James v Baily Gibson & Co

A court may stay proceedings where a claimant refuses a medical examination reasonably required for the fair, just and proportionate determination of the claim. A claimant cannot insist that proceedings continue unaffected while refusing reasonable procedural cooperation. However, a stay preventing determination of an otherwise viable claim may itself be disproportionate. The court should consider whether the refusal can instead be reflected through the evidential consequences of non-cooperation.

The claimant brought professional negligence proceedings against solicitors after her personal injury action was struck out because it had not been set down for trial. The solicitors admitted negligence and that she had lost her chance to pursue the claim, but disputed the value of that chance and aspects of quantum.

After experts identified psychological factors as relevant to her symptoms, permission was granted for psychiatric evidence. The claimant repeatedly declined examination. The High Court stayed her action unless she attended a psychiatric appointment. She sought permission to appeal, raising alleged bias, inadequate preparation time and breaches of the European Convention on Human Rights. The central issue was whether the stay was a proportionate response to her refusal to cooperate.

1. Limited permission and disposition. Lord Justice May granted permission to appeal only on the question whether the stay was disproportionate because it prevented the claimant from pursuing any recovery, despite the defendants’ admissions and the possibility that part of the claim could be determined without psychiatric evidence. Permission was refused on the remaining grounds. The application was allowed in part, with no order for costs.
2. Power to stay for non-cooperation. The court has power, in an appropriate case and where reasonable, just and proportionate, to stay proceedings when a claimant refuses a medical examination which the justice of the case reasonably requires. A claimant who brings proceedings cannot unilaterally refuse to comply with a reasonably and justly made order needed to enable the opposing party to present its case properly. That principle concerns fair conduct of proceedings and does not itself violate the Convention.
3. Proportionality of the sanction. The psychiatric evidence appeared relevant to part of the quantum dispute, but the defendants admitted negligence and the claimant could still have a viable lost-chance claim. The stay therefore arguably deprived her of any recovery, including sums not dependent on psychiatric evidence. It was arguable that the proceedings should continue, with any proper evidential disadvantage arising from refusal being taken into account against her. Lord Justice May stressed that this was only an indication of a viable ground, not a prediction of success.
4. The allegations of bias and Convention breaches, and the challenge to the earlier expert-evidence order, had no real prospect of success. The earlier order was no longer open to challenge, and any further appeal was subject to the requirements for a second appeal.

• Court of Appeal (Civil Division): Lord Justice May granted limited permission to appeal from the order of Penry-Davey J dated 14 February 2002. Permission was refused on grounds one to six and eight to ten.
• High Court, Queen’s Bench Division, Administrative Court: Penry-Davey J ordered that the claim be stayed unless the claimant attended a psychiatric examination.