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|Neutral Citation Number:  EWCA Civ 1010
| Case No: A2/2000/2343
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Mrs Justice Ebsworth)
|Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 29th June 2001
B e f o r e :
LORD JUSTICE HENRY
LORD JUSTICE JUDGE
LADY JUSTICE HALE
| MARGARET PATRICIA BRIODY
|- and -
|ST HELEN'S & KNOWSLEY
AREA HEALTH AUTHORITY
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen Irwin Esq, QC & Jonathan Glasson Esq
(instructed by Freeth Cartwright for the Appellant)
Ms Sally Smith QC & Charles Feeny Esq
(instructed by Hill Dickinson & Co for the Respondent)
HTML VERSION OF JUDGMENT
Crown Copyright ©
LADY JUSTICE HALE:
- Ms Briody claims £78,267 in damages from the defendant, whose negligence deprived her of her womb, in order that she may try to have two children through a surrogacy arrangement. In a reserved judgment handed down on 21 January 2000, Mrs Justice Ebsworth rejected this aspect of the claim, while awarding a substantial sum to compensate for her infertility and the deep sadness it had caused her. Ms Briody now appeals to this court. She also wishes to put before us new proposals which are different from those considered by Mrs Justice Ebsworth.
- Ms Briody, who comes from a happy and close knit Roman Catholic family in St Helen's, first became pregnant at the age of 17. She married the father and that marriage endured until they separated in 1990. After an essentially normal pregnancy, she was admitted to hospital on 8 April 1972 expecting a normal birth. But there was a prolapsed cord and she had to have an emergency caesarian section. The baby could not be saved. She soon became pregnant again, and after another uneventful pregnancy, she was admitted to Whiston Hospital on 12 March 1973 for the birth. Despite the recent operation, it was decided to conduct a trial of labour. The caesarian scar ruptured. A sub-total hysterectomy was performed, leaving her ovaries intact. The baby's head had escaped into her abdomen and the baby had died. This was a terrible experience for a young woman who had always wanted children: the judge accepted that when she learnt what had happened "... her feelings were of devastation and loss and that she had a sense of sorrow and emptiness she could not readily express in words". The couple investigated adoption but were first told that she was too young and then that there were no babies available. Eventually they were approved as short term foster parents and during the 1980s they fostered 13 or more children.
- Ms Briody consulted solicitors about another matter in about 1989. Her marriage was breaking up around this time. She decided to find out more about why her babies had died and she had lost her womb. These proceedings were begun in May 1992. She had first to overcome the hurdle that the damage had been done so long ago. The district judge declined to exercise his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period in sections 11 and 14 of the 1980 Act. In September 1995 Mr Justice Ian Kennedy allowed her appeal and permitted the action to proceed. In 1996 the claim was amended to include a claim for the costs of surrogacy, but she had discussed the matter with her solicitor back in 1993. The trial on liability took place before Mr Justice Garland, who gave judgment in her favour on 24 April 1998. The defendant appealed, and also sought leave to appeal long out of time against Mr Justice Ian Kennedy's decision. Both the appeal and the application were dismissed by this Court on 21 April 1999. Thus it was that the assessment of damages came before Mrs Justice Ebsworth at the end of 1999, nearly 27 years after the relevant events, 10 years after the claim had first been notified to the defendant, and 8 years after it had begun. By that time Ms Briody was 46 years old: she was 48 last month.
- Ms Briody had first approached a fertility service about surrogacy in mid 1997. The principal proposal before the judge was for "own egg" surrogacy, taking advantage of the fact that Ms Briody had lost her womb but not her ovaries. Her eggs would be recovered from her ovaries, fertilised with her partner's sperm, and the resulting embryos implanted in the womb of a surrogate mother. Ms Briody had first wanted to make the arrangement with a friend; that fell through and she reached an agreement with her sister; that too fell through; and she entered into an agreement with a surrogate in California, governed by Californian law.
- Mrs Justice Ebsworth heard evidence from two well known fertility experts: Professor Craft, who was proposing the treat the claimant, and Professor Lord Winston for the defendant. Both took the view that the chances of success were minimal. Professor Craft put them at one per cent: he had repeatedly advised Ms Briody and her solicitors that failure was "almost inevitable". Lord Winston put them at much less than one per cent, because at the claimant's age it was unlikely that they would be able to recover viable eggs or produce a child with them. The discovery of ovarian cysts made it even more unlikely. There was also the problem that Ms Briody's partner, Mr Hill, had sub-optimal sperm. It was proposed therefore to use ICSI (injecting a single sperm into the egg). This has a high chance of success: Professor Craft's view was that only three per cent of eggs fail to be fertilised. Lord Winston's view was that with older women failures of fertilisation and proper embryonic development were much more common. The judge was not invited to resolve the factual dispute between the experts because on any view the chances of success using Ms Briody's own eggs were so low that it would not affect the principle.
