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||Neutral Citation Number:  EWHC 2468 (QB)
||Case No: HQ00X04275
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE BURNETT
|| Mrs H B Farraj
Mr B Farraj
||- and -
||King's Healthcare NHS Trust
Cytogenetic DNA Services Ltd
Gerard McDermott QC and Harry Trusted (instructed by Bolt Burdon and Kemp) for the Claimants
Martin Spencer QC and Jane Mishcon (instructed by Hempsons) for the First Defendant
Andrew Prynne QC (instructed by CMS Cameron McKenna LLP) for the Second Defendant
Hearing dates: 15,16,17,18,21,22,23,24,25,28,30,31 July 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon. Mr Justice Burnett :
- The Claimants are the mother and father of Abdullah Farraj who was born in Amman, Jordan on 4th December 1995. He suffers from Beta Thalassaemia Major ("BTM"), an inherited blood disorder resulting from an abnormality in haemoglobin production that is seriously disabling and substantially reduces life expectancy. This is a claim for 'wrongful birth', limited to liability only. The First Defendant, King's College Healthcare NHS Trust ("KCH"), undertook genetic testing of a sample provided by the First Claimant from Jordan, and the Second Defendant, Cytogenetic DNA Services Limited ("CSL"), cultured that sample. The testing by KCH was done pursuant to a contract with the Jordanian Government. CSL contracted with KCH to undertake the culturing. Neither contract was in writing, nor were there any express terms beyond the price and nature of the task to be undertaken. The report provided by KCH on the sample stated that the foetus would not suffer from BTM. That was wrong because it is now clear that the sample was very substantially contaminated by maternal cells so that the DNA tested was in fact the mother's. It is not suggested that the testing or culturing were negligently conducted. Rather, the essence of the claim is that both Defendants should have appreciated that the quality of the sample was so poor that no confidence could be placed in the result. Had they done so, the First Claimant would have provided a second sample which would have produced a reliable result. In that event she would have had an abortion. The negligence alleged against both Defendants can be distilled to the proposition that there was a lack of proper communication between them. KCH should have asked CSL whether the cultured sample would deliver reliable results when genetically tested and informed themselves about the risks of maternal contamination; CSL should have volunteered that information, even if not expressly asked. Additionally, it is suggested that KCH's report to the Claimants' obstetrician was negligently drafted because it expressed over confidence that the foetus was clear of BTM, even on the basis of the information available to its author, Dr Layton.
- It is the Claimants' case that if they had known that Abdullah would suffer from BTM, he would have been aborted. English law does not admit a claim for wrongful birth by a child who would, but for the alleged negligence, have been aborted. It does, however, admit such a claim by the parents for the costs associated with such a disability. That was the effect of the decision of the Court of Appeal in Parkinson v St James and Seacroft University NHS Trust  QB 266. That decision was considered, but not overruled, by the House of Lords in Rees v Darlington Memorial Hospital NHS Trust  1 AC 309, which confirmed that no claim could be brought for the 'wrongful birth' of a healthy child. Mr Prynne QC, who appeared for CSL, accepted that I am bound by Parkinson but reserved for elsewhere his argument that it was wrongly decided and can no longer stand in the light of the reasoning of the majority in Rees.
- These proceedings were initiated against KCH by Particulars of Claim served on 31st January 2001. By their Defence, KCH averred that the culturing of the cells was the responsibility of CSL, for whom KCH had no legal responsibility. Various allegations were made against KCH which were revised wholesale in Amended Particulars of Claim dated March 2004, for which permission had been given by Elias J. That pleading focused on the failure of proper communication between the laboratories of KCH and CSL. It was averred that the duty of care owed by KCH to the Claimants was non-delegable so that in so far as the failure might rest with CSL, KCH was nonetheless liable for it, come what may. The Amended Particulars of Claim pleaded failures on the part of CSL to inform KCH of the poor quality of the sample such that its reliability as foetal material was in doubt. By their Amended Defence served on 25th June 2004, KCH admitted that they owed the Claimants a duty of care to use reasonable professional skill to assess and report on the sample (that is despite there being no contractual relationship between them), but denied that they had a non-delegable duty that had the effect of making them liable for CSL's failures (if any). KCH averred that it was reasonable for them to rely upon CSL to inform them if there were any particular problems, and they were not so informed.
- At the same time, KCH issued Part 20 proceedings against CSL in which were repeated the allegations made in the Amended Particulars of Claim. By their Defence, CSL denied that they owed any duty of care to the Claimants and that they performed the limited contract between them and KCH to culture the sample. The question whether CSL owed any duty of care to the Claimants was heard as a preliminary issue by Swift J. In a judgment dated 26th June 2006  EWHC 1228 (QB) she concluded that they did. Although CSL sought to challenge that conclusion, permission to appeal was refused both by Swift J and by the Court of Appeal. Her conclusion on the duty of care issue is found in paragraph 79 of her judgment.
"Any duty of care owed by CSL would consist of a duty to exercise reasonable skill and care in the performance of the services which it provided. These services included, on the facts of this case, the cleaning and sorting of the CVS provided to it, the culturing of cells from that CVS and the return of the cultured cells to KCH. The duty may, in my judgment, have included a duty to provide to KCH information (for transmission, directly or indirectly to parents through their medical advisers) which might materially affect the reliability of testing carried out on the relevant sample and/or a duty to have in place appropriate systems for communicating such information. Whether the duty extended that far in the circumstances of this case is a matter for evidence, which may include expert evidence, together with evidence about the previous course of dealings between KCH and CSL. Factual issues would no doubt arise; for example, as to whether, given KCH's knowledge of the state of the CVS when received, it would have been necessary or appropriate for CSL to have provided any further information and, indeed, whether CSL had any further information to give. Some of these issues may go to the scope of the duty, others to breach of duty. I cannot resolve these issues now. It is impossible, at this stage, to predict how the evidence would come out at trial. All I can say is that it is possible in my view that the general duty of care that I have referred to might in some circumstances extend to a duty to provide the kind of information I have mentioned. I should make it clear that, having found that CSL owed a duty of care to the Claimants, I do not seek in any way to limit or circumscribe the scope of the duty at this stage."
- The judgment also contains a detailed procedural history of the case, some of which I have summarised. In addition, Swift J dealt with an application by the Claimants to join CSL as Second Defendant in the action, which she allowed, dealing inter alia with limitation arguments. It was in these circumstances that this claim came before me for a trial on liability against both Defendants (together with contribution proceedings). Both Defendants deny that their actions fell below the standard to be expected of a reasonably competent laboratory in their respective fields. Each suggests that the other was in breach of duty in failing to ensure that relevant information about the quality of the sample (and thus the risk of maternal contamination) was communicated to the Claimants. KCH suggests that CSL should have told them of the problems with the sample which should have led them to realise that the cells they had cultured were likely to have been maternal and not foetal. CSL contends that they did what they were asked to do and that KCH should have put in place a system which positively called for information from them. The Claimants are content to agree with the criticisms that each Defendant makes of the other, while saying that both are responsible and that it is unreal to argue that only one could be liable. Had both laboratories been part of the same organisation, as was the position elsewhere in the country, there would be no issue on breach of duty. The focus would have been on the other legal arguments to which I shall turn, and on causation.
- Both Defendants deny that any failures on their parts were causative of any loss that the Claimants may have sustained. They do so on two distinct bases. First, that despite what the Claimants have said in evidence, they would not have aborted Abdullah after the 17th week of pregnancy (calculated from conception rather than the end of the last menstrual period) because to do so is contrary to the tenets of Islam. The Defendants suggest that however one looks at the chronology it would not have been possible for a second test of any sort to have delivered a reliable result before then. There is no evidence to support any suggestion that an abortion would have been possible on the basis that BTM had not been excluded as a risk. It would only have been available if the disease had been identified in the foetus. Secondly, that in any event the latest possible date for an abortion would have been at 20 weeks (calculated from the end of the last menstrual period) and that a second reliable test could not have delivered results in time.
- The Defendants further aver that this claim should be governed by Jordanian law and that it cannot succeed applying that law because it would not have been lawful in Jordan to terminate a pregnancy on the basis that the child would suffer from BTM. Even if governed by English law, they suggest that the Claimants cannot succeed because the abortion which the First Claimant was denied would have been unlawful in Jordan (the only country where factually it would have been performed) and in those circumstances it would be contrary to public policy to allow the claim.
- The parties are agreed on a number of important factual issues. The Claimants are Jordanians and are first cousins who married on 17th April 1992. Their first child, Manal, is not affected by BTM but their second child Rawan, who was born in March 1994, suffers from the condition. Both Claimants carry the gene that can cause BTM. A pregnancy where both mother and father carry the gene generates a 25% chance that the child will be born with BTM, a 25% chance that the child will not carry the gene and a 50% chance that the child will carry the gene but not suffer from BTM.
- The recessive gene that causes BTM is much more common in some countries than others. In Jordan it is carried by about 4% of the population with the result that BTM is a significant problem.
- The First Claimant became pregnant in early March 1995 for the third time. Her pregnancy was managed by Dr Batayneh, an obstetrician at the King Hussein Medical Centre in Amman ("KMHC"). That is principally a military hospital, albeit that additionally it provides services to the civilian population. At the time the Second Claimant was a serving officer in the Royal Jordanian Army and many of the doctors at the hospital, including Dr Batayneh, were also officers in the Army. The Claimants wished to establish whether the foetus would suffer from BTM. On 6th May 1995, at about the eleventh week of pregnancy, Dr Batayneh took a chorionic villus sample ("CVS") from the First Claimant. A CVS is taken using a fine needle introduced through the abdomen and consists of tissue taken from folds of the chorion, from which the foetal part of the placenta is formed. If the sample is indeed chorionic villus it is genetically that of the foetus and not the mother. A CVS may be contaminated with blood or other tissue which comes from the mother and thus carries her genetic makeup.
- In addition to the CVS sample, Dr Batayneh took blood samples from both Claimants and from Rawan. That was necessary to enable the precise type of genetic disorder to be isolated against which the CVS could then be compared. No useful genetic test could be undertaken on the CVS until that exercise had been carried out.
- Dr Batayneh sent the samples to Dr Mark Layton at KCH. At the time he was Senior Lecturer in Haematology and Honorary Consultant in the Department of Haematological Medicine. The sample was sent via the Royal Jordanian Embassy in London. KHMC and the Embassy had dealt with KCH on a number of occasions previously in seeking genetic testing for BTM. The fee was £580. The sample arrived at KCH on 10th May and was received by Lisa Thompson, then Chief Biomedical Scientist in Dr Layton's team. The CVS arrived at KCH in an unlabelled tube. Dr Batayneh's covering letter was in these terms:
"TO: DR Mark Layton FROM: Dr Osama Batayneh
Senior Lecturer/Hon.Consultant Specialist GYN & OBS.
