CPR Part 3.1(f) contains the Court’s powers to stay a claim. When will the court exercise these powers in the face of a claimant refusing to undergo the defendant’s request for a medical examination? This is the question that the Court had to consider recently in the case of Dorrington v Basildon and Thurrock University Hospitals NHS Foundation Trust.
The claim is a clinical negligence case in which the Claimant alleges that as a result of a delay in decompressing a disc prolapse she has suffered severe cauda equina dysfunction. Amongst other symptoms she alleges that she suffers urinary incontinence. Breach of duty has been admitted but both factual and medical causation are in dispute. Damages are sought in the region of £500,000.
Both parties had permission to obtain evidence from a consultant urogynaecologist. It was agreed that urodynamic studies would be required as part of that evidence. In 2011 the Claimant was a victim of a sexual assault. As a result the parties approached the question of the studies cooperatively and agreed that, in the first instance, the Claimant would undergo one set of studies that the experts could consider. The Defendant asked to be kept informed about the instruction of the clinician to perform the studies. Both parties agreed that the Defendant had asked to be involved in the question of which tests were to be performed. There was disagreement about whether the parties had agreed that the Defendant would be consulted about the choice of clinician.
Some weeks later the Claimant served on the Defendant the results of urodynamic studies. The Defendant had not been informed in advance about either the identity of the clinician instructed or the studies to be performed. The Defendant objected both because its expert considered that she could not reach a proper conclusion about the nature and cause of any urinary dysfunction from the report, but also because the Defendant did not have any faith in the clinician used as a result of previous experience of her in another case where she had been heavily criticised by the judge at trial.
The Defendant asked the Claimant to undergo a further set of urodynamic studies. To meet a request of the Claimant they were to be performed by an all-female team of clinicians under the supervision of its female expert. At first the Claimant agreed and an appointment was arranged. The Claimant then cancelled the appointment saying that she had a urinary tract infection (“UTI”). The Defendant arranged a second appointment. The Claimant then cancelled that appointment and the Defendant was informed that she would not undergo another set of urodynamic studies. The reasons given were that she was concerned about developing a UTI and her previous experience of sexual assault meant that she did not want to undergo the tests a second time.
The Defendant applied to stay the claim pending the second set of studies being performed.
The application was heard by Master Yoxall who handed down judgment on 23 April 2020
The Defendant relied upon a number of cases.
The first, Starr v National Coal Board  1 WLR 64, was concerned not with a refusal to undergo examination at all, but with refusal to be examined by a particular expert selected by the defendant. At 70H Scarman LJ said that in the exercise of his discretion the court had to balance “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court.” Those rights are:
- C’s right to personal liberty;
- “but on the other side there is an equally fundamental right – the defendant’s right to defend himself in the litigation as he and his advisers think fit; and this is a right which includes the freedom to choose the witnesses that he will call…” [D’s emphasis]
In terms of the approach the court should take, Scarman LJ said at 71F the first question to ask is “was the defendant’s request for the examination of the plaintiff by Dr X a reasonable request?”. If the answer is yes, then the second question is whether C’s refusal of the reasonable request is unreasonable? “The test here must be related to the necessity, so far as the court can assess it, of ensuring a just determination of the cause”.
Geoffrey Lane LJ also identified the “competing considerations” [75G]: “on the one hand, any medical examination carried out upon him on behalf of the defendants is, as has rightly been said, an invasion of the plaintiff’s privacy and is not lightly to be enforced, even indirectly, by a stay of the action; on the other hand, the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who they are advised, would be the best doctor in the circumstances to carry out that examination.” (D’s emphasis)
The second case considered was that of Laycock v Lagoe  P.I.Q.R. P518, a Court of Appeal decision in which a stay was denied when the claimant refused to undergo an MRI scan because of the small but serious risk of exacerbating his schizophrenia. The court concluded that although the defendant’s request was reasonable, the claimant’s refusal was also reasonable. The court took into account as part of its reasoning that the absence of the MRI scan might well prove more harmful to the claimant’s case than to the defendant’s.
The final authority was R (Y) v Croydon LBC  1 WLR 2895 (CA). The case was a public law matter concerning age assessment of an asylum seeker where C refused to be examined by various experts for the local authority (“LA”). The Court of Appeal endorsed the Starr principles and applied them to the case, finding in the LA’s favour. In Y there was no concession that the investigation and examination were reasonably necessary as there had been in Starr. In those circumstances the Court of Appeal said that the first question was whether examinations were “reasonably necessary for the proper conduct of [the LA’s] defence”. As a postscript the court noted that despite evidence of C having mental health issues, there was no evidence that the examinations would cause him harm.
Master Yoxall considered and applied the principles in Starr as informed by the other authorities and recognising that the burden rested on the Defendant.
Ultimately the court concluded that the Defendant’s request that the Claimant undergo a second set of urodynamic testing was reasonable in light of its expert’s opinion that the test results were inadequate. Master Yoxall went on to conclude that the Claimant’s refusal was unreasonable. It was noted that the claimant had been prepared to undergo the first set of tests and had initially agreed to them being repeated. She had undergone other intimate examinations. There was no evidence of a risk of psychiatric harm and the risk of a UTI was slight and, if it occurred, it was a minor condition.
As a practice note: this case differed from Laycock in that the claimant had undergone one set of studies that she said supported her case and that she was keen to rely upon in this regard, but the Defendant’s expert considered the studies inadequate and the Defendant lacked faith for good reasons in the clinician that had performed them. This created a situation that was unjust, with fairly significant financial consequences in a claim of reasonable value. Although courts will consider anxiously applications to stay a case where a claimant refuses to undergo an invasive examination, the principles in Starr remain the guiding principles and the claimant’s right to personal liberty has to be balanced against the defendant’s right to defend itself as it and its advisers think fit.
Laura Johnson acted for the successful Defendant instructed by Bevan Brittan, London.