Briody v St Helens and Knowsley Area Health Authority

Damages in tort should, so far as possible, restore the claimant’s pre-tort position, but should not fund an objectively unreasonable or highly speculative attempt to obtain something different from what was lost. Lawful surrogacy is not contrary to public policy merely because it is surrogacy. However, donor-egg surrogacy in which neither the pregnancy nor the child would be the claimant’s is not restorative in the relevant sense. Article 12 of the European Convention on Human Rights does not confer a right to be provided with a child. Own-egg surrogacy is not excluded in every case, but recoverability depends on the evidence and reasonable prospects of success.

The appellant’s infertility resulted from negligent obstetric treatment which caused the loss of her womb. Mrs Justice Ebsworth awarded damages for infertility and loss of amenity but rejected the proposed cost of surrogacy using the appellant’s eggs and a Californian commercial arrangement. The appellant appealed and sought to rely on substantially different proposals involving a domestic arrangement and donor eggs. The appeal concerned the recoverability of surrogacy costs as compensatory damages, public policy, and the admission of fresh evidence and new factual issues at the appellate stage.

1. Appeal dismissed. All three members of the court agreed that the appeal should be dismissed, with costs subject to detailed assessment. The appellant remained entitled to general damages for the grievous harm, infertility and loss of amenity caused by the negligence.
2. Lady Justice Hale held that the original proposal was unreasonable for two independent reasons. The chance of success using the appellant’s eggs was virtually negligible. The Californian commercial arrangement was also contrary to English public policy because it involved an unlawful contractual arrangement. An award of damages could not properly fund that arrangement.
3. Lawful, non-commercial surrogacy is not itself contrary to public policy. The statutory framework distinguishes lawful arrangements from prohibited commercial agency activity and advertising. But the donor-egg proposal was not restorative: neither the pregnancy nor the child would be the appellant’s. Article 12 of the European Convention on Human Rights protects freedom to marry and found a family, but does not create a right to be supplied with a child.
4. Lady Justice Hale expressed only tentative views on intermediate cases. Own-egg surrogacy should not be excluded merely because it is surrogacy. If there were a reasonable prospect of success and a lawful arrangement, an award might be possible. Whether reparation must provide both genetic parentage and pregnancy was left undecided. The court also left open the related issue of IVF using donor eggs where the claimant herself would carry the child.
5. On fresh evidence, Lord Justice Judge held that Ladd v Marshall principles continue to apply under rule 52.11 of the Civil Procedure Rules. Fresh evidence should be admitted cautiously and sparingly, having regard to fairness, proportionality, finality and the public interest in ending litigation. The new proposals raised critical factual issues not tried below and would effectively restart the claim. Even if admitted, a new trial would have been required. Lady Justice Hale agreed, and Lord Justice Henry agreed with both judgments.

• Court of Appeal: dismissed the appeal against the refusal to award surrogacy costs and declined to admit the substantially changed fresh evidence.
• Queen’s Bench Division: Mrs Justice Ebsworth, on 21 January 2000, rejected the surrogacy-costs aspect of the damages claim while awarding compensation for infertility and loss of amenity.
• Earlier proceedings: the limitation issue was allowed to proceed by Mr Justice Ian Kennedy; Mr Justice Garland later found liability; the defendant’s appeal on liability and application to appeal out of time were dismissed by the Court of Appeal.