Shaw v Medtronic Corevalve LLC & Ors [2017] EWHC 54 (QB)

Case No HQ15C05279[2017] EWHC 54 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/01/2017
Before
MR. JUSTICE LAVENDER
Between
GABRIELE SHAWClaimant(suing as the personal representative of theClaimantestate of WILLIAM EWAN (deceased))ClaimantMEDTRONIC COREVALVE LLCDefendantsJEAN CLAUDE LABORDEDefendantMEDTRONIC INCDefendantMEDTRONIC LIMITEDDefendantMEDTRONIC PLCDefendant
David Berkley QC (instructed by Pearson Solicitors and Financial Advisers LLP) for ClaimantToby Riley-Smith QC (instructed by CMS Cameron McKenna LLP) for First, Third and Fourth DefendantsHearing Hearing date: 12 January 2017
JUDGMENTMr. Justice Lavender:
[1]This action arises out of the death of William Ewan on 26 September 2007, following an operation at Glenfield Hospital in Leicester when a heart valve (“the Valve”) was implanted. The Valve was manufactured by the First Defendant, Medtronic Corevalve LLC (then known as Corevalve Inc). The Claimant, Mrs. Gabriele Shaw, is the late Mr. Ewan’s daughter.[2]There are three applications before me:(1) The First Defendant applies for an order setting aside the service on it of the Claim Form out of the jurisdiction.(2) The Third Defendant, Medtronic Inc, (which has since April 2009 been the parent company of the First Defendant) makes a similar application.(3) The Fourth Defendant, Medtronic Limited, (which is part of the same group of companies as the Third Defendant) applies for either an order striking out the Particulars of Claim (under CPR 3.4) or summary judgment against the Claimant (under CPR 24.2)). (2) The Inquest[3]This is the second action brought by the Claimant in connection with her father’s death. Moreover, it follows an inquest which was held over 13 days in 2011, when the Claimant and other family members were represented by leading counsel. The inquest jury answered a series of questions. By their verdict, they decided, in particular, that the Valve which was implanted in the operation was of what had been referred to as the small, rather than the large, type of valve manufactured by the First Defendant.[4]The Claimant applied for judicial review of the jury’s decision, including their decision that the Valve was of the small type. Her application was heard in February 2013 by Burnett J and HHJ Peter Thornton QC, the Chief Coroner. They decided to dismiss her application. The reference to their judgment is [2013] EWHC 386 (Admin). It runs to 32 pages.[5]The Claimant then applied for permission to appeal to the Court of Appeal. The application was refused by Sir Richard Buxton, but two aspects of it were subsequently referred to the full court. The Court heard her application on 11 February 2014. The reference to their judgment is [2014] EWCA Civ 294. (3) The First Action[6]On 23 September 2010 the Claimant commenced an action against the late Mr. Ewan’s cardiologist, Dr. Kovac, and the University Hospitals of Leicester NHS Trust. I will refer to this as the First Action. As with the present action, the First Action was brought by the Claimant as personal representative of her late father’s estate, pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”).[7]The Defendants to the First Action submitted to judgment, which was entered on 2 July 2015. On 28 October 2015 HHJ Platts assessed the amount of damages. The reference to his judgment is [2015] EWHC 3335 (QB). In paragraph 6, he said as follows:
“Although the defendants have never made any admission of liability and, indeed, Mr Spilsbury expressly indicated during the trial that there was no such admission, there is no issue that the factual basis for the judgment to which both defendants have submitted, and which they have chosen not to challenge, was that set out in paragraphs 9 to 15 of the Re-amended Particulars of Claim. In short, the claimant's complaints are, first of all, that her father never gave proper or informed consent to the TAVI procedure. In particular it is alleged that he was never informed that the procedure was newly developed and still the subject of clinical trials; that the prosthetic valve used in the procedure was not approved for public use, nor fully or adequately evaluated in terms of its safety and performance; or of the alternatives of either open-heart surgery or conservative treatment. Secondly, there is an allegation that the defendants failed to care for him properly once it was realised that there was damage to the aorta.”
