In each issue, we try and cover cases in brief which we were unable to cover in full. Below are the cases covered in brief in Issue 2, July 2019.
ARB v IVF Hammersmith Limited  EWCA Civ 2803 – On 17 July 2019, the Supreme Court refused to grant permission for ARB to appeal the 17 December 2018 decision of the Court of Appeal  EWCA Civ 2803. The Panel consisting of Lady Hale, Lord Hodge and Lord Kitchin held that the application “did not raise a point of law which ought to be considered at this time”. As a consequence, it remains good law that the recovery of damages for the birth of a healthy but unwanted child is barred by legal policy, regardless of whether the claim is brought in contract or tort. Jeremy Hyam QC and Suzanne Lambert acted for the respondent clinic, IVF Hammersmith Limited, instructed by Hempsons.
Swift v Carpenter – The Court of Appeal have adjourned the hearing in this important appeal, listed on 23 to 24 July 2019, concerning accommodation claims and Roberts v Johnstone, until at least early 2020. The adjournment is to allow the parties to obtain further expert evidence. The Court made it clear that it considered the appeal a test case.
AB (Termination of Pregnancy), Re  EWCA Civ 1215 – AB, aged 24, had moderate learning disabilities and functioned at about the age of a 6-9 year old. She became pregnant and, by the time the matter came before Lieven J, she was 22 weeks pregnant. She lacked capacity to consent to a termination but had expressed a wish to complete the pregnancy. Lieven J ordered that it was lawful for a doctor to carry out a termination in her best interests. That order was overturned by the Court of Appeal.
The Court noted at  that: “However one looks at it, carrying out a termination absent a woman’s consent is a most profound invasion of her Article 8 rights, albeit that the interference will be legitimate and proportionate if the procedure is in her best interests. Any court carrying out an assessment of best interests in such circumstances will approach the exercise conscious of the seriousness of the decision and will address the statutory factors found in the Mental Capacity Act 2005 (MCA) which have been designed to assist them in their task.”
The Court of Appeal found that the judge fell into error by extrapolating from certain facts to reach findings which erroneously impacted on the best interests’ analysis. The Court also found that the judge failed to take sufficient account of AB’s wishes and feelings. The judge also failed to make reference to CD’s (AB’s adoptive mother) views about AB’s best interests. She also did not give any weight to the views of AB’s social worker or the Official Solicitor. The Court ultimately concluded that her conclusion was anchored in the medical evidence which did not, in itself, convincingly demonstrate the need for such profound intervention.
In relation to the timing of the application the court said at : “Given the critical urgency of such a case, it may be that, where it appears to a Trust that there is a potentially intractable divergence of views with the family, consideration should be given to an application being made at an early stage following the making of the “best interests” decision. The application should then be listed as a matter of urgency, even if it is subsequently withdrawn.”
Sanusi v The General Medical Council  EWCA Civ 1172 (16 July 2019) – The MPT conducted a hearing in the Appellant’s absence. After it had made found a number of allegations amounting to serious misconduct proved, it found that his fitness to practice was impaired. It then moved on to consider sanction and concluded that erasure was appropriate. The Appellant challenged the MPT’s failure to adjourn the hearing after the adverse findings but before the decision on sanction, in order to allow him to make submissions in mitigation of sanction. The High Court dismissed the appeal and the Court of Appeal agreed with this decision.
The GMC also failed to place before the Tribunal certain mitigation documents. The Appellant argued that the failure to put those documents before the Tribunal amounted to a procedural irregularity. Both the High Court and Court of Appeal agreed that this failure amounted to a procedural failing however both courts found that the mitigation material would not have made any difference to the sanction outcome.
London Borough of Tower Hamlets v NB (consent to sex)  EWCOP 27 – In an extensive judgment Hayden J considered further the case of a woman with learning difficulties who made remarks to her dentist that raised concerns that she lacked capacity to consent to sexual relations with her husband, to whom she had been married for many years, with whom she had a child and who she was acknowledged to have a clear attachment to. A safeguarding assessment found that she lacked capacity and her husband agreed that he would not have sexual relations with wife. The case attracted significant media attention as a result of the judge’s refusal to approve a consent order finalising these arrangements and his comments about the husband’s Article 8 right to have sex with his wife. The husband left the marital home, concerned he may be prosecuted for an offence and disengaged from the proceedings.
