Farraj & Anor v King's Healthcare NHS Trust & Anor

Section 1(1) of the Civil Liability (Contribution) Act 1978 provides that:

“…any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).”

Section 6 (1) further defines the basis of entitlement:

“A person is liable in respect of any damage for the purposes of this Act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise).”

It is agreed by the parties that “same damage” means identical damage. It therefore follows that, if KCH is liable to the Claimants, it can successfully obtain an indemnity or contribution from CSL only if CSL is also liable to the Claimants for the same damage. KCH therefore has to show that CSL owed a duty of care to the Claimants, breach of which is actionable in law.

The relevant damage is the economic loss resulting from the cost of supporting and maintaining a child who, the Claimants allege, would not have been born if the pre-natal DNA testing for BTM had been reported as positive, as the Claimants say would have been the case had the sample tested been of adequate quality and had the testing been carried out properly. In other words, this is what is often termed a “wrongful birth” claim.

Claims for “wrongful birth” were restricted by the House of Lords in the case of McFarlane v Tayside Health Board [2000] 2 A.C. 59. In that case, their Lordships unanimously held that parents could not recover for their economic loss in maintaining a healthy child born as a result of a negligently failed vasectomy. Subsequently, in the cases of Parkinson v St James and Seacroft University Hospital NHS Trust [2001] Lloyd’s Rep. Med. 309 and Groom v Selby [2002] Lloyd’s Rep. Med. 1, the Court of Appeal has decided that claims by the parents for the “wrongful birth” of a disabled child fall within the ambit of recoverable economic loss claims.

However, the subsequent decision of the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2004] 1 A.C. 309 cast considerable doubt on the decision in those cases. If Parkinson were to be overruled entirely, the Claimants’ claim against KCH – as well as any claim they might have against CSL – would inevitably fail. However, there was a suggestion by Lord Scott in Rees that a distinction might be drawn between a case where the avoidance of a child with a disability is the very reason why the parents sought treatment (as in the present case) and the case where medical treatment (e.g. sterilisation) is sought merely to avoid having to use contraception. His suggestion was that damages should be available only in the former situation. In any event, for the present, the decision in Parkinson represents the law and I proceed on that basis.

The principles governing the question whether a duty of care exists were summarised by Lord Bridge in Caparo Industries plc v Dickman [1990] 2 A.C. 605 at 617/8:

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”

Lord Bridge went on to deal with the circumstances which would give rise to a duty of care to avoid causing others to suffer purely economic loss. In view of the factual context of Caparo, he did so by reference to economic loss caused by negligent mis-statement. At 621 D-G he said:

“Hence, looking only at the circumstances of these decided cases where a duty of care in respect of negligent statements has been held to exist, I should expect to find that the ‘limit or control mechanism….imposed upon the liability of a wrongdoer towards those who have suffered economic damage in consequence of his negligence’ rested in the necessity to prove, in this category of the tort of negligence, as an essential ingredient of the ‘proximity’ between the plaintiff and the defendant, that the defendant knew that his statement would be communicated to the plaintiff, either as an individual or as a member of an identifiable class, specifically in connection with a particular transaction or transactions of a particular kind (e.g. in a prospectus inviting investment) and that the plaintiff would be very likely to rely on it for the purpose of deciding whether or not to enter upon that transaction or upon a transaction of that kind.”

Proximity involves consideration of the relationship between the parties. It is not necessary that the claimant should have been within the defendant’s contemplation as an identified individual. It is sufficient that he should have been within the class of persons who might foreseeably suffer the particular loss to which the duty relates. It is necessary also to look at the justness and fairness between the parties, as well as at the wider picture embracing legal, public and social policy.

Another principle which has been identified as emerging from the leading case of Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] A.C. 465 is that of assumption of responsibility. In Hedley Byrne, all members of the House of Lords agreed that, where a loss resulted from negligent words (rather than acts), a duty should be imposed only if there existed a ‘special relationship’ between the parties. This was necessary because it would plainly be unreasonable and unjust to extend the duty of care to anyone to whom a defendant’s words happen to have been repeated.

In the later case of Henderson & Others v Merrett Syndicates Ltd. and others [1995] 2 A.C. 145 at 180, Lord Goff said of the judgments in Hedley Byrne:

“ …we can derive some understanding of the breadth of the principle underlying the case. We can see that it rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. All of their Lordships spoke in terms of one party having assumed or undertaken a responsibility towards the other. On this point, Lord Devlin spoke in particularly clear terms….Further, Lord Morris spoke of that party being possessed of a ‘special skill’ which he undertakes to ‘apply for the assistance of another who relies upon such skill’.”

He went on to observe at 181:

“Furthermore, especially in a context concerned with a liability which may arise under a contract or in situation ‘equivalent to contract’, it must be expected that an objective test will be applied when asking the question whether, in particular case, responsibility should be held to have been assumed by the defendant to the plaintiff; see Caparo Industries Plc. v Dickman [1990] 2 A.C. 605, 637, per Lord Oliver of Aylmerton. In addition, the concept provides its own explanation why there is no problem in cases of this kind about liability for pure economic loss; for if a person assumes responsibility to another in respect of certain services, there is no reason why he should not be liable in damages for that other in respect of economic loss which flows from the negligent performance of those services.”

The concept of assumption of responsibility was discussed in two cases, Smith v Eric S. Bush and Harris and another v Wyre Forest District Council and another [1990] 1 A.C. 831, decided by the House of Lords at the same time. In Smith, the plaintiff had applied to a building society for a mortgage to assist her in purchasing a house. The building society instructed the defendant, a firm of valuers and surveyors, to inspect the house and report on its value and on any matters likely to affect that value. The report said that no essential repairs were necessary. The plaintiff paid an inspection fee and was given a copy of the report. She relied on it and purchased the house without obtaining any further survey. In fact, the chimneys of the house were not adequately supported and one chimney collapsed some time later. The plaintiff claimed damages from the defendants.

