XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)

In recent years, there has been an increase in the prevalence and social acceptance of surrogacy arrangements in the UK. However, until judgment was handed down in XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), there were no reported cases in which a claimant successfully recovered damages for the cost of surrogacy.

In the first decision of its kind, Sir Robert Nelson awarded £74,000 to the Claimant in respect of the cost of UK-based surrogacy for two children, using the Claimant’s own eggs. Claire Watson represented the Claimant in this significant case.

This was a quantum-only clinical negligence trial. The Defendant admitted negligence in failing to detect signs of cancer from smear tests. Consequently, the Claimant developed invasive cancer of the cervix for which she required chemo-radiotherapy treatment, which led to infertility and severe radiation damage to her bladder, bowel and vagina [1].

The Claimant sought damages for, inter alia, the expense of four pregnancies under a commercial surrogacy arrangement in California or, alternatively, under a non-commercial surrogacy arrangement in the UK. In either case, she would primarily seek to use her own eggs. Importantly, it was agreed by the experts in reproductive medicine that the Claimant will probably achieve two live births [34].

Three aspects of Sir Robert Nelson’s judgment are worth noting.

Note for Claimants*

1. On 20th March 2017 the discount rate changed from 2.5% to -0.75%. The life multiplier for a 7 year old child with a life expectancy to age 60 changed overnight from 29 to 65, more than doubling the capital value of a future loss claim.
2. This good news brought an as yet unresolved problem for accommodation claims. For nearly 30 years, since March 1988, the standard approach to valuing the cost of accommodation was that set out by the Court of Appeal in Roberts v Johnstone. If you were living in a house worth £200,000 and you needed to move to a house costing £500,000 the court would not give you the ‘windfall’ of the additional capital, £300,000. Damages are supposed to run out on the day you die but the asset would survive you. Instead you were entitled to compensation for the loss of the use of the additional capital. The discount rate was used to assessed the annual value of the loss. Therefore where the required capital sum was £300,000 the annual value (multiplicand) would be £7,500. This would be multiplied by the life multiplier, so using the figures above, £7,500 x 29 would give an R v. J award of £217,500.
3. There were many problems with R v J. The biggest was in cases of limited life expectancy where the award would be far too small to fund the purchase of a property. There were ways around this, including a claim for the cost of adaptations which were awarded in full. Therefore in a case with limited life expectancy you would achieve a bigger award by buying a small house and spending a lot on adaptations than by buying a bigger house and spending very little on adaptations.
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“The most complicated skill is to be simple.” –Dejan Stojanovic

The EU Product Liability Directive 1985[1] and the consequent Consumer Protection Act 1987 (“CPA”) were introduced in the aftermath of the Thalidomide scandal. The legislators’ intention was to provide a level playing field for EU manufacturers and, more importantly, a simple and uniform no-fault consumer protection system throughout the EU[2]. Despite the latter aim, product liability has created some of the most complex litigation ever to hit the UK courts. Pleadings can resemble – to those who can remember them – telephone books. There are often detailed and complex requests for further information about the precise mechanisms alleged to have caused the defect or injury in issue.  This has created a far more complicated legal process than the fault-based system the Consumer Protection Act was meant to supplant[3]. In short, as stated by Emily Jackson:

“The Consumer Protection Act, despite its name, has proved to be a remarkably consumer-unfriendly piece of legislation.”[4]

On 26 May 2017 a specially constituted Administrative Court comprised of Lady Justice Sharp and Dingemans J heard the first appeal brought by the GMC against a decision of a Medical Practitioners’ Tribunal under s.40A of the Medical Act 1983 in GMC v Dr Jagvivan [2017] EWHC 1247 (Admin). The PSA joined as a party since, in the event of the Court finding the GMC had no jurisdiction, it wished to argue the same points.

This was a case where the MPT found misconduct but no impairment and did not give a warning. The case was fought on its merits and on the issue of jurisdiction, which is the important aspect.

Court of Appeal hearing 25^th May 2017

How do the Human Rights Act 1998 and the Mental Health Act 1983 fit together?

Should a Mental Health Tribunal (or First Tier Tribunal) limit its deliberations to whether a patient meets the statutory criteria for detention, or should it also consider whether the patient’s Convention rights have been or would be breached by the detention and/or the circumstances of the detention?

That was the question faced by the Court of Appeal when it heard the appeal of one of the most restricted patients in the United Kingdom, JD, on 25^th May.