- It is clear from the judgment and from the evidence that there was also consideration of a surrogacy using "donor" eggs, usually those of the surrogate herself. Indeed, the claim was made on the basis that there should be two cycles of treatment using Ms Briody's eggs, which it was accepted would probably fail, and then four cycles using donor eggs. Although the judge made no detailed findings about it, the evidence was that the chances of success were a great deal higher. Even with Mr Hill's sub-optimal sperm, ICSI has a high success rate, and presumably the chances of success with the surrogate's eggs would be no different from her chances of success with IVF generally, which would depend upon her own age, health and other relevant characteristics.
- The judge rejected the "own egg" proposal as unreasonable, partly because the chances of success were so low, and partly because the Californian surrogacy agreement would not be possible here:
"On any view of our law the Claimant seeks an award of damages to acquire a child by methods which do not comply with that law; that seems to me to be wrong .... It is one thing for a court retrospectively to sanction breaches of statute in the paramount interests of an existing child, it is quite another to award damages to enable such an unenforceable and unlawful contract to be entered into."
She also rejected the "donor egg" proposal because it did not confront this latter problem. Having reached this conclusion on the proposals presented to her, it is scarcely surprising that she did not consider whether there were other reasons to reject the "donor egg" option.
- She expressly confined her decision to the "quite exceptional" facts of this case:
"It is possible to foresee a case in which a young married woman has been rendered incapable of bearing a child brings a case whilst still young and within the ambit of our law. That is not this case and I deliberately confine my decision to this case of proposed commercial surrogacy."
In this court, however, the defendant invites us to remove that limitation and hold that damages for surrogacy are never recoverable.
- Ms Briody seeks to put additional evidence before this court. We have not determined whether or not to admit it but we have of course looked at it. There have been two significant developments since the trial. First, eggs have been recovered from Ms Briody and successfully fertilised with Mr Hill's sperm. There are now six of their embryos in storage. It might be thought that this puts an entirely different complexion on the matter, but it is common ground that it does not. The chances of a successful pregnancy and birth being achieved with Ms Briody's eggs are still only one per cent, although Lord Winston agrees that the successful fertilisation has brought them up to that figure. Second, Ms Briody has abandoned the Californian agreement and found a proposed surrogate through the self help group, COTS: Childlessness Overcome Through Surrogacy. The evidence at trial was that Ms Briody had considered using COTS, and that they had indicated a willingness to accept her despite her age in the unusual circumstances. She now preferred the Californian arrangement because of the level of contact and openness which COTS expect of their members. She now proposes two cycles of treatment using her own embryos and if that fails four more cycles of treatment using the surrogate's eggs, and a further three cycles of treatment to have a second child. The whole arrangement would be covered by English law.
English law on surrogacy
- English law on surrogacy is quite clear:
a) Surrogacy arrangements are not unlawful, nor is the payment of money to a surrogate mother in return for her agreeing to carry and hand over the child.
b) The activities of commercial surrogacy agencies are unlawful. It is an offence for any person to take part in negotiating surrogacy arrangements on a commercial basis, ie for payment to himself or another (apart from the surrogate mother); for a body of persons negotiating surrogacy arrangements to receive payment from either the proposed surrogate mother or the commissioning parents; or for a person to take part in the management or control of a body of persons which negotiates or facilitates surrogacy arrangements: Surrogacy Arrangements Act 1985, s 2.
c) It is also a crime to advertise either for surrogate mothers or a willingness to enter into or make surrogacy arrangements: Surrogacy Arrangements Act 1985, s 3.
d) The surrogate mother is always the child's legal mother, irrespective of whose eggs were used: Human Fertilisation and Embryology Act 1990, s 27(1).
e) If the commissioning father supplied the sperm, he will be the child's legal father, unless section 28 of the Human Fertilisation and Embryology Act 1990 applies so as to make someone else the father. It should be possible, by treating him and the surrogate together, to avoid the exclusion from fatherhood of ordinary sperm donors: see 1990 Act, s 28(6)(a) and Sched 3, para 5).
