James v Baily Gibson & Co

A court may stay proceedings where a claimant refuses to undergo a medical examination reasonably required for a fair determination, but only when the stay is reasonable, just and proportionate. A stay of the whole claim may be disproportionate where some recoverable heads of damage do not depend on the withheld evidence. The court may instead limit the issues or damages to preserve a fair trial for both parties.

After an appeal court determines an oral application for permission to appeal and grants permission subject to limitations, the applicant cannot renew the refused grounds at the substantive appeal.

The claimant brought a professional negligence claim against solicitors whose admitted negligence had caused her personal injury action to be struck out. The value of her lost chance depended partly on whether continuing symptoms were attributable to a psychological condition. She refused to attend a psychiatric examination ordered to enable that issue to be determined fairly.

Penry-Davey J stayed the entire claim unless she attended the examination. The Court of Appeal granted permission to appeal only on whether that comprehensive stay was disproportionate because some heads of damage were unaffected by psychiatric evidence. The claimant also sought to renew nine refused grounds and to amend the permitted ground.

1. Disposition. The appeal was allowed on a limited basis. May LJ delivered the leading judgment, with which Judge LJ agreed. The stay was lifted on condition that the issues tried were confined to claims for losses arising during the first 15 months after the accident. The court did not interfere with the costs order below.
2. An oral decision of an appeal court granting limited permission to appeal is final as to the grounds for which permission was refused. Section 54(4) of the Access to Justice Act 1999, read with rule 52.3 of the Civil Procedure Rules 1998, prevented the court from reopening the nine refused grounds at the substantive appeal. The reasoning in Fieldman v Markovic was directly applicable. The application to amend the permitted ground by adding Article 1 of the First Protocol was also refused because it did not enlarge the substance of the permitted issue.
3. A court may stay proceedings when a claimant refuses to cooperate with a medical examination which the justice of the case reasonably requires. That power must be exercised in a manner which is reasonable, just and proportionate. Article 6(1) requires fairness between both parties. A claimant cannot commence proceedings and then unilaterally refuse to comply with a just order needed to allow the defendant to present its case properly.
4. Psychiatric evidence was necessary to determine whether the claimant's continuing condition was a chronic pain syndrome caused by the accident. Her refusal to undergo examination denied the defendants and the court a fair opportunity to determine that issue. The stay was therefore justified in relation to heads of damage dependent on psychiatric evidence.
5. The stay was nevertheless disproportionate because it also prevented recovery for losses unaffected by psychiatric evidence, some of which were admitted wholly or partly. The court could use its case-management powers under rule 3.1(2)(k) and rule 3.1(3), together with its inherent power, to exclude issues and impose conditions. A pragmatic 15-month limit preserved claims relating to the possible physical consequences of the accident while excluding the psychiatric issues which could not fairly be tried.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 1690, unanimously allowed the appeal on a limited basis, lifted the stay conditionally, and confined the triable issues to losses within 15 months of the accident. It refused to reopen grounds previously refused after an oral permission hearing.
2. Court of Appeal permission proceedings: Brooke LJ refused permission on paper. Following an oral renewal, May LJ granted permission only on the proportionality of staying the whole claim and refused permission on nine other grounds.
3. High Court: Penry-Davey J stayed the professional negligence claim unless the claimant attended a psychiatric examination. No neutral or report citation is stated.