[8]HHJ Platts assessed damages for pain, suffering and loss of amenity, loss of life, cost of treatment and funeral costs. These damages have been paid. HHJ Platts also recorded that claims for damages in respect of the costs of the inquest, the application for judicial review and the application to the Court of Appeal were abandoned. (4) The Present Action[9]The present action was commenced by a Claim Form issued on 21 December 2015. That is over 8 years after Mr. Ewan’s death. In those circumstances, these Defendants say that they have a good limitation defence. However, they do not rely on that as a ground for the present applications.[10]The brief details of claim set out in the Claim Form (as subsequently amended) state as follows: “The claim is for damages arising from the death of the Claimant’s father, Mr William Ewan (“the Deceased”) who died on 26 September 2007 upon implantation and use upon him of the Defendant(s)’ medical devices and as a result of the conduct and/or omissions of the Defendant(s), their servants or agents including during the course of the advice to and treatment of the Deceased at Glenfield Hospital in 2007 until his death. The Claimant claims damages for: - for personal injury and loss on behalf of the Estate of the Deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and/or pursuant to the Fatal Accidents Act 1976 as amended and/or pursuant to the Consumer Protection Act 1987 and/or the Product Liability Directive and/or - negligence and/or in restitution (unjust enrichment and/or wrongful act) - misrepresentation and/or deceit - aggravated/exemplary damages - and the Claimant seeks an account of profits and interest thereon pursuant to Section 35A of the Senior Courts Act 1981.” - for personal injury and loss on behalf of the Estate of the Deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and/or pursuant to the Fatal Accidents Act 1976 as amended and/or pursuant to the Consumer Protection Act 1987 and/or the Product Liability Directive and/or - negligence and/or in restitution (unjust enrichment and/or wrongful act) - misrepresentation and/or deceit - aggravated/exemplary damages - and the Claimant seeks an account of profits[11]As set out in the Particulars of Claim, the Claimant’s case is that, contrary to the jury’s verdict, the Valve implanted in the operation was of the “large” type. The Claimant makes a number of allegations as to the manner in which valves of both the small and the large type were developed and tested by “Corevalve” (which it was accepted means the First Defendant).[12]As for causes of action, it was common ground that:(1) There is no claim under the Fatal Accidents Act 1976, because the late Mr. Ewan had no dependants.(2) The causes of action pursued by the Claimant pursuant to the 1934 Act arise: (a) in negligence (as set out in paragraph 43 of the Particulars of Claim); and (b) under the Consumer Protection Act 1987 (as set out in paragraph 42 of the Particulars of Claim); and (c) (according to the Claimant) unjust enrichment; but (d) not in misrepresentation or deceit: although these are referred to in the Claim Form, Mr. Berkley acknowledged that the Particulars of Claim does not plead a case in misrepresentation or deceit.[13]As for the remedies sought, the prayer for relief includes claims for:(1) Damages, including aggravated and/or exemplary damages.(2) An account of profits.(3) Damages in restitution.[14]A Preliminary Schedule of Loss and Damages dated 15 April 2016 identifies 3 heads of loss, against each of which appears, not a figure, but the letters “tba”. The heads of loss are:(1) General Damages.(2) Restitutionary Damages.(3) Aggravated and/or Exemplary Damages.[15]The Claim Form was served on the Fourth Defendant within the jurisdiction. It was served on the First and Third Defendants in Minnesota, pursuant to permission granted by Master McCloud on 2 June 2016 at an ex parte hearing. As to that application:(1) Contrary to CPR 6.37(1)(a), the Claimant’s application notice did not set out which ground in paragraph 3.1 of Practice Direction 6B was relied on.(2) The Claimant’s counsel’s skeleton argument mentioned ground (9), which concerns claims in tort, but made no mention of ground (16), which is the ground applicable to claims for restitution. Nor did it mention the Claimant’s alleged cause of action in unjust enrichment.(3) The skeleton argument asserted that the Third Defendant (and others) were the successors in title of CoreValve.(4) The skeleton argument did mention (as does the Particulars of Claim) that the Claimant had successfully brought the First Action, but did not mention the potential defence to which this gave rise, and to which I will refer.(5) The Fourth Defendant[16]It is common ground that the Fourth Defendant had no involvement with this matter until April 2009, about 18 months after Mr. Ewan’s death. The Claimant’s pleaded case against the Fourth Defendant is set out in paragraph 4 of the Particulars of Claim, which provides as follows:
“The First, Third, Fourth and Fifth Defendants are collectively referred to as “Medtronic”; the Fifth Defendant being the parent company located in Ireland. In 2009 Medtronic acquired CoreValve, including the intellectual property associated with the valve technology and development. Medtronic is sued as the successor of CoreValve and as the manufacturer producer and supplier of the Valve.”