f) If the child is born by IVF (in vitro fertilisation), GIFT (gamete intra-fallopian transfer) or artificial (but not natural) insemination to a married surrogate mother, her husband will be the legal father unless it is shown that he did not consent to the treatment: Human Fertilisation and Embryology Act 1990, s 28(2). If the treatment was given "... in the course of treatment services provided for her and a man together" by a licensed clinic, her partner will be the father: 1990 Act, s 28(3). But this can easily be avoided by her partner taking no part in the treatment.
g) No surrogacy arrangement is enforceable by or against any of the persons making it: Surrogacy Arrangements Act 1985, s 1A (see also Children Act 1989, s 2(9), reflecting the common law).
h) The future of any child born, if disputed, will always be governed by the paramount consideration of the welfare of the child: Children Act 1989, s 1(1). It is unlikely, although not impossible, that a court would decide that the child should go to the commissioning parents rather than stay with a mother who had changed her mind: see A v C  FLR 445; Re P (Minors)(Wardship: Surrogacy)  2 FLR 421. If the mother does not want the child and the commissioning parents are able to offer a suitable home, the court is likely to allow them to do so: see Re C (A Minor)(Wardship: Surrogacy)  FLR 846.
i) If the child is handed over in accordance with the arrangement, the court may be prepared retrospectively to authorise, under s 57(3) of the Adoption Act 1976, any payment made to the surrogate mother and grant an adoption order which would otherwise be prohibited by s.24(2) of the 1976 Act: see Re Adoption Application (Payment for Adoption)  Fam 81.
j) There is now a special procedure, similar to adoption, whereby the commissioning parents may become the child's legal parents: they must be married to one another, the child must be born as result of IVF, GIFT or artificial (again not natural) insemination using the gametes of one or both of them, the child must be living with them, the surrogate mother (and any father of the child who is not the commissioning father) must agree, and no payment must have been made unless authorised by the court: Human Fertilisation and Embryology Act 1930, s 30; see Re Q (Parental Order)  1 FLR 369.
k) If a surrogacy arrangement involves treatment in a clinic licensed by the Human Fertilisation and Embryology Authority (which will be the case in this country unless natural or private artificial insemination is used), this must not be provided
"unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father), and of any other child who may be affected by the birth": Human Fertilisation and Embryology Act 1990, s 13(5).
l) Clinics must observe the Code of Practice promulgated by the Human Fertilisation and Embryology Authority (see 4th edition, 1998). This provides that
"The application of assisted conception techniques to initiate a surrogate pregnancy should only be considered where it is physically impossible or highly undesirable for medical reasons for the commissioning mother to carry the child" (para 3.20).
It also gives guidance on the factors to be considered when taking account of the child's welfare (para 3.17); and points out that in a surrogacy arrangement either the surrogate (and her husband or partner if any) or the commissioning parents may become the child's parents and so both should be assessed, along with any risk of disruption should there be a dispute, and the effect on any other children in either the surrogate's or the commissioning parents" family (para 3.19.b).
- These provisions do not indicate that surrogacy as such is contrary to public policy. They tend to indicate that the issue is a difficult one, upon which opinions are divided, so that it would be wise to tread with caution. This is borne out in the official publications which have considered the matter. If there is a trend, it is towards acceptance and regulation as a last resort rather than towards prohibition.
- The "moral and social objections to surrogacy" weighed heavily with the majority of the Warnock Committee: see Report of the Committee of Inquiry into Human Fertilisation and Embryology, 1984, Cmnd 9314, chapter 8; cf "Expression of Dissent: Surrogacy". They not only made the recommendations which resulted in 1985 Act, but also recommended criminal liability "... for professionals and others who knowingly assist in the establishment of a surrogate pregnancy". This would have resulted in the virtual abolition of safe surrogacy arrangements while leaving private do-it-yourself arrangements untouched. Two members dissented: they thought that public opinion was not yet fully formed on the question and that it would be a mistake to close the door on it completely. They wanted to ban profit-making agencies but regulate the practice of non-profitmaking agencies on the analogy of adoption. The 1985 Act took a minimalist course. Yet only six years later, Parliament made special provision for commissioning parents to become legal parents, in section 30 of the 1990 Act.
