John Coughlan KC, instructed by Gurpreet Lalli of Irwin Mitchell LLP (Cambridge), achieved recent success at an application hearing in the case of Webb before Master Sullivan on behalf of the Claimant. The application concerned whether a Claimant should be required to undergo genetic testing at a Defendant’s request, in default of which proceedings would be stayed.

The Court has no power to order the Claimant to undergo intrusive testing but does have a discretionary power to stay proceedings under CPR 3.1(2)(f) on any condition it deems just. The burden of proving why this should be exercised rests with the applying party.

The leading authority in the area is Laycock,[1] a rear shunt road traffic collision case, where the Defendant sought a stay of proceedings unless the Claimant agreed to modern MRI scanning. On appeal, Kennedy L.J dismissed the application and set the following 2-stage test:

  1. Do the interests of justice require the test which the defendant proposes?
  2. If yes, has the plaintiff put forward a substantial reason, being one that is not imaginary or illusionary, for that test not being undertaken?

The issue is Webb arose following the Defendant’s paediatric neurology expert suggesting there may be a genetic cause for the Chiari 1 malformation and/or spastic paresis suffered by the Claimant, as opposed to inadequate patient care (as pleaded by the Claimant), or poor recovery from historical transverse myelitis (as pleaded by the Defendant).

The testing required wide-spectrum genetic blood testing of the Claimant and her parents, given that no specific alternative cause was identified by the Defendant’s paediatric neurology or geneticist evidence.

In applying Laycock, with reference to the similar case of Paling,[2] the Claimant submitted that the testing was not dispositive of the causative issue given that in the absence of an identified genetic cause, the Defendant could revert to their pleaded case. Furthermore, the testing would infringe upon the privacy of the Claimant and her parents and could be psychologically distressing, especially if unrelated health consequences were unearthed.

Master Sullivan dismissed the application. She criticised the lack of expert evidence as to the accuracy of the testing and the failure by the Defendant’s experts to elucidate why the modern genetic testing would be likely to find some unspecified cause, as compared to the historical genetic testing the Claimant had undergone. The application failed on limb one.

Expert evidence explaining the accuracy and necessity of the testing to dispose of the causative issue in any case is essential for these applications. Should limb two be reached, then practitioners should ensure that detailed lay-witness evidence is obtained explaining why testing is refused and setting out the impact it may have on a party.

For a detailed analysis of the law in this area, an article on the topic will follow.

This digest has been written by Elliott Clifton-Thompson, a new pupil in the No5 Personal Injury and Clinical Negligence team, who joins from a practising background in the area. Elliott will be commencing his practising period of pupillage on 20 November 2023 and will be open to accepting instructions from that date.

[1] Laycock v Lagoe [1997] PIQR 518

[2] Paling v Sherwood Forest Hospitals NHS Foundation Trust [2021] EWHC 3266 (QB)