Held: (1) The case raised concerns as to the protection of the vulnerable from media intrusion in cases of this sort which needed to be addressed by the Court of Protection ad hoc Rules Committee ; (2) Whilst the test for capacity to consent to sexual relations was issue specific, rather than person or event specific, it required the incorporation of the individual’s characteristics and circumstances and there would on occasion be a subjective or person specific context to the application of the test, in accordance with the approach in B v A Local Authority  EWCA Civ 913 (see case comment above). The court was not persuaded to identify a category of people for whom it would be appropriate not to address aspects of the test such as the understanding of pregnancy or STDs -; (3) A monogamous relationship of some thirty years duration with no history of STDs was probably a secure base from which to predict a very low risk for the future ; (3) the preponderance of the evidence suggested that the woman had capacity and reassessment was suggested, depending on whether the marriage survived .
United Lincolnshire Hospitals NHS Trust v CD  EWCOP 24 – CD was a woman detailed pursuant to s.3 of the Mental Health Act 1983. She was 35 weeks pregnant. She lacked capacity to conduct legal proceedings. She did not, at the time of the decision, lack capacity to make decisions in relation to the birth of her child and/or the treatment and necessary procedures related to the birth. However, her clinicians agreed that there was a substantial risk that she may become incapacitous in relation to such decisions at a critical moment in her labour. They sought, effectively, an anticipatory and contingent order that, if she did lose capacity, the clinicians would be able to deliver care and treatment to her in accordance with her care plan.
Referring to the MCA 2005, the court found: “I acknowledge that I am not currently empowered to make an order pursuant to section 16(2) because the principle enunciated in section 16(1), namely incapacity, is not yet made out. However, as I have already said, there is a substantial risk that if I fail to address the matter now I could put the welfare, and even the life, of CD at risk and would also put the life of her as yet undelivered baby at risk. As I have said, I am not prepared to take that risk. I am prepared to find that, in exceptional circumstances, the court has the power to make an anticipatory declaration of lawfulness, contingent on CD losing capacity, pursuant to section 15(1)(c).”
A Clinical Commissioning Group v P (Withdrawal of CANH)  EWCOP 18 – The CCG applied for a declaration that clinically assisted nutrition and hydration (‘CANH’) could be withdrawn from a minimally conscious patient who had suffered an overdose in 2014 in her best interests. The family and the Official Solicitor supported the application; however the matter came to court given that certain contrary views had been expressed by staff who cared for the patient as to her levels of consciousness and her treating clinicians had taken a neutral position. It was held that it was in the best interests of the patient, who had expressed a clear view that she would not want to be kept alive in these circumstances and where there were negligible prospects of improvement, for CANH to be withdrawn.
Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust v TG & Anor  EWCOP 21 – It was in the best interests of a patient in a vegetative state to continue life-sustaining treatment, notwithstanding the contrary view of her treating doctors and that at any improvement would be limited to her entering a minimally conscious state and becoming aware of pain. Her known beliefs were consistent with the desire for continuance of life. Moreover, she had been in a vegetative state for only 2 months and her condition would not be regarded as permanent until 6 months had passed according to the guidelines of the Royal College of Physicians.
AB v KL  EWHC 611 (QB) – In this Fatal Accidents Act claim, adult children of deceased successfully claimed for financial dependency towards, inter alia, contribution to the costs of a first home, contribution to the cost of weddings, presents to age 30, university expenses, etc.
JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust  EWHC 1582 (QB) – The Claimant beat its own Part 36 offer and the court ordered that the Claimant was entitled to the sums set out in CPR 36.17(4) sub-paragraphs (a) – interest on the sum awarded, (b) costs on the indemnity basis and (c) interest on those costs.
