Hibbert Pownall & Newton (A Firm) v Whitehead & Anor [2008] EWCA Civ 285

[2008] EWCA Civ 285

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

QUEEN'S BENCH DIVISION

(MR JUSTICE GRIFFITH WILLIAMS)

HQ05X00457

Venue Royal Courts of Justice

Date 4 April 2008

Strand. London. WC2A 2LL

Before

LORD JUSTICE LAWS

LORD JUSTICE RIX

LORD JUSTICE RIMER

Between

Hibbert Pownall & Newton (a firm)Defendant

Eric Whitehead (on his own and as Administrator of the Estate of Paula McLeish, deceased)Claimant

David McLeishClaimant

Hibbert Pownall & Newton (a firm) First Defendant & Appellant /Respondent to cross appeal-and-Eric Whitehead (on his own and as Administrator of the Estate of Paula McLeish, deceased) First Claimant & First Respondent /Appellant in cross appeal David McLeish Second Claimant & Second Respondent

(Transcript of the Handed Down Judgment of

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Mr Bernard Livesey, QC and Mr Michael Harrison (instructed by Messrs Davies Arnold Cooper) for Hibbert Pownall & Newton

Mr Gordon Bebb, QC and Mr James Counsell (instructed by Messrs Donns LLP Solicitors for Mr Whitehead and Mr McLeish

Hearing Hearing dates : 29-31 January 2008

Judgment

Lord Justice Laws:

INTRODUCTORY

[1]The genesis of these appeals and cross-appeal is the birth on 10 August 1986 of a boy, David, suffering from spina bifida. His mother, Paula McLeish (to whom I will refer for brevity as "PM"), instructed solicitors, HPN, who are the appellants before us. They advised PM and on 12 January 1989 issued proceedings in negligence against the hospital authority which employed the clinicians having the care of PM before and at the time of the birth. This action - I will call it the first action - was what has come to be known as a "wrongful birth" claim. It was alleged that the clinicians failed to diagnose spina bifida in the foetus and so deprived PM of the opportunity of a termination. By 6 March 1995 the first action had not yet been set down for trial. On that day PM committed suicide. She died intestate. Thereafter the hospital authority consented to the first action being adjourned sine die. However at length they applied for an order to strike it out for want of prosecution and abuse of process. David's father, Eric Whitehead ("EW"), who is the respondent and cross-appellant before us, was on 9 June 1998 substituted as administrator of PM's estate and as claimant in the first action. On 6 January 1999, the strike out application not yet having been determined, the first action was compromised for £20,000.

[2]It is accepted on all hands that the measure of PM's claim for damages against the health authority could not and did not extend to any loss or expense incurred after her death. Thus her estate could only pursue the first action so as to claim damages limited to the cost of care and loss of earnings incurred by PM before her death, together with general damages for pain and loss of amenity suffered during her lifetime. But had the first action been brought to a successful conclusion before the death, the recoverable damages would, other things being equal, have not been thus curtailed. They would have extended to cover the costs of care into the future.

[3]The present action ("the second action") was commenced by the issue of a claim form on 2 June 2004. EW was the first claimant. He sought damages for professional negligence against Mr Searle ("BS"), who is the member of the Bar instructed in the first action by HPN, and HPN themselves. David himself was named as second claimant, but it is now common ground that on authority he has no personal cause of action: see McKay v Essex Area Health Authority

[1982] QB 1166

. EW brought the second action in two capacities: first, on behalf of PM's estate, and secondly in his personal capacity. The claim was formulated in various ways. A core contention for the estate (levelled against HPN only) was that the first action should have been brought to a successful outcome before the date of PM's death. Had that been done, the costs of David's care recovered against the health authority would not have been curtailed to the date of death. This formulation has been referred to in the proceedings as "the primary claim". The estate also asserted a secondary claim, namely that owing to the negligence of BS and HPN the first action was settled at an undervalue. Then by his personal claim in the second action EW sought damages to compensate him for the cost of David's care after the date of the death which he claimed to have himself incurred and still to be incurring. His case was that HPN had failed to advise and prosecute a claim on his behalf against the health authority.

[4]The second action was tried by Griffith Williams J between 30 January 2007 and 7 February 2007. His judgment was delivered on 9 May 2007. He found in favour of EW in his representative capacity only. By an order drawn on 12 July 2007 he awarded £118,829 damages including interest to the estate on the primary claim. He also found in favour of the estate on the secondary claim, holding (I summarise) that the first action should not have been settled for less than £35,000; however given the estate's success on the primary claim he did not enter judgment for any damages on that part of the case. He dismissed EW's claim brought in his personal capacity, holding that on the facts neither BS nor HPN owed him any duty of care. On the same day, 12 July 2007, the learned judge gave a supplementary judgment dealing inter alia with issues as to costs. He made orders as follows:(1) HPN should pay EW's costs of the primary claim (incurred on behalf of the estate).

(2) BS and HPN should be jointly and severally liable for 75% of EW's costs (again, incurred for the estate) of the secondary claim. There was no order for costs in relation to EW's claim brought in his personal capacity.

[5]HPN now appeal, with permission granted by Gage LJ on 2 October 2007, against the judge's award against them on the primary claim of damages to the estate in the sum of £118,829. They do not contest the trial judge's findings on breach of duty. Their case is that their breach of duty occasioned no recoverable loss to the estate. HPN also have permission to appeal the costs orders made against them. All outstanding matters relating to BS, the barrister defendant, (including a point raised by HPN on the secondary claim) have been compromised. In consequence he has made no appearance at the substantive appeal hearing. The settlement of the claims concerning him has required an amendment, which has been made by consent of all parties, to the judge's order that he and HPN should be jointly and severally liable for 75% of EW's costs of the secondary claim. The amendment is to the effect that HPN shall pay 37.5% of those costs, BS being released from any liability.

[6]EW sought permission to appeal against the judge's finding that neither HPN nor BS owed any duty of care to him in his personal capacity. That application was adjourned to the full court by Gage LJ. It was heard on notice to the other parties by this constitution of the court on 17 January 2008, when permission to appeal was granted. I should note that this cross-appeal is said to be pursued only in the event that HPN's appeal on the primary claim succeeds. Also on 17 January 2008 we refused EW permission to appeal against the assessment of the quantum of damages arrived at by the judge on the primary claim.

[7]We have not heard argument on HPN's costs appeal. It seemed more convenient to resolve the substantive issues arising on HPN's appeal against the finding that they were liable to pay any damages to the estate on the primary claim and EW's appeal against the finding that HPN owed him no duty of care in his personal capacity. Accordingly we now give judgment upon those two issues. HPN's APPEAL AGAINST THE AWARD OF DAMAGES ON THE PRIMARY CLAIM

[8]As I have said HPN's breach of duty is no longer contested. I should however outline the basis on which the judge found them to have been negligent. He held (paragraph 42):

"that any competent solicitor experienced in the field of medical negligence would have had the case ready in good time to be set down for trial in sufficient time for the case to have been completed, either by a completed trial or by settlement before March 1995... [T]he negligence and/or breach of contract of HPN resulted in substantial losses to Paula, in her life-time..."

Accordingly the estate's primary claim succeeded.

[9]At paragraph 68 the judge estimated the quantum of the claim as at 1 March 1995, on the basis of 100% liability, at £89,684 - say £90,000, plus interest. The figure includes sums for future care and accommodation costs. The judge estimated (paragraph 70) the chances of success at 85% and so discounted the notional figure of £90,000 to £76,500. He also deducted £20,000 being the sum received from the health authority by the settlement of the first action, and added agreed interest of £62,329. Thus he arrived at the judgment figure £118,829.

[10]On the appeal on the primary claim Mr Livesey QC for HPN advances three propositions:(1) The estate has suffered no loss in consequence of HPN's breach of duty.