Pt. Hanan Basem D.O.B. 1.8.67
I am writing regarding the above pt. Para 2+0.
The first child 2 years old female Normal
The 2nd child one year old female affected with B-Thalasemia major.
Both Parents are carriers for the gene.
Her LMP: 18.2.1995
She is pregnant 11 weeks, I would like to assess the B-Thalasemia status of this pregnancy. Enclosed is a CVS sample and EDTA blood from both parents and affected baby.
Dr Osama Batayneh"
- The CVS was very small. It was not possible to conduct genetic testing on the sample in the condition in which it arrived. Samples taken in the United Kingdom at that time, particularly in the obstetrics unit at KCH, were often of sufficient size and quality to enable the tissue to be genetically tested without culturing. However, these cells required culturing to increase their number and so allow the genetic testing to be undertaken. It was not uncommon for samples received from overseas to require culturing, because the obstetricians were less practised in taking the samples. Lisa Thompson annotated the names of Mr and Mrs Farraj and Rawan on the bottom of the letter and added.
"Basem CVS very small, bloody and "unlabelled" sent for culture 11/5/95."
- KCH had an arrangement with CSL whereby CSL would culture CVS samples. That was an arrangement which covered much more than testing associated with BTM. CSL were normally asked to perform an additional procedure known as karyotyping which can identify maternal contamination. It is a chromosomal test and so should be able to determine whether there is male tissue present. If there is, it must be foetal. But on this occasion they were asked only to culture the cells. This was a relatively rare request. It had happened before on only a handful of occasions. CSL was a private laboratory which had been established by Rodney Meredith, a former lecturer in genetics. The fee for culturing was £80. Lisa Thompson's covering letter to CSL was as follows:
"Dear Dr Meredith
Please find enclosed a chorionic villus sample from Hanan BASEM (sample received unlabelled and confirmation of identity will be forwarded to us shortly) for CULTURE ONLY; the cultured cells to be returned to us for DNA analysis for B Thalassaemia, care of Lisa Thompson at the above address, invoices and other correspondence should be sent to the same address care of Dr.D.M.Layton.
Thank you once again for your assistance
(Lisa Thompson, Chief MLSO)"
- Both Mr Meredith and Lisa Thompson recollect a telephone conversation in advance of the sample being sent over to CSL in which the small size of the sample was discussed and the fact that it was bloodstained.
- Culturing is a process by which cells are grown in vitro to increase their number. The consequence is that a greater volume of DNA becomes available for analysis. The culturing of placental material necessarily involves an element of cleaning and sorting of the sample. Contaminating blood is removed by washing the sample, even though the blood cells do not grow in the medium used to culture the CVS. Clots are removed along with other tissue which is identifiably not from the foetal material, the aim being to leave only identifiable villi (i.e foetal cells). This exercise is undertaken by hand using a dissecting microscope with sterile hypodermic needles. On this occasion it was performed by Emma Wilcock. What Mrs Wilcock found and how she recorded her findings form part of the disputed aspects of the evidence, but she cultured a sample over the ensuing month and returned the resulting cells to KCH on 12th June. As a result of the lack of labelling of the sample when it was received from Dr Batayneh, Dr Layton had written to him on 18th May seeking clarification:
"Dr Osama Batayneh
Specialist Gynacologist and Obstetrician
Dear Dr Batayneh,
Re: Hanan BASEM dob 1.8.67
And MO dob 3.3.65
Unfortunately, the chorion villus samples from both these families reached us unnamed. There is, from our point of view, no way of ensuring the correct identity of the samples. The CVS were too small to attempt direct DNA analysis and blood stained, which raises concerns about the potential for diagnostic error due to maternal contamination. As an interim measure we are attempting to culture both CVS but I am not optimistic about the chance of success. Providing you can verify the identity of the samples we would be prepared to proceed with genetic testing once the parental B-thalassaemia mutations have been identified, if sufficient cells grow. It is desirable to initiate mutation screening before prenatal diagnosis since, without knowledge of the mutations carried by both parents, it is impossible to guarantee foetal diagnosis. In the minority of families, with rare or novel mutations that cannot easily be detected, RFLP analysis may still be possible but will require testing of additional family members. I shall contact you as soon as the position is clear.
With kind regards
Senior Lecturer/Hon Consultant
Signed by secretary in Dr Layton's absence"
- By a fax dated 29th May from Dr Batayneh to Dr Layton, but not received by the latter until a few days later, Dr Batayneh confirmed the identities of the samples. He also sent another fax to Dr Layton dated 6th June (although not sent until 11th June) offering a second sample of CVS or alternatively a sample of amniotic fluid:
"KING HUSSEIN MEDICAL CENTRE
Date: 6th June 1995
To: Dr Layton
Senior Lecturer/Hon. Consultant
King's College Hospital (Denmark Hill)
London SE5 9RS
Dear Dr Layton,
Re: Hanan Basem D.O.B. 1.8.67 and
MO D.O.B. 3.3.65
If the previous samples of CVS was not informative due to maternal contamination.
Please inform me if you prefer either a second CVS samples or amniotic fluid sample.
With kind regards
DR OSAMA BATAYNEH
SPECIALIST OF OBS.2.GYN
KING HUSSEIN MEDICAL CENTRE"
- Amniotic fluid could not have been taken at the 11th week of pregnancy but can be taken after 16 weeks. Dr Batayneh spoke of such a sample being feasible at 17 weeks, Dr Layton at after 16 weeks. Such a sample is much less prone to maternal contamination. In the meantime, the blood samples from both parents and Rawan had been processed at KCH and the genetic mutation was identified on 31st May 1995.
- There was no communication between KCH and CSL after the CVS sample was sent over until CSL returned the cultured cells on 12th June. KCH proceeded to analyse the sample. No evidence of BTM was found. The cells analysed carried the beta thalassaemia gene but because they showed no evidence of BTM it was concluded that the foetus was unaffected. In addition to undertaking the DNA analysis on the cultured cells, KCH also subjected the cells to separate testing to check for maternal contamination. That is known as VNTR testing which was a relatively new development. The first test, conducted on 14th June, was a failure and so it was repeated on 16th June. It did not exclude maternal contamination. On 21st June 1995 Dr Layton wrote to Dr Batayneh in the following terms:
King's College Hospital (Denmark Hill)
21st June 1995
Dr Osama Batayneh
Specialist Gynacologist and Obstetrician
Dear Dr Batayneh,
Re: Hanan BASEM dob 1.8.67
It is pleasure to report that analysis of cultured trophoblast cells shows this pregnancy is not affected by B-thalassaemia major. Studies with a highly polymorphic tandem repeat marker within the von Willebrand's factor gene are consistent with (though do not prove) the correct identity of the CVS sample which you remember caused us some concern as it arrived unlabelled. Our anxieties about the possibility of maternal contamination leading to an error in fetal diagnosis are less likely to apply where cultured trophoblast cells are used for DNA analysis. I enclose the details of molecular genetic studies on this family.
I trust the pregnancy proceeds to a happy conclusion and would be grateful for news of the outcome and result of postnatal haemoglobinopathy screening.
With best wishes
Cc Capt Ali Abdullah, Medical Officer, Embassy of Hashemite Kingdom of Jordan, 16 Upper Phillimore Gardens, London, W8"
- The reference to trophoblast cells was a reference to the foetal cells cultured by CSL. The reference to Von Willebrand's factor is to the testing carried out at KCH on 16th June which had not excluded maternal contamination. It did, however, provide comfort that the sample was from this family. That test was more generally referred to by witnesses as VNTR testing.
- Whilst the primary allegation made by the Claimants in these proceedings concerns lack of communication between the Defendants, they and CSL also suggest that this letter was negligently written as conveying an inappropriate degree of confidence that the foetus was free of BTM, even on the basis of what was known to Dr Layton.
- In the light of the reassurance contained in this letter, the pregnancy proceeded to term with Abdullah's birth on 4th December 1995. Doubts about the correctness of the genetic testing soon emerged because of the condition of the baby. On 24th April 1996 he was diagnosed with BTM. On 18th October 1996 Dr Layton received a letter written a few days earlier by Jordanian lawyers seeking compensation on behalf of the Claimants. He immediately contacted Mr Meredith at CSL who sent him a copy of Mrs Thompson's referral letter. That letter contained some annotations which had been added by Mrs Wilcock at some stage during her dealing with the sample. She wrote:
"N.B. tissue so poor tiny fragmented pieces (v.poor ?villus)"
- The timing and meaning of those annotations was a matter of dispute, to which I shall return. There was also an annotation showing that the sample was less than 1 mg.
Central Disputed Issues
- At the heart of the factual disputes ventilated in the course of this case was the question of what Mrs Wilcock meant by the annotation set out above. Additionally, there was an issue whether, when the sample was returned to KCH, it was accompanied by the original referral letter which, by that time, had Mrs Wilcock's annotation on it. That is important because if the letter with annotation was returned to KCH it would have alerted them to problems with the sample, whatever its precise meaning. Mr and Mrs Farraj were pressed on whether they would have terminated the pregnancy at all and both they and Dr Batayneh were questioned on whether and when they would have provided a second sample, an issue central to causation. Whilst all the experts agreed that communication was vital between KCH and CSL, there were differences between them as to where responsibility lay. Some of those differences rested upon the underlying factual assumptions each had made. The experts additionally commented on whether the letter written by Dr Layton was appropriate given what he knew, an issue which involved consideration of the VNTR test and whether it should have been reported, as well as the anterior factors of a poor sample and his expressed concerns about maternal contamination in his letter of 18th May 1995.
- Before discussing the evidence on those central issues and setting out my conclusions, I turn to the discrete legal issues that were raised.
Jordanian or English Law
- Three experts gave oral evidence about Jordanian law. Each gave evidence in London rather than by video link. The Claimants called Professor Al Said, a former Professor of Criminal Law at the University of Amman and also Dean of the Faculty of Law. For a short time he was a member of the Court of Cassation of Jordan, the Kingdom's highest court. KCH relied upon the evidence of Azzam Zalloum of Messrs Zalloum & Laswi in Amman. He is a well-respected and experienced litigation lawyer, practising in the criminal and commercial courts and also with experience of medical negligence cases. CSL called Sabah Beiruti, an enormously experienced civil litigator who started practice in 1962 and who might be regarded as the doyen of the Jordanian legal profession. The size of the legal profession in Jordan is such that hyper-specialisation is unusual. Most lawyers practice over a wide field. Each of these experts emphasised their respect for the others and, as I saw it, deeply regretted that they should be expressing different opinions on aspects of Jordanian law. For reasons which I shall explain, there was in truth only one issue of significance on which there was disagreement, namely whether an abortion in the circumstances with which this claim is concerned would have been lawful under Jordanian law. In Professor Al Said's opinion it would have been. Both Mr Beiruti and Mr Zalloum considered that an abortion would have amounted to a criminal offence in Jordan and that the language of the relevant statutory provisions admitted of no other interpretation.
