ARB v IVF Hammersmith Ltd, Court of Appeal - Queen's Bench Division, October 06, 2017, [2017] EWHC 2438 (QB)

Resolution Date:October 06, 2017
Issuing Organization:Queen's Bench Division
Actores:ARB v IVF Hammersmith Ltd

Neutral Citation Number: [2017] EWHC 2438 (QB)

Case No: HQ16C01088



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/10/2017



- - - - - - - - - - - - - - - - - - - - -


- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Michael J Mylonas QC, Susanna Rickard and Jamie Mathieson (instructed by Hughes Paddison) for the Claimant

Jeremy Hyam QC and Suzanne Lambert (instructed by Hempsons) for the Defendant

Mark McDonald and Christopher Pask (instructed by Axiom Stone) for the Third Party

Hearing dates: 18th - 21st, 25th and 26th July 2017

- - - - - - - - - - - - - - - - - - - - -



  1. Court Orders have been made, for obvious good reasons which will soon become apparent, anonymising the identities of a number of individuals, including (but not limited to) the Claimant (``ARB''), the Third Party (``R'') and their children.

  2. ARB is the father, and R is the mother, of E who was born in the summer of 2011. E is by all accounts a lovely, healthy girl who lives for most of the time with R, with ARB discharging his parental duties in a separate household. In early 2008 ARB and R had IVF treatment at the Defendant's clinic (``the clinic''). After just one cycle D, a son, was born in the autumn of 2008. A number of embryos had been frozen with the parties' consent, and they signed agreements on an annual basis for these to remain in storage. On 5th March 2010 ARB and R returned to the clinic for advice; investigations were later undertaken; and at various stages forms were signed. R returned to the clinic on a number of subsequent occasions in April, May and October 2010 (the parties are in dispute as to whether ARB accompanied her in April). Either in March or May 2010 (or both), R (or both), was (or were) given a Consent to Thawing of Embryos form (I will often be shortening this to ``Consent to Thaw form'') which required signature by both of them. Much later, R handed the clinic a Consent to Thaw Form dated 20th October 2010, signed by her and purportedly signed by ARB. On the basis of this document, an embryo was thawed on 2nd November 2010 and successfully implanted in R's womb.

  3. It is ARB's case, denied by R, that the Consent to Thaw form was not signed by him and must have been forged by R. He says that their relationship had irretrievably broken down in May 2010, and that in July R moved out of the home they had been sharing. ARB says that there were no circumstances in which he would or could have signed this form. It follows, says ARB, that E is an unwanted child and that the clinic must now bear the financial consequences.

  4. In this remarkable situation ARB has brought these proceedings against the clinic, which in turn has brought CPR Part 20 proceedings against R for an indemnity. ARB's cause of action is in contract; the clinic's is in the tort of deceit. ARB's claim, which as pleaded runs to seven figures, is for the cost of bringing up E.

  5. The parties are agreed that the claim cannot succeed unless as the first step ARB proves that R forged his signature. I am required to determine that issue on the oral evidence of ARB and R, the inferences to be drawn from all the surrounding circumstances, and expert evidence from a handwriting expert called by the clinic.

  6. In the event that I should conclude that R did indeed forge ARB's signature, a number of complex issues arise under the general rubrics of (i) defining the express and implied terms of the contract, (ii) breach, (iii) contributory fault, (iv) public policy, (v) remoteness of loss, and (vi) (if appropriate) quantum. I will be specifying these issues with greater precision later in this judgment.

  7. This judgment is divided into the following Chapters:

    B. Essential Factual Background

    C. The Regulatory Framework and the Clinic's Standard Operating Procedures and Protocols

    D. Synopsis of the Lay Evidence

    E. Synopsis of the Expert Evidence

    F. The Pleadings and Epitome of the Issues

    G. Findings of Fact

    H. Ascertaining and Defining the Terms of the Contract

    I. Want of Care by the Clinic and Contributory Negligence

    J. A Public or Legal Policy Bar?

    K. Is the Loss Too Remote?

    L. Conclusion


  8. At this stage, I propose to set out the essential factual background to this case as neutrally as possible, principally with reference to the documents.

  9. ARB and R began their relationship in 2005. There were no children from previous relationships. In 2007 R moved into ARB's London home and her house was rented out.

  10. The couple were unable to conceive naturally. Having unsuccessfully undertaken IVF treatment at two clinics in London, on 15th August 2007 they visited the clinic as NHS patients. The clinic was then located in the Hammersmith hospital.

