ARB v IVF Hammersmith
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies DBE,Lady Justice King DBE,Lord Justice David Richards |
| Judgment Date | 17 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2803 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | (R, Part 20 defendant),Case No: A2/2017/3052 |
| Date | 17 December 2018 |
[2018] EWCA Civ 2803
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE JAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice King DBE
Lord Justice David Richards
and
Lady Justice Nicola Davies DBE
Case No: A2/2017/3052
and
David Halpern QC, Michael Mylonas QC and Susanna Rickard (instructed by Hughes Paddison) for the Appellant
Jeremy Hyam QC and Suzanne Lambert (instructed by Hempsons) for the Respondent
Michael Powers QC and Mark McDonald (instructed by Axiom Stone Solicitors) for the Third Party
Hearing dates: 30–31 October 2018
Approved Judgment
This is an appeal from the decision of Jay J in respect of ARB's claim for breach of contract against the respondent IVF clinic. In November 2010, the clinic thawed and implanted an embryo containing ARB's gametes into R, from whom ARB had by that date separated. The clinic failed to obtain ARB's written or informed consent to the procedure. It proceeded on the basis of a signature on the relevant form which the judge found had been forged by R.
The embryo was one of several created from ARB's and R's gametes during previous IVF treatment at the clinic. That earlier treatment resulted in the birth of their son. As a result of the clinic's breach of contract in thawing and implanting the embryo without consent, R gave birth to a daughter, E, who is now the sibling of ARB's son; there is a Family Court order confirming parental responsibility and shared residence in respect of both children. ARB seeks damages for the pecuniary losses relating to E's upbringing (past and future) incurred as a result of the clinic's breach of contract.
ARB succeeded on all aspects of his primary case against the clinic for breach of contract. However, the judge held that ARB could not recover damages for the cost of E's upbringing for reasons of policy.
The judge identified the crux of the matter as being whether the legal policy enunciated by the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and applicable to tortious claims founded on reasonable care obligations should apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. He found that the same legal policy applied to thwart ARB's claim. At [319] he stated:
“Looking again at Rees, the legal policy objections may be characterised as follows: the inherent difficulty, if not impossibility, of measuring the loss; the unwillingness to regard the child as a financial liability; the refusal to offset the benefits which will accrue from parenthood from any additional financial liabilities; the feeling that it is morally unacceptable to attempt this exercise; and the notion that it is not fair, just and reasonable to allow this sort of claim. These objections overlap, and may be expressed in different ways, with different emphasis. Most of them are apt to apply where the contractual obligation is strict. The last of these objections is expressly tied to considerations which traditionally have only operated in the tortious sphere, and it is to be noted that Lord Bingham also expressly referred to burdens on the NHS. However, the secondary obligation to pay damages arises by implication of the common law, and in my view the result should be the same even if one were notionally to strip away the tort-specific objections. Furthermore, I have difficulty with the notion that a private patient could succeed whereas an NHS patient could not.”
Permission to appeal to the Court of Appeal in respect of the policy bar was granted by the judge.
Facts
In 2008 the appellant, ARB, and the third party, R, attended the respondent's clinic for the purpose of investigating and subsequently undergoing fertility treatment. They entered into a contract for the provision of fertility services. As a result an embryo was placed into R and she subsequently gave birth to a healthy boy. As part of that treatment, all of which was provided on the NHS, a number of embryos made with ARB and R's gametes were frozen to await the possibility that they would decide to undergo further treatment. Storage of embryos can only be done lawfully if both the male and female providing their gametes have given their written consent. That consent was contained in a document, “Agreement for Cryopreservation of Embryos” (“the Agreement”), which was signed by R and ARB on 24 June 2008. The Agreement commenced with the identification of R and ARB, setting out their addresses and contact details, and thereafter stated:
“[We] Understand that:
1. a) We must both give written consent before any embryos are thawed and replaced…
2. In the event of divorce or separation:
• The IVF unit will only thaw and replace embryos if both partners give written consent at the time of embryo replacement. The partners should also be those which are named in this document…
5. Contract conditions:
a) We review the storage contract annually. It is the responsibility of the couple once a year to confirm that you wish storage of embryos to continue. Failure to keep in contact with the unit or failure to pay the annual storage fee will result in the disposal of your embryos 3 months after the annual review date has lapsed or on expiry of your consent form (whichever is first). It is also your responsibility to inform the senior embryologist if you change your address or if there is any change in personal circumstances.
