This article originally appeared in Issue 3 (November 2019).
The Claimant succeeded in establishing liability in this unusual wrongful birth claim before Mr Justice Jay.
She alleged that the Defendant’s failure to carry out screening for Down’s syndrome during her first pregnancy was contrary to her wishes and understanding that this had been performed. She had subsequently given birth to a child with Down’s syndrome. She alleged that had the test been performed she would have been offered and accepted invasive testing which would have identified a high risk of Down’s syndrome and she would thereafter have elected to have a termination of pregnancy.
The Defendant relied on the contemporaneous record of the Claimant having declined Down’s screening when she attended for her first trimester scan. The fact that the screening had not taken place, notwithstanding the fact that the Claimant was booked for it, was not explored at a later midwife appointment. The Claimant’s anger and disbelief at the diagnosis following birth was also contemporaneously recorded – she said she had believed screening to have been undertaken and to have ruled out Down’s syndrome.
The Defendant altered its policies after the birth to include a number of fail-safes to ensure that screening was offered. However, in his judgment at  the judge noted that there were limitations as to the inferences that can be drawn from changes to systems in such cases, in particular the inference that the previous system was substandard, cf Jaguar Cars Ltd v Alan Gordon Coates  EWCA Civ 337.
At  to  of the judgment, the legal principles to be derived from Montgomery v Lanarkshire Health Board  UKSC 11 in relation to informed consent are noted. Additionally the judge noted the Court of Appeal’s reversal of a finding of his own in ARB v IVF Hammersmith  EWCA Civ 2803, in which he had held that a fertility clinic was not in breach of its duty to take reasonable care to obtain the claimant’s informed and written consent. He considered the authority to be:
“valuable to the extent that it vouches that a system which does not entail the taking of reasonable steps to ensure that relevant consent is informed may be regarded – subject always to a host of other considerations – as irresponsible, unreasonable and unrespectable even if there may exist expert evidence to support it.” 
Finally, he noted Goodman v Steel  EWCA Civ 153 and Ollosson v Lee  EWHC 784 (QB), in relation to assessments of witness reliability and the warning against placing too much weight on judicial impressions of body language and demeanour and recommendation that greater attention be paid to contemporaneous evidence, particularly of a documentary nature.
This warning and recommendation notwithstanding, the judge proceeded to set out his impressions of the lay witnesses and the path to his conclusions on their accounts in a high level of detail. There was a direct conflict of evidence between the sonographer and the Claimant as to whether screening was in fact offered and declined at the scan appointment, as recorded.
The relevance of language
A relevant issue was the fact that the Claimant’s first language was Polish not English. Jay J has himself been trenchantly criticised by the Court of Appeal in Serafin v Malkiewicz & ors  EWCA Civ 852 for failing to have sufficient regard to the fact that the first language of the litigant in person who appeared before him was Polish and not English, amongst other things. His conclusion in that case had been at  that:
“The Claimant has a good command of the English language but he has not mastered it. He is not intellectually sophisticated but my assessment of him is that he is extremely bright and quick on the uptake.”
In the present case, the judge noted that the Claimant had on occasion failed to understand what was being put to her by both counsel. However, he reflected at  that:
“with respect to the claimant I put that down not primarily to lack of competence in the English language (although it remains a significant factor) but to her general level of education and sophistication).”
He stated at  that:
“From my experience, care needs to be taken in not assuming that because a person appears to be reasonably fluent in the English language her comprehension will be at the same level. For many people who are not linguistically gifted passive comprehension is harder than active communication. For obvious reasons, the latter is easier to assess by an outsider than the former, although during her evidence the claimant did make errors of grammar and syntax.”
Later he said of one part of the Claimant’s evidence that:
“If this evidence had been untrue, and in this respect I repeat that there is virtually no room for judicial manoeuvre, I believe that I would have detected some change in tone or demeanour in the claimant at this important stage in her evidence. There was none. The claimant remained guileless, artless and devoid of sophistication.”
The basis for the assessment of the Claimant as being unsophisticated/lacking in education, as opposed to merely being in a position of having to express herself in court imperfectly in her second language, is not spelled out.
The Claimant’s alternative case
In any event, his persistent focus on such matters has advantaged the Claimant, who had an alternative case that there was some sort of misunderstanding that arose between her and the sonographer such that she did not give informed consent. The judge noted at  that:
“the less able the claimant may be, the easier it may be for those representing her to persuade me of the correctness of her alternative case, other things being equal.”
Ultimately, this is the argument that the judge accepted, essentially concluding that this was a case of a tragic misunderstanding. What happened at the scan appointment as reconstructed by him is set out in the form of a short script at . The judge did not accept that nothing was said to the Claimant about screening at the scan appointment. The sonographer had asked if the Claimant wanted Down’s screening in line with her usual practice and the Claimant had said “no”, not fully understanding what she had been asked and all the while wishing to have the screening [113-7]. The usual practice, though supported by expert evidence, was not a reasonable one.
What was reasonable included consideration of what was at stake. Not merely was the birth of a child with Down’s syndrome a life-changing event for most parents, but the steps required to guard against parental choice not being respected were not onerous . More ought to have been done “to lay the ground properly, if for no other reason than to preclude the real risk that she and her patient were at cross-purposes and/or that the latter was not listening to her properly” and the process ought to have included “ascertaining by brief questioning that the patient understands the essential elements and purposes of scanning for Down’s syndrome” [89-92;98].
Moreover, the position ought to have been revisited at the subsequent midwife appointment when it came to light that the Claimant had not had the screening she had been booked for [136-141]. Had it been, the Claimant would have had screening and the judge accepted that ultimately she would have elected to have a termination of pregnancy .
Clodagh Bradley QC appeared for the Claimant in this case. She did not contribute to this article.