Whitehead & Anor v Searle & Anor

This is a difficult, tragic and indeed important case in which we are dealing with an application for permission to cross-appeal in circumstances which I must briefly explain. Because of constraints on the court’s time today I shall have to be relatively short.

On 10 August 1986 a child called David was born with spina bifida. His mother was a lady to whom I may refer as PM. His father is EW. They were not married. On 28 November 1986 PM consulted a firm of solicitors (I shall refer to them as “the solicitors”) who in due course were to become the second defendants in the present action. She consulted them in order to see whether what is nowadays called a ‘wrongful birth claim’ might be brought against the hospital authority. On 12 January 1989 a writ was issued against the relevant health authority claiming damages for negligent treatment of PM before the birth. The essence of the claim was that the spina bifida defect in the foetus was not detected when it should have been and had it been so appropriate options or possible choices would have been open to the mother. The health authority admitted the failure but denied negligence.

In May 1989, nearly two months after the pleadings were closed, the solicitors instructed a member of the Bar -- as it happens in substitution for earlier counsel. This member of the Bar was to become the first defendant in the present action (I shall refer to him as “the barrister”).

On 6 March 1995 PM committed suicide, dying intestate. Any claim she had for damages to compensate her for the future costs of caring for David ended with her death. After her death EW took on David’s care and obtained parental responsibility.

On 15 May 1997 the health authority issued an application to strike out the claim against them for want of prosecution. On 9 June 1998 EW was substituted as administrator of PM’s estate. On 6 January 1999 a settlement of the claim against the health authority, which had earlier been in contemplation, came to fruition -- the settlement sum was £20,000. The application to strike out had not by then been heard and EW says that the case was settled without his knowing of it.

The present action was brought in 2004 by EW in his personal capacity and in his capacity as administrator of PM’s estate. The child David was also joined as claimant but for reasons into which I need not go his claim is no longer pursued. It is common ground he has no course of action.

The claims pursued were: first, a claim against the solicitors, alleging negligence in their conduct of the wrongful birth claim up to the time of PM’s death. In his judgment of 9 May 2007 the trial judge Griffith Williams J held in favour of the estate on this claim and awarded EW (as administrator) damages in the sum of £118,829. The solicitors now accept that they were in breach of duty during the period before PM’s death. The essential case is that the claim should have been brought to trial before PM’s suicide. Had it been so, the shape of the damages claim would or might have been transformed.

The second claim pursued was a claim by EW in his personal capacity against the barrister and the solicitors, alleging failure to bring a wrongful birth claim for his own benefit. This claim was dismissed by the judge on the ground that neither defendant owed any duty to EW in his personal capacity. There was also and thirdly a claim brought by the estate as an alternative to the first claim, alleging that the barrister and the solicitors had negligently undervalued the estate’s wrongful birth claim in 1998. Having upheld the first claim the judge did not have to and did not decide this claim, although he made certain findings relevant to the issues in it.

The solicitors have permission to appeal to assert -- in relation to the primary claim brought by EW for the estate -- that no reasonable loss flows from their culpable delay in prosecuting the original claim. There are also appeals by the solicitor and the barrister against certain orders for costs made by the judge.

These appeals are fixed for hearing before this constitution of this court in the week of 28 January. The application for permission to cross-appeal is brought by EW in order to challenge the judge’s finding that neither the solicitor nor the barrister owed him a duty of care in his personal capacity. He also seeks to appeal the quantum of damages awarded by the judge to the estate on the primary claim.

As regards quantum we may deal with that summarily. Mr Bebb QC for EW has explained the criticisms he would seek to make of the judge’s findings in relation to quantum of damage in a skeleton argument, essentially under three heads. We have of course looked carefully at those -- they are to be found at paragraph 64 and following of his skeleton. We have concluded however that permission should not be granted on this part of the case. It is entirely freestanding from any other issue arising in this litigation. There is no good reason why permission should not have been sought of the judge when judgment was delivered and, failing permission granted by him, sought of this court at the appropriate time. That was not done. We refuse permission to appeal in relation to the damages

Turning to EW’s personal claim. The judge deals with this at paragraph 83 and onwards of his detailed and careful judgment. He discussed a number of the leading authorities relating to duty of care, including references to the conception of an assumption of responsibility. On the facts it is plain there was no retainer by EW of the solicitors until 1997, at which time he was substituted for PM’s father as personal representative to pursue the estate’s claim. He never asked the solicitors to advise in relation to a personal claim. The solicitors, in fact, had acted against him in relation to certain non-molestation and residence proceedings during PM’s lifetime. The estate’s claim was of course for PM’s losses as David’s carer. There was no question of EW being a beneficiary so as to engage such learning as Ross v. Caunters [1980] 1 Ch. 297. The barrister was never instructed for EW. EW had at various times, as we understand it, solicitors of his own. On dates after PM’s death, the solicitors from time to time raised the question of whether EW might be joined in the claim in order to make a claim for future loss in respect of David’s care. This circumstance, to which I will return very shortly, is critical to Mr Bebb’s argument. The barrister was to be instructed to advise on the question. No such advice materialised and the barrister’s position is to my mind a little unclear.

