Samantha Danyelle Clarke v Matthew Poole & Ors [2025] EWCA Civ 447

[2025] EWCA Civ 447Case No CA-2024-001685Case No CA-2024-001685-A
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2024] EWHC 1509 (KB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
His Honour Judge Gargan
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/04/2025
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))LADY JUSTICE WHIPPLE
Between
MATTHEW POOLEDefendants/RespondentsANDREJ BORISENKOVRespondentGREAT LAKES INSURANCE SERespondent
Ben Collins KC and David Rivers (instructed by Irwin Mitchell) for ApplicantSteven Snowden KC (instructed by Weightmans) for RespondentHearing Hearing date: 24 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 11 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

INTRODUCTION

[1]This is 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 staying certain elements of the Claimant’s claim for damages for personal injury unless she consents to undergo a form of diagnostic testing. In 2018 the Claimant, who was then aged 31, 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. Liability is admitted, and judgment was entered by consent on 4 December 2020. Her provisional schedule of damages quantifies her claim at over £22m, of which the largest element is for the cost of future care, support and case management.[2]It is the Defendants’ case that there is reason to believe that prior to the accident the Claimant was already suffering from a condition called myotonic dystrophy (“MD”), which is a progressive multi-system genetic disorder giving rise to muscle weakness and wasting, and more particularly a form of the condition called DM1. The Claimant’s mother and maternal grandfather have been found to carry the DM1 gene, which means that there is a 50% chance that she does also. It does not follow from that fact that she will or would necessarily develop serious symptoms: her mother and grandfather are asymptomatic.[3]It is common ground between the experts that the Claimant exhibits a sign or signs (principally a drooping of the eyelids described as ptosis, but possibly also a sign described as frontalis overactivity) which may be indicative of active MD. However, there remain questions(a) whether those signs are in fact the result of MD, rather than some other cause, in particular – as the Claimant’s expert, Dr Turner, believes – a neurological injury suffered in the accident, and(b) whether, if she does have MD, it is in her case active, in the sense of being likely to cause significant symptoms. If the Claimant does indeed have active MD, that would be highly material to the quantum of damages, both because it would have a substantial impact on her life expectancy and also because it is likely that she would have needed extensive care later in life irrespective of the accident. On the Defendants’ provisional figures, the difference to her award in that case would be of the order of £10m.[4]It is also common ground that it would be possible to resolve those questions by carrying out electromyographic neurophysiological (“EMG”) testing. Para. 20 of Judge Gargan’s judgment quotes a passage from a letter from the Defendants’ expert, Dr Schapira, which describes the procedure as follows: “This is a routine test frequently performed when a patient is thought to have a problem with nerves or muscles. To be most effective for detecting myotonia this involves the insertion of a fine needle through the skin into the muscle. I have had several thousand patients undergo EMG over the years. The vast majority reported no problems or undue discomfort, a few reported some temporary discomfort akin to a blood test, none reported any psychological problems at follow up. The EMG needs to be undertaken by an experienced neurophysiologist. This can be done locally to Mrs Clarke in Newcastle or alternatively by a neurophysiologist who undertakes domiciliary visits … .” (The reference to Newcastle is because the Claimant lives in Teesside.) At para. 30 the Judge quotes a passage from a report from Dr Turner mostly addressing what the tests could be expected to show but including the statement that “EMG can be a painful procedure but this can be reduced in experienced neurophysiological hands”.[5]The Claimant is not prepared to undergo EMG testing and had refused it prior to the accident when her mother was diagnosed. Her reasons are summarised in the judgment as follows:
“28. The claimant’s principal objection to undergoing testing is that she does not wish to know whether she has MD as such a diagnosis will have lifelong implications for her health, travel and life assurance. She also refers to the invasive nature of the testing which she views as yet another insult to her body which has been so damaged by the accident. 29. There is a letter dated 23rd January 2024 from Dr Flaherty-Jones a Consultant Clinical Psychologist who is treating the claimant but who has not provided any reports for the litigation. The letter is not CPR compliant, and Mr Snowden KC [counsel for the Defendants] invites me to place only limited weight upon it. 30. For my part, the principal significance of the letter is the record it contains of the claimant’s views about testing which I accept Dr Flaherty-Jones has set out accurately. The claimant explains that being informed that she has MD would negatively affect her mental health and her outlook on life. She states that it would leave a ‘black cloud’ hanging over her and potentially reduce her motivation to engage in rehabilitation. She explains that the consequences of the accident have taken away so many choices in her life and that she does not wish for her choice on this issue to be taken away from her by the court when she feels so strongly about it. 31. Dr Flaherty-Jones then set out his expert view that any pressure on the claimant to undergo such testing would be likely to have a detrimental impact on her mental health. Whilst paying due regard to Mr Snowden KC’s caveats about Dr Flaherty-Jones, I have no hesitation accepting that view.”