In Harris, the plaintiffs applied to the defendant council for a mortgage. They completed the mortgage application form and paid the inspection fee. The form made clear that the valuation resulting from the inspection would be confidential and solely for the benefit of the council, which accepted no responsibility for the value or the condition of the house by reason of the inspection report. The plaintiffs were advised to obtain their own survey. The defendant council instructed the second defendant, a valuer employed by them, to carry out an inspection. He recommended a mortgage subject to certain minor repairs. His report was not shown to the plaintiffs but they were offered a mortgage by the council. Three years later when the plaintiffs tried to sell the property, the same valuer inspected the property again in connection with a mortgage application by a prospective purchaser. He recommended that a structural survey should be undertaken. The survey revealed the need for extensive and expensive structural repairs. Meanwhile the property was deemed uninhabitable and thus unsaleable. The plaintiffs brought an action against the council and the individual valuer.

The House of Lords found that, in both cases, the valuer owed a duty of care to the prospective purchasers. Lord Templeman said at 846:

“…the relationship between the valuer and the purchaser is ‘akin to contract’. The valuer knows that the consideration which he receives derives from the purchaser and is passed on by the mortgagee, and the valuer also knows that the valuation will determine whether or not the purchaser buys the house.”

and at 847:

“…in my opinion the valuer assumes responsibility to both mortgagee and purchaser by agreeing to carry out a valuation for mortgage purposes knowing that the valuation fee has been paid by the purchaser and knowing that the valuation will probably be relied upon by the purchaser in order to decide whether or not to enter into a contract to purchase the house.”

Lord Griffiths rejected the submission that it was essential, in order to found liability for a negligent mis-statement, that there had been a voluntary assumption of responsibility on the part of the person giving the advice. He said at 862:

“The phrase ‘assumption of responsibility’ can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice.”

At 864, he enlarged on this:

“I have already given my view that the voluntary assumption of responsibility is unlikely to be a helpful or realistic test in most cases. I therefore return to the question in what circumstances should the law deem those who give advice to have assumed responsibility to the person who acts upon the advice or, in other words, in what circumstances should a duty of care be owed to the adviser to those who act upon his advice? I would answer – only if it is foreseeable that if the advice is negligent the recipient is likely to suffer damage, that there is sufficient proximate relationship between the parties and that it is just and reasonable to impose the liability.”

In Henderson, Lord Goff observed that:

“…an objective test will be applied when asking the question whether, in a particular case, the responsibility should be held to have been assumed by the defendant to the claimant.”

In White v Jones [1995] 2 A.C. 207, at 273, Lord Browne-Wilkinson stated that:

“…the assumption of responsibility referred to is the defendants’ assumption of responsibility for the task, not the assumption of legal liability.”

In McFarlane,Lord Slynn summarised the relationship between the principles of ‘proximity’, ‘fairness, justice and reasonableness’ and ‘assumption of responsibility’ thus:

“ … there should be a relationship of “neighbourhood” or “proximity “ between the person said to owe the duty and the person to whom it is said to be owed. That relationship depends on whether it is ‘fair, just and reasonable’ for the law to impose the duty … the alternative test is to ask whether the doctor or the board has assumed responsibility for the economic interest of the claimant “with concomitant reliance by the claimant”.”

For the Claimants, Mr McDermott QC submitted that the issue is essentially a simple one. CSL provided a range of skills and services including the culturing of placental biopsy samples. The process of culturing included the cleaning and sorting of the relevant samples. CSL was well aware that the purpose of culturing cells was to enable them to be screened for a congenital abnormality, namely BTM. Mr McDermott pointed out that CSL was a commercial operation which offered its services as an expert. It was paid for those services. The fact that payment was not made directly by the Claimants and that there was no direct contact between them or their medical adviser and CSL was immaterial. He argued that CSL would have known that the purpose of testing was to provide information to the putative parents and their medical adviser(s) about the BTM status of the fetus and that they would rely on the results of testing of the sample cultured by CSL when making a decision whether or not the pregnancy should be allowed to continue.

Mr McDermott submitted that, in the circumstances, it was plainly foreseeable that, if CSL carried out its work in a substandard fashion which significantly affected the quality and/or reliability of the cultured sample returned to KCH for DNA testing, that testing could be compromised. As a result, a pregnancy that would otherwise be terminated might continue and result in the birth of a disabled child.

Mr McDermott contended that the threefold Caparo test is clearly satisfied on the facts of this case. The damage was foreseeable and the relationship between CSL and the Claimant was sufficiently proximate for the reasons which I have already set out. In the circumstances, it is just and reasonable that CSL should have to compensate the Claimants if it be held that the services they provided were substandard. This would not involve any ‘opening of the flood gates’. The Claimants were not strangers of whose existence CSL were unaware. Rather, they were members of the limited class of persons to whom it would be fair and just to extend a duty of care.

For KCH, Miss Mishcon explained that KCH itself had no facility for culturing CVS, nor for carrying out the specialist cleaning and sorting of cells which was required before culturing could take place. It was for that reason that, when culturing was needed, CVS were sent to CSL, as skilled specialists in the field. The letter from Ms Thompson which accompanied the First Claimant’s CVS informed CSL that the cultured cells were required for DNA analysis for BTM. Miss Mishcon submitted that KCH were entitled to assume that the cultured cells, when returned, would be suitable for DNA analysis or that, if they were not, that CSL would inform them of the fact.

Miss Mishcon acknowledged that there would always have been a risk of some maternal contamination of the cultured cells. However, she contended that the part of the annotation (“?villus”) on Ms Thompson’s letter (which I quoted in full at paragraph 19 above) showed that there had been a real doubt at CSL from an early stage as to whether the First Claimant’s CVS contained any fetal tissue at all. This interpretation of the annotation is disputed by CSL and the issue cannot be resolved at this stage. However, KCH submit that, if CSL did have doubts as to whether the sample contained any or predominantly fetal tissue, those doubts would plainly have had a bearing on its suitability for culturing and/or for DNA testing and KCH (and, through them, the Claimants) should have been told about those doubts. As it was, KCH believed that the cells, when cultured, were suitable for DNA analysis and, in reliance on that fact, proceeded to carry out testing and to report to the Claimants’ medical adviser on the results.