(2) If there was any loss, it was not of a kind against which it was HPN's duty to protect PM.

(3) If there was any loss, it was caused by PM's suicide which was in no sense HPN's responsibility.

[11]It seems to me, for reasons I will explain, that these three propositions are really different ways of framing the same argument. But I will first identify a particular submission advanced by Mr Livesey in support of proposition (1). It was that up to the moment before her death PM's chose in action against HPN was intact, and constituted the full value of the claim including the costs of future care and accommodation for David; and HPN did nothing to deprive her, or her estate, of that benefit. Mr Livesey deployed material intended to demonstrate that at the time of the death there was no significant risk that the first action would be struck out on an application to that effect by the health authority. Thus the health authority's strike out application was not in fact issued until 15 May 1997, and the judge found that in the period before the death there were culpable delays both by HPN and the health authority (paragraphs 38, 75). Mr Livesey emphasises the finding (paragraph 75) that "the conclusion that the [health authority] prevaricated is inescapable". The implication, which for my part I would accept, is that there was in reality no question of a strike out in March 1995.

[12]Mr Livesey, building on this, advanced a submission to the effect that a professional negligence case against legal representatives based on delay in the conduct of litigation could only be maintained where it was shown that the delay led to a strike out, or at least rendered the claim hopelessly vulnerable to a strike out. In reply Mr Livesey accepted two qualifications to this general proposition, which are summarised by Rimer LJ at paragraph 73 below. In my judgment, however, there is a different argument at the heart of the case, also developed by Mr Livesey. It is that the loss asserted by the estate on the primary claim is irrecoverable on public policy grounds. The nature of the loss so asserted is thus critical for the resolution of this part of the case.

[13]The essence of the primary claim, Mr Livesey submits, is that by negligently failing to bring the first action to a successful conclusion before the date of PM's suicide HPN have deprived the estate of the opportunity to recover damages against the health authority calculated on the premise that PM was living. Such damages would (as I have made clear) encompass the cost of David's care and accommodation stretching into the future, whereas damages recoverable by the estate after the death must have been curtailed by that event. And this, indeed, represents the essence of the judge's quantification of the primary claim. As I have shown he arrived at the figure which in his view the estate would have been awarded had the first action been brought to fruition by 1 March 1995: £90,000 (see paragraph 9 above), which includes compensation for losses referable to periods after the death. He deducted the sum of £20,000 obtained by the estate from the settlement with the health authority, no part of which represented losses after the death. He made adjustments for interest and the chance of the first action's failing, and gave judgment for the resulting figure.

[14]Mr Livesey's argument is that the damages so calculated provide an uncovenanted bonus, a windfall, in the estate's hands. The estate stands in PM's shoes. PM was only, ever, entitled to recover losses incurred or to be incurred in her lifetime. But against HPN the estate has in fact recovered sums referable to a period after her death. Such sums do not in truth represent losses suffered by the estate.

[15]Mr Bebb advances a straightforward riposte. The guiding principle for the calculation of damages in a case like this is that the claimant is to be restored to the position in which he would have been had the defendant's wrong not been committed, so far as that can be achieved by money: restitutio in integrum. In this case, had the defendant's wrong not been committed, the first action would have been successfully concluded before PM's death. The damages recovered therefore would not have been curtailed by the death. The estate has been deprived by HPN's negligence of the opportunity of obtaining a judgment or settlement calculated on that uncurtailed basis. The judge's award of damages constitutes compensation for that loss, arrived at on wholly conventional principles.

[16]These respective contentions are based on rival truths. It is true, as Mr Livesey asserts, that the estate has recovered against HPN sums referable to a period after PM's death, despite the fact that the quantum of its claim against the health authority was necessarily curtailed by the death. It is no less true (subject to one wrinkle I will mention), as Mr Bebb asserts, that the estate was deprived by HPN's negligence of the opportunity of obtaining a judgment or settlement calculated on an uncurtailed basis. Which of these truths should guide the court in arriving at a judgment on the estate's primary claim?

[17]In my opinion, Mr Livesey's truth should prevail. The purpose of an award of damages is to provide just compensation for a wrong done to the claimant. In most cases that purpose is given effect by the general rule that the claimant is to be restored to the position in which he would have been had the wrong not been committed, so far as that can be achieved by money. To attain that result, the court has to reconstruct events which in fact never happened, but would have happened but for the wrong. But there may be cases in which this exercise produces a serendipitous benefit. In a very different context from the present, Lord Nicholls of Birkenhead said this in AG v Blake

[2001] 1 AC 268

, 278D-F:

"As with breaches of contract, so with tort, the general principle regarding assessment of damages is that they are compensatory for loss or injury. The general rule is that, in the oft quoted words of Lord Blackburn, the measure of damages is to be, as far as possible, that amount of money which will put the injured party in the same position he would have been in had he not sustained the wrong: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39... But the common law, pragmatic as ever, has long recognised that there are many commonplace situations where a strict application of this principle would not do justice between the parties. Then compensation for the wrong done to the plaintiff is measured by a different yardstick."

[18]In a professional negligence case against legal representatives based on delay in the conduct of litigation the court is considering what the outcome of a claim would have been had it been resolved, contrary to the fact, at some time significantly earlier than the date of the court's deliberations. In such a case events may have happened since the putative date of the original claim's resolution, and before the court deals with the matter, which undermine or frankly contradict the view that just compensation for the lawyers' wrong is to be calculated by reference to what the outcome of the original claim would have been.

[19]That is what Mr Livesey says has happened here. I would put it in this way. The law entitled PM, and following her death the estate, to recover damages against the health authority limited to losses incurred in her lifetime. Had she obtained judgment in the first action while she lived, these losses would have been calculated, by the law's usual methods, to include future loss stretching at any rate some years ahead. If she had died shortly after obtaining judgment, then subject to one qualification which I will mention the law would not have required her estate to restore any part of the damages to the health authority; but the estate would have in its hands a sum by way of damages which, given the events which had happened including the death, exceeded the amount which, given the death, the law of damages would have allowed. So much is all the clearer when one recalls that there is no question of future losses by way of care costs being recovered at the suit of David himself. He could not have been substituted as claimant for his mother after her death: see McKay v Essex Area Health Authority

[1982] QB 1166

, to which I have already referred. Accordingly, the court should not proceed in the second action on the footing that HPN owed a duty to recover for PM what would prove, albeit after the event, to exceed the estate's entitlement.

[20]This argument can I think be expressed (as I have foreshadowed) in different ways exemplified by Mr Livesey's three propositions set out above. One might say that in the eye of the law the estate has suffered no loss on the primary claim by reason of HPN's negligence; or if one prefers to accept that some loss has been suffered by HPN's failure to obtain a judgment or settlement before the death, then it is not the kind of loss for which the law offers compensation; or that PM's death and not HPN's negligence should be regarded as the real or substantial cause of the loss. For what it is worth I would choose the second formulation: it avoids on the one hand the unreality of suggesting there was no loss at all (proposition (1)), and on the other the needless metaphysics of getting embroiled in questions of causation (proposition (3)). But the argument is the same: the solicitors should not be held liable for failure to secure to the estate what on the full facts amounts to an uncovenanted windfall.

[21]As I have said, I regard this argument as correct, and as I shall show authority lends it some support. Mr Bebb's case to the contrary is, I think, too uncritically wedded to an equivalence between just compensation and a narrow view of restitutio in integrum - a view which requires the court to disregard events happening after the notional trial and judgment which would have taken place but for HPN's negligence.

[22]Let me turn to see what guidance is to be had from the learning. We were referred to a number of well-known general observations, such as those of Lord Bridge of Harwich in Caparo Industries plc

[1990] 2 AC 605

, 627:

"It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless."