- The evidence of all three was to the effect that Jordanian law allows clinical negligence claims in much the same way as English law. Evidence to the same effect was given by Major Hussain, an official at the KHMC with some responsibility for investigating medical accidents and dealing with such claims. None was able to identify any claim in the Jordanian courts for 'wrongful birth'. Yet the sole reason why Mr Beiruti and Mr Zalloum considered that this claim, if brought in Jordan, would fail in limine, is that the abortion which Mrs Farraj says she would have had would have been a criminal act. They did not dispute that if the abortion were legal, Jordanian law would admit a claim based upon the negligent conducting or reporting of a genetic test in just the same way as does English law.
- Before exploring the reasons for the different views adopted by the legal experts, it is important to set their opinions in their proper factual context. The unequivocal evidence before me, which was not subject to challenge or any doubt, was that abortions have been carried out in Jordan in the circumstances which obtain in this case for many years. The evidence showed that the practice had been in place for some years before 1995, but for precisely how long is unclear. The purpose of taking the samples and sending them to London for DNA testing was to establish whether the children concerned would suffer from BTM. In the event that the test proved positive, an abortion would be offered to the mother. So the position was that genetic screening was being provided, the only purpose of which was to enable an affected foetus to be aborted. Indeed, the parents were required to sign a consent form for abortion before the CVS sample was taken. That was the evidence of Dr Batayneh as to the general practice which both Mr and Mrs Farraj confirmed had been followed in this case. The reason for seeking that consent in advance was that the DNA test was relatively expensive and the Jordanian authorities wished to avoid spending money on the test for no purpose. That would not, of course, stop a mother changing her mind but at least at the time the sample was taken the KHMC wished to be satisfied that the couple would terminate the pregnancy if the results were positive. Dr Batayneh and Major Hussain confirmed that abortions on this and similar bases were routinely performed at the KHMC. The legal basis for such abortions was not explored with those witnesses but it was plain that Dr Batayneh considered that he was acting properly, and by inference lawfully. Dr Batayneh explained that the cut off point for abortion was 20 weeks from the last period. So far as the evidence before me was concerned, that limit was not set out in any legal instrument but was rather a matter of medical practice. The KHMC, as I have said, is a military establishment treating the families of servicemen and civilians. The procedures I have described were being undertaken by the Jordanian Government quite openly. The Royal Jordanian Embassy in London was also involved in the process. Whilst in 1995 the samples were sent to London for testing, the practice has since changed. Advances in technology and the availability of facilities in Jordan mean that such samples are now tested and reported on in Amman. The facility which undertakes the testing and reporting is a Government facility.
- It is thus clear that the termination of pregnancies of genetically defective foetuses is commonplace in Jordan and performed by and on behalf of the Government. None of the legal experts was able to identify any instance of a criminal prosecution in such circumstances, nor was there any evidence before me of concern (official or otherwise) about the practice.
- Mr Spencer QC reminded me that the fact that the medical profession in Jordan, the Ministry of Defence, the Foreign Ministry and others might think a practice lawful does not make it so. They can get the law wrong. He also suggested that what might be happening is a collective turning of a blind eye, which would be impossible if the issue were ventilated in a court of law and the question of the legality of abortions in the circumstances contemplated by Mrs Farraj had to be decided. Both those points have some force, but it seems to me that the undisputed factual position provides an important contextual background against which to judge the legal issue on which the experts disagreed.
- The Jordanian legal texts which set out the circumstances in which abortion may lawfully take place were agreed between the three experts. They are contained in a number of Codes and are complementary. The draftsmanship of Jordanian statutory provisions draws its inspiration from the continental civilian systems of law, especially the French, and they must be read in that light, rather than as English statutes. The provisions appeared in the trial bundles in Arabic and in various English translations. There were differences between those translations as to detail, although none was of real substance. The translations that I set out below are those which come from the Adaleh Centre, a well-known Jordanian institution. The material provisions are as follows:
"The Jordanian Penal Code of 1960
Article 321 A woman who, by any means, performs an abortion on herself or consents to another person using such means shall receive a sentence of six months to three years imprisonment.
Article 322 1. Whosoever, by any means, performs an abortion on a consenting woman, shall receive a sentence of one to three years imprisonment.
2. If the abortion or the means employed for this purpose result in the death of the woman, the perpetrator shall be sentenced to a minimum of five years hard labour.
Article 323 1. Whosoever intentionally performs an abortion on a woman without her consent, shall be sentenced to up to ten years of hard labour.
2. The sentence shall not be less than ten years if the abortion or the method used result in the death of the woman.
Article 324 A woman who performs an abortion on herself in order to protect her honour shall receive a reduced sentence. Similarly, a person who performs any of the acts described in Articles 322 and 323 in order to protect the honour of a descendant or relative to the third degree, shall benefit from the same reduction in sentence.
Article 325 If the perpetrator in this chapter is a doctor, surgeon, pharmacist or midwife, the sentence shall be increased by a third."
Article 62 of General Public Health Law No. (20) of 1971
A A doctor may not give a pregnant woman any kind of advice with the intention of procuring an abortion; he may not perform an abortion on a pregnant woman. However, an abortion may be performed at a specialist hospital or clinic, if it is necessary to protect the life or health of a pregnant woman, under the following conditions: 1 Written consent for the operation is obtained from the pregnant woman or from her spouse or guardian if she is unable to write or speak 2 Two specialists certify that the operation is vital to save the life or health of the pregnant woman.
B An official from the hospital or clinic must enter in the register the name of the pregnant woman, as well as the date of the operation and its nature. The written consent and certification of both doctors must be kept for a period of ten years.
C The pregnant woman shall receive from the director or official at the maternity clinic or hospital an authorised certificate containing all the information specified in the previous paragraph.
In spite of the stipulations of the Penal Code, the pregnant woman or the person/s who performed or participated in the abortion shall not be prosecuted under the above stated provisions."
The Medical Constitution
A With respect to the rules in force, the doctor is prohibited from performing an elective abortion of any sort, unless the continuation of the pregnancy presents a threat to the pregnant woman's life, and in this case the following conditions apply:
1 The abortion shall be performed by a specialist and with the agreement of another specialist in an approved hospital.
2 A report shall be drawn up to outline the vital necessity of performing the operation.
3 Four copies or more as needed of the report shall be made and signed by the doctors, the patient, the husband or the guardian and a copy should be kept in the patients file.
B If the pregnant woman refuses to have the abortion even after realising the danger of her situation, then the doctor shall defer to her will after establishing her refusal."
- It is clear (and on this the experts agreed) that in broad terms, abortion is unlawful in Jordan save under Article 62 of the Public Health Law which allows abortion in the event that the life or health of the mother is threatened. There is a contrast between that law, and the medical law which talks of a threat to life and not also health. It was common ground between the three experts that genetic disorder or other disability in a foetus was not in itself sufficient to found a lawful abortion in Jordan. The experts called on behalf of the Defendants suggested that the language of the statutory material could not possibly admit an abortion in the circumstances contemplated by Mr and Mrs Farraj and Dr Batayneh. The pregnancy, from Mrs Farraj's point of view, was entirely normal. This was not one of those cases where the genetic disorder in the foetus gave rise to any threat to the pregnant mother. Thus neither her life nor health was threatened. Health, they suggested, is concerned only with the medical health of the mother, and not a broader concept, such as social health. It is the health of the child, in the medical sense, that is imperilled by the genetic condition and that is not what Article 62 is concerned with, they argued.
- Both experts called on behalf of the Defendants also suggested that the law was concerned with the mother's life and health only during pregnancy itself. In other words, health conditions that might follow the confinement (such as severe post natal depression giving rise to a risk of suicide) on their analysis would not provide a lawful basis for an abortion. Their conclusion that the exception contemplated by Article 62 operated only during the pregnancy provided, in their opinion, a further reason for concluding that an abortion in the circumstances of this case would have been illegal. This is not an issue on which the Jordanian Courts have ruled. Professor Al Said expressed the contrary view. Even if the language of the Code is concerned with the health of the mother in the narrow sense suggested by Mr Beiruti and Mr Zalloum, it would naturally include risks to life or health that follow confinement. The language of the provision does not dictate the contrary and it would contradict the intention of the provision artificially to impose that temporal cut off. Underlying the provision is a clear recognition that the interests of the foetus may have to give way to the health risks of the mother. In my view it would be illogical, in the absence of a clearly expressed intention, to say that those interests ceased to have relevance at the date of confinement. Severe depression following the birth of a child may be just as damaging as, for example, high blood pressure before. On this issue, I prefer the evidence of Professor Al Said.
- It was not suggested on behalf of the Claimants that the pregnancy gave rise to risks to the physical health of Mrs Farraj. Professor Al Said, however, considered that the reference to "health" in Article 62 could take account of what happened after the birth of the child and also included the concept of "social health". There was ample evidence that the birth of a second child with BTM to Mrs Farraj would be seriously damaging to her social health. Both her written statements and oral evidence spoke eloquently of the dreadful effect of the condition, despite Abdullah being a deeply loved son, and its impact upon her and her family.
- The word "health" is not defined in the Code and, as with all aspects of Jordanian law debated before me, there is no judicial authority which assists. Yet the view expressed by Professor Al Said is not one which first appeared in his evidence in this case. In addition to holding the distinguished positions to which I have referred, he has been a prolific author on Jordanian law, and especially the criminal law. In a textbook published in 1991 entitled Explanation of the Jordanian Penal Code he devoted a section to the law governing abortion. The following paragraphs deal with this issue. The work was published in Arabic. Two translations were in the bundles prepared for the trial which although containing differences were to the same effect.
"1495 - The truth is that the multitude of texts related to the prohibition of abortion and its permissibility on medical grounds, shows clearly the care taken in Jordanian law to protect the mother and her foetus from the dangers of abortion. However, one cannot deny that such a multitude of opinions can cause problems in practice with regard to the lack of harmony between these Articles and the differences between their conditions and provisions. This reality confuses the legislator and complicates the matter: a situation considered to be flawed in the art of legislation. One of the aspects of the lack of harmony for instance is that the Medical Charter only justifies abortion to save the mother's life, whereas the Public Health Act has added saving her health as well to the reasons for allowing abortion.
