12 October 2017 - Post by:Jason Rix
In the extraordinary facts of ARB v IVF Hammersmith, E had been born following a forged consent form given by ARB’s ex-partner to an IVF clinic. ARB established that the clinic had acted in breach of contract. However, public policy precluded his claim for the cost of bringing E up.
ARB claimed the clinic had breached:
- an implied warranty, in the nature of a guarantee, to secure ARB’s written (informed) consent before any embryos were thawed and/or implanted; and
- an express term of the cryopreservation agreement which stated “[we] understand that we must both give written consent before any embryos are thawed and replaced”.
The court felt that implying strict duties, as opposed to reasonable care ones, was a challenging proposition. The Sale of Goods Act 1979 implied undertakings as to title, quality, fitness for purpose and correspondence with description of sample which could fairly be described as strict. That was because the statute specifically defined them in that way. There was nothing comparable in the Human Fertilisation and Embryology Act 1990. The closest analogy was Liverpool Corporation v Irwin  AC 239 where terms were implied into tenancy agreements against the general backdrop of the Housing Act 1961. Lord Wilberforce made clear that the implied obligation to repair could not be strict. Accordingly, the implied obligation on the clinic was to exercise reasonable care. This it had done.
The court acknowledged that, taken literally, the express term did not require the clinic to do anything. However, having regard to the factors set out by Lord Neuberger in Arnold v Britton the court held that a reasonable person would have expected the clinic to have obtained the written consent of both parties before proceeding. The court considered Thake v Maurice  1 QB 644. There, a statement by a surgeon that a vasectomy was irreversible was held not to be a binding promise that the surgery would achieve its purpose. The instant case fell on the side of the line which equated to strict liability. As a forged consent was a non-existent consent, the clinic was in breach.
Ultimately, public policy, including the unwillingness to regard the E as a financial liability, precluded ARB from recovering damages.
Update 17/12/18: The Court of Appeal has upheld the High Court’s decision that the obligation in the express term was a strict one to obtain documented proof of written consent.