[17]The Fourth Defendant was not the manufacturer, producer or supplier of the Valve. Nor is it the successor of the First Defendant. It is merely another company in the group which acquired the First Defendant in April 2009.[18]In paragraph 44(4) of his skeleton argument, Mr. Berkley says as follows:
“The Fourth Defendant, the English company, was a subsidiary of the Third Defendant until the incorporation of the Fifth Defendant, Medtronic Plc, in Ireland in 2014. It was an interested party in the Inquest and were represented by the Defendants’ current Solicitors and provided the non-party disclosure as well as the evidence of Dr Dunham regarding CE marking.”
[19]This is not a basis for making the Fourth Defendant liable to the Claimant. Nor is the allegation in paragraphs 53 and 55 of the Particulars of Claim that “Medtronic” has been unjustly enriched following the acquisition of the First Defendant by the Third Defendant in April 2009.[20]Accordingly, the Particulars of Claim discloses no reasonable grounds for bringing a claim against the Fourth Defendant. I order that it is struck out insofar as it relates to the Fourth Defendant. (6) The Third Defendant[21]The position is the same in relation to the Third Defendant. It follows that the Claimant does not have a claim against the Third Defendant which has a real prospect of success. Consequently, I set aside both:(a) Master McCloud’s order insofar as it relates to the Third Defendant; and(b) the service of the Claim Form on the Third Defendant out of the jurisdiction.[22]I would have made the same order in any event on the alternative basis that Master McCloud’s order was obtained on the basis of a misrepresentation that the Third Defendant was the successor in title to the First Defendant. (7) The First Defendant[23]The principal point taken by the First Defendant is that the Claimant’s claim has been satisfied by reason of the judgment obtained in the First Action, which has been paid. This is an application of the principle (as expressed in Halsbury’s Laws Vol 97, para. 449) that “a satisfied judgment … is a bar to a claim against other tortfeasors, whether joint or several, who are liable for the same damage.” As at the hearing, I will refer to this as “the Jameson principle”: see Jameson v. CEGB [1998] 1 AC 455.[24]Mr. Berkley did not dispute that this principle applied to bar the Claimant’s claim in this action for damages for pain, suffering and loss of amenity, loss of life, cost of treatment and funeral costs. He contended, however, that the Claimant was entitled to pursue this action against the First Defendant for:(1) Exemplary damages.(2) Aggravated damages.(3) Restitutionary damages.[25]I will address each of these heads of damage in turn. Mr. Riley-Smith QC did not contend that I should decide these applications on the basis that claims for such damages were precluded by the Jameson principle. Instead, he contended that neither these claims nor the alleged cause of action in unjust enrichment have any real prospect of success.[26]First, however, I note that Mr. Berkley also observed in his skeleton argument that:
“Additionally, the Claimant will seek to include other pecuniary losses including the costs of the judicial review proceedings and other costs which will become the subject of a schedule of loss.”
[27]There is no pleaded claim for these losses, and so I need not address them. However, if there were:(1) there might well be a question whether the Jameson principle permitted the Claimant to resurrect claims which were pursued in the First Action, but then abandoned when it came to the assessment of damages; and(2) in any event, I agree with what HHJ Platts said in paragraph 44 of his judgment about the abandoned claims: “It seems to me that these claims were doomed to fail. The claimant's argument was that the disclosure in this action had led to disclosure of documents which had they been available in the judicial review proceedings, either at first instance or on appeal, would have led to a different result in those proceedings with the result that she would not have had an order for costs made against her in those proceedings. There are so many difficulties with such a claim, not least that it seeks to go behind cost orders made by courts of competent jurisdiction in different proceedings, but also the cause of action is not identified and I am not clear what it is at present. It is not easy to see how the claim is that of the estate, the orders having been made against Mrs Shaw personally; the claim does not appear to be properly or substantively pleaded and there is no evidence before me to support it.