- There was renewed concern in 1997, when Professor Brazier and her colleagues were asked to review the current law and practice. They found "that incomplete implementation of the recommendations of either the majority or the minority of the Warnock Committee created a policy vacuum within which surrogacy has developed in a haphazard fashion": see Surrogacy, Review for Health Ministers of Current Arrangements for Payments and Regulations, Report of the Review Team, 1998, Cm 4068, Executive Summary, para 3. They recommended further regulation, through the registration of non-profit-making agencies, who would have to abide by a Code of Practice, the continued banning of commercial agencies, statutory limitations so that surrogate mothers could only be paid genuine expenses, and the tightening of the section 30 process, with no power retrospectively to authorise illegal payments. These recommendations have not, as yet, been implemented.
- Thus, while there is general agreement that commercial agencies and advertising should be banned, that surrogacy for convenience or social rather than medical reasons is unacceptable, and that the agreement should be unenforceable, there is little discernible consensus on anything else. Lord Winston's view was that opinion was turning against surrogacy, and that was certainly his experience at his hospital, but if anything the tone of official publications since Warnock has been more sympathetic. Professor Craft's view was certainly different. The British Medical Association has published guidelines for health professionals: see Changing Conceptions of Motherhood, The Practice of Surrogacy in Britain (BMA, 1996). These begin:
"... surrogacy is an acceptable option of last resort in cases where it is impossible or highly undesirable for medical reasons for the intended mother to carry a child herself. In all cases the interests of the potential child must be paramount and the risks to the surrogate mother must be kept to a minimum."
- Elsewhere in the world, opinion is even more divided. There are some jurisdictions where surrogacy is banned altogether and others where the surrogate mother is not even regarded as the mother of the child. It would appear (although I do not know whether there was any evidence on this before the judge) that in California commercial agencies are permitted and surrogacy agreements may be binding. If so, I have no difficulty in agreeing with the judge that the proposals put to her were contrary to the public policy of this country, clearly established in legislation, and that it would quite unreasonable to expect a defendant to fund it.
- On the other hand, I find it impossible to say that the proposals which the claimant now wishes to pursue are contrary to public policy in that sense. She fulfils the criteria for permissible surrogacy laid down both by the Human Fertilisation and Embryology Authority and the BMA: she has no other way of having a baby because she has no womb. She has found a surrogate mother through perfectly lawful means with whom she proposes to make a lawful, although unenforceable, arrangement. She is being treated through a clinic which is licensed to provide these treatments by the Human Fertilisation and Embryology Authority, which has arranged the counselling required under the HFEA Code of Practice, and has presumably made its assessment of the welfare of the child (and of the surrogate mother's children) in accordance with that code. That is not, however, the end of the matter.
The principles of the law of damages
- In novel cases it is often helpful to return to first principles. It is trite law that the purpose of the award of damages in tort is, so far as possible, to put the claimant in the position in which she would have been had the tort not taken place. This was clearly stated by Lord Blackburn in Livingstone v Rawyards Coal Company (1880) 5 App Cas 25, at p 39:
"I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation."
Part of that principle is that the claimant is not entitled to ask the defendant to pay to make him better off than he would have been without the tort. He also has to give credit for any benefits received: hence the House of Lords' decision in McFarlane v Tayside Health Board  2 AC 59 that the benefits of having a healthy, if initially unwanted, child must be taken to cancel out the costs of his upbringing.
- Where someone has suffered personal injuries of a lasting nature, they cannot be put back in the position in which they would have been had the injury not happened. They are compensated by an award for the pain and suffering they have endured and for the continuing loss of amenity in their lives. In the case of a woman who has always wanted children, to be deprived forever of the chance of having and bringing up those children is a very serious loss of amenity quite separate from the pain and suffering caused by the injury. The level of awards for young childless women should reflect an understanding of how grave a detriment this is.
- An injured person can also claim reasonable medical expenses reasonably incurred as a result of the injuries. That these must be reasonable is confirmed by the Law Reform (Personal Injuries) Act 1948, s 2(4), which provides:
"In an action for damages for personal injuries ... there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage if the facilities available under the National Health Service Act 1977 ..."
No doubt this provision was passed to resolve an argument which had developed after the passing of the first National Health Service Act in 1946.