THE ORDER FOR A STAY

[6]The Defendants applied for an order that the claim be stayed, at least as regards damages for future loss, unless and until she gives her consent to undergoing EMG testing. The application was heard by Judge Gargan, sitting in Leeds, on 12 April 2024, and he gave judgment on 17 June ([2024] EWHC 1509 (KB)). He decided to grant the application. His judgment is full and clearly expressed, but for the purpose of this application I need only summarise his conclusion on the applicable law and how he applied it to the facts.[7]The law. The Claimant’s counsel, Mr David Rivers, relied on the following passage from the judgment of Kennedy LJ in Laycock v Lagoe [1997] PIQR 518, which is referred to in the notes to the White Book as an authoritative statement of the correct approach in a case of this kind:
“…[T]he matter can … be 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.”
He submitted that the effect of that “two-stage test” was that so long as a claimant had a real objection to undergoing the test in question, in the sense that it was not “imaginary or illusory”, a stay should not be ordered. At paras. 73-88 of his judgment the Judge carefully analysed the reasoning in that passage in the context of what was said elsewhere in the judgment, and also referred to a number of other cases, including the earlier decision of this Court in Starr v National Coal Board [1977] 1 WLR 63. He concluded that the passage in Kennedy LJ’s judgment relied on by Mr Rivers did not require the limited approach for which he contended. He held that the correct approach was, as he put it at para. 87 that:
“… where there is a substantial objection, the court must embark on a third stage and balance the competing rights, namely (i) the defendant’s right to defend itself in the litigation; and (ii) the claimant’s right to personal liberty”
. In short, despite Kennedy LJ’s reference to a “two-stage” test, on a true reading of Laycock a third stage, balancing the parties’ respective interests, was required.[8]Application to the facts. Applying that self-direction,

the Judge carried out that that third-stage exercise as follows:

“93. On any view the dispute between the medical experts as to whether the claimant has active symptoms of MD and the potential prognosis is likely to have a very substantial effect upon the damages awarded. The test will have a material bearing on the determination of that dispute. 94. The physical risks to the claimant of undergoing the test appear very modest and there are potential therapeutic advantages to her in determining whether she does have MD. 95. The claimant’s anxiety about undergoing the procedure (as distinct from discovering the result) can be reduced by a domiciliary visit or an arrangement of local testing if she prefers. 96. I accept that discovering that she has active MD is likely to have an adverse impact on her psychological health. On the other hand, I would expect the claimant to derive significant comfort if the test were to show that she had no active symptoms of MD. 97. Further, although the claimant is not compelled to undergo the test any such stay will mean that she must do so if she is to obtain what she perceives to be just compensation for her life changing injuries. Equally, I consider that it would be a deep source of frustration to her were she to make the suggested concession and that she may well regard it as unfair that the defendants should be wholly responsible for injuries and yet be able to limit the extent to which she can recover damages for them. 98. I accept that the period between the test being carried out and the results being known would be stressful in any event, but, in contrast to Laycock, the risk to the claimant’s health flows not from undergoing the test but only if she finds out that she has active MD. In other words, the significant adverse psychological effects are only likely to follow if Prof Schapira is correct. 99. Having identified these factors and placed them into the scale, it does not seem me to be just that the claimant should be entitled to pursue her claim in full if the defendants are to be deprived of the opportunity of carrying out tests which will identify whether or not she has active symptoms of MD. In my judgment a stay on the basis proposed is the least restrictive order that could be made and should not unduly pressurise the claimant to undergo the tests. It should give the claimant a real choice as to whether she wishes to preserve her personal integrity and ensure that she does have to suffer the adverse impact that discovering that MD might have upon her psychological health whilst allowing her to pursue a claim for damages based on the most favourable prognosis available in the circumstances rather than the scenario put forward in Prof Schapira’s report.”

