Rianna Read v Dorset County Hospital NHS Foundation Trust & Anor

Applications to stay clinical negligence proceedings pending a claimant’s medical examination engage a two-stage test. The applicant must first show that the interests of justice require the examination. If so, the opposing party must show a substantial, genuine reason for refusing it at that stage. The ordinary sequence of clinical negligence directions should not be displaced without exceptional circumstances. Pre-existing conditions and issues of causation commonly arising in cauda equina claims are insufficient by themselves. A claimant’s vulnerability, the risk of repeated examinations, distress, delay and expense may together constitute a substantial reason for postponing examination.

The claimant brought a potentially high-value clinical negligence claim against two NHS trusts, alleging that negligent delay caused her to suffer serious lower-limb, bladder and bowel consequences following cauda equina syndrome.

The defendants sought a stay until their neurosurgical expert had examined the claimant, contending that the examination was required before they could finalise their causation case and serve full Defences. The claimant accepted that she would undergo examination at the usual stage, but opposed an early examination because of delay, possible repetition, distress and her serious mental-health vulnerability.

The central issue was whether the proceedings should be stayed pending examination before service of the Defences.

1. Application dismissed. The defendants had not established that an early examination was required in the interests of justice.
2. Master Stevens applied the two-stage test in Laycock v Lagoe [1997] P.I.Q.R. p 518 CA. First, the court asks whether the interests of justice require the examination. Only if that is established does it consider whether the opposing party has a substantial reason for refusing it. The reason must be real and neither imaginary nor illusory. The court must balance the likely progress of the action against the objection and the extent to which the proposed procedure will advance the litigation as a whole.
3. The usual High Court clinical negligence directions provide for service of the Defence, followed by lay witness evidence and then expert evidence. The defendants could plead the material factual causation issues on the evidence already available. The court regarded pre-existing back conditions, co-morbidities and alleged inconsistencies in the disclosed report as insufficiently exceptional to justify departing from the usual sequence.
4. The defendants had confused the need for an expert’s final signed report with the ability of the legal team to draft Defences based on the expert’s presently available opinion. The possibility that the Defences might later require amendment did not establish a sufficient time or cost saving.
5. The claimant’s serious depression and suicidal thoughts, together with the risk that an early examination might be repeated, constituted a substantial and genuine objection. Multiple examinations should be avoided where one would suffice. The claimant’s vulnerability, potential distress, delay and expense firmly outweighed the defendants’ case for an immediate examination.
6. The court therefore refused to order a stay pending examination. The claimant would undergo examination at the usual stage in the proceedings.