But this does not, of course, tend to identify the "kind of damage" in a concrete case. The nearest authority which counsel's researches produced was Dudarec

[2006] 1 WLR 3002

, which I should describe in a little detail. The claimant brought proceedings in respect of injuries sustained by him in a road traffic accident. While the claim was pending he was diagnosed as suffering from a false traumatic aneurysm of the left carotid artery which limited his capacity for work. He declined to undergo an operation which would have rectified the condition. A key question in the litigation was whether by so declining he had failed to mitigate his loss. Before it could be resolved the action was struck out for want of prosecution. The claimant sued the solicitors who had acted for him. They admitted liability but contended that his damages in the original action would have been diminished by virtue of his unreasonable refusal to undergo surgery. Before the professional negligence claim was tried medical evidence was obtained which indicated that he did not after all have a false aneurysm and his capacity for work had not been limited as had been thought. In the claim against the solicitors the judge held that there was a significant chance that had the original action gone to trial the claimant might have been found to have unreasonably refused surgery and thus failed to mitigate his loss. He reduced the damages accordingly. On the claimant's appeal this court held that since the evidence that the claimant did not suffer from the false aneurysm could have been available at a notional trial of the original action the judge in the professional negligence claim should have taken it into account and acted on it.

[23]This produced a swings and roundabouts result: on the one hand the evidence meant that the claimant had not failed to mitigate his loss; on the other it meant also that no false aneurysm made him unfit for work. What is of interest for present purposes, however, is this court's reasoning upon the question whether the evidence that there was no aneurysm, which came to light well after the notional date of the original claim (though it might have been available at that time), should have been taken into account in assessing the damages payable by the negligent solicitors. Waller LJ expressed the issue in terms which are reflected in the competing submissions of Mr Livesey and Mr Bebb advanced before us:

"30. Where evidence becomes available for the first time after the date of the original trial in an action seeking to assess damages for loss of a chance, the court is faced with a dilemma. Should it have regard to reality or should it ignore the evidence and put itself in precisely the same position as the notional trial judge?"

Waller LJ proceeded to cite Charles v Hugh James Jones & Jenkins

[2000] 1 WLR 1278

. In that case Swinton Thomas LJ held (p. 1290) that "[I]f a condition has manifested itself prior to the notional trial but the prognosis was somewhat uncertain at that trial date [sc. but has been clarified later], in my judgment the judge is entitled to, and indeed should, take into account what has in fact occurred." Robert Walker LJ and Sir Richard Scott V-C (as they then were) agreed with this reasoning. But the court in Charles left open the different question, namely what should be done when, after the date of the notional trial, some entirely new event supervenes which if taken into account in the later professional negligence claim would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action. 24. This further question plainly arises in the present case. It did not fall for decision in Dudarec. In Dudarec, however, Sedley LJ gave an instance (albeit by way of a passing observation) which is not far distant from the present case and was the subject of further comment by Smith LJ:

"57. Mr Monty... accepted that his insurance clients would not be too happy if they were required to pay a lifetime's lost earnings to the estate of a claimant who had died of unrelated causes a year after the notional trial date."

Smith LJ said this:

"64. ... In Charles's case the court reserved its position in respect of evidence of entirely new matters which could not possibly have been discovered at the time of the notional trial. We have not had to consider that problem as it does not arise in this case. However, I suspect that, if the problem is considered on a case by case basis, the answer will be clear enough. In the example given by Sedley LJ, the fact that the claimant died of unrelated causes between the dates of the notional and actual trial must be taken into account because, if it were not, the claimant's estate would recover an unjustified windfall. If the claimant won the lottery after the notional trial date and would have given up work even if fully fit, it would be unjust to ignore that and allow him to recover from his solicitors the loss of future earnings he would have recovered from the tortfeasor."

[25]These observations are obiter, but they offer direct support for my view of the present case. The defendant solicitors are not to be held liable for failing to secure to the claimant an uncovenanted benefit: one which, upon an appreciation of all the facts, exceeds what the law would allot to him. In deciding what the damages should be in a professional negligence claim such as this, it is important as I have said not to take too narrow a view of the guidance afforded by the principle of restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they have happened since the notional original trial and so were by definition unknowable at that time. That is supported by general considerations of justice, as with respect Smith LJ plainly thought in Dudarec, but also I think by two other factors. The first is a principle which has often been recognised, that the law should not speculate when it knows. It was applied by Waller LJ in Dudarec (paragraph 50) and by Sedley LJ who cited (paragraph 56) this passage from Lord Macnaghten in Bwllfa and Merthyr Dare Steam Colliery (1891) Ltd

[1903] AC 426

, 431:

"[T]he arbitrator's duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should shut his eyes and grope in the dark?"

This passage was also cited by Harman LJ in Curwen v James

[1963] 1 WLR 748

(to which I will refer further in a moment) at 753', along with some words of Uthwatt J in Re Bradberry

[1943] Ch 35

which are much to the same effect.

[26]In order to explain the second factor which I think supports my view of this issue I must recall my observations earlier in this judgment that there was a wrinkle in Mr Bebb's assertion that the estate has been deprived by HPN's negligence of the opportunity of obtaining a judgment or settlement calculated on an uncurtailed basis and that the proposition that upon PM's death the estate would not be required to restore any damages obtained from the health authority by her during her lifetime is subject to a qualification. These two caveats raise the same point, though given Mr Livesey's principal argument which I have described and as I have said would accept, it becomes no more than a footnote. What would the position have been if PM had sued to judgment and recovered damages on an uncurtailed basis, then died shortly afterwards - perhaps before the time limited for seeking permission to appeal had expired? Mr Livesey submitted that in those circumstances this court would have entertained and allowed an appeal based on fresh evidence (evidence of the death), and corrected the damages figure so as to exclude any sums referable to anything done or omitted after the death. He cited Curwen v James. In that case a young widow claimed damages in respect of her husband's death in a road accident, The damages awarded by the trial judge included a sum to compensate the plaintiff for the loss of her husband's continuing financial support. She re-married within the time limited for serving notice of appeal. This court allowed the defendants' appeal and reduced the damages so as to omit the amount awarded for future dependency.

[27]The second factor to which I have referred is really a negative consideration: the absence of a difficulty. It rests on a distinction between this case and Curwen v James. There, the original trial was of course actual, not notional. The evidence of a fresh event arose not in a later action for damages for professional negligence but in an appeal from the judgment given at the first trial. In such a case there is a constraint upon the receipt of new evidence which does not apply in a case like the present. It rests upon two closely linked imperatives: finality in litigation, and the successful litigant's right to rely on the judgment he has obtained. In Curwen at p. 751 Sellers LJ cited Lord Loreburn in Brown v Dean

[1910] AC 373

, 374:

"When a litigant has obtained a judgment in a court of justice... he is by law entitled not to be deprived of that judgment without very solid grounds."

To allow the defendant's appeal in Curwen would have that effect; very solid grounds had to be shown. On the particular facts, this court held that such a test was met. But the exercise was very much one of discretion. Reference was made to the well-known authority on fresh evidence in appeals, namely Ladd v Marshall

[1954] 1 WLR 1489

. The constraints upon the admission of fresh evidence on appeal expressed in that case are with respect based on these very considerations of finality and expectation.

[28]But they do not apply here. There is no judgment already obtained; nothing on which the need of finality should bite. We are not inhibited from arriving at what I would regard as a just result, along the lines anticipated obiter by Smith LJ in Dudarec.

