Chinnock v Wasbrough & Anor

This judgment is in eight parts, namely:

This is an appeal against a decision that (a) the barrister and solicitors who advised the claimant to abandon an earlier clinical negligence claim were not negligent and (b) the claimant’s present proceedings are statute barred. The principal issues in this appeal are how reasonably competent lawyers should have analysed the advisory duties of medical practitioners in 2001 and what (in the present context) constitutes “knowledge” for the purposes of section 14A of the Limitation Act 1980.

The claimants in the proceedings at first instance were Ms Joanne Chinnock and Mr Paul Schumann. I shall sometimes refer to them jointly as “the parents”. Ms Chinnock is the appellant in this court. Mr Schumann has now dropped out of the proceedings. The defendants at first instance were a firm of solicitors, Veale Wasbrough, and a barrister Ms Karen Rea. They are respondents in the present appeal.

The following medical terms are relevant:

Section 14A of the Limitation Act 1980 provides:

“Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual.

(1)

This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under subsection (4)(b) below falls after the date on which the cause of action accrued.

(2)

Section 2 of this Act shall not apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) below.

(4)

That period is either—

(a)

six years from the date on which the cause of action accrued; or

(b)

three years from the starting date as defined by subsection (5) below, if that period expires later than the period mentioned in paragraph (a) above.

(5)

For the purposes of this section, the starting date for reckoning the period of limitation under subsection (4)(b) above is the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action.

(6)

In subsection (5) above “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge both—

(a)

of the material facts about the damage in respect of which damages are claimed; and

(b)

of the other facts relevant to the current action mentioned in subsection (8) below.

(7)

For the purposes of subsection (6)(a) above, the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(8)

The other facts referred to in subsection (6)(b) above are—

(a)

that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and

(b)

the identity of the defendant; and

(c)

if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(9)

Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.

(10)

For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a)

from facts observable or ascertainable by him; or

(b)

from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek;

but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

After these introductory remarks, I must now turn to the facts.

During the 1990s Mr Schumann and Ms Chinnock were married and they were keen to start a family. In early September 1997 they discovered that Ms Chinnock was pregnant. They were both elated. Ms Chinnock consulted her general practitioner and was referred to Liverpool Women’s Hospital for antenatal care.

Ms Chinnock attended hospital on 20^th October 1997 for the purposes of an ultrasound scan. The scan revealed nuchal translucency thickness of 4.8 mm. That meant thickening at the back of the neck. The estimated gestational age of the foetus was then 11 weeks, 5 days. These findings indicated that there was a risk of trisomy. Statistical analysis indicated that this risk was approximately 1:13.

Mr Walkenshaw, a consultant obstetrician, reviewed the scan results and then met both parents to discuss the matter. He explained that the nuchal translucency was a soft marker; there was a risk of the baby being born with abnormalities. He added that this risk was “above the cut off point”. In other words it was a risk which required some form of action. He did not specifically tell the parents that the risk was 1:13.

Ms Chinnock and Mr Schumann both worked with disabled children and they did not themselves wish to have a disabled child. According to Ms Chinnock’s witness statement, they made this clear to Mr Walkenshaw and said that they wanted further tests. Mr Walkenshaw explained the options, namely a CVS test, which was available next day; alternatively amniocentesis or cordocentesis, both of which would be available at later dates. They chose CVS because it would produce the earliest results.

On the 21^st October, Ms Chinnock attended hospital and another consultant obstetrician, Mr Alfirevic, carried out the CVS. The Merseyside and Cheshire Genetics Laboratory carried out a direct analysis of the sample. The test results were normal. There was no sign of any genetic abnormality.

It would be normal practice for a culture of the CVS cells to be taken and analysed at a later date. This did not happen in the present case, because the culture failed. Although that might be a matter for criticism, it appears from the expert evidence very unlikely that any subsequent testing of a culture sample would have yielded a different result from the direct testing. So no harm flows from that particular omission.

The parents were reassured by the results of the CVS test. The pregnancy duly continued. Over the next four months Ms Chinnock had scans at regular intervals. The scans did not reveal any abnormalities, but the size of the foetus was a matter of some concern because of slow growth.

After carrying out a scan on 18^th February 1998 Dr Pilling, a consultant radiologist, sent a letter to Mr Farquharson, a consultant obstetrician, which is central to the present litigation. He wrote:

“Detailed scanning revealed no obvious fetal malformation.

Our estimation of the gestational age was 28+6 weeks.

…

The position of the placenta is High anterior

The fetal presentation is Cephalic

The amniotic fluid volume is Normal

Comments

The growth of this baby is falling off further. Normal Doppler UAPI. In spite of normal karyotype I strongly suspect there is some major abnormality with this baby but cannot define it. Follow up in 2 weeks by SAW or ZA and to be seen in clinic before that.”

The initials “SAW” referred to Mr Walkenshaw. The initials “ZA” referred to Mr Alfirevic.

Dr Pilling’s comments were not passed on to the parents. The action taken was to recall Ms Chinnock for a further scan. Ms Chinnock had the repeat scan on 24^th February 1998. After that scan she and her husband had a meeting with Mr Alfirevic, who made the following note of the consultation:

“Long discussion re scan reports.