Miss Mishcon submitted that it was foreseeable that the Claimants, as prospective parents, would rely on the accuracy of the DNA analysis, which was dependent on the origin of the tissue which was tested for. She further submitted that it was foreseeable that, if CSL returned the cultured cells to KCH without communicating any concerns it might have as to whether they were fetal in origin, KCH would have no reason to request the fresh, better quality, sample which was required. Instead, KCH would carry out the DNA analysis without further enquiry. There was, she argued, a reasonably foreseeable risk that any diagnosis based on the analysis would be flawed and that this would lead to a decision to let the pregnancy continue and to the birth of a disabled child with consequent expense to the parents in supporting and maintaining the child.

In addressing the issue of proximity, KCH made similar submissions to those advanced by the Claimants. Miss Mishcon pointed out that, on receipt of the First Claimant’s CVS, Dr Layton wrote to Dr Batayneh, telling him that attempts were being made to culture the CVS for the purpose of DNA testing. Thus, the Claimants would have been aware through their medical adviser that culturing was being carried out and was an integral part of the process. The Claimants would not have known who was carrying out the culturing; Dr Layton’s letter tended to suggest that it was being done within KCH. However, Miss Mishcon submitted that this was not material.

She argued that the position was analogous to that in the case of Harris. In Harris, as in the present case, there was no direct contact between the defendant and the plaintiffs. The plaintiffs paid a fee for the defendant’s services although the payment was made to his employers, not directly to him. Although the plaintiffs did not see the outcome of his work (i.e. the valuation report), they relied on it in accepting the mortgage offer. Miss Mishcon submitted that, in the same way, the Claimants in the present case had relied on whoever was carrying out the culturing to exercise reasonable care and skill in the performance of that task. They had relied upon the results of the DNA testing of the end product. CSL would have known that such reliance was being place on them. Miss Mishcon submitted that the proximity test was therefore satisfied.

As to fairness, justice and reasonableness, Miss Mishcon echoed the submissions made by the Claimants.

For CSL, Mr Popat made extensive submissions, both orally and in writing. I shall summarise some of the main points. He submitted that CSL’s role was extremely limited, a fact that was reflected in its modest fee. It was requested merely to culture the cells although Mr Popat conceded that this process involved the activities of cleaning and sorting that I have already described. CSL did provide various forms of sophisticated testing (e.g. chromosomal testing) but was not instructed to perform such testing on this occasion. Nor was it asked to provide any statement as to whether the cultured cells produced were contaminated with maternal cells. He said that, in any event, CSL had no means (other than by viewing through a microscope prior to culturing) of distinguishing between maternal and fetal cells. There was always a risk of contamination by maternal cells. KCH were aware of that. They did not need to be told. It was, he said, for KCH to test for maternal contamination and to reflect the existence of any risk of contamination in its report to the Claimants.

Mr Popat contended that there was no relationship between the Claimants and CSL. There was no direct contact between them or between CSL and Dr Batayneh. The Claimants did not know that CSL were involved. CSL knew the First Claimant’s name for the purposes of identification only but knew nothing of the family’s medical history, nor anything about their reason for having DNA testing for BTM. Mr Popat argued that it would not have been obvious to CSL that, if the fetus was found to have BTM, the pregnancy would be terminated. That was just one possibility.

He pointed out that the Claimants, through their medical adviser, had contracted with KCH to provide advice. It was KCH’s advice upon which they relied. They did not instruct CSL to do anything, nor did they rely on anything CSL said or did. In the event, CSL’s role was only in the preparation of the sample. He pointed out that, other than supplying cultured cells, CSL had no input into the testing process. Nor did it have any control over the advice given to the Claimants by KCH. It was not consulted about the terms of that advice. The Claimants did not rely on the culturing; they relied on KCH carrying out its work properly.

Mr Popat submitted that, in the circumstances, there was not a sufficient degree of proximity to found a duty of care, nor was there any basis for holding that CSL had assumed responsibility to the Claimants or that they had relied on CSL. He pointed to the fact that KCH’s relationship with the Claimants was far more proximate than was CSL’s relationship with them. As to foreseeability, Mr Popat argued that CSL could not have foreseen that a failure to carry out its part adequately would lead to KCH reporting that the sample did not show BTM and, as a consequence, to the Claimants deciding not to terminate the pregnancy. Mr Popat argued further that CSL had no knowledge about the circumstances giving rise to the Claimants’ claim for financial losses.

Finally, Mr Popat submitted that it would not be fair, just or reasonable to find that CSL owed a duty of care to the Claimants, given the minor role that it had played and the far greater role assumed by KCH. He pointed out that CSL could not exclude or limit its liability to the Claimants. He submitted that extending a duty of care to CSL would represent a “radical extension” of existing case law. He suggested that this would be unreasonable, particularly in a case of a claim for “wrongful birth”, at a time when the House of Lords was seeking to restrict the scope of such claims.

The preliminary issue that I am required to resolve is this:

“Whether the Part 20 Defendant owes a common law duty of care to Mr and/or Mrs Farraj, the Claimants in the main claim, which renders it capable of being liable to the Claimants for the ‘same damage’ as the Part 20 Claimant, within the meaning of Civil Liability (Contribution) Act 1978.”

The Claimants arranged for DNA testing to be carried out in order to discover whether or not their unborn child was affected by BTM. They contend that, if they had been told that the fetus had BTM, they would have elected to terminate the pregnancy. CSL say that a termination in those circumstances would have been contrary to Jordanian law. It denies that a termination would have been performed and contends that, if it had been, it would have been illegal and therefore the Claimants should not be able to recover damages for being deprived of the opportunity to terminate. The Claimants deny that Jordanian law applied. I am not in a position to resolve these and other disputes which go to the issue of causation. For the purposes of this application only, I proceed on the basis that, had the test for BTM proved positive, the Claimants would have decided to terminate the pregnancy and that it would have been legal for them so to do.