[29]For all these reasons I would allow HPN's appeal against the award of damages on the primary claim. I should add this. There may be cases where a supervening event, happening after the notional trial date, would if taken into account in the later action swell the damages rather than diminish them. Different considerations might then arise. Nothing I have said is intended to express a view about such a case. EW's APPEAL A GAINST THE DISMISSAL OF HIS PERSONAL CLAIM

[30]Mr Livesey submitted that there are in the present state of the law's development only four means by which a duty to exercise reasonable care in the provision of legal services, including advice, may be imposed upon a solicitor. The first (and paradigm) case is by the terms of a retainer, which in most instances will be constituted by a contract for reward between solicitor and client. The second arises in what might be called the "beneficiary" cases: an existing client identifies to his solicitor a third party who he desires should receive an inheritance under his will, but the solicitor negligently fails to effect the necessary arrangements: Ross v Counters

[1980] 1 Ch 297

, White v Jones

[1995] AC 207

. The third is the case of an assumption of responsibility. It arises where the solicitor lets it be known to the other party that he will be responsible for some task or undertaking on his behalf, and the other reasonably relies on what is communicated to him: see in particular Williams & Another v The Natural Life Health Foods Ltd & Mistlin

[1998] 1 WLR 830

, in particular per Lord Steyn at 834 E-H (cited by the judge below at paragraph 86 of his judgment). The fourth and final case is a residual category. It would only arise as a distinct and separate instance if on the particular facts it could be shown that, though none of the first three cases applies, nevertheless it would be "fair, just and reasonable" to impose a duty of care on the solicitor: see Caparo Industries plc

[1990] 2 AC 605

, to which I have already referred. The material passage from Lord Bridge's speech (at 617H-618C) was cited by Griffith Williams J at paragraph 65 of his judgment. I should set out this part:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just, and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope."

[31]In fact the reasoning in Caparo is over-arching: that is, it covers every instance of duty of care in tort, because the triple requirement of "fair, just, and reasonable" constitutes a necessary condition for the duty's imposition in any circumstances. In the solicitor's case this condition (and the well established requirements of foreseeability and proximity) may be met by the special features of the second and third categories I have described - beneficiaries, and assumption of responsibility. (As I have said the first category, retainer, generally arises where there is a concluded contract, and in that case no appeal to Caparo, dealing with duty of care in tort, is necessary or appropriate.) It is important to notice that these second and third categories are themselves highly exceptional. The first category is not only the paradigm but by far the commonest instance. It would in my opinion take a very striking case to found a duty of care in the fourth class, where there is no retainer, no intended beneficiary, and no assumption of responsibility. Yet that, as I shall show, is what Mr Bebb contends in this case on behalf of EW.

[32]I may introduce the relevant history by noting that the judge did not accept EW's assertion that he had made material contributions to David's support in the period from his birth until PM's death. He said (paragraph 104):

"While Mr Whitehead has undoubtedly made significant contributions in both money and time terms since Paula's death, I am not persuaded that he made anything other than occasional contributions (as when he looked after David for a weekend) prior thereto."

[33]After the death, PM's parents entertained serious concerns over EW's suitability as a carer for David. Family proceedings were instituted. The details were (very understandably) not investigated at trial so as to avoid causing David distress. It is clear from the documents that they culminated on 2 November 1995 in residence and parental responsibility orders being made in EW's favour "to take effect when he obtained accommodation for himself and David which was deemed suitable by the disabilities social worker at Tameside". (That was fulfilled in March 1996). These orders were, however, only made upon EW undertaking to the court "not to take any steps to take control of any monies paid on behalf of or to David without leave of the court".

[34]PM's parents were appointed personal representatives on 20 May 1996 (EW had apparently declined to act as a joint administrator with PM's father). They would no doubt have taken the first action to its conclusion, but PM's father developed serious heart problems and was unable to continue. At length on 10 March 1998 EW was released from his undertaking and on 9 June 1998, as I have said, he was appointed an administrator and substituted as the claimant in the first action. Before that EW had other solicitors, Messrs Rogerson Galvin, acting on his behalf; and at some stages in the history before 1998 they and HPN were on opposite sides in adversarial litigation involving PM or her estate, who were HPN's clients at all material times. At one point HPN acting for PM had obtained a non-molestation injunction against EW. I should add that while EW had on 28 November 1986 gone with PM to see a Mr Crewe of HPN who were first retained at that time, he had (as the judge found -paragraph 90) no further dealings with HPN until they took steps to have him appointed administrator of the estate, at the earliest in December 1997.

[35]It may be thought that this background offers an unpromising beginning to EW's personal claim against HPN, however the claim is precisely articulated. Moreover it seems to me to be clear that to the extent that EW put himself forward as having suffered any substantial expense for the support of David during the period before PM's death, any putative claim of his against the health authority must potentially have been in conflict with the claim of the estate itself: payments by him must have diminished the need of payments by her. It is true that the judge found (paragraph 104, cited above) that EW only made "occasional contributions" before the death, but EW asserted much more; and it must I think be fair to assume that from 1997 onwards he would, if he had been asked, have made the same assertion to HPN. In addition, the stand-off between EW and PM's parents, who neither liked nor trusted him, must if anything have underlined the separation of interest between the estate, which was HPN's client, and EW, who (until 1998) was not.

[36]Plainly HPN were never retained by EW in his personal capacity. Accordingly the first category where a solicitor's duty of care arises has no application. There is no question of his being a putative beneficiary within the second category. Nor in my judgment is there any question of an assumption of responsibility, within the third category. I am not sure that Mr Bebb would accept this: the case seems to have been put on such a basis in the court below. But it is to my mind clear that HPN at no stage proffered themselves as shouldering any task, or undertaking any duty, for EW in his personal capacity. Mr Bebb's real case is that there are nonetheless particular features of the case which satisfy not only the primary requirements of proximity and foreseeability but also the "fair, just and reasonable" condition expressed in Caparo: the fourth, residual, category.

[37]In this endeavour Mr Bebb relies, in general terms, on two linked matters:(1) a continuing concern on HPN's part (felt and expressed in particular by Mrs Judith Hetherington) to ensure that David's interests were protected by securing, if it could be done, the recovery of damages to meet the cost of his present and future care and accommodation needs; and

(2) the possibility, as it seemed to HPN in whose documents this is referred to more than once, that EW should be joined in the proceedings in an attempt to achieve that end. In those circumstances, and given that EW bore the cost of David's care at any rate from a date some time after the death, Mr Bebb submits that HPN owed a duty at least to advise EW that he might have a personal claim against the health authority and to look into the question (which as I shall show would have been by no means straightforward) whether in truth such a claim might lie.

[38]I should summarise the principal facts on which in this context Mr Bebb relies. First, there is the general point that HPN made protracted efforts to have EW appointed a personal representative and then substituted as a claimant in the first action. As I have said that was at length achieved, but he was joined only as administrator and not in his personal capacity. Next and more particularly there is a file note, dated 28 January 1997, written by Mrs Hetherington suggesting that while losses for PM did not continue for PM they did for EW and urging that consideration should be given to joining him in the action. Then on 4 March 1997 Mrs Hetherington drafted instructions to counsel which included a request that he consider whether EW should be joined. This is how she expressed it:

"... we should consider joining [EW] as a party to the action otherwise it would appear that he will not be able to make a claim for future losses pertaining to David's upbringing. If [EW] were joined as a party to the action surely we could then claim for all the expenses and losses that David will incur in the future."

These instructions were however not sent, because the health authority's application to strike out supervened. On 25 September 1997 instructions (drafted by Mr Clough of HPN, drawing on Mrs Hetherington's earlier draft) were in fact sent to counsel asking him to consider whether there was any way in which a claim could be made for David's future losses. Then on 30 September 1997 Mrs Hetherington attended a conference with counsel (BS) in which she referred to the possibility of joining EW. BS said he would think about it and advise HPN in due course. In fact he never gave that advice. A file note of 8 October 1997 records that Mrs Hetherington was still considering whether EW could be joined as a party, and some later materials show that was a continuing concern.