b) It is your joint responsibility to pay the annual fee to cover storage of your embryos and administration.
c) Consent to store embryos is required by both partners. If either partner does not agree then the embryos have to be thawed and allowed to perish.
6. Declaration: We have been given sufficient time to consider the contents of this document, and have been given the opportunity to have counselling if required or to take legal advice before signing below…”
Following the birth of their first child in the autumn of 2008, relations between ARB and R deteriorated. On 13 February 2008 ARB signed a form “Consent to the Use of Sperm and Storage of Embryos in Own Treatment or Research”. The form, prescribed by the Human Fertilisation and Embryology Authority (“HFEA”) is known as the “MT1 form”, R also signed a “WT1 form” in similar terms to the MT1. In MT1 ARB expressly consented to the use of his sperm in his partner's treatment for creating embryos in vitro and the use of those embryos in his partner's treatment. The form stated that ARB “can change or withdraw your consent at any time except when your sperm, or embryos created with your sperm, have already been used.”
On 5 March 2008 ARB and R consulted the clinic's director, Mr Geoffrey Trew, Consultant in Reproductive Medicine and Surgery. Mr Trew's notes include the fact that following R's first treatment cycle at the clinic five embryos were frozen. At the consultation Mr Trew recommended that R undergo various investigations. In the event that the tests were normal the plan was to proceed to a frozen embryo replacement cycle (“FERC”) with a blastocyst transfer (a blastocyst is an embryo at day five of its development). On 8 March 2010 Mr Trew wrote to R's consultant stating that “she would like another baby”.
Following their consultation ARB paid a fee of £750 and the parties were given a number of documents, described by ARB as “a package of papers”. They comprised: counselling information leaflet; consent to the thawing of embryos; FERC patient guide; patient and partner questionnaire; self-funded patient treatment price list.
On 30 April 2010 R attended the clinic alone and was seen by Mr Trew following completion of the investigations. He informed her that she could proceed to a first cycle with all five of the available embryos being thawed. On 14 May 2010 R attended the clinic alone for a FERC coordination appointment when she was seen by a nurse. The notes record that the patient was unsure about thawing all of the embryos for blastocyst, she would decide prior to embryo transfer. It notes that the Consent to Thaw form was given, R was instructed to speak to the embryologist before signing the form and to indicate the number of embryos which “they are happy to thaw initially”. She was instructed to return the signed form on the day of the suppressed scan which was the next stage in the process.
The clinic had a written protocol/Standard Operating Procedure (“SOP”) for the FERC clinic which included the following:
“FERC clinic is a nurse-led clinic, it may be possible for an embryologist to be in attendance.… If no embryologist is available for clinic, ask them to advise how many embryos should be thawed initially. …
1.2. The Consultation
…
• Allow the embryologist to explain about the embryos, if they are present
• Explain the consent to thaw form —if both partners are present and they are happy to sign it —witness the form
…
• If both partners do not attend clinic, give the consent form and emphasise the importance of returning it at the first scan appointment.
…”
In 2014, three years after the event which led to the birth of E, the SOP was revised to include the following:
“The Consultation
…
• Allow the embryologist to explain about the embryos, if they are present. Explain the Consent to Thaw Form —if both partners are present and they are happy to sign it -witness the form and scan it on IDEAS —Patients need to bring some forms of ID —i.e. Passport or Driving License
…
• If both partners do not attend clinic, give/email the consent form and emphasize the importance of returning it at the first scan appoint —Both...
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