  11. On 2nd January 2008 ARB and R both signed a form, ``Consent to Treatment Involving Egg Retrieval and/or Embryo Replacement''. This was not a statutory form but one locally produced by the clinic. For his part ARB consented to the use of his sperm in his partner's treatment including the creation of embryos in vitro. By signing the form ARB acknowledged that he and R were being treated together with the intention of becoming the legal father of any resulting children. Item 9 of the form provided:

    ``With reference to the HFEA [Human Fertility Embryology Authority] Code of Practice...: We understand that our individual consent may be changed or withdrawn at any time up to the time of embryo transfer. We understand the implications of withdrawal of consent during the course of treatment.''

  12. On 3rd January 2008 R attended a co-ordination clinic without ARB. The clinic's protocols were explained to her.

  13. On 12th February 2008 ARB signed a form, ``Sperm Sample for IVF/ICSI/IUI''. ARB declared that the semen sample he had provided was his, and that he was the partner of R. The form was checked and counter-signed by a nurse. On that day, ARB's sperm was used to fertilise two eggs obtained from R. The resulting embryos were implanted in R's womb on 14th February 2008.

  14. On 13th February 2008 ARB signed a form, ``Consent to the Use of Sperm and Storage of Embryos in Own Treatment or Research''. This form, prescribed by HFEA, has been described by the experts as the ``MT1 Form'' (The first page of the same form had previously been signed by ARB on 2nd January. Further, R signed two copies of the ``WT1 Form'' matching the MT1, mutatis mutandis). ARB consented to the use of his sperm, and any resulting embryos, in R's treatment. By signing the form ARB acknowledged that he had been given the information necessary to make a decision about the available options, and that he could change or withdraw his consent at any time, except when his sperm or embryos created with his sperm had been used. Further, on the second page of the form ARB consented to the storage of embryos for a period of up to 10 years. The form provided:

    ``In order to keep the embryos in storage, the law requires the consent and agreement of both the sperm and the egg provider. Please be aware that your partner, if she provided the eggs, or the donor, if applicable, can change or withdraw consent to the storage of embryos created with her eggs at any time. If she withdraws her consent, the embryos must be allowed to perish.''

  15. On 24th June 2008 ARB and R signed a form, ``Agreement for Cryopreservation of Embryos''. The parties gave their address as ARB's London address with R's home as a ``previous address'' (inserted in manuscript). By this form they stated that they understood that ``we must both give written consent before any embryos are thawed and replaced''. In the event of divorce or separation, the clinic stated that it ``will only thaw and replace embryos if both partners give written consent at the time of embryo replacement''. The form also made provision for what would happen in the event of death. Clauses 5 and 6 of the form provided as follows:

    ``5. Contract Conditions

    (a) We review the storage contract annually. It is the responsibility of the couple once a year to confirm that you wish storage of your embryos to continue. Failure to keep in contact, or failure to pay the annual storage fee ... will result in the disposal of your embryos ... It is also your responsibility to inform the senior embryologist if you change your address or if there is any change in personal circumstances.

    (b) It is your responsibility to pay the annual fee to cover storage of your embryos and administration.

    Consent to store embryos is required by both partners. If either partner does not agree then the embryos have to be thawed and allowed to perish.

  16. Declaration:

    We have been given sufficient time to consider the contents of this document, and have been given the opportunity to have counselling if required or to take legal advice before signing below.

    We will be bound by the acknowledgements, admissions and consents that we have made and given in this letter in the event of any death, legal separation or divorce.''

  17. D was born in the autumn of 2008 (the imprecision as to the date is to avoid any possibility of identification).

  18. On 5th March 2010 ARB and R consulted the clinic's Director, Mr Geoffrey Trew, consultant in Reproductive Medicine and Surgery. The parties are not in agreement as to the exact purpose of the consultation. His manuscript notes record:

    ``pregnant 1st cycle at HH [the clinic] 2/08

    Long D21 300 11/7

    8 eggs 7 fert[ilised] E[mbryo] T[ransfer] 5 frozen

    XFH ?x1 ? [baby boy] FTND/forceps

    ? forceps 3rd [degree] tear

    Under Mr Thackary @ Croydon and St Marks

    Now /28-30 WMP D2

    PMH as above nil else


    For U/S HSG R[eview] ? FERC [with] BT''

  19. Mr Trew has helpfully deciphered his notes in his first witness statement. Insofar as is material for present purposes, these notes state that R became pregnant following her first treatment cycle, and 5 embryos were frozen. D was born after a full-term natural delivery using forceps, and R suffered a 3rd degree vaginal tear. As...

To continue reading