1497 In all cases, two situations more than justify abortion in our Code:
When performed to save the mother's life or to avoid any danger to her physical and mental health. This explanation agrees with the wide definition given by The World Health Organization for the "health" which is the state of complete mental, physical and social wellbeing and not merely the absence of disease or infirmity; therefore, an individual is not truly healthy unless they have complete wellbeing, physically, mentally and socially. Moreover, the term mental health has a wide meaning according to The British Medical Association, as it includes mental, psychological and nervous aspects(1)."
- The passage I have set out encapsulates the reasoning of Professor Al Said on the meaning of the word "health" in the relevant provision. Physical and mental health are the first targets of the provision, but social health is also within the scope of the provision. Whilst he relies upon a number of supporting strands of reasoning, the mainspring is the definition of "health" adopted by the World Health Organisation in 1946, namely 'complete mental, physical and social well-being'. Professor Al Said was confident that his interpretation of the texts was correct and suggested that if the matter came before the Court of Cassation for decision, its judges would come to the same conclusion.
- Professor Al Said is clearly a distinguished academic commentator on criminal law, who has also sat as a judge at the highest level. His academic writing has caused him to think deeply over a long period on many aspects of criminal law, including this one. His views are available in a standard legal textbook and have been accessible for at least 17 years. Abortion is a controversial topic. Yet there was no evidence before me that his writing sparked any controversy or was the subject of rebuttal by other legal commentators. Whilst appreciating that the Jordanian legal establishment is very much smaller than the British and does not have the benefit of the wide range of lively academic journals available to the English lawyer, it is significant, in my judgment, that the views of such a prominent legal commentator on this topic do not appear to have been publicly contradicted.
- Anyone practising the law who is called upon to give an opinion on the likely decision on a novel point of law or untested statutory provision recognises that expressing certainty in advance of the point being decided is unwise. Even after a point has been decided, so long as there remains scope for appeal, the position remains uncertain. At the highest level in the United Kingdom a point may be decided by a bare majority in the House of Lords, with the reasoning of majority and minority both being compelling. It is not for me authoritatively to decide an issue of Jordanian law, rather to determine as a matter of fact which of the two interpretations advanced before me is probably correct. I wish to express my respect for the experts called on behalf of the Defendants and record that each gave me his unvarnished view of the law, just as he would give it to a client. Indeed, Mr Beiruti explained that if a client in Mrs Farraj's position approached him in Jordan with a view to bringing proceedings there on the facts of this case, he would advise her not to waste her money. Furthermore, neither was in the slightest influenced by the interests of the party from whom instructions were received.
- Nonetheless, I have concluded that the views expressed by Professor Al Said on the law of Jordan touching abortion are, for the reasons I have expressed, to be preferred. On one view his interpretation of "health" may be a strained one, although the WHO definition long pre-dated the passage of the relevant statutory provision. Yet it is the only interpretation which squares the public and well-established official practice of the Jordanian Government and its agencies with the law. It seems to me to be unlikely that if there were any real doubt about the legality of the practices which this case illustrates, it would not have manifested itself in a way which Jordanian lawyers would have noticed. That is because, on the evidence before me, genetic screening is common place for pregnant women and abortions are also carried out routinely and openly in these circumstances.
- Given my conclusion that an abortion would have been lawful in Jordan, where does that leave arguments about the proper law to be applied in this case? Since there is no material difference between Jordanian and English law in their application to issues of liability in cases of clinical error, the issue falls away. Had I concluded that the contemplated abortion would have been unlawful then the issue of 'which law' would have been a very potent one. The events giving rise to this claim occurred so long ago that questions concerning the proper law to be applied are not governed by the Private International Law (Miscellaneous Provisions) Act 1995. Applying the 'substance' test at common law (as, for example, discussed by Slade LJ in Metall & Rohstoff AG v Donaldson Lufkin and Jenrette Inc and another  1 QB 391 at 446 B et seq) the Claimants suggested that English law should apply but the Defendants that it should be Jordanian. The answer to that question is not obvious but it is not necessary for me to decide it.
- That being so, an ex turpi causa issue also does not arise. The Defendants argued that even if the claim were determined according to English law, the Claimants could not recover because the abortion would have been a criminal act in Jordan.
- However, even if I were to be wrong on the Jordanian law point, I am far from satisfied that the ex turpi causa principle would assist the Defendants in this case. It is true that on this hypothesis the Claimants' damages would flow from their inability to perform an illegal act, namely an abortion in Jordan. That is analogous to the circumstance discussed by the Master of the Rolls in Grey v Thames Trains  EWCA Civ 644 where he identified the principle not strictly as ex turpi causa non oritur actio but in a modified sense as ex turpi causa non oritur damnum: see paragraph . In that case the authorities on this topic were fully analysed in the context of a case in which the Claimant argued that the Defendant's tortuous act had caused him to commit a homicide for which he was convicted. He sought damages for the consequences of that conviction which included general damages for his incarceration and also loss of earnings. The Court of Appeal concluded that it was open for him to claim his loss of earnings but that the claim founded on his incarceration pursuant to a court order failed on the ex turpi causa principle. This decision shows the difficulty in applying the principle, because of the anomalies it throws up.
- Abortion contrary to the Abortion Act in England and Wales would, I have no doubt, be considered a serious offence and attract the strict application of the ex turpi causa. So a claim brought in England which relied for damage on the proposition that negligence of a defendant denied the Claimant the opportunity to have an abortion illegal under the Abortion Act would fail. But it does not necessarily follow that the same conclusion would follow on the hypothesis that the abortion would be unlawful in a foreign country, but lawful if performed here. No direct authority on the point was cited. Questions of public policy and comity would arise. But I incline to the view that the strictures of the ex turpi causa doctrine would not apply. Furthermore, even if an abortion were technically illegal in Jordan, I am satisfied on the evidence that no prosecution would have been brought against the First Claimant or the doctors at the KHMC involved. At the least, the prosecuting authorities and the whole legal establishment have, on this basis, been turning a blind eye. The practice is sanctioned by the whole of the Jordanian body politic. It would not, therefore, have been appropriate to defeat this claim on grounds of public policy derived from the laws of a foreign country which that country itself has chosen not to enforce.
Non-delegable duty of Care
- The Claimants submit that the duty of care owed to them by KCH was not delegable. Mr McDermott QC relies upon the observations of Lord Browne-Wilkinson in X v Bedfordshire County Council  2 AC 633 at 740 where he said:
"It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of staff is himself in breach of a separate duty of care owed by him to the plaintiff
- Mr McDermott submits that there is no difference in tort when a laboratory is offering clinical services and subcontracts part of the work to a separate organisation. The issue arises because of the lack of privity in contract between Mr and Mrs Farraj and KCH. He sought to gain support for this submission from the analysis of Lord Phillips MR in A v Ministry of Defence  QB 183 at . That was concerned with a hospital's duty to its patients. The issue arose because the MoD provided medical facilities to servicemen and their families in Germany but obstetric care was sub-contracted to a German hospital over which the MoD had no control. At paragraph  of the judgment, Lord Phillips recorded the submission advanced on behalf of the Claimant to the effect that the MoD was legally responsible for failings that had occurred in the German hospital. Counsel there noted that his submission involved an extension of the principles hitherto identified in English decisions and also those of the Commonwealth of Australia, where the concept of non-delegable duty of care was more readily accepted. The Court of Appeal rejected those submissions essentially because the MoD had no control over what occurred in the German hospital. For similar reasons, it seems to me that the Claimants cannot here establish a non-delegable duty of care for any failings that are the responsibility of CSL. The position here is that CSL were independent subcontractors. It was recognised by all involved in this case that they were a competent cytogenetics laboratory (indeed, the evidence was that they were probably the most experienced in the land) and so, in my judgment, KCH was entitled to rely on their expertise. The ordinary principles in tort as govern independent sub-contractors apply here. Mr McDermott recognised that this question would very likely be a subsidiary one and have no impact on the outcome of the case.
- I heard oral evidence from both Mr and Mrs Farraj and three other witnesses who travelled from Jordan to explain the arrangements at KHMC, the availability of abortions and the impact of BTM. They were Dr Batayneh, Major Hussain (also a doctor) and Dr Hammoury. Additionally, there were statements from others in Jordan who had faced the same difficulty with some explanation of the Islamic religious approach to abortion. Both Lisa Thompson and Dr Layton gave evidence on behalf of KCH. Dr Lalloz explained the VNTR procedure. Emma Wilcock gave evidence of the procedures carried out at CSL, as did Rodney Meredith. Each of the three parties called experts in cytogenetics to comment upon the procedures and practices of CSL. Additionally, each called experts in molecular genetics to comment upon the practices and procedures adopted by KCH. I shall return to the various expert aspects of the evidence which I heard later in this judgment.
- First, I shall deal with the evidence of fact concerning the sample and its treatment that remained contentious. There were two aspects of this which, in my judgment, particularly bear on questions of liability. First, what did Emma Wilcock mean by the annotation on the letter "N.B. tissue so poor tiny fragmented pieces (v.poor ?Villus)"? Secondly, was a copy of that annotated letter returned to KCH with the cultured sample?
- These aspects were dealt with in the evidence of Emma Wilcock and Rodney Meredith. The integrity of both those witnesses was attacked by Mr Spencer on behalf of KCH. Their evidence, and indeed that of any witness who sought to recall the minutiae of events that occurred thirteen years ago, needs to be put in context. It was quite clear from the totality of the evidence that I heard that the number of chorionic villus samples sent by KCH to CSL for culturing only was very small indeed. It was also clear (and indeed common ground) that this sample was of particular poor quality. Emma Wilcock described it as the worst she had come across. Nonetheless, it seemed to me unreal to expect any witness to have a clear recollection of the precise sequences of events or of what they observed when they saw the sample. The best evidence, in my judgment, comes from what was written at the time albeit illuminated by the recollections of those who were making the notes. The evidence of a number of the witnesses, in particular Mr Meredith and Mrs Wilcock, contained a level of detail which might have been credible had it been describing events which occurred a few weeks or months ago but was much less so in the circumstances of this case. No contemporary account of events was recorded beyond the exchange of letters at the time and the annotations entered on the referral letter. The problem of misdiagnosis first came to the attention of KCH and CSL in the autumn of 1996. Even by then it is likely that the very fine detail, for example, of what Mrs Wilcock did with the sample would have been lost. As I have already explained, these proceedings have progressed at a very slow pace. Witness statements were not taken until many years later. There was much criticism of Mrs Wilcock stemming from changes in her witness statements. At first blush they may appear minor but, as Mr Spencer submitted, they were of potential significance. It was partly on that account that he felt able to submit that Mrs Wilcock had deliberately "improved" her evidence in a deliberate way to try to exculpate CSL. He made similar suggestions concerning Mr Meredith, again quite understandably, on the basis of a series of different versions of the original letter of referral with various annotations which he had produced over the years. That letter, when forwarded to solicitors at different times, had been copied at CSL with various annotations (the detail of which is immaterial) excised. He also suggested that Mr Meredith and Mrs Wilcock had put their heads together to produce an account between them which was designed to absolve CSL of any blame for what had occurred. That suggestion was, quite properly, withdrawn in the face of unequivocal denials from each of them.
