Stay Another Day: Court of Appeal Set to Reconsider Samantha Danyelle Clarke v Matthew Poole and Others [2025] EWCA Civ 447

The Court of Appeal is set to consider the correct legal test for imposing a stay on a personal injury claim where a claimant does not wish to undergo a medical test relevant to issues of causation and quantum. The test was previously considered to be the test in Laycock v Lagoe [1997] PIQR 518.

The Court of Appeal (Underhill LJ, Whipple LJ) has granted the claimant in Samantha Danyelle Clarke v Matthew Poole and Others [2025] EWCA Civ 447 permission to appeal against the decision of the High Court (HHJ Gargan sitting as a DHCJ) by which he granted the defendant’s application for a stay of the claim on the grounds that the claimant refused to undergo a medical test.

The claimant Samantha Clarke suffered a severe brain injury in a road traffic accident in 2018, which has left her with a range of various serious and life-changing physical and cognitive impairments. Liability is admitted. The provisional schedule of damages quantifies the claim at over £22 million, of which the largest element is for the cost of future care, support and case management.

The defendant wished to have the claimant undergo electromyographic (EMG) neurophysiological testing, to test for whether she was already suffering from a condition called myotonic dystrophy (MD), and particularly the DM1 variant, which is a progressive multi-system genetic disorder giving rise to muscle weakness and wasting. Her mother and maternal grandfather have been found to carry the DM1 gene, meaning she has a 50% chance of carrying the gene.

The claimant was not willing to undergo EMG testing to discover whether she has the DM1 gene, and had refused it prior to the accident when her mother was diagnosed. Her principal objection 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 objected to the invasive nature of the procedure. It would negatively affect her outlook on life and leave a ‘black cloud’ hanging over her and potentially reduce her motivation to engage in rehabilitation, and negatively affect her mental health.

HHJ Gargan granted the stay. His decision on the law was that the court should apply a three stage test. This consisted of the two stage test in Laycock v Lagoe [1997] PIQR 518, namely (i) do the interests of justice require the test which the defendant proposes? and, if yes (ii) has the party who opposes the test put forward a substantial reason for that test not being undertaken, a substantial reason being one that is not imaginary or illusory, followed by a third stage taken from the case of Starr v National Coal Board [1977] 1 WLR 63, which involved balancing the competing rights of (i) the defendant’s right to defend itself in the litigation and (ii) the claimant’s right to personal liberty. After applying that three stage test, the judge granted the stay.

The claimant sought permission to appeal, which was refused on the papers by Nicola Davies LJ. The claimant then applied under CPR 52.30 for permission to reopen that decision, and the matter came before Underhill LJ and Whipple LJ.

Underhill LJ allowed the application to reopen the permission decision, and also granted permission to appeal. He found “reluctantly” that Nicola Davies LJ had omitted to address all of the claimant’s grounds of appeal, particularly the argument that HHJ Gargan was wrong on the issue of what were described as the claimant’s arguments as to “personal autonomy”, which focused on the choice of taking the test being taken away from her, and that the pressure to take the test would be detrimental to her mental health.

After re-opening the permission decision, Underhill LJ decided to grant permission on all grounds, including the grounds that HHJ Gargan had wrongly applied a three stage instead of the two stage test in Laycock. Nicola Davies LJ had addressed those grounds and found there was no real prospect of success on them.

Whipple LJ concurred. In particular she observed that refusal to grant permission to appeal might be taken as an endorsement of HHJ Gargan’s use of the three stage test amalgamated from Laycock and Starr.

The appeal will now go on to be heard by a full court. Whilst difficult to predict the outcome on the issue of the correct legal test (especially given Underhill LJ and Whipple LJ appear to have differed slightly on this point), the court as a public authority is of course obliged by Section 6 of the Human Rights Act 1998 not to act in a way which is incompatible with the parties’ Convention rights, and it would therefore be surprising in a situation which clearly engages competing Convention rights if some form of balancing exercise was not required as part of considerations of the exercise of the discretion to impose a stay. This is clearly one to watch.