However, the court refused to order the sum set out in 36.17(4)(d), i.e. the additional amount of 10% of the amount awarded (up to £500,000, if the sum awarded is above £500,000 then 10% of the first £500,000 and 5% of anything above that figure, up to a max total of £75,000), on the basis that it was unjust.
The Master’s decision to refuse to award the additional amount was overturned – all three reasons given by the Master were inadmissible. In particular, at  the court found that it is not open to judges to take into account in the exercise of the discretion the amount by which a Part 36 Offer has been beaten.
Fullick & Ors v The Commissioner of Police for the Metropolis  EWHC 1941 (QB) – Concerned an appeal against an award of a Deputy Master of all the costs of an inquest into the death of the subject of a civil claim as costs in that claim. The Defendant conceded that the costs of attending the inquest could be recoverable. The main issue was proportionality of the costs allowed. On almost all points the Claimant was successful.
AB v Mid Cheshire Hospitals NHS Foundation Trust  EWHC 1889 (QB) – The Defendant unsuccessfully appealed against an order of the Regional Costs Judge declaring that the additional liabilities of the Claimant were recoverable. Those additional liabilities were success fee claimed at 100% and an insurance premium.
The Claimant had decided to discharge their legal aid certificate and enter into a pre-LASPO CFA as they wished to instruct experts in circumstances where the Legal Services Commission was limiting the field of available witnesses through the imposition of unattractive hourly rates. In particular, due a dispute between their existing experts, they wanted to instruct a further causation expert. The NHS Trust argued that the Claimant had the benefit of legal aid funding and the change to CFA funding was unreasonable.
The judge found that, “in this case the decision to have “the freedom of the CFA” and to be “free of the shackles of the Legal Services Commission” was reasonable because of the need to instruct another expert in substitution for the expert already instructed as a result of the dispute between the experts on the issue of causation.”
Gray v Commissioner of Police for the Metropolis  EWHC 1780 (QB) – The Claimant unsuccessfully appealed against a costs budgeting decision in the context of an action against the police. The Claimant argued that the judge placed too much weight on the low value of the claim but did not take into account the importance of the case, its complexity, and the level of work it required. It was further argued that the sums allowed were manifestly too low and it would be impossible for the Claimant to litigate the action. The judge also allegedly made a number of other ‘free-standing’ mistakes.
The Claimant’s appeal was dismissed. The judge was obliged to take into account the low value of the claim. She was entitled to conclude that the issues were relatively straightforward – no novel legal issues would be raised. The transcript did not reveal any errors of law. Whilst the judge’s costings were low, it was not so low so as to prevent the litigation being conducted.
Farrington v Menzies-Haines  EWHC 1297 (QB) – This judgment concerned a refusal to order an interim payment where significant causation issues remained. The court found at  that: “Thus, where there are genuine and substantive challenges to causation, in my judgment the court cannot award damages by assuming, whether on the balance of probabilities or otherwise, that the causation issues will be decided in favour of the claimant. This is not least because otherwise interim payment applications would run the risk of turning into mini trials of causation at an early stage and without the court hearing the necessary evidence it would need to hear in order to decide such issues.”
University Hospitals Plymouth NHS Trust v B (A Minor) (Urgent Medical Treatment)  EWHC 1670 (Fam) – The NHS Trust sought permission to administer intravenous fluids and insulin (intravenous and subcutaneous) to the B in the absence of her consent. B was suffering from diabetes ketoacidosis and was refusing treatment. She had capacity and was aged 16. The court made the order sought by the Trust, finding that: “the law is clear that the court is not mandated to accept the wishes and feelings of a competent child where to honour those wishes and feelings would result in manifest, and even fatal, harm to that child.”
Cardiff and Vale University Health Board v T (A Minor) (Urgent Blood Transfusion)  EWHC 1671 (Fam) – The Board sought permission to treat baby T with a blood transfusion, where his mother, a Jehovah’s Witness, had not given her consent to the treatment. The court found that it was manifestly in T’s best interests to have the blood transfusion. Without the transfusion his life was at very significant risk.