Chinnock v Wasbrough & Anor

Professional advisers are judged by the material available and the law in force when they advised. A subsequent development in the law governing medical disclosure does not make earlier advice negligent.

In 2001, a doctor’s duty to advise was governed by the Bolam standard, subject to the established exception for disclosure so obviously necessary to an informed choice that no prudent doctor could omit it. A lawyer could reasonably advise that there was no viable claim where the available expert evidence supported the treating clinician’s reasonable diagnosis and management.

Under Limitation Act 1980, section 14A, a claimant who reasonably ought to seek further professional advice may acquire constructive knowledge even if she does not know that her former advisers were negligent.

Following antenatal care at Liverpool Women’s Hospital, Ms Chinnock gave birth in April 1998 to a daughter with severe congenital abnormalities. She had previously consulted solicitors and counsel about a possible wrongful-birth claim against the NHS Trust. In July 2001, after considering medical records and expert advice, they advised that the proposed claim had no viable basis and it was not pursued.

In 2009, Ms Chinnock received new legal advice and brought professional-negligence proceedings against her former solicitors and counsel. Dingemans J dismissed the claims after a preliminary trial, holding that the lawyers had not been negligent and that the claim was time-barred. Ms Chinnock appealed on breach of duty and limitation.

The central questions were whether the 2001 advice fell below the standard of reasonably competent lawyers and whether Ms Chinnock had actual or constructive knowledge for section 14A limitation purposes.

Disposition

The Court of Appeal unanimously dismissed the appeal. Jackson LJ gave the principal judgment. Roth J and Longmore LJ agreed that there had been no negligence and that the claim was time-barred, although Roth J differed on the route to actual knowledge.

1. The lawyers’ conduct had to be assessed by reference to the evidence available and the law as it stood in July 2001. At that time, Sidaway remained the governing authority on medical information and advice: [1985] 1 AC 871. Its application of the Bolam principle, subject to the established exception for an obviously necessary warning, had not been displaced by Pearce. The later decision in Montgomery, [2015] UKSC 11, could not retrospectively render counsel’s 2001 advice negligent.

2. Counsel had properly tested the proposed clinical-negligence claim with the available experts. In October 1997, the parents were told there was a risk of abnormality and chose a CVS test, which was a reasonable further step and produced a reassuring result. There was no evidential basis for concluding that disclosure of the precise 1:13 risk would have led to immediate termination rather than further testing.

3. In February 1998, the obstetrician had reasonably taken a holistic view of the available material, including the negative CVS result and scans showing no malformation. Although the radiologist had expressed concern, the obstetrician’s contrary diagnosis was reasonable on the material then available. Under the law in 2001, it was reasonably open to counsel to advise that there was no duty to tell the parents of a professional view with which the treating obstetrician reasonably disagreed. The solicitors were entitled to act on that competent advice and were not negligent.

4. On the alternative limitation issue, section 14A of the Limitation Act 1980 did not require knowledge that the lawyers’ own conduct was negligent. Jackson LJ held that knowledge of a lost viable claim against the NHS Trust was also required, although Roth J considered that section 14A(9) required the contrary conclusion on actual knowledge. This disagreement did not affect the result. Ms Chinnock had constructive knowledge because, being deeply dissatisfied with the 2001 advice, she could reasonably have sought further legal advice well before the primary limitation period expired. She could not wait eight years and then rely on advice fortuitously obtained in 2009.

• Court of Appeal (Civil Division) — appeal dismissed: [2015] EWCA Civ 441.
• High Court of Justice — Dingemans J dismissed the claims after a preliminary trial on 29 November 2013, finding no breach of duty and that the claims were statute-barred.