- Sometimes such expenses are simply the continuing treatment required by the continuing consequences of a permanent injury. Sometimes however they are incurred in an attempt to restore to the claimant that which has been lost. Thus, for example, in Hamp v Sisters of St Joseph's Mount Carmel Convent School (see Kemp and Kemp, The Quantum of Damages, vol 2, para D2-011), the award was for the substantial costs incurred in attempts to restore some sight to a child who had been blinded in a school chemistry lesson. If the treatment has been successful, or is likely to be successful in future, such awards should have a corresponding impact upon the loss of amenity claim. Awards for IVF fall into this category. An early (perhaps the earliest) example is Biles v North East Thames Regional Health Authority, a decision of Mr Justice Webster on 39 October 1987 (see Kemp and Kemp, vol 2, para F5-112). As a result of negligent medical advice, the claimant had been sterilised at the age of 19 by blocking her fallopian tubes. When she discovered that this had been unnecessary, she underwent several operations aimed at opening up the tubes. When these were unsuccessful, she undertook four cycles of IVF which failed. She was planning to have one last try, but this had only an 8 to 10 per cent chance of success. Mr Justice Webster awarded her general damages on the basis of her probable permanent infertility, but also provided for this final attempt.
- Since then there have been other similar awards made (or agreed on terms: see Riggs v East Dorset Health Authority, Kemp and Kemp F5-022). But Miss Smith QC, who appears for the defendant, tells us that, as far as she knows, none of these awards have involved the use of donor eggs: in effect, IVF has been used to overcome the blockage which should not have occurred between the claimant's ovaries and her womb.
- There are several very important differences between this case and those where awards for IVF have been made. The first is that the chances of a successful outcome to a surrogacy using the embryos now created from Ms Briody's eggs and Mr Hill's sperm are so vanishingly small. I agree with the judge that it would not be reasonable to expect the defendant to pay the expense of such a slim chance. I take the point that the chances might have been better had this case been decided earlier, but I do not understand that the defendant is any more responsible for the delays than is the claimant. In any event, we have to deal with the situation as it is now.
- The defendant should not in any event be required to pay any additional costs of ICSI, if these are occasioned solely by the quality of Mr Hill's sperm and have nothing to do with their negligence.
- In this court, however, more attention has been paid to the alternative, of using "donor" eggs. This obviously has a much higher chance of success: some of the evidence below put it as high as 25% per cycle. Donor eggs are a completely different proposition from own eggs. Mr Irwin QC, for Ms Briody, persuasively argues that a woman can hope for four things from having a child: the experience of carrying and giving birth to a wanted child (which many women find satisfying although others do not); the perpetuation of one's own genes; the perpetuation of one's partner's genes; and the pleasure of bringing up a child as one's own. Ms Briody has been deprived of the first; own egg surrogacy would give her the remaining three; donor egg surrogacy using Mr Hill's sperm would give her two out of the four.
- I am however unpersuaded. This proposal is not in any sense restorative of Ms Briody's position before she was so grievously injured. It is seeking to make up for some of what she has lost by giving her something different. Neither the child nor the pregnancy would be hers. It is significant that Ms Briody and her first husband tried to make good their loss by adoption, but by then the supply of babies for adoption was beginning to dry up and they turned to fostering instead. These days, some childless couples with the resources to do so become parents by inter-country adoption. The expenses of travelling to the foreign country, staying there, dealing with the various intermediaries and formalities, can be very heavy. But, so far as I am aware, no-one who has been wrongfully deprived of the possibility of having a child of their own has sought to claim these. I cannot think that any court would consider it reasonable to expect a defendant to pay them.
- While everyone has the right to try to have their own children by natural means, no-one has the right to be provided with a child. Mr Irwin prayed in aid Article 12 of the European Convention on Human Rights:
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
- So far, the European jurisprudence has linked these two rights: the right to found a family is a family founded by marriage; the right to marry is limited to traditional marriage between persons of opposite biological sex: see Rees v United Kingdom (1986) 9 EHRR 56. More importantly, these are freedoms which should not be arbitrarily restricted, for example by preventing prisoners from marrying; this may well preclude placing arbitrary or disproportionate restrictions upon access to the reproductive services which are generally available. But that is quite different from having a right to be supplied with a child (or a spouse): see the recent decision of this Court in R v Secretary of State for the Home Department, ex parte Mellor, The Times, 1 May 2001.
- I conclude that expenditure on surrogacy in this case is not "reasonable" and the defendant should not be required to fund it. I am fortified in that view by the opinion of Professor Craft. Although he thought that the claimant should be given the chance of achieving her desires he did not think that she was "sensible" to do so. "Sensible" is very close to "reasonable". I repeat, neither the child nor the pregnancy would be hers: without either, the situation is no different from adoption.
