Liana Turner comments on the recent Court of Appeal decision in Clarke v Poole & Ors [2025] EWCA Civ 447
17th Apr 2025
The right to defend oneself v the right to personal autonomy: Court of Appeal grants permission to appeal in Clarke v Poole & Ors [2025] EWCA Civ 447
When can a claimant be required to undergo medical testing in order to pursue their claim? This is the question the Court of Appeal will soon have to grapple with, having granted permission to appeal the decision in Clarke v Poole & Ors [2024] EWHC 1509 (KB), in which HHJ Gargan (sitting as a Judge of the High Court) ordered that the Claimant’s personal injury claim be stayed until she submits to neurophysiological testing.
The Background
The Claimant sustained a severe traumatic brain injury in a road traffic accident. Liability was admitted. The issue was whether she was suffering from a genetic condition called myotonic dystrophy (“MD”). If so, she would likely have needed extensive care later in life irrespective of the accident, the practical effect of which would be to reduce the value of her claim from circa £22m to £12m.
The Claimant objected to testing, principally on the grounds that learning she has MD would negatively affect her mental health and potentially reduce her motivation to engage in rehabilitation. She also relied on expert evidence that any pressure on her to undergo such testing would likely have a detrimental impact on her mental health.
The Law
The Defendants applied for an order that the claim be stayed unless the Claimant submitted to neurological testing to determine whether she was suffering from symptomatic MD.
The parties disagreed on the correct legal test. The Claimant argued for a two-stage test:
- Do the interests of justice require the proposed test? If yes,
- Has the claimant put forward a substantial reason (i.e. one that is not imaginary or illusory) for refusing it? If yes, the balance must come down in favour of the Claimant and the application should be dismissed.
The Defendants contended that there is a third stage to the test which requires the court to perform an evaluative exercise of both party’s interests to determine the just and proportionate outcome in all the circumstances.
The Claimant relied on Kennedy LJ’s formulation of the test in Laycock v Lagoe [1997] PIQR 518, referred to in the notes to the White Book 2025 at §3.1.8.1 as the authoritative approach. Kennedy LJ proposed a two-stage test and appeared to suggest that if a claimant has a real objection to the proposed test, the balance should come down in favour of the claimant without any need for further evaluation.
First instance decision
HHJ Gargan HHJ Gargan accepted the Defendants’ submission that the correct approach involves a three-stage test. At paragraphs [77] and [87], he held that Kennedy LJ’s judgment in Laycock was not intended to depart from earlier authority, which did involve an evaluative process weighing the respective interests of the parties.
He further held that, at the third stage, the court must weigh the Defendants’ right to defend the claim against the Claimant’s right to personal autonomy, giving particular weight to objections based on pain, discomfort, or psychological harm.
Applying that self-direction, HHJ Gargan noted the following factors at paragraphs [93]-[98]:
- The potential prognosis will have a very substantial effect on the damages awarded.
- The physical risks to the claimant of undergoing the tests appear moderate.
- The Claimant’s anxiety about undergoing the procedure can be reduced by a domiciliary visit or an arrangement of local testing if she prefers.
- Discovering that she has active MD is likely to have an adverse impact on the Claimant’s psychological health. On the other hand, the Claimant may be expected to derive significant comfort if the test were to show that she had no active symptoms of MD.
- 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.
- The period between the test being carried out and the results being known would be stressful in any event, but the risk to the claimant’s health flows not from undergoing the test but only if she finds out that she has active MD.
Having considered all of these factors, HHJ Gargan held as follows: “…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…”
Application to reopen permission to appeal
The Claimant’s application for permission to appeal was initially refused by Nicola Davies LJ. The Claimant then applied to under CPR 52.30 to reopen the decision.
The Claimant’s grounds of appeal fell into two broad categories:
- Grounds 1-2 alleged that the Judge was wrong to engage in a balancing exercise after finding that the Claimant’s objection was substantial: that the Claimant had a substantial reason to object to testing ought to have been determinative.
- Grounds 3-5 alleged that the Judge made various errors in conducting the third-stage of the test.
As regards ground 1-2, Lord Justice Underhill held that there was a compelling reason for allowing them to be considered, irrespective of their prospects of success, because “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.”
He notably stated that he was “inclined to think” that Judge Gargan’s analysis of Laycock was correct. Lady Justice Whipple, in contrast, said that she did not have any inclination either way, but that it seems to her 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.”
As to Grounds 3-5, Lord Justice Underhill held that Nicola Davies LJ omitted to consider whether the HHJ Gargan 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.
Lord Justice Underhill went on to say that the exceptional circumstances of the case justified granting permission to appeal. He noted that the Claimant has suffered very severe injuries and the Defendants’ liability is admitted. The effect of HHJ Gargan’s decision is to put the Claimant in the position of having to choose between undergoing testing to which she has a profound and reasoned objection or potentially lose an element of her claim worth many millions; where, on the evidence, that choice would be detrimental to her mental health.
Comment: personal autonomy as a trump card?
This appeal cases raise tricky questions about the balancing of competing fundamental rights. On one side lies the Defendants’ right to defend themselves; on the other, the Claimant’s right to personal autonomy.
The Claimant’s position is that once the Claimant has a non-illusory objection to undergoing testing, a stay of the claim should not be granted. In other words, the right to personal autonomy is a trump card: it will always outweigh the Defendants’ right to defend themselves.
HHJ Gargan accepted that particular weight should attach to the Claimant’s pain, discomfort, and the risk of psychological harm. He did not, however, accept that this factor was determinative.
Importantly, if the claim is stayed, the Claimant’s choice as to whether to undergo the testing stays with her. Her personal autonomy remains intact to that extent. But the choice she is required to make changes substantially. Rather than a simple choice as to whether to undergo testing or not, she is forced to choose between undergoing testing and potentially losing £10m, a choice which the evidence suggests would likely damage her mental wellbeing.
Conversely, if the claim is not stayed, the Defendants lose the right to properly defend themselves and will, in effect, be required to pay £10m that they may not be liable for.
The Court of Appeal now faces the unenviable task of clarifying how to balance the right to personal autonomy against the right to defend oneself. There are no easy answers, only two difficult outcomes: risk damaging the Claimant’s mental health or potentially compel the Defendant to pay damages it may not truly owe. Whatever the result, the appeal promises significant clarification in this morally and legally complex area in personal injury litigation.
A copy of the judgment can be found here.
Article written by Liana Turner.