The Claimants through their medical adviser arranged for KCH to carry out the DNA testing. There was no direct communication between the Claimants or their medical adviser and CSL. Indeed, the Claimants did not know of the involvement of CSL. So far as they were aware, all processes involved in the testing were being done by KCH. In my judgment, the lack of direct communication does not of itself mean there was insufficient proximity to found a duty of care. The plaintiffs in Harris had no direct communication with the valuer who had been instructed and may well have been unsure who exactly was to undertake the valuation.

In requesting KCH to carry out DNA testing, the Claimants would no doubt have expected, had they considered the matter, that there would be a number of processes involved in the testing and that several people possessing different skills would be involved in those processes. At the very least, they would have expected that the testing of the CVS and blood samples would be carried out by staff in a laboratory and that a doctor would then interpret and report on the results of the testing. They may or may not have expected that some preparation of the samples would be required before testing was carried out. Their medical adviser was told by Dr Layton in his letter of 18 May 1995 that culturing was being carried out and the Claimants may well have been made aware of this. However, whatever their precise knowledge of the processes involved, they would have relied on each of the persons involved in carrying out those processes to exercise due care and skill in the performance of his or her function. Whether the processes were carried out by a laboratory technician employed by KCH or by an employee of an independent organisation retained by KCH, their expectation would have been the same.

Those at CSL were aware that the cultured cells were to be used for testing for BTM. They knew that the tests were to be carried out on behalf of putative parents. They knew that CSL had been selected for the task by KCH because of the special skills which it possessed. They knew that CSL was to be paid for its services and would no doubt have assumed, had they considered the matter, that the charge of £80 paid by KCH would be passed on to the parents.

The Claimants argue that it must have been clear to CSL that they would be relying on the outcome of the DNA testing performed by KCH, which outcome was dependent on the quality and/or reliability of the sample tested. CSL contend that what the Claimants were relying on was KCH’s report on the results of the DNA testing. CSL argues that it never contemplated that the Claimants might rely on it.

I do not accept that argument. One can readily envisage circumstances where the Claimants might have acted in reliance on CSL. If, for example, culturing had been unsuccessful because no growth had taken place, sampling would not have been possible. CSL would have advised KCH of that fact and that information would have been passed on to the Claimants via Dr Batayneh. They would no doubt have acted on that advice by providing a fresh sample. Similarly, the sample might have become accidentally contaminated with a foreign substance (other than maternal cells) while in CSL’s possession, thus rendering any potential testing of it wholly unreliable. If CSL had informed KCH what had happened, KCH would have communicated that information to Dr Batayneh and would have advised him to take a further sample. The information and advice would have been communicated in turn to the Claimants who would no doubt have relied upon it. The fact that CSL’s advice would have been communicated to the Claimants indirectly would not in my judgment be material. They would still have relied on it. In Harris, the plaintiffs never saw the valuer’s report or received any direct evidence about it. They were able only to infer its contents from the amount of the mortgage offer.

In my view, parents in the Claimants’ position who received a favourable report of DNA testing would have inferred (in the absence of information to the contrary) that the sample used for testing had been of appropriate quality to yield a reliable result and would have relied on the fact that that was so when making any decision based upon the results. Thus, in my view, CSL should have been aware that parents in the Claimants’ position would rely, whether directly or indirectly, on their skill and care.

Adopting the test set out in Caparo, I find that there was, in all the circumstances, a sufficient relationship of proximity between the Claimants and CSL to satisfy the requirement for the existence of a duty of care. Insofar as it is necessary for me specifically to decide whether there should be deemed to have been an assumption of responsibility by CSL to the Claimants, I decide that there was for the reasons set out above.

Furthermore, it is in my judgment fair, just and reasonable that such a duty should be imposed. I do not accept the argument advanced by CSL to the effect that a finding that CSL owed a duty of care to the Claimants would constitute a “radical extension” to case law. I would expect the number of claims against organisations in the position of CSL to be limited in number. To the extent that it does render possible claims against private laboratories in these circumstances, however, that is in my view quite fair and reasonable. If negligence occurs in a hospital laboratory, the relevant hospital trust is liable to a person who suffers damage as a result of that negligence. It is difficult to see why a private laboratory should be in a different position. CSL was a commercial operation which was paid for its services. It seems to me fair and reasonable that, if the Claimants fail in their action against KCH on the grounds that the fault lay with CSL and that the duty owed to them by KCH was delegable, they should not be deprived of a remedy on the ground that CSL owed them no duty of care. I should add that I also consider it fair, just and reasonable that, if a judge were to find that the Claimants’ damage had occurred wholly or in part as a result of fault on the part of CSL, CSL should have to pay an indemnity or contribution to KCH.

Before proceeding to consider the final requirement for the existence of a duty of care, namely foreseeability, I shall deal with the scope of any duty of care which may exist. Here, it is important to note that I am dealing with this issue at a time when there has been no determination of the factual disputes as between KCH and CSL and on the basis of a set of agreed facts which is necessarily limited in scope.