THE APPLICATION FOR PERMISSION TO APPEAL

[9]Judge Gargan having refused permission to appeal, the Claimant filed an Appellant’s Notice in this Court on 25 July 2024. Her grounds of appeal read as follows:
“[T]he Learned Judge erred in that he: (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. (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 (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. (4) Failed to have regard to the finding that the Claimant would be likely to sustain injury in the event of testing. (5) Failed to have regard to the limited nature of the benefit to be achieved by requiring the Claimant to undergo testing. In the premises, by ordering a stay, the Court reached a conclusion which was contrary to the evidence and wrong in law.”
[10]It will be seen that those grounds fall into two groups: - Grounds 1 and 2 challenge the Judge’s decision about the correct approach in law (see para. 7 above). The fundamental challenge, in ground 1, is to his rejection of the Claimant’s case that if she had an objection to testing which was not “imaginary or illusory” that was conclusive against the ordering of a stay (the so-called “two-stage approach”) and to his application of a “third-stage” evaluation balancing her “right to personal liberty” against “the defendant’s right to defend itself”. As appears from the introductory phrase “in so doing”, ground 2 challenges a particular alleged step in the Judge’s reasoning leading to that conclusion. - Grounds 3-5 allege particular errors by the Judge in his carrying out of the third-stage.[11]The application was supported by a skeleton argument from Mr Collins and Mr Rivers (“the PTA skeleton”). Although it concludes with a section headed “Grounds of Appeal”, the points made in that section are not cross-referred to the five pleaded grounds and do not follow their structure. This is not good practice. It is important for a judge considering whether to grant permission to appeal on all or any of the grounds of appeal to be able to see readily where in the supporting skeleton the arguments in support of each ground are to be found.

