ARB v IVF Hammersmith & Anor [2018] EWCA Civ 2803 (17 December 2018)

This is an appeal from the decision of Jay J in respect of ARB’s claim for breach of contract against the respondent IVF clinic. In November 2010, the clinic thawed and implanted an embryo containing ARB’s gametes into R, from whom ARB had by that date separated. The clinic failed to obtain ARB’s written or informed consent to the procedure. It proceeded on the basis of a signature on the relevant form which the judge found had been forged by R. [1]

The judge identified the crux of the matter as being whether the legal policy enunciated by the House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59 and Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 and applicable to tortious claims founded on reasonable care obligations should apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach. He found that the same legal policy applied to thwart ARB’s claim. [4]

This is a contractual claim for a particular kind of pure economic loss, namely the upbringing of a healthy child. It is accepted that the tests of causation and foreseeability are met… [35]

There is nothing in this contract which modifies the approach of the common law which must include legal policy. It follows that there is no legal basis upon which to differ in terms of the recovery of the claimed loss as between contract and tort… [36]

…such an argument would permit a person who has the means to pay for such private services to sue in contract and… recover damages for such loss, whereas the individual who does not have the means to pay for private treatment would have to bring a claim in tort, which would be irrecoverable following Rees and McFarlane. The fundamental unfairness resulting from such a factual position serves to underpin the reasoning behind the legal policy and the need for the same in contract and tort. [37]

…the legal policy which prevented recoverability of the cost of the upbringing of a healthy child in the tortious claims in Rees and McFarlane applies to ARB’s claim for breach of contract. [39]

…dismiss the appeal… [62]