- I am quite satisfied that neither Mrs Wilcock nor Mr Meredith deliberately misled the court. Nonetheless, there were aspects of their evidence which were manifestly unsatisfactory. However, I am clear that insofar as there were inconsistencies or what appear to be embellishments, they flow from an often observed phenomenon as witnesses try to recollect events from many years before. When those events were over very quickly and there was no particular reason to fix the finest of detail in the mind, it is very difficult to distinguish between a true recollection and an innocent reconstruction. It is not uncommon to see in witnesses how the process of thinking about a past event, with a desire however unconscious to justify or explain it in a way favourable to themselves, can persuade them that events occurred in a way which has departed from the real facts.
- Sir John Romilly MR, put it colourfully in Crouch v Hooper 1852 16 Beav. 182, a pedigree case, at 185:
it must always be borne in mind
how extremely prone persons are to believe what they wish.
It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at least to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection, and the judging of which and drawing just inferences from which is rendered much more difficult by the circumstance that, in many cases, persons do really, by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to the mind of the witness.
In the course of a few years, by constant talk and discussion of the matter, and by endeavouring to remember past conversations, without imputing anything like wilful and corrupt perjury to witnesses of this description, I believe that in 1847 they may conscientiously bring themselves to believe that they remembered conversations and declarations which they had wholly forgotten in 1830, and that they may in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations."
- Little has changed in this since 1847.
- The Claimants raised in evidence the question of whether Mrs Wilcock was sufficiently trained to undertake the task of cleaning and separation. There was no allegation that she had performed the exercise negligently. Mrs Wilcock had been trained in the laboratory and, as was accepted, had enormous practical experience of undertaking the task. Nonetheless, this point was run on the basis that her academic qualifications were not at the level that might have been expected of someone doing this task. There can be a tendency for those with high level academic qualifications to underestimate the importance of deep seated practical experience in doing what is essentially a mechanical task. Such criticism as was made of Mrs Wilcock and CSL on this account was unfounded.
What did Emma Wilcock mean by her annotation?
- Emma Wilcock was confronted with a small and apparently sub-standard sample. The referral letter had followed a telephone discussion of which Mrs Wilcock was aware. The sub-standard nature of the sample was clear to everyone. Mrs Wilcock suggested that it was the worst she ever saw. In addition to the annotation, the meaning of which consumed so much time during the trial, she noted that the sample was less than 2 mg, then changed that to less than 1 mg. Her first task was to clean the sample and separate tissues with a view to isolating villus which could then be cultured to provide a reliable body of tissue for DNA testing. The process that she undertook, as she explained, was designed to separate out the blood and also tissue which did not have the characteristics of villus. Villus looks a little like seaweed under the microscope, even if that seaweed-like material might be fragmented. Maternal material would not have the seaweed-like appearance. So if all goes well, the cleaning and separation results in a sample that the technician believes to be foetal.
- The natural reading of Mrs Wilcock's annotation is that she doubted whether the sample was indeed villus. It is that natural reading that both the Claimants and KCH suggest should be adopted. In her original statement, Mrs Wilcock suggested that the annotation was probably added to the referral sheet after the culture had been set up. That, submit the other parties, is important because it would be very difficult to suggest credibly that the reference was other than to the sample being cultured. An alternative explanation advanced by Mrs Wilcock was that the annotation referred to the totality of the small sample she received from KCH. In other words, that whilst she had doubts about the presence of villus they were assuaged during the process of cleaning and separating. When she gave evidence in the witness box she went further. She suggested that the annotation "N.B. tissue so poor tiny fragmented pieces (v.poor ? villus)" referred to the tissue she was discarding rather than the tissue she intended to culture. It struck me that this was a classic instance of innocent reconstruction what I have sought to describe resulting from the difficulty of remembering the fine detail of events many years ago. I do not accept that the annotation referred to the discarded materials. It is extremely difficult to understand why Mrs Wilcock would seek to make such a comment on material which had been discarded for the very reason that it was not villus. She reasoned that if she had any serious doubts about whether the culture she was setting up was foetal material, she would have told Mr Meredith. Both she and he made it clear that she did not do so. For that reason, she concludes that she had no real doubts. That is another example of the innocent ex post facto rationalisation that I believe has occurred in the intervening years. It became increasingly apparent as Mrs Wilcock gave her evidence that her precise recollections of what occurred were unclear. In answer to a question at the end of her evidence she said this:
"I wasn't confident that the tissue would grow. I was surprised when it did. And that there had been unrecognisable tissue when the sample as a whole, and it was very fragmented. I was unsure about what might have been cultured. And it did take a long time to grow which also made me think about the integrity of the cells that had grown."
- I am quite satisfied that Emma Wilcock did have doubts about whether she was setting up a culture of foetal cells. Her annotation reflected those doubts. Furthermore, this answer reflects the reality that those doubts continued.
- Mrs Wilcock clearly thought that her doubts simply mirrored those of KCH because of the notes that Lisa Thompson had already made and the content of the telephone conversation. It is likely, in my judgment, that the reason Mrs Wilcock took no action on what she found was precisely because she thought it added nothing to what was already known. Unfortunately, that was not the case. The examination carried out at KCH had been visual. There was no microscopic examination. Nobody suggested that a visual examination could detect the difference between foetal and maternal cells. A small and bloodstained sample, whilst incapable of direct DNA analysis, might yield good quality villus capable of culturing. The weight of expert evidence supported the distinction between what KCH would appreciate from visual examination of the sample and what CSL would know from a microscopic examination. Be that as it may, it was accepted by both Mrs Wilcock and Mr Meredith that if there were doubts about the integrity of the sample at that early stage, or indeed later as it grew, she should have told him and he, in turn, would have passed that information on to KCH.
- On the basis of this factual finding, CSL are liable, subject to causation, for a breach of the duty of care owed to the Claimants.
Was the referral letter returned to KCH?
- Mr Meredith's evidence was that a copy of Lisa Thompson's referral letter was returned to KCH with Mrs Wilcock's annotation upon it at the same time as the cultured sample. He suggested that was the normal practice. Both he and Dr Layton explained that there was no written protocol governing the work being undertaken by CSL on this occasion. The arrangements had developed informally in the context of a very small number of requests. Indeed, it is abundantly clear that there was no discussion of the detail of what was to be undertaken. Mr Meredith explained that he was unhappy at undertaking culturing only. He would much have preferred the exercise to involve karyotyping as well. That was the normal request from KCH in connection with its own samples from the Harris Birthright Centre run by Professor Nicholaides. The karyotyping could be expected to identify with a high degree of confidence whether the cells cultured were in fact those of the foetus. The essence of Mr Meredith's evidence was that CSL contracted to do a culture only exercise for a relatively modest fee and so that is all that could be expected of them. Nonetheless, as I have discussed, he accepted that if he or one of his technicians encountered a sample obviously lacking in integrity or presenting particular problems it would be incumbent on his organisation to pass that information on. Both he and Mrs Wilcock described a system whereby observations were habitually written down by his staff on the letter that accompanied any sample to their laboratory. Additionally, such observations might (indeed, should) have been transferred into a laboratory book but whether that happened in this case is unknown because after all this time the relevant book is missing.
- His evidence that the referral letter with annotations would as a matter of course have been returned was based upon his recollection of events more than a decade ago. Both Dr Layton and Lisa Thompson were asked about this as well. Their recollection was that the practice was simply not as described by Mr Meredith. Although, as I have already indicated, I do not accept the submission made on behalf of KCH that Mr Meredith was deliberately misleading the court, there were aspects of his evidence that were very unsatisfactory.
- When the fact that Abdullah had been born with BTM was passed on to KCH and CSL there was undoubtedly a discussion between Mr Meredith and Dr Layton in October 1996. At that time Mr Meredith sent a copy of the referral letter with Mrs Wilcock's annotations upon it to Dr Layton. It is an undeniable fact that in response to solicitors' correspondence Mr Meredith forwarded further copies of that same document with the problematic aspects of Mrs Wilcock's annotations deleted. This exercise resulted in five different versions being before the Court, even though some of the differences concerned annotations that it has not been necessary to explore in this judgment. He accepted that he must have been responsible for the decision to delete those aspects. It is not something that could have been done by his secretary or anyone else in the organisation. Yet he was unable to provide any explanation of why he did it. It was a pointless exercise if the intent was to hide information that he considered adverse to the interests of CSL. That is because, as I have already indicated, he sent an unexpurgated version to Dr Layton in October 1996. Nonetheless, it does raise serious questions about the overall reliability of his evidence. That said, there are four reasons that lead me unhesitatingly to reject his suggestion that the referral letter with annotations was sent back to KCH with the sample. First, I found both Dr Layton and Lisa Thompson to be careful and reliable witnesses. Secondly, Dr Layton and Lisa Thompson explained that they had gone back into the records of all requests to CSL of a similar nature. In none of them was an annotated copy of the original referral letter found on those files. Thirdly, it is intrinsically unlikely that Mr Meredith would have sent a copy of that referral letter and annotations to Dr Layton in the autumn of 1996 (when a claim was intimated by solicitors in Jordan) if KCH already had it and he thought that they had it. Fourthly, had those annotations been known to KCH it is inconceivable that Dr Layton would have written the letter of 21st June in the terms he did. At the least, those annotations would have been bound to lead to continuing concern about maternal contamination and some inquiry of CSL of what they meant. There was no such sequence of events.
- This case is essentially one about communication. I heard evidence about protocols, standard operating procedures and the like. Nobody suggested that simply sending back the annotated referral letter would be an adequate way of conveying information about the integrity of the sample. Nonetheless, the reality is that had the referral letter been returned in the way described by Mr Meredith that would have been quite enough to set alarm bells ringing at KCH to the effect that the sample on which they conducted DNA testing was very likely to produce unreliable results.
