Clarke v Poole & Ors

Factual and Procedural Background

This opinion concerns an application under CPR 52.30 for permission to reopen a refusal of permission to appeal against a decision of a deputy High Court judge who stayed certain elements of the Plaintiff's claim for damages related to a severe brain injury sustained in a road traffic accident in 2018. The Plaintiff, then aged 31, suffered life-changing physical and cognitive impairments. Liability was admitted, and judgment was entered by consent in December 2020, with damages provisionally quantified at over £22 million, primarily for future care and support.

The Defendants contend that the Plaintiff may have had myotonic dystrophy (MD), a progressive genetic disorder, prior to the accident. The Plaintiff's mother and maternal grandfather carry the relevant gene, but are asymptomatic. Experts agree the Plaintiff shows signs potentially indicative of active MD, but dispute whether these signs result from MD or neurological injury from the accident, and whether any MD is active and likely to cause symptoms.

The resolution of this medical question is material to the quantum of damages, with a potential difference of around £10 million. The dispute could be resolved by electromyographic neurophysiological (EMG) testing, which involves needle insertion into muscles and may cause some discomfort but is routine. The Plaintiff refuses to undergo EMG testing, citing concerns about the implications of diagnosis and the invasive nature of the procedure, supported by a clinical psychologist's opinion that pressure to test would harm her mental health.

The Defendants applied for a stay of the claim unless the Plaintiff consents to EMG testing. The application was granted by the deputy High Court judge, who applied a three-stage test balancing the Defendant's right to defend the claim against the Plaintiff's right to personal liberty.

The Plaintiff sought permission to appeal, which was refused by the Court of Appeal. The Plaintiff then applied to reopen the refusal of permission to appeal, supported by submissions highlighting alleged flaws in the refusal decision, particularly relating to the handling of the Plaintiff's objection to testing and the nature of the testing procedure.

The application to reopen was heard by a panel of the Court of Appeal. The Court found that the refusal decision had omitted consideration of a crucial argument regarding the detrimental impact of the pressure to undergo testing on the Plaintiff's mental health and personal autonomy. The Court granted permission to reopen and to appeal on all grounds.

Legal Issues Presented

1. Whether the correct legal test for ordering a stay requiring medical testing is a two-stage test, where a real objection by the claimant bars a stay, or a three-stage test involving a balancing of the claimant's personal liberty against the defendant's right to defend.
2. Whether the deputy High Court judge erred in law by failing to apply the principle from Laycock v Lagoe correctly and by not distinguishing it from Starr v National Coal Board.
3. Whether ordering a stay unless the Plaintiff consents to invasive EMG testing unjustifiably interferes with the Plaintiff's personal autonomy and bodily integrity.
4. Whether the judge failed to properly consider the psychological harm likely to be caused by the pressure to undergo testing.
5. Whether the limited benefit of the EMG testing justified the interference with the Plaintiff's rights.

Arguments of the Parties

Appellant's Arguments

• The judge erred by not applying the Laycock v Lagoe principle that a stay should not be granted if the claimant has a real, non-illusory objection to testing.
• The judge failed to distinguish Starr v National Coal Board, which concerns refusal to be examined by a named expert, from the present case involving invasive diagnostic testing.
• The stay order unjustifiably interferes with the Plaintiff's personal autonomy and bodily integrity.
• The judge failed to consider the psychological harm from the pressure to undergo testing, as opposed to the harm from learning the test results.
• The benefit of the proposed EMG testing is limited and does not justify the intrusion on the Plaintiff's rights.
• The refusal of permission to appeal contains fundamental flaws, including mischaracterization of the nature and invasiveness of the testing.
• The refusal to reopen the appeal would cause real injustice given the severity of the Plaintiff's injuries and the high financial stakes involved.