(a) Exemplary Damages

[28]Section 1(2)(a)(i) of the 1934 Act (as amended) provides as follows:
“Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person— (a) shall not include— (i) any exemplary damages;”
[29]This is a complete bar to the Claimant’s claim in this action for exemplary damages. That claim has no real prospect of success.

(b) Aggravated Damages

[30]As set out in paragraph 38-268 of McGregor on Damages (19th Ed.), aggravated damages:(a) are not available in cases of personal injury unless the Defendant’s conduct constitutes an assault; and(b) are awarded to compensate for injury to feelings. But in the present case: (a) there is no pleaded allegation of assault; and (b) since the late Mr. Ewan never recovered consciousness, he suffered no injury to his feelings. Consequently, this claim also has no real prospect of success.

(c) Restitutionary Damages

[31]In Devenish Nutrition Ltd. v. Sanofi-Aventis SA [2009] Ch 390, the Court of Appeal decided that a restitutionary award could not be made on a claim for a non-proprietary tort. This again is a complete bar to the Claimant’s claim in this action for restitutionary damages. That claim has no real prospect of success.

(d) Cause of Action in Unjust Enrichment

[32]Paragraphs 53 to 55 of the Particulars of Claim provide as follows:
“53. By putting into circulation the Valve and the larger and untested valve and causing or permitting the same to be implanted into the Deceased CoreValve and now Medtronic sought to gain substantial gains such as to unjustly enrich itself. 54. The Inquest was informed that the Deceased was to be the first person to receive the larger valve referenced CRS-P3-943. 55. CoreValve now is a subsidiary of Medtronic. The Claimant contends that Medtronic has unjustly been enriched from the use of the Deceased for the purposes of developing the valve and equipment for commercial exploitation.”
[33]It was unclear until the hearing whether the Claimant intended by these paragraphs to assert a cause of action in unjust enrichment or merely to support her claim for restitutionary damages by way of remedy arising out of her causes of action in negligence and/or under the Consumer Protection Act 1987.[34]That may also explain the basis on which the application was presented to Master McCloud, when no mention was made of a free-standing cause of action in unjust enrichment. Moreover, since the only ground on which Master McCloud was invited to make her order was ground (9), it follows that her order only gave permission for the Claim Form to be served out of the jurisdiction insofar as it contained claims in tort, which would not include a free-standing claim in unjust enrichment.[35]It follows that it is strictly unnecessary for me to consider the alleged cause of action in unjust enrichment. However, it seems to me that it too would have no real prospect of success. Mr. Berkley did not bring it within any of the recognised categories of claims for unjust enrichment.

(e) Account of Profits

[36]It was not suggested that the Claimant could claim an account of profits independently of either:(a) her claim for restitutionary damages; or(b) her alleged cause of action in unjust enrichment.

(f) The First Defendant: Summary

[37]What I have said so far is sufficient to determine the First Defendant’s application in its favour. I need say nothing about the allegations of non-disclosure, save to observe that the most compelling allegation in relation to the First Defendant was that the Claimant did not disclose that the First Defendant had a defence based on the Jameson principle. Nor need I address the issue of forum conveniens.[38]I have based my decision on the law as it is, rather than as it ought to be. In relation to a number of issues, Mr. Berkley’s submissions (drawing some support from passages in McGregor) addressed the law as ought to be, rather than the law as it is. In effect, he was inviting me to exercise my discretion to allow this action to proceed so as to allow the possibility for the law to be developed.[39]That can in some cases be an appropriate thing to do in response to an application for summary judgment, if (in the words of CPR 24.3(b)) those circumstances amount to an “other compelling reason why the case or issue should be disposed of at trial”. However, the Court’s discretion is not so wide in the case of strike-out applications or challenges to the jurisdiction. In any event, the facts of this case are not such as to give rise to a compelling reason for it to proceed to trial, especially as against a Defendant, such as the First Defendant, who is outside the jurisdiction. (8) Conclusion[40]For the reasons which I have given:(1) I set aside both: (a) Master McCloud’s order insofar as it relates to the First and Third Defendants; and (b) the service of the Claim Form on the First and Third Defendants out of the jurisdiction.(2) I order that the Particulars of Claim is struck out insofar as it relates to the Fourth Defendant.

Cited in 1 later judgment