Whitehead v Searle [2008] EWCA Civ 1093

A mother issued a wrongful birth claim after her son was born with spina bifida. Following her suicide and subsequent negligent delay by her solicitors, her estate and the child’s father sued the solicitors and barrister. The Court of Appeal granted limited permission to appeal only on the father’s personal duty of care claim, refusing permission on quantum.

Facts

On 10 August 1986 a child, David, was born with spina bifida. His mother (PM) and father (EW) were unmarried and not living together at the relevant time. On 28 November 1986 PM consulted a firm of solicitors about bringing a wrongful birth claim against the relevant health authority for failing to detect the foetal defect in time to give her appropriate choices.

A writ was issued on 12 January 1989. The health authority admitted the failure to detect the defect but denied negligence. In May 1989 the solicitors instructed a barrister, later joined as first defendant in the professional negligence action.

On 6 March 1995 PM committed suicide, dying intestate. Any part of her wrongful birth claim relating to her future costs of caring for David ended with her death. Thereafter EW assumed David’s care and obtained parental responsibility.

On 15 May 1997 the health authority applied to strike out the claim for want of prosecution. On 9 June 1998 EW was substituted as administrator of PM’s estate. On 6 January 1999 the wrongful birth claim was settled for £20,000 before the strike out application was heard. EW asserted that the case was settled without his knowledge.

In 2004 EW, personally and as administrator of the estate, commenced the present action against the solicitors and the barrister. David was initially joined as a claimant but his claim was not pursued.

Issues

Before the trial judge

The claims at first instance were:

• A primary claim by PM’s estate against the solicitors for negligence in their conduct of the wrongful birth claim before PM’s death, essentially alleging that competent conduct would have brought the matter to trial before she died, preserving a significantly larger claim for future care costs.
• A personal claim by EW against both the solicitors and the barrister for failing to bring or advise on a wrongful birth claim for his own benefit as David’s carer.
• An alternative claim by the estate alleging negligent undervaluation of the estate’s wrongful birth claim in 1998 by the solicitors and barrister.

Griffith Williams J upheld the estate’s primary claim against the solicitors and awarded £118,829 in damages. The solicitors accepted breach of duty pre‑death but contested causation and loss. The judge dismissed EW’s personal claim on the basis that neither the solicitors nor the barrister owed him a duty of care in his personal capacity. Having upheld the primary claim, he did not decide the alternative undervaluation claim.

Before the Court of Appeal (permission application)

The solicitors obtained permission to appeal on whether any reasonable loss flowed from their culpable delay in prosecuting the original wrongful birth action, and on certain costs orders. EW sought:

• Permission to cross‑appeal the finding that neither defendant owed him a duty of care personally; and
• Permission to appeal the quantum of damages awarded to the estate.

Judgment

Quantum of damages

The Court of Appeal (Laws, Rix and Rimer LJJ) refused EW permission to appeal on quantum. Laws LJ observed that the proposed quantum challenge was entirely freestanding from other issues and that no good reason had been shown for not seeking permission from the trial judge or from the Court of Appeal in proper time. Permission on quantum was therefore refused.

EW’s personal claim and duty of care

The court turned to EW’s personal claim, which had been dismissed on the basis that the solicitors and barrister owed him no duty of care.

As to the underlying wrongful birth claim, the court noted that any personal claim by EW could only succeed if the original health authority owed him a duty of care. Laws LJ accepted that ordinarily the duty in wrongful birth cases is owed to the mother, but referred to the possibility of a duty to a father in appropriate circumstances. He cited Hale LJ’s judgment in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, including:

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

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The case before the court had proceeded on the basis that at the time of birth, and at the alleged breach by the health authority, EW and PM were not living together and EW was not then contributing to David’s care. Counsel for the solicitors argued that this was fatal to any duty of care by the health authority to EW, and therefore to any derivative professional negligence claim against the solicitors and barrister.

Mr Bebb QC for EW contended that it was at least arguable that it was foreseeable that the father might in future bear the care costs, and that the law in this area was still developing. Laws LJ accepted that EW would face “formidable difficulties” on this point, but declined to hold that it was plainly unarguable.

On the duty of care of the solicitors and barrister to EW personally, the court emphasised that there was no retainer between EW and the solicitors until 1997, when he became personal representative of PM’s estate, and even then the retainer was in that representative capacity. EW had never instructed the solicitors to advise on a personal claim, and the solicitors had earlier acted against him in other family proceedings. The barrister had never been instructed by EW at all. EW had his own solicitors at various times.

Mr Livesey QC for the solicitors argued that, in the absence of a retainer or special circumstances creating an assumption of responsibility, no duty of care to EW personally could arise on conventional principles, particularly given that no duty of care existed to David himself.

Mr Bebb relied on the unusual feature that the solicitors had repeatedly considered whether EW should be joined to the wrongful birth claim after PM’s death to seek future care costs for David, and that they knew that without such a claim there was no way to recover post‑death care costs. He argued that, in those circumstances, it was arguably negligent for them to settle the estate’s claim without advising EW personally about the possibility of his own claim and joinder, especially where he sanctioned the settlement in ignorance of its limitations.

Laws LJ accepted that EW faced “formidable difficulties”, including limitation issues and the lack of a duty of care to David, but described the situation as “highly unusual” and concluded, with “a very great deal of misgiving”, that the argument on the existence of a duty of care by the solicitors and barrister to EW personally was sufficiently arguable to justify permission to appeal.

Accordingly, the court granted EW permission to appeal on the personal duty of care issue, but not on quantum. Rix and Rimer LJJ agreed.

Implications

This interlocutory decision does not determine liability but signals that, in exceptional circumstances, a non‑client closely connected to litigation (here, a father assuming long‑term care responsibilities for a disabled child) may arguably have a claim against solicitors and counsel for negligent failure to consider and advise upon his potential cause of action.

The case highlights the importance for legal practitioners in complex family and wrongful birth litigation of:

• Identifying all potential claimants who may foreseeably bear long‑term losses (such as future care costs);
• Clarifying who is and is not the client, and what advice is, and is not, being given to non‑clients; and
• Acting with reasonable expedition in prosecuting claims where the claimant’s death could drastically reduce recoverable damages.

While the Court of Appeal found no basis to reopen the trial judge’s assessment of damages to the estate, it accepted that the law on duties of care in wrongful birth cases, particularly towards fathers, is still developing, and that arguable issues of proximity and assumption of responsibility can arise even where the lawyers were not formally retained by the putative claimant.

Verdict: Application for permission to appeal was granted in part: permission was refused regarding the quantum of damages awarded to the estate, but granted to EW in relation to his personal claim alleging a duty of care owed to him by the solicitors and barrister.

Source: Whitehead v Searle [2008] EWCA Civ 1093