- There are two intermediate cases which do not arise for decision in this case and upon which it would be unwise to express a concluded view. In one, the child would be hers but the pregnancy would not; in the other, the pregnancy would be hers but the child would not.
- The first is where the claimant wishes to make a surrogacy arrangement using her own eggs, as might be the case of a younger woman in Ms Briody's position. To be reasonable, there would have to be a reasonable chance of a child being achieved as a result. This would be a matter of evidence. But I would not exclude surrogacy just because it was surrogacy: I have already explained why I do not consider that an arrangement which conforms to English law is contrary to public policy. The difference between supplying eggs and supplying a womb is that the surrogate who supplies the womb may change her mind: but the evidence given to the Brazier team was that this is very rare. It would depend upon the evidence in the individual case, and that chance would have to be added to the other uncertainties involved in all such treatment. But if those chances were good enough, I would not think this a good reason to refuse an award. The question is whether, to be reasonable, reparation has to produce, not only a child to rear, but also a child who is the product, both of one's own genes and of one's own womb.
- The second is where the claimant herself wishes to undergo IVF using donor eggs, perhaps because her ovaries have been wrongly removed or damaged by negligent treatment. I understand that to date awards for IVF have only been made where the treatment aims to allow the woman to bear her own genetic child. As Mrs Justice Ebsworth pointed out, whether one should award to damages in order to bring a new child into the world is a quite different question from how one should look after (and pay for) a child who is already here. Although the child could never complain that he should never have been born, the law accepts that there are choices to be made as to who should and who should not be provided with treatment to give them a child they would not otherwise have had. The child's interests, as well as theirs, have to be considered.
- My tentative view is that each of these cases is a step too far. To choose between them would be to elevate either genetic parentage or the process of carrying and giving birth above the other in the scale of loss which it is reasonable to try to make good with alternatives. But I recognise the force of the contrary argument that both are equally serious and that, given the right evidence of the reasonableness of the procedure and the prospects of success, each should be capable of attracting an award.
Should we admit the fresh evidence?
- As I have reached the conclusion that, even with the fresh evidence, I would not allow this claim, it is not strictly necessary for me to decide whether, in any event, Ms Briody should be permitted at this stage in the case to present a different proposal from that which was explored in the evidence given before the judge. The existence of the embryos might put another complexion on matters: even though they are not yet lives in being, or even foetuses (because at their present stage of development it is not possible to know which cells might become a person and which would become the placenta), the law does recognise that they are entitled to a degree of protection and respect. But it is common ground that their existence affects matters hardly at all. Hence Ms Briody has had to change from "own egg" to donor egg surrogacy and from arms' length Californian surrogacy to domestic "family and friends" surrogacy. These are fundamental changes amounting to a new case and which would have to be properly tested in court before a judge could reach conclusions as to their reality and reasonableness. Hence I agree with Lord Justice Judge that, in the circumstances of this particular case, the fresh evidence should not be admitted.
- As I have already suggested, fertility, child birth and child-rearing have such significance to most women, to how they see themselves, and to their hopes for themselves and others, that permanently to deprive a woman, especially a young and childless woman, of that fertility is to do her a grievous injury for which she deserves proper compensation. If she then chooses to spend some or all of that compensation in making the attempt to fill the gap, whether by donor egg IVF, surrogacy or adoption, then I would wish her well. But that is for her to choose and will depend upon the priority which she gives to pregnancy, genetic parentage, or child care. That is a separate matter from whether the defendant should be required to fund the required speculative expenditure on top of the award of damages for loss of amenity.
- I would dismiss this appeal.
LORD JUSTICE JUDGE:
- The essential facts are analysed in Hale LJ's judgment.
- This appeal is concerned with a single aspect of Ebsworth J's assessment of damages. On this issue the claimant's case before her was:
"... that she should be entitled to the cost of attempting to retrieve her own eggs from her own ovaries to be fertilised with her partner's sperm and placed in a surrogate mother pursuant to a contract she has entered into in California, governed by Californian law….. Her medical evidence from Professor Crafts is that the claimant has a chance, which she estimates at 1%, of a child being conceived with the use of her recovered eggs fertilised by the sperm of her partner, using the ICSI technique and inserted into the womb of the surrogate mother. ...."
- The judge directed herself to consider whether the claim was sustainable in law when, first, the defendants were being required to fund treatment with, at best, "a minimal chance of success", and, second, when the purpose of the award, if made, would be to enable the claimant to acquire a child by methods which are outlawed in domestic law. She concluded, first, that the chances of success were so low that it was "... unreasonable to require the defendants to fund the enterprise", and that the court should not award damages to enable the claimant to enter into an unenforceable unlawful contract.