[39]There are some further aspects of the history to be noted. First (as the judge observed - paragraph 90) EW's evidence was that he never asked Mrs Hetherington for advice and that as she acted for David's grandparents in the contested proceedings in the Family Court in respect of parental responsibility and residence orders, he would not have listened to any advice from her. Secondly, the judge had some severe criticisms in store for Mr Clough of HPN. (I say nothing of the criticisms of BS, who is of course now out of the picture.) The judge considered (paragraph 116) that Mr Clough was motivated not by the interests of his client (the administrator of PM's estate) but by the position of HPN if the health authority's application to strike out succeeded. Thirdly, Mr Bebb submits that EW was never told what were the true limits of the estate's claim, namely that it was strictly curtailed by the event of PM's death, and so he assented to the settlement with the health authority on an uninformed basis. Finally, there are references in HPN's file to "David's claim" or like language. Mr Bebb relies on these as exemplifying HPN's continuing focus on the need to cover David's care and accommodation costs, and that is a building block in his "just, fair and reasonable" case.

[40]These various aspects were presented to us in a somewhat undigested fashion. The question in the appeal is where the factual background, and these particular points, should lead us in deciding whether this case may be brought within the fourth category giving rise to a solicitor's duty of care. The question must be answered rigorously notwithstanding the very general language in which the Caparo test is articulated.

[41]Approaching the matter in that way I would first hold that the judge's criticisms of HPN, and Mr Bebb's accusation that EW was not told of the true limits of the estate's claim, are nothing to the point. They would go to the issue whether, in one way or another, HPN were in breach of their undoubted duty to the estate or of any duty they might owe to EW personally. They do not tell us whether HPN in fact owed such a duty. (I should indicate that I have considerable reservations about Mr Bebb's accusation that EW was not properly informed: one reading, and I am inclined to think the better one, of the later sentences in paragraph 90 of the judgment below is that the judge found to the contrary).

[42]EW's evidence that he never asked Mrs Hetherington for advice and that as she acted for David's grandparents he would not have listened to her is to be considered alongside(1) the general stand-off, if I may so describe it, between EW and PM's parents;

(2) the fact that EW had been engaged in hostile litigation against HPN's clients, that is PM and the estate; and

(3) the potential conflict of interest between EW and the estate as regards care costs that would arise if EW's case as to the costs borne by him were taken at its highest. In my judgment this collection of factors tells against the conclusion that it would be fair, just and reasonable to impose a duty of care on HPN to advise EW as to a potential claim against the health authority in his personal capacity.

[43]But I would not hold that that is an end of the matter. It is time to return to the core of Mr Bebb's case. As I have indicated he relied(1) on HPN's continuing concern on HPN's part (felt and expressed in particular by Mrs Judith Hetherington) to secure, if it could be done, the cost of David's present and future care and accommodation needs and

(2) the possibility, present to the mind of HPN, that EW should be joined in the proceedings in an attempt to achieve that end. He submitted that the history of the matter, encapsulated in these two facts, gave rise (pursuant to the residual fourth category, as I have described it) to a duty of care at least to advise EW that he might have a personal claim against the health authority and to look into the question whether in truth such a claim might lie. The fact, to which I have referred, that there are references in HPN's file to "David's claim" or like language gives Mr Bebb's argument particular focus. I would express the high water mark of his case in this way: it is a very small step from a concern on HPN's part to secure David's future coupled with a recognition that EW might be a viable claimant in proceedings through which it could be secured, to an obligation to advise EW that he might, indeed, possess just such a claim in his personal capacity.

[44]But in my judgment it would be a step too far. The notion that David had a viable legal claim on his own behalf was as I have indicated misconceived. Though he would no doubt disavow this formulation, Mr Bebb's argument is in truth that HPN should have contemplated the possibility that a personal claim by EW might, so to speak, constitute a surrogate for the claim which David could not bring himself. But that approach would represent an aspiration to fill a gap left by the law, rather than to fulfil what the law itself requires or allows. That would be contrary to principle. The gap which the absence of any claim for David leaves in the law is left advisedly. It is therefore our duty not to fill the gap. If EW had a personal claim against the health authority, it would be just that, a personal claim, with whose fruits he might do what he wished. Thus on consideration it is a far stride, not a small step, from HPN's concern to secure David's future to a duty to advise EW that he might possess a personal claim.

[45]In these circumstances, and given the three negative factors I have already outlined, I cannot see why it should be deemed fair, just and reasonable that HPN should be fixed with a duty of care to give any such advice to EW. Moreover, to my mind these conclusions sit alongside these following observations of

the judge below, which I think are correct:

"92 The claim was [PM's] claim for her losses. It was not a claim by or on behalf of David or a claim for losses incurred by whom so ever had the care of David at any particular point in time in the future and so the position of [EW] is clearly distinguishable from the position of the beneficiary in Ross v Counters... I am satisfied that neither HPN or [BS] should have anticipated that any advice they gave to Paula or to her estate would be relied upon by [EW] in his personal capacity or by David so as to create a duty of care in tort and/or contract. That Mrs Hetherington (who on any view was determined to secure as much by way of damages as she could for David) wanted the possibility of joining [EW] in the action investigated and that Mr Clough gave general instructions to [BS] to like effect, is not enough, of itself, to found an assumption of responsibility or to create a duty of care."

[46]For all these reasons I conclude that the judge was right to hold that HPN owed no duty of care to EW in his personal capacity. That is enough to dispose of the cross-appeal; but it possesses a further dimension which the judge considered and which has been canvassed in argument before us. I should deal with it briefly.

[47]The assertion of a duty of care owed by HPN to EW in his personal capacity clearly goes nowhere unless it can be shown that EW would have enjoyed a viable, at any rate an arguable, personal claim against the health authority had such a claim been launched on his behalf. That involves a large question: in what circumstances, if any, does a father possess a cause of action against a health authority for damages for the wrongful birth of his child?

[48]The judge below, after citing a passage from the judgment of Hale LJ (as she then was) in Parkinson

[2002] QB 266

, 294, stated:

"94 I am prepared to accept for the purposes of this judgment that a husband or co-habitee father may have a claim for damages for his pecuniary losses as the carer of his disabled child but in my judgment, any such claim would have to be subject to the proviso that it is linked to that of the mother of the child. To be linked to the mother's claim, the defendant would have to owe the father a duty of care co-terminous to that owed to the mother and so at the lime the defendant breached its duty of care to the mother, it would have had to be foreseeable that the consequences of that breach of duty to the mother would result in economic losses to the father as carer of the child."

After setting out further authority the judge directed himself (paragraph 99) that the issue was whether EW was "a carer for David as at the time of his birth and thereafter". He concluded (paragraph 104) that he and PM had not lived together as man and wife "from a time within months of David's birth" and that he made no more than "occasional contributions" to the cost of David's care until after PM's death. Accordingly he held (paragraph 106) that even if HPN owed a duty of care to EW personally, its breach would have occasioned no damage since he had no claim against the health authority.

[49]The first of the judge's findings at paragraph 104 is ambiguously expressed. It may be that the judge was accepting that EW and PM lived together from some time before David's birth but ceased to do so a few months thereafter. Mr Bebb would if necessary wish to rely on contemporaneous documentation to show that they were indeed together for about a year before the birth until about three months afterwards. Mr Livesey was prepared to accept that Mr Bebb was in a position to establish as much on the balance of probability, and that they were together when the consultant described the new-born baby's condition, though not necessarily earlier, when the clinicians' negligence must have taken place. The second finding, that EW made no more than "occasional contributions", to the cost of David's care until after PM's death, is not really susceptible to challenge; but Mr Bebb submits that the fact of EW's having been living with PM before and at the time of the birth, coupled with his having undertaken the care of David (and its cost) after PM's death, might suffice to found a claim by him in his own right for damages for the wrongful birth.