Constitutionally small baby.

Both partners work with people with learning disabilities and very worried re possibility of abnormal baby.

They have spoken to Diana at Fetal Centre.

They are going to see G.P Dr Moore re counselling/support.

Review 2/52. (RGF is possible) +

U.S.S. repeat.”

Following that consultation Mr Alfirevic wrote to Ms Chinnock’s general practitioner as follows:

“I rescanned this patient today.

Ultrasound examination

Detailed scanning revealed no obvious fetal malformation.

Diagnosis: SGA: likely normal small baby

Our estimate of the gestational age was 29+5 weeks. The fetal measurements are plotted in relation to the normal mean (± two standard deviations) for 29 weeks gestation.

Biparietal diameter : 66 mm

Head circumference : 249 mm

Abdominal circumference : 213 mm

Femur length : 49 mm

Head/Abdomen : 1.169 mm

The position of the placenta is High posterior

The fetal presentation is Cephalic

The amniotic fluid volume is Normal

Comments

Small for gestational age. However, no evidence of intrauterine growth restriction (normal liquor, normal umbilical Doppler (RI=0.57), normal intracranial and uterine Doppler and good fetal movements). Also reasonable interval growth.

I don’t think that anything can be gained from intervention(s) at this point in time. I will rescan in 2 weeks.”

Thereafter the hospital continued to monitor Ms Chinnock’s pregnancy. There were a number of scans. These did not reveal any abnormality. There was an improvement in the growth of the foetus. On 21^st April 1998 Ms Chinnock gave birth to a baby daughter, Bethany.

Sadly, Bethany had multiple congenital abnormalities. She had severe intrauterine growth retardation, bladder extrophy, genital ambiguity, rocker bottom feet, flat nasal bridge and other minor dysmorphic features. Bethany spent much of her life going in and out of hospital. She died on 14^th December 2009 at the age of 11.

Understandably the parents were devastated. They gave devoted care to Bethany during her short life. Nevertheless they were firmly of the view that the pregnancy should have been terminated before Bethany was born. Furthermore they considered that the medical staff at Liverpool Women’s Hospital were negligent in their antenatal care. They maintained that if the doctors had given competent advice, Ms Chinnock would have opted for a termination of pregnancy. It is common ground that this would have been possible under section 1 (1) (d) of the Abortion Act 1967 up to a very late stage.

In November 1999 Ms Chinnock consulted Mr Gary McFarlane, a solicitor at Wolferstans in Bristol, about a possible claim against Liverpool Women’s Hospital. In March 2000 Mr McFarlane moved to Veale Wasbrough, another firm of solicitors in Bristol, and he took the case with him. In due course Ms Jan Markland, a partner in Veale Wasbrough, became the solicitor with day to day conduct of Ms Chinnock’s claim.

Ms Markland took instructions from Ms Chinnock. She obtained the medical records from Liverpool Women’s Hospital NHS Trust, which was the authority administering the hospital. She instructed three expert witnesses to advise. They were Dr Michael Weston (a radiologist), Mr David Campbell (an obstetrician) and Professor Michael Patton (a consultant clinical geneticist).

The limitation period for any claim against the NHS Trust was going to expire on 21^st April 2001. Well before that date Ms Markland secured legal aid for her client. On 12^th April 2001 Ms Markland issued a claim form on behalf of Ms Chinnock in the Bristol County Court against the Liverpool Women’s Hospital NHS Trust. The claim was for wrongful birth.

On 18^th May 2001 Ms Markland instructed counsel, Ms Karen Rea, to advise. Ms Rea practised at Bristol chambers and one of her areas of specialisation was clinical negligence. Ms Markland made arrangements for a conference with counsel, which took place on Friday 13^th July 2001.

Ms Markland and the parents attended the conference with Ms Rea. Mr Campbell and Professor Patton participated by telephone. Ms Markland took a full note of the conference, which the trial judge has held to be an accurate summary of what was said. It is not, of course, a verbatim transcript.

During the conference Ms Rea went through the history of Ms Chinnock’s antenatal care. She questioned the experts as to the adequacy of the steps which the medical staff had taken at each stage. Professor Patton explained the significance of the CVS test. Neither the CVS test nor the ultrasound scans indicated any abnormality. These were strong pointers towards a normal baby. Mr Campbell explained the risks of carrying out further tests, such as amniocentesis or cordocentesis. These could lead to a miscarriage. Overall Mr Campbell’s advice was that the obstetricians had taken reasonable decisions at each stage of the process. He added that in his opinion the problem was lack of communication and that was why the parents felt let down. He said that the lack of communication would not lead to any change in the management of the pregnancy.

Having reviewed the expert advice and all the material before her, counsel advised that Ms Chinnock’s claim could not succeed on liability. Therefore legal aid would have to be withdrawn.

Ms Markland supported counsel’s advice. On 16^th July 2001 she sent a letter to Ms Chinnock confirming the advice given. Ms Markland said that if Ms Chinnock was dissatisfied, she could take alternative legal advice. She added that if Ms Chinnock went ahead and served the claim form, she would incur “a very big risk” of having to pay the NHS Trust’s costs.