- On the evidence and arguments deployed before her, this judgment was unassailable in this court. The claim was irretrievably flawed in two respects. First, the method proposed to remedy this particular consequence of the medical negligence suffered by Ms Briody involved a difficult surgical procedure which was virtually certain to fail. There was no realistic possibility that an award of damages under this head would provide compensation which would have restored to her, or retrieved at least something of what she had lost as a result of the defendant's negligence. Second, irrespective of dire medical prospects, the entire surrogacy agreement was unlawful in the United Kingdom. The judge was being asked to award damages for the express purpose of enabling Ms Briody to be provided with the wherewithal to pay for an unlawful contractual arrangement. That is not a principled basis on which to make a compensatory award.
- In effect, the case which we are being asked to decide is a new one, not in relation to the issue of negligence, which was not and could not be disputed before Ebsworth J, but in relation to the essential issue before her, an award of damages to enable Ms Briody to fund a claim for the cost of a post-trial operation. The agreement now contended for is not unlawful. The medical process is completely different, involving the use of donor eggs. Ms Briody will not bear the baby, and when born, it will not be her child. The proposed arrangements would be made through the COTS Organisation, of which Ms Briody had made enquiries before trial, but which at that time she had rejected in preference for the California option. Although the prospects of success have significantly improved, they are still poor, much more likely to result in failure than success.
- None of these proposals, either individually, or overall, in the sense of their differing impact on each other, was properly examined at first instance, and in particular with Ms Briody herself. Although she was cross-examined about her enquiries of COTS, and indeed the lack of progress in her attempts at surrogacy, and the judge expressed "serious factual misgivings" about Ms Briody's evidence on this aspect of the case, in the end, once it was established that the COTS option was no longer in issue, it was unnecessary to explore the matter in any greater detail than it was.
- Miss Sally Smith QC was not indulging in mere forensic tactics when she asserted that on these new issues she would wish to cross-examine Ms Briody further. It is clear from the judgment that the impression made by her on the judge was not altogether satisfactory. Thus, for example, the judge concluded that in part of her evidence, the claimant
"... was telling me what she believes to be the truth, but that she displayed at times a capacity both for minimisation and exaggeration and in particular that she has extended the period of symptoms", (that is of depression and mood disorder).
- Having regard to the judge's express reservations in relation both to the apparent lack of progress, as well as generally, it would not in my judgment be right to make favourable assumptions in favour of the appellant. Given that, to put it neutrally, her plans have changed more than once, and that the case now advanced represents at least one, if not the second of two new proposals since trial, one question which would undoubtedly require consideration would be whether in the final analysis Ms Briody would indeed be prepared to go through the entire procedure when, if it were successful, she would not in the end carry the baby herself, and it would not be her child.
- In reality, the case now before us on appeal has never been considered at first instance, and crucially there is no judgment from a trial judge which deals with and resolves important factual issues.
- The over-riding objective of the new Civil Procedure Rules is to enable the courts "... to deal with cases justly", and that includes, but is not limited to the matters set out in Rule 1.1(2). Naturally enough, the saving of expense, and the need to deal with cases proportionately, are crucial factors which a court, including this court faced with a situation like the present should take into account, but it is also necessary to recognise that the case must be dealt with "fairly", so as to provide a just outcome. In my judgment, in the circumstances of this case, justice could not be done to both parties by this court acting, as in effect we should be required to do, in part as a Court of Appeal and in part as a court of first instance, dealing with legal issues which might arise in the context of some critical assumptions of fact.
- Rule 52.11 of the Civil Procedure Rules, replacing Ord 59 of the Rules of the Supreme Court provides:
"(2) Unless it orders otherwise, the appeal court will not receive oral evidence; or
evidence which was not before the lower court."
- By omitting the reference to "special grounds" formally included in Ord 59, the relevant test has been made less stringent. Nevertheless the principle remains that fresh evidence should not normally be received. The appeal court "will not" receive such evidence unless "it orders otherwise". Neither the public interest, nor the private interest of individual litigants in the principle of finality in litigation is undermined by the new Rule. Litigation must be brought to an end, and indeed under the Civil Procedure Reforms, judicially managed to achieve that result. After participating in the judicial process, successful litigants are entitled to the benefit of the court's judgment in their favour.
