Whitehead & Anor v Searle & Anor

At the permission stage, a proposed personal duty-of-care claim may proceed where it is arguable, even if the claimant faces formidable substantive difficulties. In wrongful-birth litigation, the possibility that a father may be owed a duty by the health authority can be arguable where proximity, parental responsibility and care are in issue. An alleged duty owed by solicitors or a barrister may likewise be arguable in unusual circumstances involving consideration of joining the father to preserve future care losses, despite no retainer and no duty to the child. Permission to challenge damages may be refused where the challenge is freestanding and permission was not sought promptly at the proper stage.

The underlying proceedings arose from a wrongful-birth claim brought against a health authority. After the mother’s death, the father pursued claims against the solicitors and barrister involved in that litigation. The Queen’s Bench Division, in a judgment delivered by Griffith Williams J on 9 May 2007, found the solicitors liable to the estate and awarded £118,829, but dismissed the father’s personal claim against both lawyers. An alternative claim concerning undervaluation was not determined.

The solicitors had permission to appeal on loss and there were related costs appeals. The father applied for permission to cross-appeal on his personal duty-of-care claim and on quantum. The central questions were whether the personal claim was arguable and whether the freestanding quantum challenge should be entertained.

The application was granted in part. Permission was granted in relation to the father’s personal claim against the solicitors and barrister. Permission to appeal on quantum was refused.

1. Quantum. The proposed challenge to the damages awarded to the estate was freestanding. The father had not sought permission from the trial judge when judgment was delivered and had not sought permission from the Court of Appeal at the appropriate time. There was no good reason to permit the challenge at this stage.
2. Possible duty owed by the health authority. The court did not determine whether the health authority owed the father a duty of care. Ordinarily, the mother would be the person owed the duty in a wrongful-birth claim, but the developing state of the law left open circumstances in which a father might also have a claim. The father’s lack of involvement in the child’s care at the time of birth or the alleged breach created formidable difficulties, but did not make the issue unarguable. The court relied on the approach stated by Hale LJ in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266, which contemplated a claim where there was sufficient proximity and the father had and met parental responsibility.
3. Possible duty owed by the lawyers. There had been no retainer of the solicitors by the father in his personal capacity, and the barrister had not been instructed for him. The father had not asked the solicitors to advise on a personal claim, and the absence of any duty owed to the child was a further substantial obstacle. Nevertheless, the solicitors had considered whether the father should be joined to secure future care costs, and the unusual circumstances arguably required examination of whether he should have been advised before sanctioning a settlement. The limitation difficulties under the Limitation Act did not make the proposed appeal unarguable. Ross v Caunters [1980] 1 Ch. 297 did not assist because the father was not a beneficiary of the estate’s claim.
4. The merits of the personal claim remained undecided. The formal order was: application granted in part.

• Court of Appeal (Civil Division): On 17 January 2008, granted permission to appeal in relation to the father’s personal claim but refused permission on quantum: [2008] EWCA Civ 1093.
• Queen’s Bench Division: Griffith Williams J, judgment dated 9 May 2007, upheld the estate’s negligence claim against the solicitors, awarded £118,829, and dismissed the father’s personal claim against the lawyers.