THE REFUSAL OF PERMISSION TO APPEAL

[12]Nicola Davies LJ’s order refusing permission to appeal is dated 23 August 2024. Her reasons (“the Reasons”) run to twelve paragraphs over three pages. In view of the nature of this application I need to summarise them fairly fully.[13]Para. 1 of the Reasons summarises the litigation background and why the presence of active MD would affect the assessment of quantum.[14]Para. 2 is concerned with the proposed test. As regards its nature, the only point that I need note at this stage is that the first sentence describes the process as “genetic testing” and that the second says that it “involves the insertion of a needle into a muscle”. Para. 2 also summarises the Claimant’s objections to undergoing the test. It quotes almost verbatim from para. 29 of the Judge’s judgment and goes on to summarise para. 30 and the Judge’s acceptance at para. 31 that any pressure on her to undergo testing would be likely to have a detrimental effect on her mental health (see para. 5 above).[15]Thereafter, in accordance with good practice, Nicola Davies LJ deals each with each of the grounds of appeal in turn.[16]Grounds 1 and 2 are dealt with together. That is appropriate because, as identified above, they are two aspects of a single challenge. So far as relevant, para. 3 reads:
“The primary focus of the grounds of appeal (grounds 1 and 2) is that the Judge failed to apply the principle laid down by the Court of Appeal in Laycock v Lagoe [1997] PIQR 518 and in so doing failed to distinguish the decision in Starr v National Coal Board [1977] 1 WLR 64.”
[17]At paras. 4-5 Nicola Davies LJ summarises the essence of the reasoning in Starr and in Laycock. At the end of para. 5, and continuing in para. 6, she quotes in full paras. 77-83 of the Judge’s judgment, which contain his reasons for reading Laycock as requiring a third-stage balancing exercise. She proceeds:
“7. The Judge’s analysis of Laycock was careful and demonstrates no error of law. Kennedy LJ’s approach was an attempt to identify a more succinct test, it did not exclude the evaluative process identified in earlier authorities as stage three. The Judge was correct to find at [83] that the test proposed by Kennedy LJ did require the court to undertake a balancing process rather than providing that any objection put forward by the claimant, which is more than imaginary or illusory should be determinative. He 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. 8. The Judge in applying the test to the facts of the claimant’s case at [89] recorded that it was agreed that both the questions posed by Kennedy LJ should be answered in the affirmative therefore it was necessary to carry out the balancing exercise which is what the Judge did. 9. The Judge did not fail to apply the principle in Laycock. He identified the test set out by Kennedy LJ and set it out in more detail. Further, there is no principled distinction between the authorities of Laycock and Starr.”
[18]As regards ground 3, para. 10 of the Reasons reads:
“The Judge 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 (paras 51 and 52 of the skeleton argument) which were not raised, nor relied upon, before the Judge.”
[19]As regards grounds 4 and 5, para. 11 says:
“There is no substance in these grounds of appeal. The effect upon the claimant of testing was specifically addressed by the Judge. 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.”
[20]At para. 12 Nicola Davies LJ concludes, applying the two-fold test under CPR 52.6 (1):
“This appeal has no real prospect of success. There is no compelling reason for this case to be heard by an appellate court.”