Both parents were extremely surprised and disappointed to receive adverse advice. Nevertheless they accepted it and allowed the proceedings against the NHS Trust to lapse.

Eight years later Ms Chinnock and Mr Schumann went through divorce proceedings. When Mr Schumann was talking to his divorce solicitors they asked if there were any other issues about which he needed advice. He told them about the events concerning Bethany. The divorce solicitors referred the matter to their clinical negligence department. Solicitors in the clinical negligence department investigated the matter. They concluded that Ms Chinnock and Mr Schumann had received bad advice; therefore the parents had a claim for professional negligence against their former legal advisors. Against that background Ms Chinnock and Mr Schumann commenced the present proceedings.

On 8^th July 2010 Ms Chinnock and Mr Schumann issued proceedings in the Queen’s Bench Division of the High Court against Veale Wasbrough for negligence in their advice and conduct of the prospective claim against Liverpool Women’s Hospital NHS Trust. On 19^th January 2012 the parents issued similar proceedings against Karen Rea.

The defendants in both actions denied the allegations of negligence and also pleaded that the claims were barred under the Limitation Act 1980. On 12^th November 2012 Master Yoxall ordered that the two actions be managed and tried together. He also ordered that the questions of liability and limitation be determined as preliminary issues.

The trial of the preliminary issues took place in November 2013 before Mr Justice Dingemans (“the judge”). The principal witnesses on the claimants’ side were Ms Chinnock and Mr Schumann. The principal witnesses on the defendants’ side were Ms Markland and Ms Rea.

On 29^th November 2013 the judge handed down his reserved judgment dismissing the claimants’ claims. I would summarise the judge’s reasoning as follows:

Mr Schumann accepts the decision of the judge and is taking the matter no further. Ms Chinnock, however, is aggrieved by the judge’s decision. Accordingly she has appealed to the Court of Appeal.

By an appellant’s notice filed on 9^th January 2014 Ms Chinnock appealed to the Court of Appeal against the judge’s decision on the grounds that the judge erred in his findings on breach of duty and limitation.

The appeal was heard on 18^th March 2015. Mr Michael Redfern QC leading Mr Sufiyan Rana appeared for Ms Chinnock. Mr Mark Cannon QC appeared for Veale Wasbrough. Mr Jamie Smith QC appeared for Ms Rea. I am grateful to all counsel for their assistance.

Mr Redfern identified in his skeleton argument that he relied upon the negligence of the medical staff at two periods in the antenatal history. The first period was October 1997 when the ultrasound scan showed nuchal translucency, which indicated a 1:13 risk of trisomy. The second period was February 1998 when, after a number of scans showing poor growth, the radiologist recorded his strong suspicion of major abnormality, which he could not define. Mr Redfern submitted that the doctors, and thus the NHS Trust, were in breach of the duty owed to Ms Chinnock in failing to inform her, first, of the 1:13 risk and, secondly, of the radiologist’s suspicion. On these two bases Mr Redfern went on to argue that counsel and solicitors were negligent in failing to identify a viable cause of action during the conference in July 2001. Finally he submitted that the claim against the lawyers was not statute barred. It was not until 2009 that Ms Chinnock learnt that the lawyers’ advice was incorrect.

Mr Cannon and Mr Smith supported the judge’s decision for the reasons which the judge gave. They also supported the limitation decision on the basis of constructive knowledge under section 14A (10) of the Limitation Act 1980, a matter which they had raised in their respondents’ notices.

It is important to remember that neither the NHS Trust nor the medical staff are on trial in this action. The court does not have the benefit of any factual or expert evidence which they may have adduced, if the original action had gone ahead. The issue which I am considering is whether, on the material available in 2001, there was a viable cause of action against the Trust. The court is not required to assess the claimant’s chances of success, if she had pursued the original action. Under Master Yoxall’s order that issue, if it arises, would be for the quantum hearing.

In addressing the matters argued by counsel, I shall deal first with the negligence issues and then with the limitation defence. Logically the first question to consider is whether the barrister was negligent.

During the conference on 13^th July 2001 Ms Rea discussed at some length the significance of the nuchal translucency detected in October 1997 and the subsequent CVS test. She concluded that there was no negligence by the obstetricians or the testing laboratory at that stage.

In my view Ms Rea’s advice on these matters was unquestionably correct. Mr Walkenshaw explained the significance of the nuchal translucency to the parents in language which they understood. He identified the risk of abnormality and described nuchal translucency as a “soft marker”

This was a fair description. The obvious next step was to have further tests. According to her witness statement that is precisely what Ms Chinnock wanted. Although Mr Redfern submitted that, if told the risk of trisomy was 1:13, the parents would thereupon have decided upon a termination, that was not the evidence of either Ms Chinnock or Mr Schumann at trial and was inconsistent with the instructions that she gave to Veale Wasbrough when they acted as her solicitors. This is hardly surprising. Both Ms Chinnock and her husband wished to start a family. It would not have made sense to proceed straight to a termination of pregnancy without further investigation.

