Clarke v Poole: Affirmation of the Three-Stage Balancing Test and the Primacy of Personal Autonomy

Introduction

Clarke v Poole & Ors ([2025] EWCA Civ 447) deals with a high-stakes dispute in which a severely brain-injured claimant refuses invasive neurophysiological testing (EMG) proposed by the defendants to establish whether she suffers from active myotonic dystrophy (MD1). Liability for the 2018 road-traffic accident is admitted and provisional damages exceed £22 million, largely for future care and support. The defendants contend that pre-existing, active MD would substantially reduce life-expectancy and future care costs—potentially cutting the award by £10 million. The claimant’s refusal is grounded in the invasive nature of EMG and the psychological burden of a genetic diagnosis. HHJ Gargan granted a stay of the damages inquiry unless she consents to testing. Nicola Davies LJ refused permission to appeal. On the claimant’s application to reopen under CPR 52.30, Underhill LJ (with Whipple LJ) concluded that Nicola Davies LJ had overlooked central arguments about personal autonomy and mental‐health impact, and granted permission to reopen and to appeal on all grounds.

Summary of the Judgment

Underhill LJ’s reserved judgment (with Whipple LJ concurring) addresses two applications: reopening the refusal of permission to appeal and granting permission to appeal on the substantive grounds. He applies the strict CPR 52.30 criteria (real injustice, exceptional circumstances, no alternative remedy) and finds that Nicola Davies LJ did not address the claimant’s core argument—that any pressure to submit to EMG would itself harm her mental health and infringe her personal autonomy. This omission was neither trivial nor curable without reopening. The court therefore:

• Grants permission to reopen the refusal under CPR 52.30, finding a serious oversight in the Reasons.
• Grants permission to appeal on all five grounds, including challenges to (1) the interpretation of Laycock v Lagoe, (2) the distinction (or not) from Starr v NCB, and (3–5) the adequacy of the third‐stage balancing exercise regarding personal autonomy, bodily integrity, and the limited benefit of testing.

Analysis

Precedents Cited

Laycock v Lagoe [1997] PIQR 518 – Kennedy LJ’s two-stage test: (1) are the interests of justice served by the test? (2) if yes, has the objecting party advanced a “substantial” (i.e. non-illusory) reason to refuse? Kennedy LJ used “two stages,” but subsequent authorities (and Judge Gargan) read Laycock as implicitly requiring a third stage: a balancing of the claimant’s bodily autonomy against the defendant’s right to a full defense.

Starr v National Coal Board [1977] 1 WLR 64 – Addresses when a claimant can refuse examination by a particular expert. The Court of Appeal in Clarke rejects any principled distinction between Starr and Laycock, endorsing a unified three-stage approach.

Taylor v Lawrence [2002] EWCA Civ 90 – Establishes that an appeal or refusal of permission will only be reopened to avoid “real injustice” in “exceptional” circumstances with no alternative remedy.

Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514 & R (Goring-on-Thames PC) v S Oxfordshire DC [2018] EWCA Civ 860 – Clarify the high threshold for reopening under CPR 52.17/52.30: only serious procedural defect, corruption, or injustice that outweighs finality.

Municipio de Mariana v BHP Group Plc [2021] EWCA Civ 1156 – Recent review of reopening principles, endorsing a requirement of a “powerful probability” that the outcome would differ absent the procedural flaw.

Legal Reasoning

1. Three-Stage Test for Medical Testing Stays
Judge Gargan applied a refined Laycock approach: (1) Does the test serve the interests of justice? (2) Has the claimant a substantial objection? (3) If both answers are “yes,” balance the claimant’s right to personal liberty against the defendant’s right to defend. The EMG would materially affect quantum, and the claimant had a bona fide objection grounded in bodily integrity and mental-health risks. On balance, a stay unless testing was minimally restrictive.

2. Permission to Appeal Criteria (CPR 52.6)
Underhill LJ held that Nicola Davies LJ erred by failing to address the “core” of grounds 3–5: the claimant’s evidence that the prospect of forced testing would itself inflict mental harm and violate her autonomy. This omission undermined the integrity of the refusal process and met the “real injustice” and “exceptional circumstances” threshold for reopening.

3. Reopening Under CPR 52.30
The court must show (a) real injustice if not reopened, (b) exceptional circumstances, and (c) no alternative remedy. Underhill LJ found that forcing a choice between invasive testing (contrary to her reasoned objection) and a multi-million-pound reduction in damages is an unusual and grave injustice justifying reopening.

Impact

• Reinforces that any stay compelling invasive medical testing requires a transparent three-stage balancing exercise, explicitly grappling with claimant autonomy and mental-health evidence.
• Counsels trial and appellate courts to address fully each ground of appeal when refusing permission, warning against truncated Reasons that omit central points.
• Alerts defendants in personal injury and clinical negligence litigation that seeking invasive or genetic-style testing will trigger robust scrutiny of claimant autonomy rights.
• Clarifies that Laycock’s two-stage summary is best understood as including an implicit third, evaluative stage rather than excluding it.
• Emphasizes the high threshold for reopening final decisions but confirms that serious procedural oversights—especially concerning vulnerable litigants—can justify exceptional review.

Complex Concepts Simplified

Stay of Proceedings

A court order halting part or all of an action unless certain conditions are met (here, consent to EMG testing).

EMG (Electromyographic Neurophysiological Testing)

An invasive diagnostic procedure involving insertion of fine needles into muscles to detect electrical activity and myotonic responses, commonly used to diagnose MD.

CPR 52.17/52.30 (Reopening Appeals)

Rules governing when the Court of Appeal (or High Court) may reopen a final decision or refusal of permission to appeal: only to prevent real injustice in exceptional circumstances with no other remedy.

Laycock’s Two-Stage Test

Originally: (1) Do justice require testing? (2) Has the claimant a substantial (non-illusory) reason to refuse? Later authorities add a third stage: balancing autonomy versus defense rights.

Permission to Appeal (CPR 52.6)

An application must show “real prospect of success” and “compelling reason” for an appeal to be heard.

Personal Autonomy and Bodily Integrity

The right of individuals to make informed decisions about their own bodies and medical treatment without undue external pressure.

Conclusion

Clarke v Poole cements the requirement for a transparent, three-stage balancing exercise when defendants seek invasive medical testing of personal injury claimants. It underscores the primacy of personal autonomy and mental-health considerations, especially in high-value, life-changing injury cases. The decision also serves as a cautionary precedent on the perils of inadequate Reasons at the permission stage—reminding litigants and courts alike that central arguments must be expressly addressed or risk reopening. Finally, by granting permission to appeal all grounds, the Court signals the urgency of clarifying how Laycock and Starr interrelate, ensuring consistency in the law and protecting vulnerable claimants from disproportionate intrusions on bodily integrity.