Clarke v Martlew
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,LORD JUSTICE CAIRNS |
| Judgment Date | 23 June 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0623-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 1972 |
[1972] EWCA Civ J0623-3
In The Supreme Court of Judicature
Court of Appeal
Appeal (by leave of Mr. Justcie Talbot) by plaintiff from order of Mr, Justice Talbot made on 16th May 1972.
The Master of the Rolls (Lord Denning) and
Lord Justice Cairns
Mr. BRYAN GALFIN and Mr. STEPHEN MISLER (instructed by Messrs. Field Fisher & Co.) appeared on behalf of the Appellant Plaintiff.
The First Defendant did not appear and was not represented
Mr. H. WOOLF (instructed by Mr. B.A. Wrigley) appeared on behalf of the Respondent Second Defendant.
This case raises an important point of practice. On 28th September, 1970, two motorcars were in collision. Mrs. Clarke was a passenger in one of the cars. She was injured. On 30th June, 1971, she brought an action for damages against the driver of the other car. He denied liability and put the blame on the driver of the car in which she was riding. On 19th January, 1972, Mrs. Clarke added the driver of her car as a second defendant. The action is due to go for trial; but meanwhile a question arises as to the injuries which Mrs. Clarke has suffered. At first they were stated in modest terms, but when the statement of claim was amended early this year was added.
In the first six months of 1971 the plaintiff was medically examined by doctors on her own behalf and on behalf of the first defendant. Copies of the reports of those examinations were exchanged. The plaintiff's advisers have made them available to the second defendant's advisers. They are also quite ready to supply copies of any further medical reports which they obtain. But a question arises as to the medical examination on behalf of fie second defendant, who has only recently come into the case. On 28th March; 1972, the second defendant's solicitor wrote saying he would like to have medical examinatians by two named doctors. On 29th March, 1972, the plaintiff's solicitor replied: "We confirm that you may have our client medically examined by persons whom you suggest, upon your confirmation that you will supply us with copies of the reports which you obtain.
On 5th April, 1972, the second defendant's solicitor wrote objecting to that condition. He said" I cannot agree to thecondition that I supply you with copies of the reports I obtain. I consider that the condition you require is unreasonable in that you are asking the to let you have copies of reports which I have not yet seen and which are not yet in existence. I will, in due course, be prepared to try and agree medical reports with you and my usual practice is to invite plaintiff's solicitors to submit copies of their reports for agreement on my undertaking to submit copies of ciy medical reports if I am unable to agree their medical reports.
The plaintiff's solicitors refused to withdraw the condition. The defendant's solicitor took out a summons to stay tho action until he had a uiedical examination of the plaintiff without being obliged to show the report to the plaintiff. The Registrar refused a stay on those terms. But the Judge granted it. The plaintiff's solicitors appeal to this Court.
The tactics behind the defendant's solicitor's letter are pretty clear: (i) If the defendant's medical report shows the injuries to be much about the same as the plaintiff's medical report, he will agree the reports; (ii) If the defendant's medical report shows the injuries to be less severe, than the plaintiff's reports, he will not agree the plaintiff's reports. He will probably show his report to the plaintiff's solicitor and try and get him to agree to the Judge deciding on the medical reports only: or alternatively give their evidence orally; or (iii) If the defendant's medical report shows the injuries to be more serious than the plaintiff's report, the defendant will not show his report to the Plaintiff. He will agree the plaintiff's lesser report and thus allow only the plaintiff's lesser report to go before the Judge. Is itlegitimate for the defendant to take this line? especially when it may mean that the defendant will take advantage of some oversight by the plaintiff's doctor so as to reduce the damages?
The plaintiff's solicitors seek to overcome those tactics by the defendant by...
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Megarity v D. J. Ryan & Sons Ltd
...plaintiff leave to appeal to this Court. 5 The appellant in this Court has relied strongly upon a well—known decision of this Court, Clarke v. Martlew (1973) 1 Queen's Bench, 58. Of course there are passages in that decision which strongly support the plaintiff's case. There the Court had t......
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Causton v Mann Egerton (Johnsons) Ltd
...and that the plaintiff can properly refuse to submit to a medical examination unless the defendants do agree to supply a copy: see Clarke v. Martlew (1973) Q. B. 58. The law was carried a stage further in a recent case. Mr. Justice Bean held that, when the defendantsask for the plaintiff to......
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...under Order 36, rule 2 that parties had entered. The plaintiff relies on the following passage by Lord Denning MR in Clarke v Martlew [1973] 1 QB 58 to support her submission that it is reasonable for her to require that copies of the medical reports arising from the further medical examina......