HHJ Gargan in Clarke v Poole and others [2024] EWHC 1509 (KB) held that the Claimant’s claim for future losses, premised on her not suffering from underlying symptomatic myotonic dystrophy (‘MD’), should be stayed if she refused to undergo electromyography (‘EMG’) testing. Steven Snowden KC was instructed by Weightmans for the Defendants. This blog is written by Cressida Mawdesley-Thomas.
Following the Court of Appeal’s decision in Laycock v Lagoe [1997] PIQR 518, for a defendant to obtain a stay upon a claimant’s refusal to undergo testing, it must first be shown that the interests of justice require the testing sought. If the first limb of the test is satisfied, the court will then consider whether the claimant has a “real” objection. The judgment in Clarke is significant because HHJ Gargan read Laycock alongside the earlier Court of Appeal decision of Starr v NCB [1977] 1WLR (to which the Court in Laycock was not referred) and held that there is a “third stage” in cases where there is a “substantial objection” to the proposed testing whereby the parties’ competing rights should be weighed.
Following Clarke, it cannot be said that the second limb of the test in Laycock trumps the first and that a claimant can avoid testing by saying s/he has a “real” objection. Albeit “particular weight should be given to the claimant’s concerns if the test is invasive and or involves pain / discomfort and /or the risk of physical / psychological harm.”
This is a helpful decision for defendants seeking a claimant undergo testing: the Claimant raising a “real” objection will not automatically defeat an application for a stay. However, it bears emphasis that in Clarke the testing sought was not genetic and would be probative; the Claimant also had at least one symptom of MD. Thus, the decision in Clarke is factually removed from cases such as Paling.
This blog considers the important practice points for defendant and claimant practitioners in both personal injury and clinical negligence litigation.
The Defendants’ Application
The Defendants applied for an order that the Claimant’s claim for future losses be stayed unless she agreed to undergo EMG neurophysiological testing to determine whether she is suffering from symptomatic MD.
Background
The case arises out of a road traffic accident which happened in July 2018 and judgment has been entered against the Defendants. The Claimant was aged 31 at the time of the accident and suffered a severe traumatic brain injury. Her injuries are life-changing and include both physical and cognitive impairments.
A quantification chasm
The provisional schedule of loss sought c. £22.5 million, of which c. £15 million was for future care with a lifetime multiplier of 50. The Defendant’s counter-schedule valued the claim at c. £5 million, of which c. £3.5 million was for future care based on a multiplier of 31.
Part of the battleground regarding future losses, and in particular care, concerned whether the Claimant is in fact suffering from symptomatic MD.
Medical evidence
It was agreed that the Claimant’s mother had been diagnosed with MD which is asymptomatic and that there is a 50:50 chance of the Claimant having the gene. It was also agreed by the neurologists that the Claimant had some drooping of the eyelids, ptosis, and possibly some ‘frontalis activity’, the raising of the forehead in an attempt to open the eyelids further. Both ptosis and frontalis activity can be symptoms of MD.
There was a complex argument between the neurologists as to whether the Claimant was likely to have a more serious form of MD than her mother. This turns on the number of CTG repeats on the mutant allele of mother and daughter, something which can only be determined with genetic testing. However, the Defendants did not seek genetic testing be undertaken; only neurophysiological EMG testing. The experts agreed that EMG testing is the most probative type of physiological test to determine whether someone is suffering from MD, short of genetic testing.
The experts agreed that, if positive, the EMG test will confirm that the Claimant has symptomatic MD. However, EMG results will not provide a definitive guide to the way in which the Claimant’s symptoms are likely to develop in future, even if she is suffering from symptomatic MD. Accordingly, a positive test result would not extinguish by any means the future claims, including for care.
The Claimant’s position
The Claimant objected to undergoing EMG testing on the basis that a positive diagnosis of MD would have lifelong implications and be a “black cloud” over her head.
The Law
The starting point is Laycock v Lagoe [1997] PIQR 518. Laycock was a case where the claimant suffered relatively modest physical injuries in a road traffic accident in 1985 and shortly thereafter developed a marked change in personality. The defendant sought for the claimant to undergo an MRI to enable the radiologist (i) to confirm or exclude cerebrovascular disease as a cause of the abnormalities on an earlier scan; and (ii) to see whether there had been any further atrophy which would point towards a continuing cerebrovascular cause.
Kennedy LJ with whom Bedlam LJ agreed said (emphasis added):
“… the matter can perhaps be more succinctly and more helpfully put as a two-stage test. First, 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. If the answer is yes, then the court should go on to consider 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. In deciding the answer to that question the court will inevitably take into account, on the one hand, the interests of justice and the result of the test and the extent to which the result may progress the action as a whole; on the other hand the weight of the objection advanced by the party who declines to go ahead with the proposed procedure, and any assertion that the litigation will only be slightly advanced if the test is undertaken. But, if the plaintiff for example has a real objection, which he articulates, to the proposed test then the balance will come down in his favour.”
The parties agreed that the Court must answer the two questions set out in Laycock. The Claimant conceded that the first limb of the test was met but also contended that the answer to the second limb of the test must be “yes” and, accordingly, that a stay should not be imposed.
The Defendants contended that there was a third stage to the test (albeit one that was always undertaken, just avant la lettre) and that the court must undertake an evaluative exercise to determine the just and proportionate outcome, weighing the parties’ respective arguments.