Mr Walkenshaw put forward CVS as one of the options for further tests. On the expert evidence, that was reasonable advice. The result of the CVS test was negative. Mr Redfern submitted that the CVS test was a red herring. I do not agree. The CVS test was an appropriate next step. The result was a source of reassurance both for the parents and for the obstetricians. It is tragic that the result was a false negative, but no-one knew that at the time. On the expert evidence, a false negative is a very rare occurrence.

The testing laboratory may be criticised for failing to test a culture sample from the CVS. The obstetricians may be criticised for failing to insist upon a culture test, if necessary after taking a second CVS sample. But those omissions were not causative of any loss. According to Professor Patton, Bethany’s chromosomal condition was such that the culture test result would have been the same as the direct result.

I move on now to the position in February 1998. By then a number of scans had shown poor growth. On 18^th February Dr Pilling made the note about his strong suspicion of a major abnormality, which he could not define. On 24^th February Mr Alfirevic reviewed all the material, including the result of the CVS test and the fact that none of the ultrasound scans had revealed any abnormality. Also, although the baby was small, the growth rate picked up somewhat after 18^th February. Mr Alfirevic decided that “interventions at this stage” (by which he must have meant amniocentesis or cordocentesis) were not appropriate. He did not offer further testing to the parents.

Ms Rea probed this issue in conference. Mr Campbell stated that in his view this was “not an unreasonable decision as a way to manage this pregnancy”. Mr Campbell also discussed the slow growth of the baby, which was the matter that had prompted Dr Pilling’s concerns. According to the conference note Mr Campbell’s advice was as follows:

“He said that the main growth parameters were ok. 5% of all babies will measure below the bottom line and only a very small group will not be structurally sound. It was reasonable to rely on the ultra sound reports. However, information should be fed back to the parents and no chance was offered to discuss the results. The lack of communication would not lead to any changes in management, but better communication may have helped the parents.”

On the basis of the expert evidence available to her, Ms Rea concluded that Mr Alfirevic’s management of the pregnancy at that stage and his failure to recommend further tests were in accordance with the practice and standards of other competent practitioners. Therefore there was no viable cause of action against the NHS Trust for negligence. She so advised.

The question which I must now address is whether that advice given by counsel was correct and, if not, whether it was negligent.

The principles governing the liability of barristers for professional negligence are well known and for present purposes uncontroversial. Although counsel have cited passages from a certain textbook on the subject, there is no need to go through those passages. The barrister’s conduct must be judged by reference to the material before him/her and any further material or information which the barrister ought to have obtained. The court trying the professional negligence action must have regard to the state of the law when the barrister was acting or advising, not the state of the law at the date of trial.

This last point is important. The law in relation to a doctor’s duty to provide information and advice has developed substantially in the last fourteen years. I must look at that pocket of law as it was in July 2001. It may be helpful to note how the law has developed since then, but I can hardly criticise counsel for failing to foresee those developments.

Let me turn, therefore, to the law governing a doctor’s duty to provide information and advice. The starting point is Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. This established that a medical practitioner was to be judged by the standards of his profession. If he acts in accordance with the practice of a responsible body of practitioners, then he is not negligent even if others would have taken a different and more efficacious course. The Bolam principle is, however, subject to a well recognised exception. If the practice of the profession or part of the profession is shown to be unreasonable, then compliance with such practice will not absolve the doctor from liability: see Bolitho v City and Hackney Health Authority [1998] AC 232.

The extent to which the Bolam principle governs a doctor’s duty in relation to providing information and advice has been the subject of debate. In Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] 1 AC 871, the House of Lords by a majority of 3:2 held that the Bolam principle held sway in this area. The majority comprised Lord Diplock, Lord Bridge and Lord Keith.

Lord Bridge, whilst acknowledging that the Bolam principle applied, also adverted to the well established exception to that principle. At page 900 he said:

“But even in a case where, as here, no expert witness in the relevant medical field condemns the non-disclosure as being in conflict with accepted and responsible medical practice, I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent. risk of a stroke from the operation which was the subject of the Canadian case of Reibl v. Hughes, 114 D.L.R. (3d) 1. In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient's right of decision, could hardly fail to appreciate the necessity for an appropriate warning.”

In the course of his submissions Mr Redfern drew our attention to the Court of Appeal’s decision in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53. The plaintiff in Pearce alleged that the negligence of Dr N had caused her to have a still-birth. The complaint was that Dr N failed to warn her that if there was no medical intervention (such as induction or Caesarean section), the risk of still-birth was increased. The trial judge and the Court of Appeal dismissed that claim. Lord Woolf MR, with whom Roch and Mummery L.JJ agreed, treated Sidaway as the governing authority. He referred to the exception to the Bolam principle, as identified by Lord Bridge in Sidaway and by Lord Wilkinson in Bolitho. He then said this:

“In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.

In the Sidaway case Lord Bridge recognises that position. He refers to a “significant risk” as being a risk of something in the region of 10 per cent.”