Any duty of care owed by CSL would consist of a duty to exercise reasonable skill and care in the performance of the services which it provided. These services included, on the facts of this case, the cleaning and sorting of the CVS provided to it, the culturing of cells from that CVS and the return of the cultured cells to KCH. The duty may, in my judgment, have included a duty to provide to KCH information (for transmission, directly or indirectly to parents through their medical advisers) which might materially affect the reliability of testing carried out on the relevant sample and/or a duty to have in place appropriate systems for communicating such information. Whether the duty extended that far in the circumstances of this case is a matter for evidence, which may include expert evidence, together with evidence about the previous course of dealings between KCH and CSL. Factual issues would no doubt arise; for example, as to whether, given KCH’s knowledge of the state of the CVS when received, it would have been necessary or appropriate for CSL to have provided any further information and, indeed, whether CSL had any further information to give. Some of these issues may go to the scope of the duty, others to breach of duty. I cannot resolve these issues now. It is impossible, at this stage, to predict how the evidence would come out at trial. All I can say is that it is possible in my view that the general duty of care that I have referred to might in some circumstances extend to a duty to provide the kind of information I have mentioned. I should make it clear that, having found that CSL owed a duty of care to the Claimants, I do not seek in any way to limit or circumscribe the scope of the duty at this stage.

As to the issue of foreseeability, I find that it was foreseeable that, if CSL carried out its work in a substandard manner (e.g. by accidentally contaminating the sample with some foreign substance or - if there was a duty to inform KCH about some matter affecting the potential reliability of the sample - by failing to inform them), KCH would go ahead and test the cultured sample, with the risk of producing a misleading result leading to a decision by the parents to continue the pregnancy and to the birth of a child suffering from the condition that the DNA testing had been intended to detect, if present. In the circumstances, I am satisfied that the necessary element of foreseeability was present.

I therefore answer the question posed at paragraph 68 in the affirmative.

I shall now deal with the Claimants’ application to join CSL as Second Defendant. CSL oppose the application on the ground, first, that it owed no duty of care to the Claimants and, second, that the Claimants’ claim is statute-barred under the provisions of the Limitation Act 1980 (the 1980 Act).

The Claimants discovered that Abdulla had BTM on 24 April 1996. They were immediately aware of the possibility that KCH may have been negligent in the carrying out or reporting of the DNA testing. The Claimants consulted Jordanian lawyers in the first instance and they wrote to Dr Layton in October 1996. Spasmodic correspondence between the lawyers and KCH followed, which was primarily directed at arranging further genetic testing by KCH of samples from the Claimants and their family to ascertain what had gone wrong. That correspondence petered out in June 1997, by which time the results of the further testing still had not been notified to the Claimants or their legal or medical advisers. There is no reference to CSL in that correspondence.

The Jordanian lawyers obtained medical reports on Abdulla and awaited a response from KCH about the test results. However, no progress was made and the Claimants began to seek English lawyers. They had a problem with identifying a suitable firm of solicitors, largely caused by their language difficulties, their lack of knowledge of the English system and their geographical distance.

The Claimants instructed an English firm of solicitors, Teacher Stern Selby (TSS), on 23 March 1999. On 14 April 1999, proceedings were issued against KCH. On 2 September 1999, TSS obtained disclosure of the records from KCH and sent them to a perinatal expert, Dr Mary Petrou. Additional documentation was disclosed by KCH in March 2000 and forwarded to Dr Petrou. The evidence of the Claimants’ current solicitor, Mr David Poole (who has had conduct of the case since June 2001 and has access to the files from March 1999), is that the Claimants and their legal advisers first became aware that CSL cultured the cells for sampling on 18 May 2000. On that date, Dr Petrou faxed TSS, saying:

“The CVS was cultured by Rodney Meredith’s laboratory at 35 Devonshire St, E1. Would it be possible to obtain a statement from him on the quality and quantity of the sample?”

TSS attempted to obtain the information requested through the solicitors acting for KCH but without success. Dr Petrou submitted a preliminary report in August 2000 in which she made no criticism of CSL. She referred in that report to her previous request for information. There was a subsequent conference with her at which she made no criticism of CSL.

On 7 November 2000, TSS wrote direct to CSL, requesting records. The letter stated:

“We confirm for the avoidance of doubt that no proceedings are contemplated against The Rodney Meredith Laboratory or any member of its staff and that these documents are simply required to investigate our client’s claim against KCH.”

Mr Meredith responded by letter dated 20 November 2000 and, on 29 November 2000, Ms Samantha Russell, a solicitor from TSS, spoke to him. Mr Meredith told her that the Claimants’ CVS was a poor one and that, when the cultured cells were returned to KCH, they would have been accompanied by a letter from CSL, making that clear.

The Claimants’ Particulars of Claim were served on 31 January 2001. On 22 March 2001, KCH served its Defence which alleged, inter alia, that KCH had been entitled to rely on the expertise of CSL and to expect and to assume that the CVS returned to them after culture was fetal tissue.

On 10 May 2001, TSS again wrote to Mr Meredith, requesting further information. There was no suggestion in that letter that it was contemplated that the laboratory was at fault. On 6 June 2001, Ms Russell had a telephone conversation with Ms Sian Fisher, the solicitor then acting for KCH. The Attendance Note of the conversation shows that Ms Fisher asked what the Claimants “were doing about the lab”. Ms Russell replied “at present nothing as there was nothing in the papers we had seen to indicate that they were liable.”

On 17 June 2001, Dr Petrou faxed her completed report to TSS. She expressed the view that KCH should have been aware of the risk of culturing a small CVS sample and should have known that maternal contamination could be present. She said it was “neither here nor there” who had dissected the sample. However, in view of the fact that KCH were blaming CSL, she advised TSS to obtain the opinion of cytogeneticist. She had spoken to several cytogeneticists informally and reported that “all say that diagnostic lab (i.e. KCH) should have been aware of the risks of culturing CVS samples”.

It was not until March 2002 that steps were taken by TSS to instruct a cytogeneticist. The Claimants’ solicitor says that he was awaiting disclosure of the documentation passing between CSL and KCH, which was necessary for the preparation of the cytogeneticist’s report. That documentation did not become available until February 2002. Further documents were disclosed in September 2002. On 16 October 2002, Dr John Wolstenholme, cytogeneticist, expressed the view (not at that stage contained in a formal report) that, as CSL had been requested to grow fetal cells for a specific analysis, it would have been “highly unprofessional” of CSL not to mention the risk of maternal cell contamination and the importance of its exclusion in subsequent DNA analysis. Dr Wolstenholme observed that it was possible that CSL may have given the correct information and that what he termed the “misinformation” about the risk of maternal cell contamination may have come from elsewhere. He recommended that efforts should be made to obtain further documentation. It is conceded on behalf of the Claimants (subject to their arguments as to knowledge of the identity of the proposed Second Defendant) that they acquired knowledge for the purpose of the 1980 Act on receipt of this communication from Dr Wolstenholme.