Apart from anything else, a claim by EW in his personal capacity would plainly go nowhere unless he could establish that the health authority -- the defendant’s in the original action -- had owed him a duty of care. Ordinarily it may still be said, I think, that the person to whom the health authority owed a duty of care in wrongful birth cases is the mother but there may be circumstances in which such a duty may be owed to the father. The learned judge below cited Hale LJ’s judgment at paragraph 93 in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, and I just take two or three sentences:

“There are cases where it [that is to say the care of the child] is shared more or less equally or where the primary carer is the father. My tentative view is, however, that if there is a sufficient relationship of proximity between the tortfeasor and the father, who not only has but meets his parental responsibility to care for the child, then the father too should have a claim.”

(Checked to audio: no bundle)

The learned judge below proceeded to discuss the evidence concerning EW’s relationship with PM. The most relevant passage is at paragraphs 104-105 which, given the time constraints, I will not read out. It appears to be plain that the case proceeded on the basis that at the time of the birth, and implicitly at the time when the health authority allegedly breached its duty of care, the parents were not living together and EW was not contributing at that time to the care of the child. Mr Livesey for the solicitors says that that itself is an end of EW’s personal claim. If the father was not engaged at all in the child’s care at the time of the putative breach by the health authority -- why then there can have been no duty owed by the health authority to him and if there was no duty owed by the health authority there is nothing on which a later claim against the solicitors and barrister might bite.

Mr Bebb however says that the question whether or not the father was involved with the child at the time of its birth or the doctor’s breach is not critical. He says it is at least arguably foreseeable that the cost of care might come to be met by the father and moreover it was, as it happens, the father’s case in the proceedings -- albeit ultimately rejected -- that he and PM were together at the time of the birth. There is no plain law governing the matter. The law here is still developing. For my part I would not put Mr Bebb out of court on the grounds that it is plain there was no duty owed to him by the health authority, though I consider that he may very well face formidable difficulties.

I turn very briefly to the question whether it can arguably be shown that the solicitors or barrister were owed any duty of care to EW in his personal capacity. I have already mentioned the fact there was no retainer. Mr Livesey says that, likewise, there was no other special circumstance which would give rise to an assumption of responsibility or any other basis on which the lawyers might owe a duty to EW. On any conventional approach to the matter that is an extremely powerful submission, not least when one has in mind, as Mr Livesey was rightly at pains to emphasise, that there is in any event no duty of care to David; so concerns for David’s welfare, says Mr Livesey, cannot really be crystallised into some basis for a duty of care owed to EW personally.

Mr Bebb seeks to emphasise the consideration given by the solicitors to the question whether he, EW, should be joined in order to secure future care costs on David. He says that EW was not told about the impact of PM’s death on the quantum of damages, namely that they would be cut off at the date of death. There is a question mark about that, having regard to the terms of paragraph 90 of the judge’s judgment; but at all events Mr Bebb submits that the solicitors knew full well that there was no route to extend the possible recovery of any care costs for David beyond the time of the mother’s death unless some recourse could be had to a claim brought by EW, and in these highly unusual circumstances it cannot be right, Mr Bebb would say, that they should simply sit on their hands and see EW sanction a settlement of the claim against the health authority at an undervalue. He says that it must be arguable that they should have advised EW as to the possibility of his being joined in the claim and the matter then gone into.

He faces other difficulties -- formidable difficulties -- by force of the terms of the Limitation Act and arising, as I have said, from the undoubted circumstance that there was no duty of care owed to David himself.

For my part I consider this is a highly unusual situation and with a very great deal of misgiving. For my part I would grant permission to appeal to EW in relation to the judge’s findings as to his personal claim.

I have already said that the difficulties he may face as regards the establishment of a duty owed by the health authority are formidable. The difficulties in relation to the pugitive duty owed by the lawyers are certainly no less formidable. That said, I would for my part grant permission.

Those are the orders I would then make. I would refuse permission in relation to quantum and grant it in relation to the personal claim.

I agree.

I also agree.