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Damages claim against IVF clinic dismissed by the High Court

Judgement handed down on high profile IVF case, Mark McDonald and Christopher Pask, of 33 Bedford Row, instructed by R

On 6 October 2017, Judgment was handed down by Mr Justice Jay, who dismissed a claim for damages for the costs of upbringing a healthy child, born through IVF treatment. The case, brought as a breach of contract claim, examined the interplay between tortious and contractual causes of action, the nature of the obligations owed by the IVF clinic as well as remoteness and foreseeability of the losses claimed.

The Claimant alleged that his ex-partner forged his signature on a consent form, allowing an embryo held by the Defendant clinic to be thawed and implanted into his ex-partner, resulting in the birth of their daughter.

Whilst holding that the clinic had not been negligent, Mr Justice Jay did find that the clinic had given a contractual guarantee that it would obtain the written informed consent of both parents. Owing to the forgery of the Claimant’s signature, the clinic had failed in this strict obligation.

Ultimately the claim was dismissed on public policy grounds; the claim being barred as a damages claim for the upbringing of a healthy child. This is down to two, binding, decisions of the House of Lords, namely McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. Importantly, both of these authorities arose from claims brought in tort, not contract.

The Claimant sought to distinguish his claim from the above decisions on the basis that this was a breach of contract claim and the same public policy bar which applied to claims brought in tort, did not apply. The court disagreed. The underlying duties owed by the clinic in either tort or contract (duty to take reasonable care / to perform the service with reasonable care and skill) were identical, as is the measure of damages. The public policy bar therefore operated to block the fathers claim.

It is anticipated that permission to appeal will be obtained on the public policy point, though it will require the Supreme Court to consider the matter if the current line of authority is to be altered.

Mark McDonald and Christopher Pask, instructed by Richard Harrington of Axiom Stone, acted for Claimant’s ex-partner.

The full judgment can be found here with the BBC’s coverage here.