THE APPLICATION TO REOPEN

[21]CPR 52.30 reproduces the effect of the decision of this Court in Taylor v Lawrence [2002] EWCA Civ 90, [2002] QB 528. Paragraph 1 provides:
“The Court of Appeal or the High Court will not reopen a final determination of any appeal unless— (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy.”
Paragraph 2 provides that paragraph 1 applies equally to the determination of an application for permission to appeal.[22]The correct approach to the application of the rule has been considered in this Court on several occasions. The most authoritative and recent review is in paras. 58-64 of the judgment of the Court in Municipio de Mariana v BHP Group Plc [2021] EWCA Civ 1156, [2022] 1 WLR 919 (a case, like this, involving a refusal of permission to appeal). At para. 59 the Court sets out and endorses a lengthy passage from the judgment of this Court in R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860, [2018] 1 WLR 5161. For present purposes it is enough, subject to one point, to quote the summary of the relevant principles given by Sir Terence Etherton C at para. 65 of his judgment in Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514, which is itself set out in the Goring judgment:
“First, the same approach applies whether the application is to re-open a refusal of permission to appeal or to re-open a final judgment reached after full argument. Second, CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence … . Accordingly, third, the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. The paradigm case is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers. Those are not, however, the only instances for the application of CPR 52.17. The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.”
He went on to say, at para. 69:
“[The] appellants’ reasons for re-opening the application for permission to appeal … amount, on one view, to no more than a criticism that Arden LJ’s decision to refuse permission to appeal was wrong. That is not enough to invoke the Taylor v Lawrence jurisdiction.”
The additional point noted in the Goring judgment (see para. 15) is that:
“[T]here should be added to that summary … the requirement that there must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined.”
[23]The Claimant’s application to reopen was filed on 13 September 2024. It was supported by a witness statement from the Claimant’s solicitor, Kate Nicklin of Irwin Mitchell LLP. The part of the statement setting out the reasons why Nicola Davies LJ’s decision should be reopened are at paras. 14-17, which I should set out in full:
“14. This is an appeal of substantial public importance, both because of the effect on the Appellant and the wider consequences for personal injury and clinical negligence litigation in which Defendants seek orders requiring injured Claimants to undergo clinical testing (and in particular invasive clinical testing) which they do not wish to undergo. 15. The Court is invited to conclude that there are serious flaws in the Order refusing permission to appeal, and in particular the Reasons given for the decision, as follows: a. The Reasons fail to address or deal with the principle, expressly set out by this Court 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: ‘if the [Claimant] for example has a real objection, which he articulates, to the proposed test, then the balance will come down in his favour’. This is expressly set out in mandatory terms and is cited in the White Book (2024, para 3.1.8.1). It has been treated as the test to be applied in several first instance decisions that have been widely reported. The Appellant clearly satisfies the second arm of the test in Laycock. It is the core of her case. It is not addressed in the Order. b. 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. c. 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’. d. The failure to address the issue at (a) above, taken with the misunderstandings as to the nature of the procedure described at (b) and (c) above, appear to have contributed to the Court’s failure to distinguish the decision in Starr v National Coal Board [1977] 1 WLR 64, 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. e. In summary, 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. 16. The decision in this 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. 17. I respectfully invite the Court to conclude that the requirements of CPR 52.30 (which the Appellant acknowledges set a very high bar) are met. A failure to reopen the appeal will give rise to real injustice for this Claimant (and potentially others). The circumstances are exceptional, in terms of both the flaws in the Reasons and the consequences of the refusal of permission. A significant injustice will occur if the Appellant is not granted permission to reopen the appeal. There is no alternative effective remedy. The Appellant’s claim will be stayed should she not undergo this painful further testing against her will.”
[24]The application came before Whipple LJ on the papers. On 29 November 2024 she directed the Defendants to file representations in accordance with CPR 52.30 (6). Those representations were filed on 19 December. On 17 January 2025 Whipple LJ directed an inter partes hearing before herself and one other Lord/Lady Justice, which would determine both the question whether permission to reopen should be granted and, if so, the question whether permission to appeal should be granted.[25]That hearing took place before myself and Whipple LJ on 24 February. The Claimant was represented by Mr Ben Collins KC, leading Mr Rivers, and the Defendants by Mr Snowden. We reserved our decision.

DECISION AND REASONS ON REOPENING

[26]I will begin by addressing the criticisms of the Reasons made in Ms Nicklin’s witness statement. These overlap but in substance Ms Nicklin makes two criticisms of Nicola Davies LJ’s approach, corresponding to the two different areas covered by the grounds of appeal (see para. 10 above).

Grounds 1 and 2

[27]As regards the challenge to the Judge’s application of a “third stage”, at (a) Ms Nicklin complains that Nicola Davies LJ’s Reasons “fail to address or deal with” the Claimant’s case that the effect of the decision in Laycock is that a stay should not be ordered if the party in question advanced an objection which is “not imaginary or illusory” (ground 1). Later, as part of (d), she complains that the Reasons fail to distinguish Starr (ground 2).[28]I do not accept that this is a valid criticism. Paras. 3-9 of Nicola Davies LJ’s Reasons address the issue of the effect of Laycock head on. In para. 7 she concludes that the Judge’s reading of Kennedy LJ’s judgment was right, for the reasons there given. It in fact follows from that conclusion that there was nothing in Laycock inconsistent with Starr, but she makes that point explicitly in para. 9. At para. 12 she says that she believes that there is no real prospect of the Court deciding otherwise if the appeal proceeded. Her reasons are succinct, but appropriately so for an issue of this character: the essential question was whether the Judge’s careful analysis of the reasoning in Laycock was arguably wrong, and she found that it was not.[29]Mr Collins submitted that there was at least a real prospect that the Claimant’s reading of Laycock would be upheld on appeal, and accordingly that Nicola Davies LJ was wrong to find otherwise. But, as Lawal makes clear, the question on an application to reopen is not whether the judge whose decision is impugned made the wrong decision but whether something has happened that undermines the integrity of the process. That is not the case here: the Claimant received what she was entitled to, namely a reasoned decision as to whether the appeal on these two grounds had a real prospect of success.