Efforts were then made to obtain inspection of the documents held by KCH and this was eventually achieved in April 2003. At that time, the annotated version of the letter referred to at paragraph 19 came to light. Exchange of witness statements followed, together with exchange of experts’ reports in January 2004. Meanwhile, TSS had been replaced by Simpson Millar as the Claimants’ solicitors.

In early 2004, there was a change of counsel instructed on behalf of the Claimants. In April 2004, the Claimants obtained permission to amend their Particulars of Claim to allege, inter alia, that KCH owed them a non-delegable duty of care. In June 2004, KCH served their Amended Defence, denying that any duty of care they owed to the Claimants was non-delegable and; it also served its Part 20 Particulars of Claim. In July 2004, CSL requested further time to serve its Defence to the Part 20 claim. It was eventually served in October 2004. Meanwhile, in August 2004, solicitors for CSL indicated that it would not consent to be joined as Second Defendant. In October 2004, following representations by CSL’s solicitors, an embargo was placed on the Claimants’ public funding certificate. This was lifted in March 2005 after representations by Simpson Millar and full funding was restored on 13 April 2005. On 6 May 2005, the Claimants served notice of their application to join CSL as Second Defendant.

Sections 11(4) of the 1980 Act provide that limitation runs from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. Date of knowledge is defined in section 14(1) of the 1980 Act as:

“the date on which he first had knowledge of the following facts:

(a)

that the injury in question was significant; and

(b)

that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c)

the identity of the defendant, and

(d)

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;

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

Despite the fact that this is a claim for economic loss, it is agreed by the parties, that, as a result of the decision in Walkin v South Manchester Health Authority [1995] 1WLR 1543, this action is to be treated as an action for personal injuries.

There is no issue about the conditions set out in section 14(1)(a) or (d). There is an issue about the condition in section 14(1)(c), which I shall deal with in due course. I shall first address the condition in section 14(1)(b).

Mr McDermott argued that the Claimants did not have knowledge that their damage was or might be attributable in whole or in part to the acts and/or omissions of CSL until receipt of the advice of Dr Wolstenholme in October 2002. If he fails in that submission, his “fall back position” is that the Claimants acquired knowledge on receipt of KCH’s Defence in March 2001. (Both these contentions are subject to his argument relating to knowledge of the identity of the proposed Second Defendant). For CSL, Mr Popat contended that the Claimants acquired knowledge at the latest when KCH served its Defence and, arguably, much earlier.

The relevant principles derived from numerous reported cases in this area were summarised by Brooke LJ in North Essex District Health Authority v Spargo [1997] 8 Med. L.R. 125 at 129-130:

“(1)

the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;

(2)

‘attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;

(3)

a plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;

(4)

on the other hand, she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree; or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”

In Whitfield v North Durham Health Authority [1995] 6 Med. L.R. 32, Waite LJ said (at 37) that:

“The court should look to the essence of the matter and enquire how far the plaintiff had knowledge in broad terms of the facts on which it is based”.

In the recent House of Lords case of Haward and others v Fawcett (a firm) and others [2006] UKHL 9, Lord Nicholls observed (at 14)

“I would, for my part, accept …that the requisite knowledge is knowledge of the facts constituting the essence of the complaint of negligence”.

Mr Popat contended that the Claimants must have acquired such knowledge during the time that they were being represented by Jordanian lawyers. He argued that it is “inconceivable” that KCH did not inform those lawyers that CSL had cultured the cells used for testing. He argued that, once the Claimants were aware of that fact, they were possessed of the requisite knowledge. I do not accept Mr Popat’s submissions on this point. There is no evidence to suggest that the Claimants or their Jordanian lawyers were told about CSL’s involvement. The correspondence which I have seen related mainly to the carrying out of further tests by KCH in order to ascertain what had gone wrong with the original DNA testing. No records were obtained at that stage from KCH. Medical reports were prepared in Jordan but these did not take this issue any further. The Claimants began to look for English solicitors in 1998. It was not until TSS were instructed in March 1999 that any records were obtained from KCH. I do not know whether there was any reference to CSL in the records disclosed at that stage. Mr Poole’s evidence suggests that the first mention was in records disclosed by KCH in March 2000 and referred to by Dr Petrou in her fax of 18 May 2000. I accept his evidence that this was the first time that the Claimants’ solicitors (and therefore the Claimants) became aware of the involvement of CSL.

In any event, I do not accept Mr Popat’s submission that knowledge of the fact that CSL had cultured the cells was sufficient – without more – to fix the Claimants with the knowledge required under section 14(1)(b). At the time, the Claimants were contemplating a claim against KCH whom they believed to have been responsible for the failure to diagnose BTM which they knew had occurred. They had no reason at that stage to believe that the culturing had been carried out in a substandard fashion. Dr Petrou’s comments in her fax had not suggested that this might be the case. It is plain from TSS’s letter to CSL of 7 November 2000 that their sole interest in CSL was as a provider of information which would assist the Claimants in their claim against KCH. The letter stated in terms that no proceedings were contemplated against CSL. Similarly when a discussion took place between Ms Russell and Mr Meredith in November 2000, this was plainly directed at obtaining information to assist in the claim against KCH. In short, there is, in my judgment, nothing prior to service of KCH’s Defence in March 2001 to indicate that the Claimants or their legal advisers possessed or should have possessed the relevant knowledge under section 14(1)(b).