Mr Cannon submits that that passage in Pearce should be seen as a re-statement of the long established exception to the Bolam principle, rather than as a departure from that principle in the realm of advice. I agree. In my view Sidaway remained the governing authority after the Court of Appeal’s decision in Pearce. That was still the position in July 2001 when Ms Rea gave her advice to Ms Chinnock.

Since 2001 this area of law has developed apace. The most recent development is the Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 WLR 768. In Montgomery the Supreme Court has decided that the analysis of the law by Lord Diplock, Lord Keith and Lord Bridge in Sidaway was not correct: see the judgment of Lord Kerr and Lord Reed (with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hodge agreed) at [86]-[87] and the judgment of Lady Hale at [107]. Subject to the therapeutic exception the law now is as follows:

“87 … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

Although I take note of recent legal developments, I must focus specifically on the state of the law in July 2001. Mr Cannon and Mr Smith submit that the third edition of “Clinical Negligence” by Powers and Harris (Butterworths, 2000) is a good guide in that regard. In that edition Powers and Harris treated Sidaway as the governing authority in relation to the provision of advice. They distilled the relevant principles as follows at paragraph 17.17:

“(1)

The standard by which English law measures the doctor’s duty of care to his patient when advising him about a particular course of treatment is the standard of the ordinary skilled man exercising and professing to have the special skill which that doctor is exercising and professing to have.

(2)

The decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment.

(3)

An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence. In the event of a conflict of evidence the judge will have to decide whether a responsible body of medical opinion would have approved of non-disclosures in the case before him.

(4)

A judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make to it, even in a case where no expert witness in the relevant medical field condemned the non-disclosure as being in conflict with accepted and responsible medical practice.”

In my view that was a reasonable textbook summary of the law as it stood in 2000 and 2001. Although not relevant to this appeal, it is worth noting that even in 2014 the Court of Appeal was prepared to treat Bolam as governing a doctor’s duty to advise: see Meiklejohn v St George’s Healthcare NHS Trust [2014] EWCA Civ 120 at [62].

Proceeding on that basis, in July 2001 the Bolam test obviously presented difficulties for Ms Chinnock’s proposed claim against the NHS Trust. The real issue was whether the proposed claim fell within the established exception to the Bolam principle.

In addressing this issue, first it is necessary to consider the position in October 1997. On the expert evidence, the advice which Mr Walkenshaw gave on 20^th October was proper and sufficient. Furthermore, even if he had informed the parents specifically of the 1:13 risk, there was no basis to find that this would have led them to choose an immediate termination, instead of seeking a further test that would determine much more precisely whether this risk had materialised. That is exactly what they did in asking for a CVS test.

Next it is necessary to consider separately each stage of the antenatal process during February 1998. The first stage was Dr Pilling’s concern following his scan on 18^th February. The driver which led to this concern was the foetus’ poor growth rate. Dr Pilling’s action was to write a letter to Mr Alfirevic, setting out the details and expressing his concern. That step cannot be criticised. It was for the obstetrician, taking a holistic view, not the radiologist on the basis of his scans, to advise the patient.

The next stage in the process was Mr Alfirevic’s assessment. He had before him not only the radiologist’s letter, but all the other material. That included the negative CVS result and the fact that none of the various ultrasound scans revealed any malformation of the foetus. Mr Alfirevic concluded that there was no material risk of abnormality. That is the only possible interpretation of his sentence “I don’t think that anything can be gained from intervention(s) at this stage.”

In other words Mr Alfirevic was less troubled by the size of the baby and the slow growth rate than Dr Pilling. Was that unreasonable? Apparently it was not unreasonable. This was certainly the tenor of the advice which Mr Campbell gave during the conference in the passage quoted in paragraph 47 above.

Therefore, on the material before counsel, Mr Alfirevic’s opinion that there was no risk meriting further investigation was a reasonable opinion to hold, although (as we now know) it was wrong.

Was Mr Alfirevic under a duty to tell the parents about Dr Pilling’s “strong suspicion”, with which Mr Alfirevic disagreed? As the law stood in 2001, I do not think that he was.

The position in February 1998 was that Mr Alfirevic made a wrong diagnosis, but a reasonable one on the material before him. On the Bolam principle, that diagnosis did not amount to negligence. Once Mr Alfirevic had made that diagnosis, on the basis of Sidaway it is difficult to say that Mr Alfirevic came under a duty to explain Dr Pilling’s view, with which he disagreed.

It would have been much better if Mr Alfirevic had done so, as Mr Campbell observed in conference: see the reference to “lack of communication” in the passage quoted above. Nevertheless in my view it was perfectly reasonable for counsel to conclude that Ms Chinnock had no viable claim on the basis of failure to advise and inform.

Of course there were documents in the bundle that were supportive of the proposed claim for clinical negligence. As any practitioner in this field knows, that is the case in many clinical negligence actions which ultimately founder on either breach of duty or causation. Counsel advising a claimant, whether legally aided or self funding, is under a duty to examine the supportive material critically and to consider how that material will play out in the crucible of the trial. That is what counsel did in the present case. She put the crucial documents to the claimants’ experts and ascertained how far they would really support the proposed claim.