[50]Mr Livesey was prepared to go so far as to argue that the law knows no cause of action for damages for wrongful birth at a father's behest in any circumstances. Counsel on both sides presented us with a formidable array of authority not only on wrongful birth but also on wrongful conception: there is a well known line of cases dealing with claims for failed sterilisation. In some of the wrongful birth cases it seems to have been assumed, without argument, that the father as well as the mother may claim. The possibility is certainly not ruled out in the learning. It is clear, as I think both counsel accepted, that the law on the topic is still developing. In those circumstances Mr Bebb put his argument on this aspect of the cross-appeal no higher than this: HPN should have advised EW that he had reasonable prospects of mounting a successful claim in his own right for damages for wrongful birth.

[51]I do not propose to enter into the question what chance of success such a claim would have had, or indeed the over-arching question whether a father's claim for damages for wrongful birth ought to be recognised by the law in any circumstances. I will say only that I consider that such a claim would be beset by important difficulties. It would be viable, if at all, only as a secondary claim: it would critically depend upon evidence that had the mother known of the foetus' defect she would have chosen to undergo a termination. Mixed questions of policy and causation would arise (questions of causation, where they cause difficulty in the law, almost always involve competing normative claims, and in that sense issues of policy). Given the likely depth of the problem I consider that the question whether such a cause of action might properly vest in a father should be authoritatively concluded in a case calling for its decision, which the cross-appeal before us does not.

[52]As will be plain, Mr Livesey does not accept that HPN ought to have advised EW that he had reasonable prospects of obtaining damages for wrongful birth against the health authority. Apart from anything else he submits that such a claim would likely have been held to be time-barred. I would observe only that for HPN to be in any position to give meaningful advice to EW as to the viability of such a claim, they would have been obliged to undertake or commission a good deal of intricate legal research. That, of course, would come at a cost; and in my judgment this is a further circumstance tending to show that the imposition of the claimed duty upon the shoulders of HPN would not be fair, just or reasonable. I cannot see that they were obliged to pay for such a service to a person who had not asked them for it, would not pay for it, had not retained them, and had other solicitors of his own.

[53]For all these reasons I would dismiss the cross-appeal.

Lord Justice Rix:

[54]I am indebted to Lord Justice Laws for his judgment which I have had the considerable advantage of reading in draft. I agree with his conclusion and his reasons on HPN's appeal, which I too would allow. I also agree with Lord Justice Rimer's judgment in respect of the appeal, which I consider to be essentially consistent with that of Laws LJ. I would merely observe that the fact that the mother's claim against the health authority had not been impaired by HPN's negligent delay as of a moment before her death, although true and relevant, does not mean that her claim would not have succeeded before her death for more than it could have after her death, but for HPN's negligent conduct in the delay of her litigation.

[55]As for Mr Whitehead's cross-appeal on his own behalf, I confess that during the hearing I was much attracted by the submissions made on his behalf by Mr Gordon Bebb QC, but I have ultimately been persuaded by Lord Justice Laws' reasoning not to press my concerns to a dissent. I would, however, like to take a few brief paragraphs to explain some of the difficulties I have had.

[56]Two main issues arise: the first is whether any duty of care was owed by HPN to Mr Whitehead ("the father") in his own right; the second is whether the health authority owed any duty to him apart from the mother, even if such a duty is itself parasitic on her claim.

[57]The second issue in one sense comes first, but because it occurs in a claim against HPN it arises in a loss of a chance setting. I am therefore content to approach the two issues in the order in which Lord Justice Laws considered them. On the facts of this case, however, I am inclined to think, as Lord Justice Laws demonstrates in the last paragraph of his judgment, that ultimately the second issue touches on the resolution of the first.

[58]Lord Justice Laws has set out the material relating to the first issue. He has shown that that issue comes down to the question of whether it would be Caparo fair, just and reasonable to impose a duty of care on HPN to advise the father as to a potential claim against the health authority in his personal capacity.

[59]On that question, I have been much troubled that a different answer ought to have been given than that of the judge. There was no doubt of the father's proximity: he was before HPN, at any rate in his capacity as the administrator of the mother's estate, both physically and as a client. If he had not retained HPN in a personal capacity, that was mainly because he was in ignorance of the law, in particular of his potential claim and thus of the importance of that with respect to the mother's own curtailed claim. (In this respect there is a finding of the judge which is not easy to interpret, at para 90 of his judgment.) It was also partly because he had his own solicitors and there had been earlier conflict with the mother's parents, albeit by the critical time that had been resolved, as well as a personal clash with Mrs Hetherington at HPN. But if he had been fully informed in his capacity of administrator of the difficulty that the mother's death had brought to her claim and of the true picture concerning the hospital authority's attempt to strike out the mother's claim, then I doubt whether there would have been any real conflict of interest at the time. Alternative claims are often brought together, and although they sometimes rub against one another a little uncomfortably, on the whole the strength which the alternative gives outweighs that slight friction.

[60]Secondly, the potential claim of the father was in HPN's mind at the time. This is not the more normal case where the breach of duty, if there is a duty, consists in a complete failure to realise that anything needed to be done. HPN knew of the difficulties faced by the mother's claim and of the opportunity presented by a claim from the father.

[61]Thirdly, there was no good reason why HPN did not properly consider the father's claim and advise him of it. On the facts, the matter just petered into the sand in their concern, in their own interests, to settle the mother's claim before it might be struck out. In this respect the judge's findings are strong and remarkable and a discredit to HPN (see paras 113/116 of the judgment). Mr Clough's evidence was not believed. The judge found that he was motivated not by the interests of his client, the mother's estate and thus the father as administrator, but by HPN's own interest in case the strike out application succeeded. In the event, when the father was advised to settle the estate's claim for a mere £20,000, Mr Clough did not give the father the detailed explanation to which he was entitled. In so far as the father consented, consent was by no means informed (at para 120). The judge made these findings as part of his (obiter) consideration of the alternative "settlement at an undervalue" claim. If he had considered these matters also as part of the father's claim against HPN in a personal capacity, they might have influenced him. They have weighed with me on the Caparo question. I have also had to bear them in mind in attempting to evaluate the judge's ambiguous finding (at para 91, referred to above) relating to the father's knowledge.

[62]I turn to the second issue, that of a duty owed by the hospital authority. This has to be evaluated in a loss of a chance setting. Mr Livesey QC submitted that if, as he argued, no duty of care to avoid a "wrongful birth" can ever be owed in law to a father at all, irrespective of the circumstances, then there can be no loss. Therefore, he submits, the issue of whether any duty is owing to a father has to be finally determined. However, in Harrison v. Bloom Camillin [2000] Lloyd's Rep PN 89, Neuberger J in a wide-ranging judgment considered that although there was a greater readiness to determine the likelihood of success or failure where the issue was one of law, there was in principle no difference between that case and an issue of fact or opinion, and damages for loss of a chance were available save in a case whe:e there was no real chance: see at 98/99. Perhaps it is ultimately a House of Lords point, but the fact is that fathers as well as mothers have obtained judgment in "wrongful birth" cases and had done so before the estate's claim was compromised on 6 January 1999 (see Salih v. Enfield Health Authority

[1991] 3 All ER 400

(CA), Anderson v. Forth Valley Health Board (1998) 14 BMLR 108). Since then the availability in principle of the recovery of care costs in wrongful birth cases was contemplated (obiter) by the House of Lords in McFarlane v. Tayside Health Board

[1999] 2 AC 59

, and granted to both parents in Rand v. East Dorset Health Authority

[2000] Lloyd's Rep Med 181

. In Parkinson v St James and Seacroft University Hospital NHS Trust

[2001] EWCA Civ 530

[2002] QB 266

at para 93 Hale LJ considered the case of fathers and said in an obiter observation - "My tentative view is, however, that, if there is a sufficient relationship of proximity between the tortfeasor and the father who not only has but meets his parental responsibility to care for the child, then the father too should have a claim."