Mr McDermott submitted that, even after the service of the Defence, the Claimants did not have the requisite knowledge. He pointed out that KCH had not commenced Part 20 proceedings against CSL at that stage. The Claimants had no evidence from an expert that CSL had been guilty of any act or omission which may have caused the Claimants’ damage. Indeed, even after service of the Defence, Dr Petrou was suggesting that there were probably no grounds for criticising CSL, although she did advocate the instruction of a suitable expert. The evidence of that expert did not become available until Dr Wolstenholme gave his informal views in October 2002. Mr McDermott submitted that, in the absence of expert evidence supporting the claim against CSL, the Legal Services Commission would not have funded the commencement of proceedings against CSL.

It seems to me that, once the Defence was served, the Claimants – through their legal advisers – were placed on notice that they should investigate a possible case against CSL. The fact that KCH had made specific reference to CSL in their Defence makes this case different from the usual situation where the information available to a potential claimant may be much more nebulous and uncertain. The Claimants should have appreciated, after receipt of the Defence, that, in order to prepare their case against KCH, it would be necessary to investigate the roles of both KCH and CSL in the DNA testing process. While they had not yet got expert evidence confirming that CSL had been at fault, they did have some information (from KCH’s Defence) about the manner in which it might have been to blame. They also had a clear indication from an expert that further investigation was required. Knowledge does not arise only when a claimant is in the position – and has the necessary funding – to commence proceedings. He has three years after he is deemed to have acquired knowledge to take the steps necessary to commence proceedings.

In the circumstances therefore, I find that the Claimants gained the requisite knowledge on or about 22 March 2001, when the Defence was served.

I have mentioned previously that Mr McDermott raised an issue about the Claimants’ date of knowledge of the identity of the proposed Second Defendant. Although the initial information given to the Claimants’ solicitors was that the culturing had been carried out by “Rodney Meredith’s Laboratory”, Mr Meredith’s letter of 20 November 2000 was written on notepaper headed “Cytogenetic DNA Services Ltd.”. That title has been used by the Claimants’ solicitor ever since and was used by KCH when commencing its Part 20 proceedings. Recently, however, it has become known that, in 1995, Mr Meredith was operating both as a sole trader and as a company named Cytogenetic Allied Services Ltd. In 2000, his businesses were acquired by a new entity, Cytogenetic Services, which later became Cytogenetic Services Ltd, then Cytogenetic DNA Services Ltd. This last-named company acquired all the liabilities (other than tax liabilities) of Mr Meredith’s former businesses. Its solicitors have stated that CSL is defending the case as if “standing in the shoes” of the businesses which carried out the culturing of the Claimants’ sample in 1995.

Mr McDermott was happy to accept that position. However, he submitted that the strict legal position was that Mr Meredith (and, possibly, his former company) should be named as Second Defendant to the action. He argued that the fact that CSL took no point about this did not affect the Claimants’ case on knowledge. They had only become aware in March 2006 that Mr Meredith was the appropriate defendant. Mr McDermott submitted that the Claimants did not, therefore, acquire knowledge of the (correct) identity of the proposed Second Defendant until then, so that time should not begin to run until March 2006. This is despite the fact that, as I have said, the proposed Second Defendant has never taken any point about the name in which it was joined in the Part 20 proceedings by KCH and, indeed, contended that it was properly so named.

Mr McDermott argued that there was no basis in law for a transfer of legal liabilities from Mr Meredith and his company to CSL. He produced no authority for this proposition and the point was not fully argued. I am unable to reach a concluded view about it. However, I have considered the cases of Simpson v Norwest Holst Southern Ltd [1980] 1 W.L.R. 968 and Cressey (Brian) and (1) E. Timm & Son Ltd (2) E. Timm & Son Holding Ltd [2005] EWCA Civ 763. Both those cases concern misinformation as to, or the hiding of, the identity of a claimant’s employer. In both cases, the Court of Appeal held that time began to run for the purposes of the 1980 Act only when the claimant became aware of his employer’s true identity. Information about identity was of course needed in order to commence proceedings.

In the present case, the position is different. The Claimants were aware from November 2000 of the correct current identity of the proposed Second Defendant, the identity was not hidden from them and they were not misinformed about it. What they were not aware of was that CSL was the successor-in-title of the entity or entities that had been responsible for carrying out the culturing in 1995. The proposed Second Defendant raised no point when Part 20 proceedings were commenced against it. It has indicated that it has assumed its predecessors’ liabilities and will, if joined as Second Defendant, stand in their shoes for the purposes of these proceedings. In these unusual circumstances, it would in my view be unreal if I were to find that limitation began to run only when the Claimants became aware of the name of CSL’s predecessors-in-title. This is particularly so since it would involve a finding that limitation began to run only in March 2006, i.e. at a time well after the Claimants made their application to join CSL as Second Defendant.

Consequently, I find that the Claimants acquired knowledge in March 2001, over four years before their application to join CSL in the action.

Section 33 of the 1980 Act permits the court to direct that the period prescribed by Section 11 (i.e. three years) shall not apply where it appears that it would be equitable to allow the action to proceed, having regard to the degree to which those provisions prejudice the claimant on the one hand and the defendant on the other. Section 33(3) requires the court to have regard to all the circumstances of the case and, in particular, to:

“(a)

the length of, and the reasons for, the delay on the part of the plaintiff (sic);

(b)

the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had be brought within the time allowed by Section 11 …

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice, and the nature of any such advice he may have received.”

As to the length of the delay and the reasons for it, the primary limitation period expired in March 2004 and the application to join CSL in the action was made some fifteen months later. It is necessary to consider the delay which occurred during that period in the light of any previous delay which might have occurred during the primary limitation period.

The history of events is summarised above. The expiration of the primary limitation period coincided with the retention of new counsel. They took a conscious decision not to join CSL at that stage and, instead, to wait and see how KCH reacted to the allegation of a non-delegable duty contained in the Amended Particulars of Claim. Subsequently, the position changed with the commencement of Part 20 proceedings by KCH. Within two months of service of the Amended Defence, the Claimants indicated their intention to join CSL as Second Defendant. They applied for funding which was not immediately available and there followed a period of six or seven months during which funding was embargoed. The application to join CSL was made within about three weeks of the restoration of full funding.