The Jordanian Factual Evidence
- The evidence from Jordan is important especially for questions that arise in connection with causation. The essential background to the evidence of Mr and Mrs Farraj was that they already had one child who suffered with BTM. They both described how determined they were to avoid, if at all possible, the birth of another child with the same affliction. There was an additional factor in wishing to have a further healthy child. The current treatment for BTM involves frequent blood transfusions. Other drug treatments are becoming available. The transfusions sustain life but the condition remains debilitating, the sufferer's quality of life is poor and life expectancy is substantially reduced. Whilst treatments are improving, there is at present no long term cure. However, bone marrow transplant from a compatible donor is one possibility that can greatly enhance the quality of life of the sufferer. Thus an additional factor in the minds of Mr and Mrs Farraj, and the medical team advising them, was that a healthy child might prove to be a suitable donor for Rawan.
- In general, I found both Mr and Mrs Farraj to be careful and reliable witnesses. Mrs Farraj was at times prone to hyperbole: she suggested that she would have had a termination almost right up to the date of confinement, if necessary. Nonetheless, I was satisfied that their evidence was accurate when describing events that occurred and honest when giving details of what they had planned.
- Mrs Farraj observed in her witness statement that she is a devout Muslim. It was in those circumstances that the question arose, regardless of Jordanian civil law, of what attitude Islam takes to abortion. The evidence on that topic came before the Court in written form from others in the same position as the Claimants, that are worried that their child may suffer from BTM. They explained their response to genetic testing and possible abortion in the Islamic context. That evidence suggested that the Islamic scholars consulted in Jordan considered abortion to be permissible up to the date on which the foetus acquires a soul. That is thought to occur at 17 weeks' gestation. Although the point was not elaborated upon, the inference was that time was calculated from the moment of conception, rather than last menstruation. The evidence before me did not reveal how for these purposes the precise date of conception could be fixed. Counsel sought to locate the date in the middle of the range of dates, calculated by reference to the last menstrual period, when conception could have occurred. That represents a pragmatic approach but whether it would be followed by Islamic scholars is a matter of speculation.
- This point was explored, as I have indicated, because of the timetable implicit in obtaining a second sample and having it analysed. Mr Spencer and Mr Prynne suggested the timetable would inevitably have made an abortion impossible because it could only have been performed after the 17 week stage, calculated pragmatically as described. Mr and Mrs Farraj explained that they would have consented to an abortion up until the last date on which Dr Batayneh would have been prepared to perform it. That is because they were desperate not to have a second child with BTM. I accept that evidence whilst recognising that it would have placed Mrs Farraj in some ethical difficulty because it might well have occurred after 17 weeks. They would not be the first couple, or the last, whose religious beliefs might be tested against the practical circumstances they faced, and which would give way to what they decided was a pressing practical need. Furthermore, I am satisfied that, in general terms, both Mr and Mrs Farraj had firmly come to the conclusion that they would abort the foetus in the event that they were advised that if born it would suffer from BTM. Not only had they signed a consent form when the CVS was taken but the fact of Rawan's suffering made it from their point of view an imperative. Nobody should underestimate the emotional trauma involved in having an abortion, and the later the abortion the more difficult it is likely to become not least because the presence of the child has become palpable. But I have no doubt that Mr and Mrs Farraj were speaking truthfully, and not simply with the benefit of hindsight, when they explained that they would have gone through with the termination as late as the doctors would allow. Therefore, when it comes to questions of causation, they are to be tested against the timetable implicit in the proposition, founded on the evidence of Drs Batayneh, Hussain and Hammoury, that the last date at which an abortion could have been carried out would have been 20 weeks, calculated in the normal obstetric way.
- The next issue on which Mr and Mrs Farraj were questioned was the circumstances in which they would have agreed that Mrs Farraj should provide another sample. The background to the issue includes two important factors. First, the chances of the baby being born with BTM, given that both parents were carriers, was 25%. The taking of a CVS involves a real, albeit very small risk of less than 1%, of inducing a miscarriage. As I understood the evidence, taking an amniotic fluid sample does not involve as great a risk as taking a CVS, but it is not risk free. Either procedure is also very unpleasant for the mother. Mrs Farraj has shown herself prepared to suffer the discomfort involved in giving a sample. She was to do so again in respect of a later pregnancy, with happily benign results. Mrs Farraj would not have cavilled at giving a second sample on account of any personal discomfort she would suffer. The key to this issue, as I see it, has two facets. One is the simple proposition (already mentioned) of the desperation of Mr and Mrs Farraj to avoid another child with BTM. I am satisfied that the risk of miscarriage would not have weighed sufficiently strongly with them to refuse a second sample if they were told that there was a problem with the earlier sample. The other is that they would have followed the advice given to them by Dr Batayneh.
- In this context, it is important to be reminded of the fact that when Dr Layton acknowledged receipt of the samples and raised the possibility of maternal contamination, Dr Batayneh responded by offering to provide another sample. The possibility was not pursued further in the correspondence. Indeed, that is one of the reasons why Dr Batayneh took so much comfort from the letter of 21st June. He understood the letter of 21st June as having, for all practical purposes, put at rest those concerns. He explained that he took the language of the letter to be confirmation that there was no maternal contamination, particularly because his offer of a second sample had not been taken up. Mr Farraj indicated that Dr Batayneh had said he was 100% sure that the test had excluded BTM. Whilst Dr Batayneh did not recollect using that language, something was said which conveyed Dr Batayneh's view that Mr and Mrs Farraj need no longer worry about the risk of BTM. In cross examination he and Mr Spencer traded gobbets from the letter of 21st June. Dr Batayneh drew attention to those parts that expressed confidence that the foetus was unaffected by BTM and Mr Spencer highlighted the sentence that indicated that the anxieties about maternal contamination were 'less likely' to apply. In one exchange, Dr Batayneh suggested that even if he had been told of a 1% risk he would have provided a second sample. It was at this point alone in his evidence that I concluded that Dr Batayneh had overstated the position. Given that the risk of spontaneous miscarriage in taking a second sample would have been of the same order, it is difficult to see how it could be justified if such a small risk of maternal contamination remained. In any event, even if the process (which we know delivered the wrong result) had gone entirely smoothly there would have been a very small background risk of error.
- A question that needs to be considered is how Dr Batayneh would have reacted if Dr Layton's letter of 21st June had explicitly stated that the background risk of maternal contamination could not be excluded, and gone on to identify it at one third of 0.5% (which was his best estimate of that risk). I cannot conclude that Dr Batayneh would have recommended to Mr and Mrs Farraj that a second sample be provided in those circumstances. The residual risk (on this hypothesis) would have been tiny and the chances of analysis of the second sample excluding the risk completely would (without the benefit of hindsight) have been judged too small to justify the risk associated with a second test.
- Dr Layton explained that he would have contacted Dr Batayneh had he been aware of the problems with the sample. That was not doubted. On the basis that information should have been communicated to KCH by CSL that the sample was of doubtful quality there seems to me to have been three possibilities open to Dr Batayneh. The first would have been to take another sample immediately. That would have carried with it the risk of miscarriage in the face of the possibility that the sample might, despite its difficulties, prove to be reliable. It would also have carried that risk at a time well before the genetic mutation had been identified from analysis of the blood samples provided by the Claimants and Rawan. That identification occurred on 31st May. So the second would have been immediately after 31st May. The third would have been when the sample was cultured sufficiently to be returned to KCH. Had that stage been reached, and there remained serious concern that there was maternal contamination not only would the VNTR testing have been contemplated at KCH, but it is probable that karyotyping would have been requested and done at CSL. The position at the date on which the sample was returned, 12th June, would thus have been that maternal contamination could not be excluded.
- It is, to my mind, significant that as soon as Dr Batayneh was notified of a potential problem concerning maternal contamination that he offered another sample. Had there been proper communication between KCH and CSL the likelihood of the sample being inadequate would have been appreciated almost from the outset. The fact that the small body of tissue which was separated out by Mrs Wilcock was so slow to grow would very likely have raised additional concerns. Dr Batayneh was well aware that there was a long stop date for termination at 20 weeks. That long stop date for performing a termination would have been 8 July 1995. Both he and those in London with whom he would have been communicating would have been aware of the potential problem with maternal contamination and would have appreciated that time was likely to be of the essence, because of the long stop date. There would be no point in waiting so long before deciding whether to take a second sample if the effect of the wait would have been to put a termination beyond the reach of Mr and Mrs Farraj. A good second CVS might not need culturing before it was subjected to DNA testing. As the experience with the actual sample provided shows, a poor sample may take some weeks to culture sufficiently. The evidence I heard suggested that if an amniotic fluid sample were taken, the process necessary to examine it and produce a result would take about three weeks.
- It is striking in this case that communications between Jordan and London were not prompt at either end. Additionally, there was some time lost in transporting samples from Jordan to London. In his evidence, Dr Batayneh explained that had he known the full story during the course of May or in early June he would have spoken to Mr and Mrs Farraj and counselled them concerning another sample. He said that he would have considered amniocentesis at 17 weeks because it is easier to perform than taking a CVS and is safer. Given the time it would take to turn round an amniotic fluid sample, it is unlikely that Dr Batayneh would have waited until the end of the 17th week before taking a second sample. To do so would put in jeopardy the possibility of performing a termination. All of the questioning of Dr Batayneh was necessarily hypothetical. In determining what would have happened if full information were available, there is an element of speculation about how long those concerned would have continued to wait to see whether, despite all the concerns, the results proved reliable. Having heard evidence from Mr and Mrs Farraj I am satisfied that they would willingly have run the small risk of spontaneous miscarriage involved in providing a further sample, whether by CVS or by amniocentesis. Furthermore, I conclude that had Dr Batayneh been aware of the real problems with this sample he would have taken steps to obtain a second sample before 17 weeks pregnancy (which was reached on 17 June 1995) and which was the earliest date on which he considered an amniocentesis could have been performed. That is simply because to leave it that late would have put is jeopardy the possibility of an abortion before 20 weeks. Dr Layton suggested that 16 weeks was the relevant date for amniocentesis.