[63]In those circumstances, I do not think that it can be said that there is no real chance (see Kitchen v. Royal Air Force Association

[1958] 1 WLR 563

at 575) of a father showing that a duty of care was owed to him as well as to the mother at the time when the negligence resulting in a wrongful birth occurred. After all, imagine a wrongful birth case where the mother dies in childbirth and the father bears all the care costs of the child thereafter.

[64]Those of course are not the facts of this case. Nevertheless, the father does appear to have been with the mother on her first visit to the pre-natal unit of the hospital and to have been living with her together as man and wife until several months after the birth. That is how I would interpret the judge's finding at para 104 of his judgment that "I am not prepared to accept that they lived together as man and wife from a time within months of David's birth". Mr Livesey accepts that it is probable that the evidence before the judge justified the view that the father and mother were together until several months after the birth: which in turn supports my interpretation of the judge's finding (see also at para 48 above). Thereafter, the parents split up. However, after the mother's death, the father appeared on the scene once more, and has taken on the parental responsibility of looking after David. Although the father's motives have been suspected, those remain the facts. I suppose he could be called the prodigal father.

[65]In those circumstances, although the breach of duty, if any duty was owed by the hospital authority to the father as well as to the mother, would have occurred before David's birth, the loss to the father would not have occurred until some time after the mother's death, when the father shouldered the responsibility of looking after his son. The judge records (para 83 of his judgment) that the father had obtained parental responsibility and residence orders in respect of David by 11 November 1995, but subject to his finding suitable accommodation and undertaking not to take any steps to take control of any monies paid to David without the leave of the court; and that those conditions were only met by March 1996, The judge did not accept the father's evidence that he had made any material contribution to David before the mother's death (see para 104). On that basis, it is well arguable that, if HPN had advised the father as to his personal claim against the health authority, he would have been joined to the mother's action against the hospital authority well within the three year limitation period. The action was settled on 6 January 1999.

[66]In other words, there is nothing so unrealistic about such a claim against the health authority as to deny its potential existence. The judge appears to have rejected any possibility of the father having a claim against the health authority on the basis that he did not contribute to David's upbringing following the birth. He framed the issue as follows:

"And so the issue is, was Mr Whitehead a carer for David as at the time of his birth and thereafter...? (at para 99). He answered that question by saying "

No", not until after the mother's death (at para 104). He therefore rejected the father's case at trial that he had always been the "bread-winner" (at para 105) and concluded that "It follows that even if HPN... owed a duty of care to advise Mr Whitehead before he was appointed the administrator of Paula's estate, then a breach of that duty would not have been causative of any damage because he had no claim in law" (at para 106). With respect, I do not follow that logic.

[67]On that basis, it is appropriate to revisit the question of duty of care on the part of HPN. There was a potentially difficult but realistically arguable claim by the father in his own right, once he had shouldered parental responsibility, for the extra costs of David's care over and above those costs which would have been involved in a normal birth. HPN were considering just such a claim, at any rate out of concern for David's interests. Those concerns led them to add David himself as a claimant (on 15 May 1997): but, as Laws LJ has said, that claim was bad in law. HPN added one claimant, to protect David's position, but contrary to law. They were also considering adding the father himself as a claimant in his own right, but did not bring that consideration to fruition, because they were acting in their own interests. Laws LJ reasons that the rationale of trying to protect "David's claim" is a step too far, that the absence of any claim for David is a gap which the law leaves advisedly, and that therefore there is a duty not to fill the gap. And if the father had a claim, he could do what he wanted with the fruits of it. However, I do not think that the fact that the law does not, wholly understandably, give a child a claim for his own wrongful birth leads to the conclusion that it is not fair, just and reasonable to give proper consideration to whether a father's undertaking of the care of the child, in the absence of a deceased mother, should not, in part out of concern for the child himself, be made the occasion for a claim. It is not as though the father's claim and the child's interests are in conflict. The law has no concern to prevent the child having a parent who is able to bear the extra costs of his care. The risk that in such circumstances the parent may misuse his or her compensation remains a problem in any event, unless the law is prepared to look into that question. HPN's humane concern for the child need not and should not lead to the conclusion that it is not just, fair and reasonable for it to be found in want of its duty when its own interests supervened to suppress that concern.

[68]These are the considerations which have caused me to consider that there is much to be said for the father's claim. I recognise, however, that there is much to be said on the other side too. In the end, having regard to the fact that I find myself in a minority, and out of genuine respect for the powerfully expressed views of Laws LJ, with which my Lord, Lord Justice Rimer agrees, I would not press my concerns to a dissent. Lord Justice Rimer:

[69]I entirely agree with Laws LJ's reasons as to why the cross-appeal should fail, I too would dismiss it and cannot usefully add anything. I also agree with Laws LJ that HPN's appeal should be allowed. Since, however, my reasons may not perhaps wholly coincide with his, I add some observations of my own.

[70]PM's claim against the Health Authority gave her a chance of recovering damages to compensate her for inter alia(i) pain, suffering and loss of amenity;

(ii) the extra costs incurred by her attributable to David's special care needs down to the date of assessment ("past costs"); and

(iii) her future such costs, a claim involving considerations of her life expectancy and the likely future period during which she would be incurring such costs ("future costs").

[71]The judge found that HPN had been negligent in their prosecution of PM's claim and that, had they not been, it would have been settled or tried before March 1995. As it was, the claim was neither settled nor tried by then but was still pending at PM's death on 6 March 1995. He therefore found, and it is not challenged, that their negligence caused a material delay in the bringing of the claim to finality. He did not find that, as at the date of PM's death, their negligent delay in the prosecution of her claim had caused the loss of her claim, or even that it had rendered it vulnerable to a strike out for want of prosecution. Nor did he find that the delay had in any respect impaired her claim. Had PM not died, she could have continued it. Upon her death on 6 March 1995, her cause of action vested in her estate, which was entitled to prosecute it in her place. Her death had the effect of crystallising the estate's claim, confining it to one for her pain, suffering and loss of amenity and for her past costs incurred down to her death. The estate could not also recover compensation in respect of future costs since the consequence of her death was that there would be none. In May 1997, and in response to the estate's service of a notice of intention to proceed, the Health Authority launched an application to strike out the estate's prosecution of the claim. The judge did not find that it had any basis for doing so before then. He also observed, at [121] of his judgment, that "... given the wilful delays on the part of the [Health Authority], it is unlikely that their application would have met with much sympathy."

[72]All that being so, but subject to one qualification, PM's cause of action against the Health Authority was in my judgment, as Mr Livesey submitted, worth as much immediately before her death as it had always been worth; and HPN's negligent prosecution of it had not diminished that worth. It is, in particular, fallacious to regard the estate's inability to pursue a claim for future costs as reflecting any such diminution. PM's right against the Health Authority was to recover compensation for her extra costs in caring for David. For reasons of practical necessity, those costs would, for the purposes of any assessment during her lifetime, have to be broken down into past and future costs. Following her death, however, that breakdown became inapplicable. Her extra costs so incurred were finally crystallised as being those incurred down to her death, and that was the measure of the estate's continued claim as regards costs of care.

[73]The qualification referred to is that there is perhaps one respect in which PM might be said to have suffered recoverable loss by reason of HPN's delay. Had her claim been brought to a successful trial in, say, March 1995 she would in principle have been entitled to interest on any damages recovered in respect of past costs. But the court would have had a discretion to deprive her of interest during any period of delay that could be laid at her door; and, if it did, she might have had a claim for compensation against HPN for causing that head of loss. There is, however, no need to consider this further because the estate's claim against HPN was not for loss of this nature. It was, in substance, for damages for the loss of her cause of action, the judge awarding the estate compensation measured by reference to his assessment of the worth of all elements of PM's claim (including both past and future costs and interest). In his reply Mr Livesey acknowledged the correctness of this qualification, just as he acknowledged that a solicitor's negligent delay in bringing a case to trial might in certain cases (but it was not found that it did in this one) cause an impairment of the claim for which the claimant might be entitled to compensation. Save for acknowledging those two (for present purposes, immaterial) points, Mr Livesey made no wider concession.