Grounds 3-5

[30]I turn to the grounds relating to the way in which the Judge carried out his balancing exercise. The criticisms of the Reasons advanced by Ms Nicklin as regards these grounds are not cogent. The criticism underlying points (b) and (c) is that Nicola Davies LJ misunderstood the nature of the proposed tests as being only “genetic testing” rather than a procedure “involving the insertion of many needles into muscles to measure electrical activity” and thus potentially painful. That goes beyond the only description of the procedure in the judgment, which I have quoted at para. 4 above. I am, however, perfectly prepared to accept that needles would in fact, as Ms Nicklin says, be inserted in a number of the Claimant’s muscles (including, as Mr Collins told us, in her face). I do not think that Nicola Davies LJ’s reference, clearly based on Dr Schapira’s language, to “the insertion of a needle into a muscle” (singular) proves that she understood anything different. But even if she did, Ms Nicklin’s real point is that the Reasons do not refer to the fact that the procedure could be painful. As to that, the Judge made no finding beyond quoting the views of Dr Schapira and Dr Turner. It is not a ground of appeal, or indeed argued in the PTA skeleton, that in so far as those views substantially differed (which may be debatable) the Judge should have made an explicit finding as to whose evidence he preferred, let alone that he could or should have found that the procedure was likely to be painful, and if so how painful, in the Claimant’s case. Accordingly Nicola Davies LJ was not only entitled but obliged to proceed on the basis of the evidence as recited by the Judge. He made no finding about how painful the procedure was likely to be, and in the absence of any challenge to that omission she cannot be criticised for not mentioning the question herself.[31]However, although in his oral submissions Mr Collins briefly advanced the criticisms discussed above, his focus was on a different point. He relied in particular on paras. 68-73 of the PTA skeleton, which are headed “The evidence before the Court” and which he says that Nicola Davies LJ’s Reasons do not address. These contain a direct challenge to the way that the Judge carried out the balancing exercise at paras. 94-98 of his judgment. Para. 68 of the skeleton summarises his factual findings about the Claimant’s objections to undergoing testing, which I have set out in full at para. 5 above, and in particular the related points(a) that she believed that “the consequences of the accident have taken away so many choices in her life and that she does not wish for her choice on this issue to be taken away from her by the court when she feels so strongly about it”; and(b) that the Judge had expressly accepted Dr Flaherty-Jones’s opinion that “any pressure on the claimant to undergo such testing would be likely to have a detrimental impact on her mental health”. Para. 69 describes the latter finding as being “of particular significance” and says that “this crucial issue” has been omitted from the reasoning in paras. 94-98 of the judgment. I need not set out the whole of para. 69, but paras. 69.4-69.5 read:
“69.4 Paras 96 and 98 [of the judgment] deal with the consequences of diagnosis, including the wait for diagnosis. The content is correct so far as it goes, but does not address the key issue of the effect on the Claimant of being tested at all. 69.5 This part of the judgment makes no reference whatsoever to Dr Flaherty-Jones’s opinion, which the Judge had accepted, that testing would be likely to have a significant detrimental impact on the Claimant’s mental health ... That flaw goes to the heart of the decision.”
