Damages for breach of contract

The claimant had not signed the consent form for thawing of embryos; his signature had been forged by his former partner, who had subsequently had their daughter. The Queen’s Bench Division held that, although the defendant clinic had owed the claimant an express obligation not to thaw and replace an embryo if he had not given his written consent, legal policy concerning the unavailability of damages for the upkeep of a healthy child thwarted his claim.

Background

In 2008, the claimant, A, and the third party, R, had IVF treatment at the defendant’s clinic. In 2008, a son was born. A number of embryos had been frozen with the parties’ consent and they signed agreements on an annual basis for them to remain in storage. In 2010, R handed the clinic a consent to thawing of embryos form, signed by her and purportedly signed by A. On the basis of that document, an embryo was thawed and successfully implanted in R’s womb. In 2011, a daughter was born.

A issued proceedings against the clinic in contract for the cost of bringing up the daughter, alleging that the consent form had not been signed by him and had to have been forged by R, as their relationship had broken down. The clinic brought CPR Pt 20 proceedings against R for an indemnity on the basis of the tort of deceit.

Application dismissed.

Issues and decisions

(1) Whether R had forged A’s signature or A had, in fact, consented to the thawing and use of the frozen embryos.

A had not signed the consent form. His signature had been forged by R. A had not, in fact, given his informed consent to the procedure because he had not been given all the necessary information which would have enabled him to provide his consent. He had not been willing to have a child with R at the time and he would not have signed the consent form if R had asked him to do so.

In any event, the issue of what A had consented to was not merely a question of fact. Whatever might be the position under the Human Fertilisation and Embryology Act 1990 (HFEA 1990), the position at common law was that A’s consent to the procedure had been required and he had not provided it (see [209], [210] of the judgment).

Centre for Reproductive Medicine v U [2002] All ER (D) 213 (Apr) applied.

(2) Whether it had been an express term of the parties’ contract, in the nature of a warranty or guarantee, that the clinic would secure A’s signed written consent to the thawing and use of the frozen embryos or whether there was an implied term to like effect. Further, whether A had failed, in breach of contract, to inform the clinic that he had separated from R.

The clinic had owed an implied obligation to exercise reasonable care in relation to complying with its obligations under the HFEA 1990, relevant guidance and its licence conditions at the time the consent had been sought for the thawing and replacement of the embryo. The clinic had owed A an express obligation not to thaw and replace an embryo if he had not given his written consent, and that obligation was strict. Further, on the facts, A’s breach did not preclude him from claiming damages for the clinic’s breaches (see [262], [272] of the judgment).

Arnold v Britton [2016] 1 All ER 1 applied; Liverpool City Council v Irwin [1976] 2 All ER 39 considered; Thake v Maurice [1986] 1 All ER 497 considered; Centre for Reproductive Medicine v U [2002] All ER (D) 213 (Apr) considered; R (on the application of Quintavalle) v Human Fertilisation and Embryology Authority (Secretary of State for Health intervening) [2003] 3 All ER 257 considered; Evans v Amicus Healthcare Ltd [2004] 3 All ER 1025 considered.

(3) Whether public policy precluded A’s primary or alternative claims for the upkeep of a healthy child.

Rees v Darlington Memorial Hospital NHS Trust ([2003] 4 All ER 987), concerning the unavailability of damages for the upkeep of a healthy child, was not binding authority in the clinic’s favour because its ratio was limited to tortious claims. However, the public policy bar would apply to the contractual claim if there were relevant equivalence or congruence with a hypothetical claim in tort brought on the same facts.

The measure of damages was the same, the test for remoteness did not turn on any distinction pertaining to the nature of the underlying obligation and, most particularly, there was no material difference for the purposes of the legal policy between contractual duties of the two types of claim.

Accordingly, the legal policy enunciated in Rees, for reasons of principle, logic and policy, applied equally to contractual claims founded on strict obligations in circumstances where the parties had not sought to quantify or liquidate the damages payable in the event of breach. That thwarted A’s claim and the clinic’s submission, that legal policy precluded all of A’s pleaded claims, would be upheld (see [304], [305], [317], [318], [323] of the judgment).

Parsons (H) (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] 1 All ER 525 applied; Rees v Darlington Memorial Hospital NHS Trust [2003] 4 All ER 987 applied; McFarlane v Tayside Health Board [1999] 4 All ER 961 considered.

Michael Mylonas QC, Susanna Rickard and Jamie Mathieson (instructed by Hughes Paddison Ltd) for A.

Jeremy Hyam QC and Suzanne Lambert (instructed by Hempsons) for the clinic.

Mark McDonald and Christopher Pask (instructed by Axiom Stone Ltd) for R.

Karina Weller - Solicitor (NSW) (non-practising).