Case No: HQ12X04108
Neutral Citation Number: [2013] EWHC 3730 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/11/2013
Before :

THE HONOURABLE MR JUSTICE DINGEMANS
Between :

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Between :

	(1) PAUL ALFRED SCHUMANN
(2) JOANNE CHINNOCK	
Claimants in	
	- and –		
	VEALE WASBROUGH	Defendant	
			
		Case No: HQ12X03620	
	(1)	JOANNE CHINNOCK
(2)	PAUL ALFRED SCHUMANN	Claimants in 	
	- and -		
	KAREN REA	Defendant	

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Michael Redfern QC and Sufiyan Rana (instructed by Graham Abrams Davidson LLP) for the Claimants in both actions
Mark Cannon QC and Glen Tyrell (instructed by Henmans Freeth LLP) for the Defendant in Claim No. HQ12X004108
Jamie Smith (instructed by Weightmans LLP) for the Defendant in Claim No. HQ12X03620

Hearing dates: 5, 6, 7, and 8 November 2013
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Judgment
Mr Justice Dingemans: 
	   Introduction
1.	This is the hearing of preliminary issues arising in two actions, being heard together, in respect of a claim for damages for professional negligence made by Joanne Chinnock (“Ms Chinnock”) and Paul Schumann (“Mr Schumann”) against Veale Wasborough (“VW”), a firm of solicitors, and Karen Rea (“Ms Rea”), a barrister, in respect of advice that they had given about a claim.
2.	Ms Chinnock and Mr Schumann were married.  They were both involved with work with persons suffering from disabilities.  Ms Chinnock became pregnant in about July 1997.  Because of their work with persons with disabilities Ms Chinnock and Mr Schumann were clear that they did not want to have a child with disabilities, and would have terminated any pregnancy if there was any risk that they were going to have a child with disabilities.
3.	On 21 April 1998 Ms Chinnock gave birth to Bethany Chinnock-Schumann (“Bethany”) by emergency caesarean section at a hospital operated by a NHS Trust (“the NHS Trust”).  Bethany suffered from a serious chromosomal abnormality.  Bethany was very frail and spent much of her life going in and out of hospitals.  The situation did not improve as Bethany got older.  Ms Chinnock spent her time as a full-time carer of Bethany and Mr Schumann went out to work, and then assisted with Bethany’s care as soon as he returned from work.  Bethany died on 14 December 2009.  
4.	Ms Chinnock believed that the NHS Trust was negligent in her care and in carrying out antenatal tests and scans.  VW was instructed on behalf of Bethany.  VW also investigated a possible claim for the wrongful birth of Bethany, see generally McFarlane v Tayside Health Board [2000] 2 AC 59.  A claim form naming Ms Chinnock as the Claimant was issued on 12 April 2001 to preserve the claim against the NHS Trust for wrongful birth while inquiries were being pursued.  On 18 May 2001 VW in turn instructed Ms Rea, who was experienced in clinical disputes.  
5.	Experts had been instructed and reported.  There was a conference at VW’s offices in Bristol on 13 July 2001.  Two experts attended the conference by telephone.  At the conclusion of the conference advice was given that the claim should not proceed.  That advice was confirmed by letter dated 16 July 2001.  The claim against the NHS Trust was not pursued.  The validity of the claim form expired on 12 August 2001, and Ms Chinnock was thereafter not able to pursue her claim against the NHS Trust.
6.	Ms Chinnock and Mr Schumann separated and divorced.  When Mr Schumann was getting legal advice about his divorce from his current solicitors he was asked in January 2009 if he had other legal issues, and raised issues relating to Bethany.  Mr Schumann informed Ms Chinnock of these developments after a meeting with the solicitors.
7.	Ms Chinnock and Mr Schumann issued proceedings on 8 July 2010 against VW, claiming that, contrary to the advice that was given, there was a good claim against the NHS Trust, which could not now be pursued.  On 19 January 2012 Ms Chinnock and Mr Schumann issued proceedings against Ms Rea.  
8.	VW and Ms Rea deny that they owed any duties to Mr Schumann, saying that he was not a client.  They also say that the claim is too late, and is barred by the provisions of the Limitation Act 1980 (“the Limitation Act”).  They also deny that the advice that was given was wrong, or that they acted in breach of any duties.  
9.	On 12 November 2012 Master Yoxall ordered that the claim against VW and the claim against Ms Rea should be managed and tried together, and that evidence in one case should be evidence in another, and that this preliminary issue should be heard.
Issues
10.	The following issues are raised on this hearing: 
(1) whether the claims brought by Ms Chinnock and Mr Schumann against VW or Ms Rea are statute barred;
(2) whether any contractual or tortious duties were owed by VW or Ms Rea to Mr Schumann; 
(3) whether either VW or Ms Rea acted in breach of duties owed to Ms Chinnock or Mr Schumann.
Procedural matters
11.	There were a number of procedural matters which were raised in the applications and Skeleton Arguments before me.  
12.	These were: (1) whether Ms Chinnock and Mr Schumann should have permission to amend the Particulars of Claim against Ms Rea.  By order dated 23 September 2013 Master Cook refused to permit the Claimants to amend the Particulars of Claim pursuant to an application dated 2 July 2013, but stated that the Claimants could, by 30 September 2013 produce further draft amendments and seek permission from the trial Judge; (2) whether Ms Chinnock and Mr Schumann should have permission to appeal against the order of Master Cook dated 23 September 2013, and then if permission was granted, whether the order of Master Cook dated 23 September 2013 striking out the witness statement from Mr Campbell dated 12 April 2013 and debarring Ms Chinnock and Mr Schumann from adducing further witness evidence from him, should be set aside; (3) whether VW’s application that the Claimants be debarred from relying on the witness statement of Mr Campbell dated 12 April 2013 should be allowed; (4) whether Ms Chinnock and Mr Schumann’s application for relief from the sanction of the debarring order made by Master Cook should be granted.
