlooked a crucial element in the balance he had to strike, namely that the pressure of having to choose whether to undergo testing would itself cause the Claimant psychiatric injury, Underhill LJ found that Davies LJ should have either identified where HHJ Gargan had addressed the specific issue of the effect of testing on her personal autonomy and mental health, or explained why it was not an error for him not to do so. An omission by a judge considering an application for permission to appeal to address all the grounds of appeal was a potential justification for a grant of permission to reopen, Municipio de Mariana v BHP Group Plc (formerly BHP Billiton Plc) [2022] 1 W.L.R. 919. It is not necessarily a sufficient reason in itself, but the Court came to the conclusion that permission should be granted in this case for the following further reasons.

  1. The Court’s view was that, had Nicola Davies LJ’s attention been properly focused by the skeleton argument on the real nature of the challenge under ground 3 (or ground 4), she would in all probability have found that it had a real prospect of success and accordingly that permission to appeal should have been granted.
  2. The Court found that the circumstances of the case were exceptional. The Claimant had suffered very severe injuries and the Defendant had admitted liability. HHJ Gargan’s decision was not conclusive of the litigation, since the assessment of damages was to continue in any event. However, the effect of HHJ Gargan’s judgment was to put the Claimant in a position where she has to choose between, on the one hand, undergoing testing to which she has a profound and reasoned objection and, on the other, potentially losing an element in her compensation worth many millions of pounds; and where, on the evidence, that choice would be detrimental to her mental health.
  3. The Court found that there was a very unusual combination of circumstances, such that the injustice that would occur if the refusal of permission to appeal was not reopened was sufficiently grave to overbear the importance of finality.
  4. The Court did not think that its criticisms of the skeleton argument were a sufficient reason to reach a different conclusion.

The application to reopen was granted.

Permission to Appeal

Permission to appeal was granted on all of the grounds:

  • Grounds 3 and 4 on the basis that the substantive challenge raised by those grounds is to be found in paragraphs 68-73 of the permission to appeal skeleton argument.
  • As to ground 5, Underhill LJ did not find it appropriate to hive off particular elements of the disputed evaluation.
  • Grounds 1 and 2 as the appeal is to proceed in any event on grounds 3, 4 and 5, and even though, as Underhill LJ was inclined to think, HHJ Gargan’s analysis of Laycock was correct, Underhill LJ considered that the way in which Kennedy LJ expressed himself was capable of being understood differently, and it is desirable that the correct approach in such cases be authoritatively established. Therefore, there was a compelling reason for allowing the appeal on these grounds, irrespective of their prospects of success.

Comment 

This case is of particular interest for two principal reasons, relating to procedure in addition to the substance of the legal issues. Firstly, the unusual procedural process by which the case has reached a full appeal hearing in the Court of Appeal. Second (and some people may think more interestingly), it raises a very important point relating to the personal autonomy and/or bodily integrity of claimants in personal injury proceedings.

As to procedure, this case has arrived at the stage it has through a rarely-used procedural process under CPR 52.30 to reopen a refusal of permission to appeal. Following permission to appeal being refused at first instance by HHJ Gargan in the High Court and then by Davies LJ in the Court of Appeal, the prospect of the Claimant’s application to reopen being successful or permission to appeal being granted may not have appeared high. The test to reopen under CPR 52.30 sets a stringent threshold; that it is necessary to reopen to avoid real injustice, the circumstances are exceptional and there is no alternative effective remedy. There is good reason for such a high threshold test, which is the need for finality in litigation. The Court must undertake a balancing act, when considering whether to reopen, between the potential injustice of refusal of permission to appeal and the importance of finality. This was recognised by Underhill LJ in his judgment at [36]; however, it was decided that the balance tipped in the Claimant’s favour here. This was due to the very unusual combination of circumstances, which were such that the injustice of refusing permission to appeal overbore the importance of finality.

Turning to the substance of the issue on appeal: can the Court in effect compel a claimant to undergo medical testing when it is an invasive, potentially painful procedure and there is evidence that the testing itself will cause a claimant psychiatric injury? That is at least how the Claimant appears to want the question to be presented to the Court. The position is, however, slightly more nuanced than that. The judgment of HHJ Gargan in practice allowed the Claimant three options (the first two being recognised by Underhill LJ in his judgment at [36] with iii) not being acknowledged, one assumes due to it being something of a non-option):

  1. Undergo EMG testing and the entirety of the claim can proceed;
  2. Do not undergo EMG testing and the claim for the cost of future care, support and case management is stayed and the rest of the claim proceeds;
  3. Discontinue the claim.

However, in none of those three scenarios is the Court positively compelling a claimant to undergo medical testing; the Claimant has various choices available to them. In order to determine whether being limited to these three options is just and/or lawful, the Court of Appeal will have to offer guidance on the correct interpretation of the test in Laycock, considering its relationship with the judgment in Starr. Is there a third limb to the test in Laycock or not? If there is, where does the balance between a Defendant’s right to defend itself and the Claimant’s right to personal autonomy/liberty and to pursue litigation lie? Will the Court of Appeal produce an authoritative broad judgment on the point, or will the judgment be confined to a fact-specific determination? We shall see. However, given the basis on which permission to appeal was granted (particularly on grounds 1 and 2), practitioners will be expecting thoroughgoing guidance from the Court of Appeal.

Finn Selman, Pupil Barrister