Let me now draw the threads together. For the reasons set out above, I conclude that counsel was competent in her questioning of the expert witnesses. The advice which counsel gave was correct on the basis of (a) the material available to her and (b) the law as it stood in July 2001. Accordingly the claim for negligence against Ms Rea fails.

I must now turn to the position of the solicitors.

At an earlier stage of this action the claimants’ counsel criticised Veale Wasbrough for permitting Professor Patton and Mr Campbell to attend the conference by telephone. He also criticised the solicitors for not requiring Dr Weston, the expert radiologist, to attend the conference.

There is nothing in these criticisms. Professor Patton and Mr Campbell did not need to be in the same room in order to answer counsel’s questions. Dr Weston’s views were set out very clearly in his report and no further elaboration was required.

The judge rejected all of those criticisms and Mr Redfern does not renew them on appeal. I only mention these matters in order to emphasise that the solicitors acted entirely properly in not requiring unnecessary persons to attend the conference. By releasing Dr Weston and permitting the other experts to attend by telephone Ms Markland took entirely proper steps to avoid expending unnecessary costs.

Turning to the conference itself, all of the observations which I have made about Ms Rea are applicable to the solicitors. Veale Wasbrough, like Ms Rea, specialised in clinical negligence work. If counsel had failed to ask relevant questions or gave advice with which the solicitors disagreed (or should have disagreed) then of course Ms Markland should have stepped in. But that did not happen. The solicitors acted correctly during the conference on 13^th July 2001.

Finally there is the letter which Ms Markland sent to Ms Chinnock three days after the conference. That letter was undoubtedly robust. On the other hand it was entirely in line with counsel’s advice and it needed to be robust. Ms Markland stated in her letter that Ms Chinnock could seek alternative legal advice, while pointing out that legal aid would not be available to cover the cost of such advice.

It is frequently the duty of lawyers to give unwelcome advice to their clients. If they conclude that a claim or a defence has no real prospect of success, it is their duty to say so bluntly. It is no kindness to the client to soften the advice or to encourage them to press on anyway. Ms Markland did no more and no less than was her duty, when she wrote the discouraging letter to Ms Chinnock on 16^th July 2001.

In the result, therefore, I conclude that the solicitors were not negligent.

All that remains is to consider the question of limitation, in case others take a different view from myself on the question of liability.

For the purposes of this Part of the judgment I must make two assumptions:

I shall refer to these two assumptions as “proposition 1” and “proposition 2” respectively.

In 2001 Ms Chinnock was aware of all material facts, except for proposition 1 and proposition 2. The crucial question is whether, as the judge has held, Ms Chinnock’s knowledge constituted “the knowledge required for bringing an action for damages” within section 14A (5) of the Limitation Act 1980.

The provisions of section 14A are challenging and have given rise to much case-law over the years. For present purposes I need only refer to three authorities, namely Forbes v Wandsworth Health Authority [1997] QB 402; Oakes v Hopcroft [2000] Lloyd’s Rep PN 946 and Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682.

In Forbes v Wandsworth Health Authority [1997] QB 402, in 1982 F’s leg was amputated following two unsuccessful bypass operations performed at the defendant’s hospital. In 1992 F received medical advice that the amputation was attributable to the defendant’s failure to perform the second bypass operation earlier. F commenced proceedings in December 1992. The Court of Appeal, by a majority, held that F could not rely upon section 14A and therefore his claim was statute barred. Stuart-Smith LJ, giving the principal judgment put the point neatly at 412 D-F:

“The real question is whether it was reasonable for him to seek that advice. If it was, he took no steps at all to do so. One of the problems with the language of section 14(3)(b) is that two alternative courses of action may be perfectly reasonable. Thus, it may be perfectly reasonable for a person who is not cured when he hoped to be to say, "Oh well, it is just one of those things. I expect the doctors did their best." Alternatively, the explanation for the lack of success may be due to want of care on the part of those in whose charge he was, in which case it would be perfectly reasonable to take a second opinion. And I do not think that the person who adopts the first alternative can necessarily be said to be acting unreasonably. But he is in effect making a choice, either consciously by deciding to do nothing, or unconsciously by in fact doing nothing. Can a person who has effectively made this choice, many years later, and without any alteration of circumstances, change his mind and then seek advice which reveals that all along he had a claim? I think not.”

In Oakes v Hopcroft [2000] Lloyd’s Rep PN 946 the claimant settled a personal injury claim for a modest sum, on the basis of advice from her medical expert that her inability to work was not attributable to the injury which she had sustained. Seven years later she received a medical report to the opposite effect and commenced proceedings against her original medical expert. The Court of Appeal held that the claim was not statute barred. The claimant’s damage was settling her original action for less than its true worth. The claimant did not know that that damage was caused by a misdiagnosis until seven years later. Accordingly she did not have knowledge for the purposes of section 14A until then. Lord Woolf C.J. stated at [33] that the claimant had acted reasonably in continuing to rely on the original medical report until she received the new report.

In Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682 the claimants purchased a company and its leasehold premises in December 1994, acting on the advice of accountants that an investment of about £100,000 would bring the company to reasonable profitability. That advice turned out to be mistaken. The claimants commenced proceedings against the accountants in December 2001. The House of Lords held that the claim was statute barred. The claimants could not rely upon section 14A of the Limitation Act 1980, because they had “knowledge” for the purposes of that section before December 1998. “Knowledge” for that purpose meant knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ. The House of Lords held that in order to trigger section 14A, the claimant needed to know in broad terms (a) the facts on which the claimant’s complaint was based, (b) the defendants’ acts or omissions and (c) that those acts or omissions had been a cause of the damage.

Let me now revert to the present case. The bare fact that Ms Chinnock did not know proposition 2 does not prevent time from starting to run under section 14A. That much is clear from section 14A (9).

Did Ms Chinnock need to know proposition 1 in order for time to start to run under section 14A? In my view she did. The word “negligence” in section 14A (9) means negligence of the current defendant or of a person for whose conduct that defendant is liable, for example an employee. “Negligence” does not embrace the negligence of some third party in an adversarial relationship with the defendant now being sued.

In the present case, therefore, time did not start to run against Ms Chinnock until she knew, or ought to have known, that she had lost a viable cause of action against the NHS Trust. I do not agree with the judge that Ms Chinnock had actual knowledge for the purposes of section 14A in 2001. In my view the correct analysis is that the claimant had constructive knowledge of proposition 1 by reason of section 14A (10).

This case is conceptually similar to Forbes. Ms Chinnock was deeply unhappy with the legal advice which she received in 2001. According to her evidence she was dumbfounded. She therefore had a choice. She could either consult other lawyers or she could let matters rest. Obviously Ms Chinnock could not be expected to take and act on fresh legal advice during the four week period before the claim form against the NHS Trust expired. But she could be expected to do so well before the primary limitation period against the lawyers expired.

I do not think that it was open to Ms Chinnock to abstain from further inquiries for more than six years (in this case eight years) and then to seek legal advice. It is true that during 2009 a firm of solicitors acting in the divorce proceedings happened to ask the husband if advice was required on any other matter. That, however, is not a justification for waiting eight years before taking legal advice.

In the result therefore I consider that Ms Chinnock’s claim against Veale Wasbrough and Ms Rea is statute barred. I do not reach this conclusion by the same reasoning as the judge, but on the basis set out in the respondents’ notices.

In April 1998 Ms Chinnock gave birth to a baby daughter, Bethany, who had severe abnormalities. She sought the advice of solicitors and counsel as to whether she had a claim against the relevant NHS Trust for wrongful birth. In July 2001, after considering the disclosed medical records and the advice of experts, the lawyers advised that Ms Chinnock did not have a viable cause of action against the NHS Trust.

Ms Chinnock received different advice from new solicitors in 2009. In July 2010 she commenced proceedings against her former solicitors. In January 2012 she commenced a separate action against her former counsel. The two actions were managed and tried together. The judge dismissed the claimant’s claims, holding that they were statute barred and also that there was no breach of duty.

I agree with the judge on both issues, although I reach my decision on limitation by a slightly different route.

If my Lords agree, this appeal will be dismissed.

I agree, for the reasons given by Jackson LJ, that Ms Chinnock’s case fails both because there was no negligence by the defendants and because she had constructive knowledge of the facts required to bring an action so as to make her claim out of time. Each of those conclusions is sufficient to resolve this appeal. However, I have the misfortune to disagree with Jackson LJ on the issue of actual knowledge and the application of section 14A(9) of the Limitation Act 1980 (“the LA 1980”). Although not necessary for disposal of this appeal, since that issue might be significant in a future case I add this brief judgment to explain my reasoning.

The issue of limitation, as Jackson LJ points out, is to be approached on the assumption that the NHS Trust was negligent and that the solicitors and counsel were negligent in failing to advise Ms Chinnock accordingly.

As has often been observed, any regime of limitation involves a compromise between the desire to enable a claimant who has suffered a wrong to have a legal remedy and the desire to protect a defendant from having to defend stale claims or having the threat of legal action hanging over them for a very long time. In Haward v Fawcetts [2006] UKHL 9, [2006] 1 WLR 682, Lord Scott of Foscote referred to the various statutes of limitation as “Parliament’s attempt to strike a balance between these irreconcilable interests, both legitimate,” and continued (at [32]):

“It is the task of the judiciary to identify from the statutory language and the purpose of each amending enactment the balance that that enactment has endeavoured to strike and to apply the enactment accordingly.”

The Latent Damage Act 1986, which incorporated section 14A into the LA 1980, constituted the statutory balance as applied to cases outside the field of personal injuries where the claimant was not aware of the facts relevant to their cause of action at the date on which the cause of action accrued. However, section 14A is in certain respects a difficult provision, as exemplified by the fact that in Haward v Fawcetts each member of the Appellate Committee delivered a full speech considering its proper application. In particular, section 14A(8)(a) stipulates, as one of the facts relevant to the action of which the claimant has to have knowledge pursuant to subsection (5) in order to start the special period of limitation:

“that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”.