- Cases will obviously remain in which this court should receive evidence which was not put before the court below. In the context of the exercise of the court's discretion to permit further evidence to be adduced after judgment, but before the order had been drawn up, the principle was examined by Neuberger J in Charlesworth v Relay Roads  1 WLR 230, and his approach was endorsed by this court in Townsend v Achillias General, 6 July 2000, in the context of CPR 52 itself. Mummery LJ explained that:
"In the exercise of the general power to receive fresh evidence under this rule the court must seek to give effect to the over-riding objective enabling the court to deal with the cases justly .... The proper application of the over-riding objective justifies the court in setting stringent limits to the re-opening of issues after the judge has delivered final judgment in an action …. The power is to be exercised 'very cautiously and sparingly' in accordance with the over-riding objective. Litigants are not to be allowed 'unlimited bites of the cherry'." (see, also, Stuart v Engel,  1 WLR 2268, from which these quotations were derived.)
- Mummery LJ went on to indicate his support for the continuing validity of the conditions identified by Denning LJ in Ladd v Marshall  1 WLR 1489. Perhaps, by way of footnote, I should add that, whether anyone had expressly declared that the disposal of cases "justly" was an over-riding purpose of the administration of civil justice in 1954, it would be laughable to approach his analysis of the relevant conditions as if Denning LJ (of all people) had nodded Homerically, and misunderstood it.
- Emphasis was added to the application of Ladd v Marshall by Hale LJ's summary of the relevant authorities in Hertfordshire Investments Limited v Bubb  1 WLR 2318 at 2325, applying Banks v Cox (unreported) 17 July 2000 and Hickey v Marks (unreported) 6 July 2000, and then underlined by the decision of the court, refusing the application under CPR 52.11. In my judgment it is now beyond further argument that the longstanding principles in Ladd v Marshall continue to apply after the implementation of the Civil Procedure Rules as they did before.
- Unless all three conditions are established, the court is unlikely to receive the further evidence: if they are, the likelihood is that it will do so. Each case remains an individual case, but in deciding how "justly" to deal with it, the forensically attractive argument, readily deployed, that it is always more "expeditious", and likely to result in the "saving of expense" and indeed reduced wastage of court resources, for the court before which an issue is raised to resolve it, must be put in context of the interests of justice to the successful party below and the public interest in an end to litigation. Once the power to receive the evidence has been exercised this court must then resolve whether there should be a new trial.
- In this case, even if the evidence should be received, I have no doubt that a new trial should be ordered. This court is not a court of first instance. There are critical factual issues which we cannot resolve on paper, and which require systematic analysis, followed by judgment in the ordinary process.
- All that however begs the question whether the evidence should be received at all. In the sense that it was not before Ebsworth J, it is fresh or additional to, indeed in reality a substitution for the evidence that was, and reflected the deliberate decision by Ms Briody, after ample time to reflect on the alternatives, to take the California option and use eggs recovered from her in the medical process. That presumably reflected her honest intention at the time of the trial, and her claim for damages was presented on that basis. That basis having been rejected by Ebsworth J, and this court, it is not in my judgment open to Ms Briody now, in effect to restart this aspect of her claim for damages on a quite different basis. If the evidence were received it would, in effect, mean that this issue would be litigated twice, on the second occasion to reflect the claimant's change of mind after the trial judge had given judgment against her. A second trial to cover an inconsistent if not contradictory way of advancing this head of claim would be an inappropriate application of the powers of the court under CPR 52.11. In my judgment it would be inappropriate for the further evidence to be received, and the appeal should be dismissed.
- Having read Hale LJ's judgment I am persuaded that in any event there is no sufficient basis for an award of damages on the basis of the proposal currently before us.
- Beyond that, despite the careful arguments before us, and the interesting issues to which they give rise, I do not propose to add anything further about the principles which should govern claims for damages which may arise in this field, or indeed, the impact, if any, of Article 12 of the European Convention on Human Rights. Equally, for the avoidance of misunderstanding, I emphasise that Ms Briody continues to be entitled to general damages to compensate her for the grevious harm that was done to her. We have not been asked to consider this aspect of her claim.
LORD JUSTICE HENRY:
- I agree with both judgments. I would like to pay tribute to Mrs Justice Ebsworth's judgment at first instance. We profited from the clarity with which she approached surrogacy and the many issues live before her, and from her summary of the background to the case.
ORDER: Appeal dismissed with costs subject to detailed assessment as per counsel's draft order.
(Order does not form part of approved Judgment)
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