Laycock revisited: A Claimant’s refusal to undergo medical examination – when will the court impose a stay?

The defendants succeeded in a highly contested application concerning a claimant who refused to undergo testing which might indicate a pre-existing medical condition, the presence of which could impact very significantly on the valuation of a claim pleaded at £22.5 million.

His Honour Judge Gargan, sitting as a Judge of the High Court, ordered that the claimant must either agree to undergo the testing or concede for the purpose of the litigation that she did have the potential pre-existing condition. If she refused to do either, her claim for future losses would be stayed.

The judgment is important for determining that, when reasonable, a claimant has to  undergo testing or may be limited in terms of what can be claimed if the reasonable testing is refused.   

Context

The proceedings arose from a serious road traffic accident in 2018. Liability was agreed and judgment entered against the defendants.

The claimant suffered complex and life-changing injuries, in particular, a significant traumatic brain injury. This resulted in cognitive impairments affecting  her memory and  speed of processing. She was fatigued, experienced pain and also suffered physical impairments affecting her mobility and balance.

It was agreed that the claimant would never work again and would require very significant care for the rest of her life.

It was also accepted  that the claimant’s mother had been diagnosed with myotonic dystrophy (MD), a degenerative disorder which causes progressive muscle loss and weakness and could significantly impact life expectancy in some instances.

The experts agreed that there was a 50:50 chance of the claimant having the same gene. The claimant had never undergone the genetic test which would confirm the presence or absence of the gene.

In the absence of a genetic test, the defendants’ expert neurologist recommended neurophysiological testing to assist in determining whether the claimant was suffering from active/symptomatic myotonic dystrophy. The claimant refused to submit to this testing, resulting in the defendants’ application. While the test itself was minimally invasive, the claimant felt that a positive diagnosis would damage her mental health.

The law

The perceived interpretation of the law in this circumstance was a two-stage test, set out by Lord Justice Kennedy in Laycock v. Lagoe [1997] PIQR 518:

…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 claimant argued that, so long as she presented an objection to the testing which was ‘real’, (i.e. not  imaginary or illusory), then this objection should succeed.

This approach had been followed in several cases (see Paling v Sherwood Forest Hospitals NHS Foundation Trust [2021] EWHC 3266 and Read v Dorset County Hospital NHS Foundation Trust + 1 other) and was cited in the White Book (para 3.1.8.1).

A third stage?

The defendants argued that there was a third element to the test. This required  the court to consider the weight to be attached to the defendants’ argument in favour of the test as well as  the claimant’s objection to it and perform an evaluative exercise to determine the just and proportionate outcome in all the circumstances. 

The start point was Starr v National Coal Board [1977] 1 WLR 63 which was not cited in Laycock.

In Starr, Scarman LJ said that there was a balance between two fundamental rights - the right to personal liberty and the right of the defendant to defend litigation. Scarman LJ asked whether the claimant’s refusal of a request for examination was unreasonable and it was contended by the defendant that this required evaluation and balancing to assess what was in the interests of justice.

This approach had been adopted by Master Yoxall in Dorrington v Basildon and Thurrock University Hospitals NHS Foundation Trust, an unreported case from 2020. The Master was referred to both Starr and Laycock and did not merely consider whether the claimant had put forward an explanation that was “real” rather than “illusory or imaginary”. Instead, the Master held that the court would evaluate the weight of the competing arguments in order to determine what was necessary to do justice between the parties.

A three  stage test had been  identified by Webster J in Prescott v Bulldog Tools Ltd [1981] 3 AER 869 as follows:

First, was the request made by the defendant reasonable; secondly, was the plaintiff’s refusal reasonable; and, thirdly, balancing on the one hand the defendant’s need for further information against the refusal of the plaintiff on the other, and the grounds which each had, what conclusion should the court reach?

Gage J had applied the same test in Hill v West Lancashire Health Authority PILL, April 1996, 18

HHJ Gargan, having reviewed the case law, held that the appeal court in Laycock had not intended to remove the suggested three stage process, but rather, had intended to summarise and simplify. In particular, the claimant did not have an unanswerable trump card by showing a real objection. One still needed to weigh this in the balance when seeking to act in the interests of justice.

Application

So, the court therefore engaged with a ‘three-stage test’, as follows:-

1. Firstly, the defendants had shown that, absent any objection, it was in the interests of justice for the testing to be undertaken.
2. Secondly, the claimant had put forward objections which were more than imaginary or illusory.
3. The court, therefore, proceeded to balance the competing rights of the parties, namely:
4. the defendants’ right to defend themselves in the litigation; and
5. the claimant’s right to personal liberty, giving weight to the claimant’s concerns if the test was invasive and/or involved pain/discomfort and/or the risk of physical/psychological harm.

Having identified these factors and placed them into the scale, the court held that it was not just for the claimant to pursue her claim in full if the defendants were to be deprived of the opportunity of carrying out tests which would identify whether or not the claimant had active symptoms of myotonic dystrophy.  

The court concluded that a stay on the claim for future losses should be imposed unless either the claimant underwent the testing to establish if she had active symptoms of myotonic dystrophy or conceded (for the purposes of the litigation alone) that she did have active symptoms of the condition and damages should be assessed on that basis.

The claimant sought permission to appeal from HHJ Gargan, and was refused. It remains to be seen whether the claimant will renew this application in the Court of Appeal.  

Steven Snowdon KC appeared for the successful defendants (instructed by Shaun Lavery of Weightmans LLP).