In support of a three-stage test the Defendants relied on the Court of Appeal’s decision in Starr v National Coal Board [1977] 1WLR (not cited in Laycock). In Starr the claimant did not object to testing per se, just the identity of the expert proposed.
Scarman LJ reviewed the previous authorities and posed two questions: (i) was the defendant’s request for the examination of the claimant by Dr X a reasonable request; and (ii) granted the reasonableness of the defendant’s request, was the claimant’s refusal of it unreasonable.
The Defendants in Clarke contended that the second question necessarily involved an evaluation of the respective reasons and a balancing of the respective interests.
The Defendants also relied on the unreported decision of Master Yoxall in Dorrington v Basildon and Thurrock University Hospitals NHS Foundation Trust where he was referred to both Starr and Laycock. The question in Dorrington was whether the claimant, who claimed that she was suffering from urinary incontinence because of the defendant’s negligence, should undergo further urodynamic testing. Further testing was only required in Dorrington because the defendant lost confidence in the expert who had conducted the previous testing. The claimant was reluctant to undergo a further intimate examination because she was suffering from an emotionally unstable personality disorder as a result of rape.
Master Yoxall ordered the testing and held:
“… on balance, I do not consider that the claimant has put forward a substantial reason for not having further urodynamic test with Professor Cardozo.”
The Defendants submitted that Master Yoxall was not merely considering whether the claimant had put forward an explanation that was “real” but was evaluating the competing arguments of the parties, to do justice between them.
The Claimant submitted that the argument for a third stage of the test was inconsistent with what Kennedly LJ said in Laycock at [35]: “…. If the claimant has a real objection… the balance will come down in his favour”.
The Claimant argued that Starr deals with cases where the court is concerned with the identity of the doctor undertaking the relevant testing, rather than the risk that the test will cause discomfort or injury and that if the case falls into the latter category, then the two-stage test in Laycock applies.
The Claimant also relied on the decision of Master Sullivan in Paling (A Child) v Sherwood Forest Hospitals NHS Foundation Trust [2021] EWHC 3266 (QB). In Paling an application for a stay pending genetic testing in a clinical negligence claim involving a brain injury was refused, applying the two-stage test in Laycock. Although in Paling, the implications of the genetic testing, which would have revealed aspects of the claimant’s parents’ genetic makeup, were wider reaching than the EMG testing proposed in Clarke.
The Decision
The Court affirmed the two-stage test in Laycok but went on to hold:
“Where there is a substantial objection, the court must embark on a third stage and balance the competing risks namely: (i) the defendant’s right to defendant itself in the ligation and; (ii) the claimant’s right to personal liberty.”
Further:
“Kennedy LJ was right to suggest that when undertaking that exercise particular weight should be given to the claimant’s concerns in the test is invasive and or involves pain / discomfort and /or the risk of physical / psychological harm.”
Application of the test in Clarke
Applying the test to the facts in Clarke, the court noted that whether the claimant has active MD will have “a very substantial effect upon the damages awarded”. Further, the physical risks of the testing are very modest and there are potential clinical advantages to the claimant in determining whether she does have MD. Whilst it would have an adverse impact on the Claimant’s psychological heath if she did have MD, HHJ Gargan expected the claimant “to derive significant comfort if the tests were to show that she did not active / symptomatic MD.” Further, the decision in Laycock was distinguished on the basis that the risk to the claimant’s health flows not from the testing itself but only if the testing is positive and the Claimant learns she has active MD.
Key takeaways
The first limb of the test in Laycock requires a defendant to satisfy the court that the testing has a significant chance of progressing the claim. Accordingly, it will be instructive to consider:
- How likely is the test to be probative? In Clarke there was a 50:50 chance of the claimant having the gene. In the high-value clinical negligence claim of Paling, a 20-25% chance of testing positive was noted to be sufficient at [44].
- Is there evidence the claimant has the condition which the testing is aimed at? In Clarke there was a positive case that the claimant’s symptoms fitted with a particular genetic cause, namely MD, given the ptosis and potential frontalis activity.
- To what extent will the testing determine primary liability (i.e., by defeating a clinical negligence claim entirely on grounds of causation)?
- To what extent will the testing have a significant impact on quantum (in Clarke it was estimated at c. £10 million).
Following Clarke, future applications will focus on arriving at a just and proportionate outcome after undertaking the requisite balancing exercise. Accordingly, it will be instructive to consider:
Real objection / Balancing exercise
- How wide-ranging / invasive are the proposed tests?
- Has the Claimant previously undergone similar testing?
- What are the physical and psychological risks of the testing? Claimants are well-advised to obtain expert evidence in support of the same.
- Does a negative psychological outcome only arise if the testing is positive?
- Are there clinical benefits to the testing?
- Can the testing be done in a way which is sensitive to the claimant (i.e., all female team) or at the claimant’s home or locally?
Comment
It is notable that the Defendants did not seek genetic testing even though this may have been more advantageous. This appears to have been tactically astute. It was accepted that genetic testing “raises more complex issues than EMG testing”. Defendants may be well advised to seek less invasive testing, if possible, to increase the likelihood of succeeding in an application for a stay. Claims for genetic testing are likely to be no less hard fought in future.
The case is also a reminder that an order for a stay should be narrowly drawn. The power to impose a stay under CPR 3.1(f) may be indirectly “coercive” but it must be just and do no more than is required to ensure the defendant is not prejudiced by the Claimant’s failure to undergo the testing in question.