In fact those paragraphs rather compress what the Judge found at para. 31, namely that the detrimental impact on the Claimant’s mental health would be caused by “any pressure to undergo testing”, and not just by the fact of testing, though the two might be thought ultimately to come to the same thing.[32]In other words, the Claimant was alleging in the PTA skeleton that the key passage in the Judge’s judgment overlooked a crucial element in the balance which he had to strike, namely that the pressure of having to choose whether undergo testing would itself cause her psychological injury. Mr Collins described this point under the general heading of “personal autonomy”: that is not in fact a phrase which appears in paras. 68-73 at all, but it does feature elsewhere in the skeleton and can be regarded as a label for what I have called point (a). He said that this was the essence of ground 3, though it seems to me that aspects of it may at least fall more naturally under ground 4.[33]Mr Collins submitted that that case was not properly met by Nicola Davies LJ’s general answer, at para. 10 of her Reasons, that the Judge had “addressed these matters at [94] to [98]” (and the same would go for para. 11 if ground 4 is engaged). It was necessary for her either to identify where the Judge had addressed the specific issue of the effect of testing (as opposed to learning the results) on the Claimant’s personal autonomy and mental health or to explain why it was not, even arguably, an error for him not to do so.[34]I have come to the reluctant conclusion that that submission is well-founded. I say “reluctant” because I can understand why Nicola Davies LJ did not make the link between the argument advanced in para. 69 of the PTA skeleton and any of the pleaded grounds. As I have already said, the skeleton is, most unhelpfully, not structured by reference to the grounds at all, and the heading under which paras. 68-73 appear gives no clue as to their substantive content. However, the fact remains that this argument, described in the PTA skeleton as “crucial”, is not addressed. (In fact, it seems clear that Nicola Davies LJ thought that the part of the skeleton supporting ground 3 was to be found in paras. 51-52, which focus explicitly on what is said to be an emphasis in recent authorities on the importance of personal autonomy. As we have seen, part of her response to ground 3 was that no submissions on the basis of those authorities had been made below; but that is not an answer to the specific point in para. 69.)[35]Mr Snowden submitted that the argument now advanced by Mr Collins had not been advanced, or at least not in that way, before the Judge. Although it may well be the case that the label “personal autonomy” was not used, or at least emphasised, below, it seems to me unlikely that Mr Rivers did not emphasise what I have called points (a) and (b). But in any event the objection does not go to the heart of the criticism of the Reasons, which is that the point was explicitly advanced in the PTA skeleton filed in support of the grounds and was not addressed.[36]An omission by the judge considering an application for permission to appeal to address all the grounds of appeal is well recognised as potentially justifying the grant of permission to reopen: Municipio de Mariana was in fact a case of this kind. It is not necessarily a sufficient reason, but I have come to the conclusion that permission should be granted in this case for the following further reasons. The first question is how probable it is that the decision (that is, the decision to refuse permission, not the ultimate outcome of the appeal) would have been different. As to that, in my view if Nicola Davies LJ’s attention had 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 be granted. The circumstances can also properly be described as exceptional. The Claimant has suffered very severe injuries and the Defendants’ liability is admitted. The Judge’s decision is not conclusive of the litigation, since the assessment of damages will continue in any event. But its effect is 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. That is a very unusual combination of circumstances such that the injustice that would occur if the refusal of permission to appeal is not reopened is in my opinion sufficiently grave to overbear the importance of finality in the circumstances of this particular case.I do not think that my criticisms of the PTA skeleton are a sufficient reason to reach a different conclusion.[37]I wish to emphasise that the reasoning in the previous paragraph is not intended as expressing any view as to how the balance between the Claimant’s and the Defendants’ interests should come down. I am simply explaining why the issue is one of more than usual sensitivity and importance, in support of my conclusion that the refusal of permission to appeal should be reopened and the question fully considered on appeal.