Section 14A(9) then provides:

“Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (5) above.”

As Charles J observed in his judgment in the Court of Appeal in Haward v Fawcetts, there is a tension between these two subsections. And in the House of Lords, Lord Nicholls of Birkenhead said this, at [15]:

“In many cases the distinction between facts (relevant) and the legal consequence of facts (irrelevant) can readily be drawn. In principle the two categories are conceptually different and distinct. But lurking here is a problem. There may be difficulties in cases where a claimant knows of an omission by say, a solicitor, but does not know the damage he has suffered can be attributed to that omission because he does not realise the solicitor owed him a duty. The claimant may know the solicitor did not advise him on a particular point, but he may be totally unaware this was a matter on which the solicitor should have advised him. This problem prompted Janet O'Sullivan, in her article “Limitation, latent damage and solicitors' negligence” (2004) 20 PN 218, 237, to ask the penetrating question: unless a claimant knows his solicitor owes him a duty to do a particular thing, how can he know his damage was attributable to an omission?”

Lord Nicholls went on to remark that this difficulty did not arise in Haward v Fawcetts itself. But it arises acutely on the facts of the present case.

Here, on the factual assumptions on which the limitation issue has to be approached, the situation is one of double negligence by omission: the doctors employed by the NHS Trust failed to advise Ms Chinnock of the 1:13 risk of trisomy revealed by the scan on 20October 1997 or of the radiologist’s suspicions after the scan on 18 February 1998; and then the lawyers failed to advise Ms Chinnock that as a result of the doctors’ omissions she may have a good claim. Ms Chinnock could not appreciate that her loss was attributable to the omission of the lawyers unless she knew that the doctors had a duty to inform her of these facts such that their failure to do so was negligent. And as a non-lawyer, she can hardly be expected to have been aware that the doctors were under any such duty, unless her lawyers advised her accordingly.

The judge in this case approached the issue of limitation on the basis that Ms Chinnock knew that (a) the last chance for a claim against the NHS Trust to be made was to proceed with her claim shortly after the conference with counsel on 13 July 2001 (the claim expired on 12 August 2001); and (b) the reason the claim was not proceeded with was the advice given by the lawyers in conference. He held that Ms Chinnock therefore had actual knowledge that the damage was caused by the act or omission in question, i.e. the advice given in conference, and that this therefore constituted knowledge of the matters specified by section 14A(8).

I respectfully agree with Jackson LJ that this approach, as succinctly expressed in the judgment below, was flawed. As Haward v Fawcetts makes clear, in order for the special period of limitation to start, it is necessary for Ms Chinnock to have had knowledge of (or to have reasonably been able to discover) the facts which can fairly be described as constituting the negligence of which she complains; or to adopt another formulation, knowledge of the acts or omissions that are causally relevant for her complaint: see, e.g., the speech of Lord Mance at [120]. Here, given the way her case was presented on this appeal, Ms Chinnock therefore needed to know (a) that the risk of trisomy revealed by 20 October 1997 scan was 1:13; (b) the comments made by the radiologist in his report on the scan of 18 February 1998; and (c) that neither of these were communicated to her at the time. However, she had become aware of (a) and (b) by the time of the conference with her lawyers on 13 July 2001, and she was self-evidently aware of (c).

What Ms Chinnock did not know was that the doctors were under a duty to convey this information to her. But that is another way of saying that she did not know that these failures meant that the NHS Trust was negligent. In my view, that further knowledge, which Ms Chinnock understandably did not have, has to be disregarded by reason of section 14A(9). The words of that subsection refer to “any acts or omissions”, and I do not see that they can be confined to acts or omissions of the defendants.

Accordingly, I think that the judge was correct in concluding that the claim was out of time by reason of actual knowledge, although I consider that this result depends upon a more extensive assessment of the relevant facts. I realise that this conclusion may appear harsh, but that harshness seems to me inherent in the balance that Parliament has struck in the drafting of section 14A and the fact that, as critics have pointed out, the provisions of the section apply equally in the case of negligence by omission as in the case of negligence by a positive act. However, as I noted at the outset, this does not affect the resolution of this appeal.

I agree with judgment of Jackson LJ. I add two paragraphs on limitation.

There is some tension between Forbes v Wandsworth Health Authority [1997] QB 402 and Oakes v Hopcroft [2000] Lloyd’s Rep PN 946. In my view, the former authority should be preferred. It was expressly approved by the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 A.C. 76 at paragraphs 42-45 per Lord Hoffmann and is consistent with the analysis in the later House of Lords case of Howard v Fawcetts [2006] 1 WLR 682 as summarised by my Lord in paragraph 86 of his judgment.

On the matter of actual knowledge which divides my Lords, any view I express will be obiter but, as presently advised, I agree with Jackson LJ that "negligence" in section 14A(9) means negligence of the defendant or of a person for whom he or she is responsible rather than the negligence of someone else. Ms Chinnock did not know what my Lord has called "proposition 1" but she had every opportunity to obtain that knowledge before the claim against the defendants became time-barred. She therefore had constructive knowledge for the purposes of section 14A(10) of the 1980 Act.