[74]Insofar as the judge awarded damages against HPN on the primary claim in respect of the loss of those elements of PM's claims that vested in her estate (damages for pain, suffering, loss of amenity and for past costs), I respectfully regard him as having been in error. Those claims were not only fully capable of being pursued by PM's estate, they were in fact pursued to a settlement at £20,000. On the alternative claim that was before him, the judge held that settlement to have been at an undervalue and he found that the claim should not have been settled for less than £35,000. He deducted the £20,000 from the damages he assessed on the primary claim. Whilst I understand why he did that, I do not follow on what basis he regarded HPN as having negligently deprived PM, and therefore the estate, of the right to pursue the very claim that the estate in fact pursued and settled, and nor did he explain the basis on which he did so. Mr Bebb was unable to advance any cogent justification for this element of the judgment. In my judgment, it was wrong. It amounted to requiring HPN to compensate the estate for a loss that it had not suffered.

[75]The main aspect of the judge's decision on the primary claim that was debated before us was his conclusion that HPN's negligent delay caused damage to PM that entitled her estate to a claim against HPN for failing to achieve a recovery of future costs during her lifetime. The premise for this was that, had PM's claim been either settled or tried to judgment by, say, 1 March 1995, she had a chance that her recovery would include compensation for such costs in respect of a period extending well beyond her curtailed life span, since her suicide on 6 March 1995 would not have been foreseen. Damages recovered under that head of her claim would have been money in hand and have vested in her estate. Her premature death before the claim was so settled or tried meant that she recovered no such money in hand and so none so vested. Why, therefore, it is asked, did not HPN's negligent failure to achieve such a settlement or judgment before her death cause her damage in respect of which her estate became entitled to compensation from HPN?

[76]Mr Bebb submitted that it did. PM's loss was, he said, that she was deprived of the benefit of such a settlement or judgment in her lifetime. It followed, therefore, that PM and, following her death, her estate had a cause of action against HPN for failing to recover compensation of that nature. But, having made the submission, Mr Bebb promptly resiled from the suggestion that during her lifetime PM could or would actually have sued HPN for causing such loss. He recognised that she could and would not have done that, since she still retained the right to pursue her claim against the Health Authority; and that the most that she could have claimed in any action against HPN was compensation for the time value loss of being kept out of her compensation for longer than she should have been. It followed that he recognised that, questions of a potential interest loss apart, and despite HPN's delay, PM's chose in action immediately before her death remained as valuable as any such settlement or judgment that she might earlier have achieved and that the delay had not diminished its value. If, immediately before her death, PM had no claim against HPN for the loss or impairment of her cause of action, then no such claim could have vested in her estate. Her estate can have acquired no rights greater than those to which she had been entitled.

[77]A possible riposte to this is perhaps that, whilst in theory PM's cause of action was, immediately before her death worth as much as it had always been (and, in particular, included a claim for future costs), the reality was that the effect of her death was promptly to curtail any claim for future costs. Therefore the estate's continuing claim was for a curtailed amount; and HPN's negligent failure to achieve a greater recovery for her before her death (including compensation for future costs) represented a real loss for which they ought to be answerable at the suit of the estate. The measure of that recovery is put at the lost chance of recovering the difference between a curtailed claim and an uncurtailed claim.

[78]There are, in my judgment, two reasons why the estate's claim against HPN for their failure to recover that difference was misconceived. The first is that, whilst HPN's duty was to conduct PM's case properly and carefully, and to take all reasonable steps to achieve an expeditious settlement or trial under or at which she might be fairly compensated for her future costs, it was no part of their function to achieve for her more than she was entitled to under this head. Put the other way, it cannot be said to have been a breach of their duty to fail to do so. As to her entitlement, PM's only right, from the time of the accruing of her cause of action until her death, was to recover damages by way of compensation for her extra costs, past and future, incurred in caring for David. She was entitled to no more than that. Inevitably, any settlement or judgment would in practice be likely either to under-compensate her or over-compensate her, since the assessment of future costs must necessarily grapple with matters of uncertainty, in particular PM's life expectancy. But in considering the extent of HPN's duty in this context it is, as ever, salutary to have in mind the familiar reminder of Lord Bridge of Harwich in Caparo, at

[1990] 2 AC 605

, 627, to which Laws LJ has referred. In my view it cannot be said that it was any breach of HPN's duty to PM to fail to achieve in her lifetime compensation in respect of future costs that she would not in fact incur. It was not loss of that nature against which HPN had a duty to save her harmless.

[79]The second reason is most easily illustrated by the following example. Assume that HPN had brought PM's claim on for trial in January 1995 and that she had recovered a judgment for damages in respect of past costs; but that, because of HPN's negligent preparation of the case, she failed to prove what her future costs were likely to be and so achieved no recovery under this head. But for such negligence, assume she had a proper prospect of a recovery in respect of future costs incurred over the following 20 years. Assume that in February 1995 she sued HPN for negligently depriving her of the chance of recovery under this head. On 6 March 1995, before her claim is tried, she commits suicide. Her estate continues the claim against HPN and presses for recovery of what PM would have recovered had this element of her claim been proved at the trial in January 1995. The case advanced against HPN is that she had a real chance of recovering 20 years' worth of future costs.

[80]In my judgment a claim that HPN should compensate the estate on such a basis would fail. The court would apply the so-called Bwllfa principle (The Bwllfa and Merthyr Dare Steam Collieries (1891) Limited v. The Pontypridd Waterworks Company

[1903] AC 426

. That is the familiar principle applicable in the field of the assessment of damages and compensation to the effect that "where facts are available they are to be preferred to prophecies" (In re Bradberry, National Provincial Bank Limited v. Bradberry

[1943] 1 Ch 35

, at 45, per Uthwatt J) and "that the court should never speculate where it knows" (Curwen v. James and Others

[1963] 1 WLR 748

, at 753, per Harman LJ). At the trial in January 1995 the court would necessarily have been speculating as to PM's life expectancy and as to the number of future years for which she would have been caring for David. By the time of the trial of the claim by PM's estate, the court would not need to speculate about these matters because it would know the answer. It would consider that it would be unjust to require HPN to compensate PM's estate in respect of costs which were known never to have been incurred at all. The court would approach the claim against HPN on the basis that, at most, PM had a claim for future costs during the period from the January judgment date down to her death on 6 March 1995. The Bwllfa principle has often been applied. Apart from the cases cited, other illustrations of its application are Williamson v. John I. Thorneycroft & Co. Ld

[1940] 2 KB 648

; Baker v. Willoughby

[1970] AC 467

, at 490H to 491B, per Lord Reid; and Golden Strait Corporation v. Nippon Yusen Kubisha Kaisha

[2007] UKHL 12

;

[2007] 2 WLR 691

[81]Likewise in this case. Even assuming, contrary to my view, that during her lifetime PM had acquired a substantive cause of action against HPN for their negligent failure to achieve a settlement or judgment that included compensation for future costs, the position at the time of the trial of her estate's claim for damages was known, namely that PM had not incurred a penny of future costs in respect of which HPN ought to be made answerable. Her death confined the estate's claim to the past costs incurred down to that date.

[82]For these reasons, I regard the estate's claim against HPN as misconceived. I too would allow HPN's appeal. As I have said, in agreement with the reasons given by Laws LJ, I would also dismiss EW's cross-appeal.

Cited in 11 later judgments

and 2 more of the most senior