PERMISSION TO APPEAL

[38]It follows from the foregoing that I would grant permission to appeal on grounds 3 and 4 (on the basis that the substantive challenge raised by those grounds is to be found in paras. 68-73 of the PTA skeleton). I would also grant permission on the remaining grounds. As regards ground 5, it does not seem to me satisfactory in a case of this kind to hive off particular elements of the disputed evaluation. As regards grounds 1-2, since the appeal is to proceed in any event, there is in my view a compelling reason for allowing them to be considered, irrespective of their prospects of success. Even if, as I am inclined to think, Judge Gargan’s analysis of Laycock was correct, it seems that the way in which Kennedy LJ expressed himself is capable of being understood differently, and it is desirable that the correct approach in such cases be authoritatively established.

CONCLUSION

[39]For the reasons given above, I would grant permission to reopen the application for permission to appeal and would grant permission on all grounds. I venture to repeat that that implies no view about the prospects of the appeal succeeding beyond the view that grounds 3 and/or 4 are arguable. My reasoning goes no further than that this is an appeal on which permission should have been given, and it will be for the Court hearing the appeal to determine whether Judge Gargan did in fact reach a wrong conclusion.[40]The issue which stands at the centre of this appeal, as Lord Justice Underhill correctly identifies, is personal autonomy, in its two aspects outlined as points (a) and (b) at para 31 above. Lady Justice Nicola Davies did not grapple with those points in her refusal of permission – for reasons which Lord Justice Underhill has explained and with which I agree - and it is appropriate, exceptionally, to reopen this appeal because of that oversight.[41]It follows that the Claimant should have permission to appeal on grounds 3, 4 and 5, which reflect different aspects of her personal autonomy or elements which should have been included or given more weight in the evaluation of the Claimant’s objections.[42]I am in agreement with Lord Justice Underhill that grounds 1 and 2 should also be the subject of permission to appeal. Grounds 1 and 2 reflect the Claimant’s challenge to Judge Gargan’s conclusions on the law.[43]I agree with Lord Justice Underhill that there is a compelling reason for this Court to hear grounds 1 and 2. That compelling reason should be spelt out. The Claimant has always maintained that Starr is distinguishable from her case, and that Laycock is the relevant authority for cases like hers where an objection in principle is raised to the defendant’s request for the claimant to undergo some form of medical test or investigation. The Claimant says that Laycock establishes a two-stage test (see the extract from the judgment of Kennedy LJ at para 7 above). That distinction is endorsed by the notes to the White Book which were relied on by the Claimant’s counsel at the hearing before Judge Gargan. Judge Gargan rejected the claimant’s submissions, held that Starr could not be distinguished and combined the reasoning in Starr and Laycock into a three-stage test. Unless permission to appeal is now granted, it will appear that this Court has endorsed (through its refusal of permission) Judge Gargan’s approach, even though that approach substantially restates the legal test set down by a higher court in an earlier case and implies that the White Book commentary on that case is wrong. That is an unsatisfactory position. It will give rise to uncertainty as to whose formulation of the test is correct: Kennedy LJ’s or Judge Gargan’s. That in turn is likely to cause unnecessary cost and avoidable difficulty in other cases where this issue arises, and might well lead to further litigation which would need to come up to this Court for definitive resolution anyway. Clarification by this Court is needed, sooner rather than later.[44]By way of modest departure from the reasons given by Lord Justice Underhill, I am not “inclined to think that Judge Gargan’s analysis of Laycock was correct” (as Lord Justice Underhill says at para 38 above). I would wish to hear full argument before coming to a conclusion about the legal test applicable in this sort of case and at present I have no inclination either way. It does, however, seem to me that there is at least a respectable argument that Laycock is correct, not because it suggests a two-stage instead of a three-stage test (although it may be correct for that reason) but because it implicitly recognises that a claimant who objects to undergoing a test or investigation, in circumstances where that objection is not imaginary or illusory, is likely to be objecting on grounds of personal autonomy which will weigh heavily in the balance and may well be determinative of the outcome. The reference to objections which are not imaginary or illusory implies a degree of substance; a more modern formulation might be that they reflect a person’s right to autonomy.[45]In the appeal skeleton argument filed in accordance with paragraph 21 of Practice Direction 52C the Claimant’s legal team may wish to take the opportunity to recast their skeleton in the light of this judgment so as to focus more clearly on the key issues (though without departing from the grounds as identified above).[46]In summary, I agree with Lord Justice Underhill that this application to reopen should be allowed and permission to appeal should be granted on all grounds.