Respondent's Arguments

• The judge correctly applied the law, including the three-stage test balancing interests, as supported by Laycock and Starr.
• The psychological harm from pressure to test was considered and addressed in the judgment.
• The description of the testing procedure in the judgment was consistent with the expert evidence before the court.
• The refusal to reopen the appeal was appropriate as the grounds raised do not undermine the integrity of the earlier decision.
• The Plaintiff's objections were fully considered and balanced against the Defendants' right to a fair trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Laycock v Lagoe [1997] PIQR 518	Two-stage test for ordering medical testing: (1) whether the test is required in the interests of justice; (2) whether the party opposing the test has a real objection that is not imaginary or illusory.	The court considered whether the judge correctly applied this principle and concluded that a third stage involving balancing competing rights was required, but also acknowledged the need for clarification on the correct test.
Starr v National Coal Board [1977] 1 WLR 63/64	Addresses when a claimant can refuse examination by a named expert.	The court held that Starr was not distinguishable in principle from Laycock and the judge was correct to combine the reasoning into a three-stage test.
Taylor v Lawrence [2002] EWCA Civ 90, [2002] QB 528	Sets out the stringent conditions under which a final determination or refusal of permission to appeal may be reopened.	The court applied this authority to determine whether the refusal of permission to appeal should be reopened, concluding that the integrity of the earlier process was not critically undermined except for the omission of a key argument.
Municipio de Mariana v BHP Group Plc [2021] EWCA Civ 1156, [2022] 1 WLR 919	Clarifies the approach to reopening refusals of permission to appeal, emphasizing the need for exceptional circumstances and real injustice.	The court relied on this case to justify reopening the refusal due to the omission of a crucial argument about the impact of pressure to test on mental health.
R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860, [2018] 1 WLR 5161	Sets out principles for reopening appeals and the importance of finality in litigation.	Referenced in support of the stringent criteria for reopening appeals and the need to demonstrate grave injustice.
Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514	Summarizes essential prerequisites for invoking jurisdiction to reopen an appeal or refusal of permission to appeal.	Quoted to emphasize that reopening requires a critical undermining of the integrity of the earlier litigation process.

Court's Reasoning and Analysis

The Court began by analysing the legal framework established in Laycock v Lagoe, which sets out a two-stage test for ordering medical testing in litigation. The deputy High Court judge had interpreted Laycock as requiring a third stage involving a balancing exercise between the Defendant's right to defend the claim and the Plaintiff's right to personal liberty. The Court of Appeal considered this interpretation carefully and found no error of law in the judge's approach, noting that Kennedy LJ's judgment in Laycock was an attempt to simplify earlier authorities but did not exclude the need for balancing.

The Court then addressed the Plaintiff's objections to the EMG testing, including the invasive nature of the procedure and the psychological impact of being pressured to undergo testing. The judge had accepted expert evidence that pressure to test would likely have a detrimental effect on the Plaintiff's mental health.

However, the Court identified a significant omission in the refusal of permission to appeal: the reasoning did not explicitly address the Plaintiff's argument that the pressure to undergo testing itself causes psychological harm and infringes personal autonomy. This omission was deemed sufficiently serious to justify reopening the refusal of permission to appeal.

The Court acknowledged that the description of the testing procedure in the refusal decision was somewhat imprecise but found no basis to conclude that this misunderstanding materially affected the outcome.

On the question of reopening, the Court applied the stringent criteria from Taylor v Lawrence and related authorities, concluding that the omission of a key argument about personal autonomy and mental health impact constituted an exceptional circumstance and real injustice warranting reopening. The Court emphasised that this decision did not prejudge the ultimate outcome of the appeal but was necessary to ensure that the appeal could be fully and fairly considered.

Holding and Implications

The Court GRANTED PERMISSION TO REOPEN the refusal of permission to appeal and GRANTED PERMISSION TO APPEAL on all grounds.

The direct effect of this decision is that the Plaintiff will be allowed to appeal the deputy High Court judge's order staying part of the claim unless she consents to EMG testing. The Court did not express any view on the merits of the appeal but emphasised the importance of addressing the sensitive issues surrounding personal autonomy and the psychological impact of medical testing in litigation.

No new precedent was definitively established by this decision; rather, it ensures that the legal principles and factual issues will be authoritatively resolved on appeal. The Court highlighted the need for clarity regarding the applicable test for ordering medical testing in personal injury claims, noting potential uncertainty arising from differing interpretations of Laycock and Starr.