Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle)

A compromise agreement providing funding for further reasonable second-line immunotherapy was not limited to the particular drug being administered when the agreement was made. Contractual language must be interpreted from the agreement as a whole.

Where parties have given an agreed meaning to an otherwise ambiguous phrase, contemporaneous material may exceptionally be considered to establish that common meaning or an estoppel. The question is objective and factual, not dependent on medical terminology.

Reasonableness depends on whether the treating oncologist’s recommendation is objectively reasonable. It is not automatically decisive, but alternative expert opinion cannot simply displace an agreed oncologist’s reasonable recommendation. Lack of formal clinical evidence and the existence of risks do not, by themselves, make treatment unreasonable.

The claimant, who had mesothelioma, settled an alleged occupational exposure claim with the defendant. The agreement included an indemnity for the costs of further reasonable second-line immunotherapy recommended by his treating oncologist, together with liberty to apply if payment for other treatment could not be agreed.

After pembrolizumab ceased to be effective, the oncologist recommended combined ipilimumab and nivolumab. The defendant contended that this was third-line treatment outside the agreement and was clinically unreasonable. The claimant sought a declaration that the treatment fell within the indemnity and was reasonable.

1. The claim succeeded. The proposed combined immunotherapy was within the scope of the agreement, provided that it was reasonable.

2. Reading the agreement as a whole, the reference to “further reasonable second line immunotherapy treatment” was not limited to pembrolizumab. The provisions concerning further treatment, changes of treatment and any second-line immunotherapy were inconsistent with such a narrow construction.

3. Alternatively, the contemporaneous attendance notes established a common intention that second-line immunotherapy included pembrolizumab, nivolumab and ipilimumab. This fell within the exceptional principle identified in Proforce Recruit Ltd v The Rugby Group Ltd [2007] EWHC 1621 (QB). The material was used to establish the parties’ agreed definition, rather than to introduce general evidence of negotiations or subjective intention. The relevant meaning was an objective factual question and did not depend on medical usage.

4. The cost provision did not prevent the defendant from challenging whether treatment was reasonable. The relevant question was whether the treating oncologist’s recommendation was objectively reasonable, even though it fell within a range of medical opinion. The oncologist’s opinion was not automatically decisive, but the defendant could not simply gainsay it by relying on an alternative medical opinion.

5. The absence of a formal evidence base was not decisive. Anecdotal clinical experience could support a reasonable decision, and treatment risks did not themselves establish unreasonableness. The evidence showed a rational basis for the proposed treatment, including relevant clinical experience and potential benefit.

6. The reasoning in Najib v John Laing Plc [2011] EWHC 1016 (QB) supported the conclusion. The claimant’s recommended treatment was reasonable in the circumstances. An order was granted in the terms sought, with costs to be summarily assessed on the papers unless a further hearing was requested.