- Given his letter of 6th June and the over-riding concern of Mr and Mrs Farraj, I think its more probable than not that he would have taken a further CVS in early June, that is once the genetic mutation had been isolated. It was objected by the defendants that he would at least have waited until the cultured sample had been returned to KCH and reported on, taking the date to 21st June. Although that process was not in fact completed until the 21st June, it is inevitably the case that if the whole process had been under-pinned with much greater concern about the integrity of the sample, those results (very likely karyotyping results as well) could have been transmitted to Dr Batayneh on or very shortly after 12th June. That was the date on which the cultured cells were returned by CSL to KCH. Because the integrity of the sample and culture would have been in doubt, it seems to me unlikely that Dr Batayneh would have waited that long. However, even at that date there was time to obtain a second sample (perhaps even of amniotic fluid because the 16 week mark had been reached), and process and analyse it before 20 weeks' pregnancy was reached (8th July 1995).
- Dr Layton's laboratory at KCH was operating in the field of molecular genetics. CSL was operating in the field of cytogenetics. Each of the parties called experts in each field. The molecular geneticists were Dr Ann Curtis for the Claimants, Dr John Old for KCH and Prof Ian Peake for CSL. The cytogeneticists were Dr John Wolstenholme for the Claimants, Dr Charles Parkin for KCH and Dr Rodney Howell for CSL. These experts were concerned with two of the central issues in this case namely:
(a) where responsibility lay for failures in communication;
(b) whether Dr Layton's letter of 21 June 1995 was negligently written.
- At one stage Professor Peake additionally suggested that KCH were negligent in failing to accede to Dr Batayneh's offer of a new sample. However, in the course of oral evidence he accepted there was room for two views on this point and so, as it seemed to me, it fell away. However, this aspect of the evidence provides an example of something that was very striking about the evidence from all six of these witnesses. None was a 'professional' expert witness. Indeed, it may be that none of them had appeared to give oral evidence in a case such as this before. In consequence, it was clear to me that these witnesses did not fully appreciate the difference between explaining what they would or might have done in similar circumstances and a conclusion that the actions of KCH or CSL were negligent in a Bolam sense. Nonetheless, each had cogent views on where responsibility for ensuring efficient communication lay. That said, any conclusions on that issue are dependant on the findings of fact concerning a number of disputed issues. Importantly, all of the experts were of the view that if Emma Wilcock were doubtful about the integrity of the sample she had dissected out for culture and the culturing process itself, CSL should have passed that information to KCH whether asked or not. That, as I have already indicated, is something that Mr Meredith himself readily accepted.
- The cytogenetics experts devoted much of their evidence to considering the need for CSL to pass on information about the sample, depending on how good/poor it was. The experts recognised that even a small and bloodstained sample might deliver a small amount of good quality villus. Dr Wolstenholme had identified a hierarchy of quality into which the sample could be placed. This sample was, as I have found, poor. On that basis all experts agreed that there was a need for CSL to communicate the problems they had identified.
- A further factor which colours the expert evidence, is that none of those concerned had ever faced circumstances similar to those obtaining in this case. KCH had a commercial relationship with a cytogenetics laboratory, CSL, which was not located nearby. Samples were sent by courier between the laboratories with, as we have seen, some telephone communication and covering letters. The position encountered by the six independent experts who gave evidence was different. Between them they had enormous experience of working in all of the centres of excellence in these fields in England. Those include Oxford, Newcastle, Nottingham and Bristol. But the critical difference is that the molecular genetics laboratory and cytogenetics laboratory were in each case co-located within premises belonging to the same NHS trust or, in the case of Oxford, close by but in a different NHS hospital within the same trust. Thus, these experts were used to constant interaction with their colleagues in the other discipline in circumstances where the problems that obtained in this case would simply not have occurred. At this time, that is to say 1995, they too did not operate according to strict written protocols. But in their cases the constant flow of information and general interaction meant that such protocols would probably have been superfluous, at least for practical outcomes. The possibility of a sample being sent to the cytogenetics laboratory and there being no follow up discussion for the best part of a month would have been remote.
- It follows that in trying to give evidence about what happened as between KCH and CSL these experts were necessarily talking hypothetically. The position was different, from what is more commonly encountered in clinical negligence actions, where the conduct of one clinician will be compared with the way in which others have in fact approached similar problems.
The experts' views on communication
- All the experts agreed that effective communication was vital in this arena. That, to my mind, is in truth a statement of the obvious that barely requires expert confirmation. Good communication is judged by results. A considerable amount of time was spent in evidence about systems, protocols and standard operating procedures. Informal arrangements are not in themselves inappropriate if they work. They will work if, despite their informality, all those concerned have a clear and common understanding of what is expected of them.
- Directions were given in this case that the experts in like disciplines should meet to identify areas of agreement and disagreement. For logistical reasons the cytogenetic expert witnesses were unable to produce a single joint report. They met on 30th April 2008 and in due course an interim report was prepared by Drs Wolstenholme and Parkin to which Dr Howell was not a party. He was not entirely content with the way in which the interim report had been drafted. He initiated a further discussion amongst the three cytogenetic experts which took place on 14th July 2008. Dr Howell produced a statement of the outcome of that meeting which is signed by him and dated 14th July. For the purposes of this aspect of the case, namely responsibility for ensuring efficient communication, the interim report included this observation:
"for any arrangement transferring samples between laboratories, both laboratories have responsibility for their respective standards of work including communication. However, the ultimate responsibility for ensuring 'joined-up working' arrangements must always remain with the referring laboratory (in this case KCH)."
At paragraph 4(1) of the note signed by Dr Howell on 14th July, which reflects his view rather than the collective expert view, he said this:
"JW's witness statement has '
it was the responsibility of both KCH and CSL to ensure that communication as to the risk of maternal contamination took place
This of course is also true."
He did not demur from the conclusion of his two colleagues.
- The molecular geneticists, in their joint statement of 26 June 2008, approached the matter rather differently. Whilst recognising that communication between KCH and CSL should have been better they were not prepared to attach blame in respect of this. They did, however, agree that CSL should have reported back to KCH any potential problems that had been identified at this stage. However, the indication in the joint report was that such communication would have served little purpose given that KCH already knew that the sample was poor. That, with respect to these experts, overlooks the fact that whilst KCH knew through visual examination that the sample was sub-optimal and small, it was CSL who were to subject the sample to microscopic examination with a view to determining whether the ensuing culture was of foetal material.
- The molecular geneticists considered the need for good communication from the point of view of KCH. Their evidence was in a collective sense less clear cut than that of their cytogenetic colleagues. It needs to be seen against the background of the approach of KCH to this question. KCH provided CSL with all the information which CSL required to enable it to culture the sample. That was by way of Lisa Thompson's letter and the telephone call to Mr Meredith. Professor Peake and Dr Howell (who were both instructed on behalf of CSL) accepted as much. Furthermore, those same experts accepted that the ordinary practice of a cytogenetics laboratory would have been to follow the practice for preparation of CVS set out at pages 76-80 of "Human Cytogenetics Vol 1 Constitutional Analysis A Practical Approach by D.E.Rooney and B.H.Czepulkowski". That included an indication that "if there is any doubt about the identity of a piece of tissue avoid using it for culture." The understanding and knowledge of cytogenetic literature in Dr Layton's laboratory was poor so it is unlikely that he or others there knew of the content of that work. Nonetheless, the general point being made by these experts was that if a cytogenetic laboratory had serious doubts about a sample they should not culture it. That was subject to an important caveat, namely that if a sample of this nature were to be cultured the cytogenetics laboratory should inform those who had submitted it of the problems. Thus, Dr Howell and Dr Peake accepted that KCH might expect that if CSL encountered problems, they would be told. Dr Old, Dr Curtis and Dr Wolstenholme all agreed with that proposition, as had Mr Meredith. That, however, does not dispose of the potential criticism of KCH for failing positively to request that they be provided with information about the sample. In the joint report of the molecular geneticists this statement was made:
"communication between KCH and CSL should have been better. No blame could however be attached to this."
In her oral evidence Dr Curtis identified a number of concerns that she had about communication including "I feel that it would have been very good practice for KCH to have asked the advice of the perceived experts, who are the cytogeneticists about the chances of obtaining foetal cells after the culture
That statement, which had been elicited in the course of examination-in-chief, was explored further in cross-examination. The substance of Dr Curtis's evidence when answering questions from Mr Spencer was that KCH, having indicated its own concerns about the sample to CSL, was entitled to rely upon CSL to provide information about deficiencies. Whilst an explicit request for such information might have been desirable, Dr Curtis was not willing to stigmatise KCH's failure to ask for a report or read out of the sample as negligent. Nonetheless, in answer to a question from Mr Prynne she agreed with the proposition that responsibility for ensuring good lines of communication rested with the analytical laboratory, namely KCH. That accorded with the views of the cytogeneticists.
- Dr Old explained that both in 1995 and now in Oxford he would expect the cytogenetics laboratory to let him know if there were a problem with a sample. He put it colourfully when he said that he would not constantly be on the phone to the cytogenetics laboratory. In his oral evidence, Professor Peake was disinclined to attach any blame to the failures in communication in this case even though 'communication should have been better in many ways.' He said that in 1995 communication was less good generally, a situation that has changed since. Indeed, it is clear that the protocols and standard operating procedures now in place demand proper communication at all times and focus on the need to be aware of maternal contamination, in particular.
I am faced, therefore, with clear evidence from the cytogenetics experts that in circumstances where a molecular genetics laboratory sub-contracts the culturing of a sample, it is incumbent on the molecular genetics laboratory to state what information they require on the quality of the sample, irrespective of the duty on the cytogeneticists to report on any problems. The molecular geneticist experts did not take that view, although Dr Curtis did recognise the responsibility of the analytical laboratory to ensure good lines of communication. One striking feature of the evidence of the experts, and those on the ground in 1995, was the relative lack of insight each laboratory had concerning the expertise and specialism of the other. Much was taken for granted and, particularly at KCH's end, they proceeded on the assumption that all was well unless they were told to the contrary. Yet Dr Layton knew nothing of the cytogenetics literature or practice to enable him to know whether his assumption was justified, a topic to which I shall return when considering the terms of his letter of 21st June. I find this approach surprising and lacking in an appreciation that good communication is important to avoid error and misunderstanding.
- Maternal contamination was a risk well known to all concerned. KCH needed to know whether the returned sample was subject to an inherent or background risk of maternal contamination or was liable to greater risk. The background risk, which was debated by the experts through a large volume of scientific literature, is very small but real. Various figures were put on it, depending on which study was relied upon. Those studies themselves approached the question in different ways. It appears safe to assume that the background risk is a good deal less than 1% overall. There is a residual risk that cannot be excluded entirely (although karyotyping and VNTR testing can for practical purposes almost squeeze it out). However, the risk varies depending on the quality of the sample itself. With hindsight, the experts believed that the whole of the sample returned by CSL probably consisted of maternal cells. At the outset of the process the risk was certainly much higher than the background risk.