Mr Popat submitted that the delay during this period was inexcusable. If there was to be an application to join CSL, he said that it should have been made at the time when permission was sought to amend the Particulars of Claim. The delay served no purpose. He criticised the Claimants also for their delay in seeking the necessary funding once KCH had served its Amended Defence.

In my judgment, the Claimants’ advisers cannot be criticised for adopting the course they did. New counsel, once instructed, took prompt action to amend the Particulars of Claim. Funding to join CSL as Second Defendant was not then in place. If it had been applied for at that stage, no doubt the application to amend would have been delayed as a consequence. It was not in my view unreasonable to ascertain KCH’s reaction to the amendments. Once they were aware of that reaction and of CSL’s intention to defend the Part 20 proceedings, they informed CSL of their intentions and sought the necessary funding. The remainder of the delay was caused by the problems with funding.

It is necessary to look also at the primary limitation period. Dr Petrou’s report, received three months after the date of knowledge as I have found it to be, was negative about the case against CSL. She recommended that a report be obtained from a cytogeneticist. The delay in obtaining such a report was caused by difficulties in obtaining disclosure of the relevant documents. The illness of the Master who was to deal with the application for disclosure was also a factor. Once the documents were available, Dr Wolstenholme was instructed and expressed a view which strongly suggested that CSL might be liable. Further efforts were made to obtain documents but it was only in April 2003 that the annotated letter - on which the Claimants place considerable reliance in their case against CSL – came to light. There was some delay in the completion of Dr Wolstenholme’s report which does not appear to have been available until late 2003. There was exchange of witness statements and experts’ reports before the change of counsel in February/March 2004.

The action did not proceed as speedily as could have been wished during this period; there was some delay which I take into account. However, I also take into account the fact that the Claimants do appear to have experienced genuine difficulties in obtaining disclosure of the documents required to instruct their experts and that the illness of the Master caused further unavoidable delay. There were not the long periods of inactivity of the kind frequently found in such cases.

As to effects of any delay, contrary to the contentions made on behalf of CSL, it does not appear to me that the cogency of the evidence has been significantly affected by any delay which has occurred. CSL has disclosed detailed witness statements from Mr Meredith and Mrs Wilcock, both of whom appear to have a good recollection of the events in question. Mr Meredith was involved from an early stage in discussions with KCH about the Claimants’ CVS and the failed DNA test. I have no doubt that Mrs Wilcock was also aware of the problem. In November 2000, Mr Meredith gave a full account of events to TSS. This is not a case where witnesses have been asked to remember events which occurred years before without any warning during the intervening period.

I am not persuaded by the suggestion made on behalf of CSL that, now that he is retired, Mr Meredith may be unwilling to assist CSL or even to give evidence. There is no evidence that this is the case. He has recently provided a witness statement. It has been suggested also that other staff who might have been able to assist, have left the employment of CSL. No further details are given and I have seen no material that would suggest that there are others who could give significant evidence which would not be available from Mr Meredith or Mrs Wilcock.

CSL also relies on the fact that its day book, in which Mrs Wilcock would have recorded her observations on the Claimants’ CVS, has been destroyed as part of a routine disposal of documents. This is plainly unfortunate. However, the book was destroyed in 1997, well before the date I have found that the Claimants acquired knowledge and, I might add, at a time when CSL knew that a problem had arisen and might well have known that proceedings against KCH were being contemplated. It is also said that the written protocol to which CSL worked in 1995 has been destroyed. I note, however, that there is considerable uncertainty as to whether a written protocol was in existence at the relevant time. The Claimants’ solicitor has previously been told that no written protocol existed.

There is no suggestion that the cogency of the Claimants’ evidence would be affected by the delay and, given the issues, it is hard to see how it could be. In the circumstances, I have no doubt that it would be possible to have a fair trial of the action between the Claimants and CSL.

As to other matters, I do not consider that any criticism can be made of CSL’s conduct such as would affect the exercise of my discretion. CSL responded voluntarily to requests for information even when it was not contemplated that it would be a party to the action. Equally, I accept that the Claimants took proper and timeous steps to obtain legal and other expert advice. This is a complex and difficult case and it is understandable that their advisers should not have advised them to proceed against CSL until they had clear supporting evidence.

In addition to the matters set out in section 33(3), I am invited by Mr Popat to take into account the merits of the claim. In particular he submitted that, since Jordanian law prohibits termination of a pregnancy, the Claimants cannot succeed in establishing causation. He suggested that I should make such a finding on the basis of evidence produced by CSL. I reject that submission. It is clear that the application and effect of Jordanian law will be an issue in this case. It is a complex matter and one which it would not be appropriate for me to determine at this stage, not least because KCH, who will also have submissions to make on this matter, are not a party to this application.

So far as prejudice is concerned, the Claimants would be prejudiced if I were to find that their claim was statute-barred and, subsequently a court were to find against them in their claim against KCH on the grounds that the fault lay with CSL. They may or may not have a valid claim against their former solicitors in that event. Even if they did have such a claim, prosecuting it would cause considerable difficulties for them, given their circumstances. CSL meanwhile would plainly be prejudiced by the loss of a cast iron limitation defence against the Claimants. However, CSL would still be a party to the proceedings, would have to undertake the necessary preparations for trial and would still be at risk of being found liable to pay an indemnity or contribution to KCH. Thus, its position is significantly different from the usual position of a potential defendant in limitation proceedings.

In reaching my conclusions, I bear in mind the burden of showing that it is equitable to disapply the limitation period is on the Claimants and that it is a heavy one. Nevertheless, taking into account all the circumstances in the case, I conclude that it would be appropriate and equitable to grant the Claimants’ application and to allow the action against CSL to proceed.