Samantha Danyelle Clarke v Matthew Poole & Ors

Under the Civil Procedure Rules 1998, Rule 52.30 provides a strict and exceptional jurisdiction to reopen a final appeal decision, including a refusal of permission. Reopening requires real injustice, exceptional circumstances, no alternative effective remedy and a powerful probability that the earlier decision would have been different.

A mere legal error, fresh evidence, high value or general importance is insufficient. An omission by a permission judge to address a material ground or argument may justify reopening where it probably affected the refusal and the resulting injustice is sufficiently grave to outweigh finality. Granting permission to appeal determines only that the appeal should be heard.

The claimant suffered severe brain injuries in a road accident. Liability was admitted, but the value of her future damages was disputed because the defendants alleged that she might have active myotonic dystrophy. They sought a stay of parts of the claim unless she underwent EMG testing.

HH Judge Gargan granted the stay in [2024] EWHC 1509 (KB). Nicola Davies LJ refused permission to appeal. The claimant applied under Rule 52.30 to reopen that refusal, alleging that the reasons failed to address the effect of the testing decision on her autonomy and mental health and misstated the nature of the procedure. The central questions were whether the refusal should be reopened and whether permission to appeal should be granted.

Reopening threshold. The court allowed the application under Rule 52.30. The rule applies to a refusal of permission to appeal as well as to a final judgment. Its requirements must be understood in accordance with Taylor v Lawrence [2002] EWCA Civ 90, Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514, R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860 and Municipio de Mariana v BHP Group Plc [2021] EWCA Civ 1156.

1. Reopening requires real injustice, exceptional circumstances making reopening appropriate and no alternative effective remedy. The jurisdiction protects finality and is engaged only where the earlier litigation process has been critically undermined.
2. A wrong result, fresh evidence, substantial sums or general importance is insufficient by itself. There must be a powerful probability that the earlier decision would have been different if the process had not been undermined.
3. The claimant’s permission skeleton expressly identified as crucial the judge’s failure to address the psychological harm caused by the pressure of choosing whether to undergo testing, rather than merely the consequences of learning the result. Nicola Davies LJ’s general reference to the judge’s treatment of the relevant factors did not address that specific argument. There was therefore a powerful probability that the permission decision would have been different had the omission been addressed.
4. The combination of the claimant’s profound injuries, admitted liability, the potential loss of compensation worth many millions of pounds and evidence that the choice itself could harm her mental health made the circumstances exceptional. The injustice was sufficiently grave to outweigh finality in this case.
5. Grounds 1 and 2 concerning Laycock v Lagoe [1997] PIQR 518 and Starr v National Coal Board [1977] 1 WLR 63 also warranted permission because the relationship between the formulations required authoritative clarification. Lady Justice Whipple expressly left the correct legal test open. The court made no determination of the substantive appeal or of the balance between the parties’ interests.

Permission to reopen was granted and permission to appeal was granted on all grounds.

1. Court of Appeal (Civil Division): Nicola Davies LJ refused permission to appeal on 23 August 2024. The present court reopened that refusal and granted permission to appeal on all grounds.
2. High Court of Justice, King's Bench Division: HH Judge Gargan granted the defendants’ application for a stay of specified elements of the damages claim unless the claimant consented to EMG testing in [2024] EWHC 1509 (KB).