- In the result, and despite the reluctance of the molecular geneticist experts to criticise KCH for doing nothing in seeking information about the quality of the sample, my conclusion is that there was a duty to do so. I accept the approach of the cytogenetics experts on this topic, supported as they were to an extent by Dr Curtis. This is not an area in which any of these experts had direct experience of similar arrangements as existed between CSL and KCH. None was able to say that they followed the practice of KCH in 1995 although, as I have said, Dr Old came close. They were all to an extent speaking hypothetically. Whilst their views inevitably command respect, I conclude that Dr Curtis was correct to recognise that the laboratory in the position of KCH had responsibility for ensuring that there were good lines of communication. Because the experts were speaking hypothetically, I am not rejecting a body of expert opinion that followed the practice adopted by KCH. However, were it necessary to do so I would, albeit reluctantly, conclude that a practice which might leave the analytical laboratory in ignorance relating to this important issue (as was supported by some of the experts who gave evidence) would be lacking in a logical foundation in the sense contemplated by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority  AC 232 at 241-242. The recognition, after the events with which we are concerned, that good communication should be formalised in protocols was not, to my mind, a novel idea. The failure to communicate information, or to take trouble to acquire it, is a common factor in the breakdown of systems leading to 'accidents' of all sorts.
- My conclusion on this issue is reinforced by the facts of this case which, in my judgment, highlighted the need for KCH to ensure that it was provided with information about CSL's view about the quality of the sample. KCH knew that the quality of the sample was poor. It is true that they could not know from their visual examination whether the very small and bloodstained sample did or did not consist of, or at least comprise substantially, foetal material. Nonetheless, Dr Layton was alive to the possibility of maternal contamination. He wrote about that risk in his letter to Dr Batayneh on 18th May. He was not talking about the very small statistical chance of maternal contamination inherent in all samples. He assumed all was well without asking about the quality of the cultured sample. He was aware of the willingness of Dr Batayneh to entertain a second sample if necessary.
The Letter of 21st June 1995
- I have concluded that CSL should have informed KCH of the doubts Mrs Wilcock had concerning the sample. Had they done so an entirely different course of events would have unfolded. Similarly, I have concluded that KCH should proactively have asked for information about the sample. Had that happened that different course of events would also have unfolded.
- Irrespective of those conclusions, both the Claimants and CSL contend that Dr Layton was negligent, on the basis of the information that was available to him, in providing Dr Batayneh, and through him Mr and Mrs Farraj, with what amounted to an unequivocal assurance that the foetus was not affected by BTM. Part of the criticism made of his letter of 21st June flows from the factors to which I have already referred as calling for some inquiry from KCH about the sample. These are that the sample appeared to them to be sub-optimal; that Dr Layton, in his letter of 18th May, had explicit concerns about maternal contamination; and that the sample was taking a very long time to culture. As we have seen, KCH simply assumed that the initiative would come from CSL regarding any difficulties with the culturing of the sample. Dr Layton's evidence, which reflected the terms of his letter of 21st June, was that such concerns as he had about maternal contamination were assuaged by the return from CSL of a cultured pellet, without more. Therefore, he reasoned, the risk of maternal contamination was no more than the background risk, which could not be entirely eliminated and which it was unnecessary to mention. That was because Dr Batayneh could have been expected to realise that a 100% guarantee could almost never be given.
- On Dr Layton's behalf Mr Spencer also argued that whilst the first sentence of the letter said in terms that the pregnancy was not affected by BTM, the third sentence expressed the possibility of maternal contamination as being 'less likely' following the culture. He did not exclude the possibility altogether. That is consistent with the recognition of an unavoidable background risk. I have already touched on Dr Batayneh's interpretation of the letter. Read as a whole it does not bear the interpretation that maternal contamination has been excluded to the level of complete or 100% certainty. That was not what Dr Layton meant to convey, because I accept that he always recognised that there was the very small background risk in this case, as in others.
- A number of the arguments advanced by the Claimants and CSL in connection with the terms of the letter of the 21st June in one way or another feed back to the suggestion that KCH should have informed itself of the true position regarding this sample before reporting upon it to Dr Batayneh. So it was said that even if KCH were understandably unaware of the underlying cytogenetics literature, they had no business assuming that all was well because the sample had always been sub-optimal. That made it more prone to the risk of maternal contamination. Dr Wolstenholme explained that a small blood stained sample of this nature was well recognised in cytogenetic circles as having an increased risk of maternal contamination. He put it at anywhere between 10% and 100%. However, Dr Layton was not aware of that and it does not seem to me to be reasonable to criticise him on the basis of a lack of knowledge in a field that was not his own. However, given KCH had what Mr Prynne described as a 'black hole' in their scientific knowledge of the characteristics and properties of the tissue they were being asked to investigate, it was all the more important to ask for feedback from CSL. I accept that submission.
- It is right that if foetal cells go into the culture then foetal cells come out. But that begs the question whether or not maternal cells had gone into the culture rather than foetal cells or whether, if there was initially a mix, the maternal cells had grown more quickly than the foetal. There was a lively debate amongst the experts about whether maternal cells do grow more quickly and might overgrow any foetal material. There was some support for this proposition in the cytogenetics literature, although the study relied upon does not appear to have been subject to peer review. Whether that is a well recognised phenomenon was not clear from the expert evidence. Even if it can occur, the chances of its doing so are very small indeed. Dr Parkin estimated it at less than 0.2%. Yet, as it seems to me, this issue also feeds into the question whether Dr Layton should have worked on the basis of an assumption about the integrity of the sample and success of the culturing exercise, or asked for information from CSL.
- The additional discrete criticism made of Dr Layton's letter of 21st June comes to this. He referred to studies within the von Willebrand's factor gene as providing support for the identity of the sample, an issue that arose at the outset because samples had arrived from Jordan unlabelled. The studies to which he referred were those conducted by his colleagues using what was described as a VNTR test, the purpose of which was to try to exclude maternal contamination. Dr Lalloz gave evidence about this test. He explained that the test was a recent innovation at KCH in an effort to exclude maternal contamination because it was a known problem which could lead to false results. The test had not been validated and so, explained Dr Layton, it would not have been appropriate to rely upon it positively. He was nonetheless criticised because he referred to the test for the purposes of providing comfort about the identity of the sample, but did not refer to it or consider it relevant for the purposes of alerting Dr Batayneh to the possibility of maternal contamination.
- Mr Prynne, on behalf of CSL, poured scorn on the suggestion that the reason this test was not referred to in the context of maternal contamination was that it had not been validated. There was no sign of that suggestion in the witness statements. The point arose in the course of oral evidence. It is, however, important to understand Dr Layton's evidence on this point. He did not suggest that he left out any reference to the VNTR simply because the test had not been validated. His approach to the information produced by this test was conditioned by the underlying assumption that CSL would only have cultured foetal cells. Thus he thought the sample returned to him would be foetal cells subject only to the very small underlying statistical risks of being contaminated with maternal cells. The VNTR testing, he explained, is designed to exclude that small risk further. As I understood his evidence, he suggested that the VNTR test might exclude maternal contamination for all practical purposes. However, if it does not do so, without more it does not signify that that the risk of maternal contamination is any higher than the ordinary background risk. So the fact that the VNTR test did not exclude maternal contamination, given the assumptions that underpinned his approach, left only that background risk which he put at one third of 0.5%. As I have already indicated others put it a little higher. There was unanimity amongst the experts (other than Dr Old) that Dr Layton should have stated expressly that a VNTR test (albeit unvalidated) had failed to exclude maternal contamination. Maybe that was so, but it begs a more important question. What else should have been said? A bare statement that maternal contamination had not been excluded would be meaningless, indeed maybe misleading, in the absence of a statement of the likely remaining risk. Dr Layton believed that the risk was tiny, for the reasons that he explained. He was ignorant of the enhanced risks because he was unaware of the particular features of this sample which resulted in maternal, rather than foetal, cells being cultured.
- So, as it seems to me, even this criticism of Dr Layton's letter comes back to the assumptions that he made and the lack of communication between his laboratory and CSL. The reality is that he made assumptions about the quality of the sample when he should have asked.
- In considering the arguments that were advanced by both Defendants on the question of causation I bear in mind the findings of fact I have made on the evidence from those in Jordan, and in particular Mr and Mrs Farraj and Dr Batayneh. They are set out in the discussion of Jordanian evidence in paragraphs  to  above. In my judgment, had the underlying concerns about the sample been communicated to Dr Layton, and in turn by him to Dr Batayneh, a second sample would have been provided by Mrs Farraj. That sample would have been processed and analysed in time for a termination of the pregnancy to have occurred before 8th July, the 20 week long stop date. The reality, if things had gone as they should have done, is that KCH and thus Dr Batayneh would have been alive to the potential problems by the middle of May. He and Mr and Mrs Farraj would have recognised the need to establish the true position well in advance of the 8th July. Dr Layton's letter of the 18th May was sufficient to prompt from Dr Batayneh an offer of new samples. For the reasons I have already given, I conclude that if the matter had been considered with care it is likely that new samples would have been taken shortly after the 31st May 1995 when the genetic mutation was identified in the blood from other family members.
- The findings I have made lead to the conclusion that the Claimants have established liability against both Defendants. The Claimants are entitled to judgment against the First and Second Defendants with damages to be assessed. As between the Defendants the question of apportionment arises on the Part 20 proceedings. Mr Prynne reminded me that in considering questions of apportionment there are two factors to bear in mind. Those are relative questions of culpability and the extent to which the culpability of each part was causative of the damage.
- On the second of those questions, the reality is that if CSL had passed on Mrs Wilcock's doubts about the sample (as they should have done irrespective of a request for information) KCH's failure to ask would not have mattered. Similarly, if KCH had asked for information about the quality of the cultured sample, Mrs Wilcock's doubts would have emerged and CSL's failure to volunteer the information without prompting would not have mattered. Thus it is that the communication failure of each was of equal causative potency.
- However, in my judgment CSL were more culpable in this regard than KCH because they were in possession of the relevant information and failed to pass it on. The problems with this sample were within the knowledge of CSL and they were problems within the specialist knowledge of cytogeneticists. There was no proper basis on which CSL could assume that KCH shared their understanding of the inherent problems associated with a sample of this nature. KCH were also culpable because they worked on an assumption that all was well when they should have asked; but they were not the ones in possession of the information that was critical to understanding the true risks that the sample was contaminated by maternal cells.
- Taking into account all the circumstances in this case, I conclude that two thirds of responsibility rests with CSL and one third with KCH.
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