13.	When opening the case Mr Redfern QC, on behalf of Ms Chinnock and Mr Schumann, stated that he was not now seeking permission to appeal against the order of Master Cook dated 23 September 2013.  However he confirmed that he was still seeking relief from the sanction of the debarring order preventing the Claimants from relying on the witness statement of Mr Campbell, and was opposing VW’s application to exclude the statement of Mr Campbell.  The other applications were also being pursued.
No permission to re-amend
14.	I heard argument on the first afternoon of the case about the procedural matters.  I refused the Claimants permission to amend the Particulars of Claim against Ms Rea, and gave short reasons then, that I said I would expand in this judgment.  
15.	Mr Redfern told me that the amendments were a clarification of the original pleadings, where he had drawn everything together.  When I asked why it was necessary to clarify pleadings at this late stage, Mr Redfern stated that it would assist all the parties to focus on the real issues.  He said that all the documents had been available since July 2001, and that no one would suffer any prejudice.  
16.	Mr Smith, on behalf of Ms Rea, said that the amendments introduced important changes to the case being made by the Claimants and that his client had not prepared to meet the new case.  I was shown some changes, in particular to how the case was being put against the NHS Trust, but it was not possible to undertake a detailed comparison between the pleadings at that stage.  
17.	In the event I refused permission to amend.  This was because if the changes were simply to clarify the Particulars of Claim, there would be no need to amend.  Clarification, and drawing together, could be achieved by way of submissions.  If, however the amendments were substantive, it was simply too late to make them.  The preliminary issue had been ordered to be heard nearly a year before, and the trial window had been fixed on 28 February 2013.  The Claimants had made unsuccessful attempts to amend the Particulars of Claim.  Any substantive amendments, made at this late stage, would cause prejudice to the other parties who had prepared to meet the case pleaded against them.  The point about all the documents being available since July 2001 was not a point in the Claimants’ favour, because in these circumstances the Claimants might reasonably have been expected to make known their case substantially in advance of the hearing.
Other applications withdrawn
18.	The application for relief from sanctions so that the Claimants could call Mr Campbell was, in the final event, not pursued.  Mr Campbell was a consultant obstetrician who had been one of the experts who had attended the conference by telephone on 13 July 2001.  Mr Campbell had made a witness statement dated 12 April 2013 which I was told was prepared without assistance from solicitors.  In that statement Mr Campbell had effectively produced a new expert report on the original claim against the NHS Trust.  No provision had been made for expert evidence, and it would not have been appropriate for Mr Campbell to give such expert evidence in the subsequent claim against the lawyers to whom he had provided expert views in July 2001.  
19.	There was obviously the potential for Mr Campbell to give factual evidence, saying for example that if he had been asked about a proposition in 2001, his expert opinion would have been to a certain effect.  That was a point recognised by Smith LJ in Kirkman v Euro Exide Corporation (CMP Batteries) Limited [2007] EWCA Civ 66 at paragraph 18.  Mr Campbell did in fact make a second witness statement dated 18 October 2013.  However even that second, and very late, witness statement did not address matters in a way that made his evidence relevant and admissible.  In the event, because the application was withdrawn, it was not necessary to rule on this issue.
20.	Although VW had consented to amendments of the claim against them, and for Mr Campbell to give evidence in accordance with his witness statement dated 12 April 2013 (it appears on the basis that it was considered that the evidence was not going to assist anyone), Mr Redfern made it clear that he would put his case on the basis of the original pleadings, and without evidence from Mr Campbell.  This avoided the difficulties of evidence having been admitted in one action, but not in the other, where an order had been made for evidence in one action to be admissible in the other.  As Master Cook had noted on 23 September 2013 “it is a matter for the trial Judge how he squares that circle”, but in the event, because of the approach taken by Mr Redfern, it was not necessary to do so.  
Relevant events at the NHS Trust in 1997-1998
21.	There is not much dispute about the relevant events which occurred in 1997 and 1998, and I set out those events below.  When considering the relevant events the particularly unfortunate features of this case need to be noted.  First, as recorded above, because of their work with persons with disabilities Ms Chinnock and Mr Schumann were clear that they did not want to have a child with disabilities, and would have terminated any pregnancy if there was any risk that they were going to have a child with disabilities.  Secondly Ms Chinnock was told that there was a possible abnormality at the 11 week scan, that testing would be required to confirm the position, and opted for a Chorionic Villus Sampling (“CVS”) test.  The direct result from the CVS test reported that everything was normal.  There was only a 1:1000 chance of this false negative report.  Thirdly the CVS test should have included a culture test.  This was, unknown to Ms Chinnock at the time of her pregnancy, not carried out by the NHS Trust.  However, the expert evidence in 2001 showed that this would also have resulted in another false negative result.  Fourthly Ms Chinnock underwent a 20 week scan, and thereafter regular scans, and there was only a 15 per cent chance that Bethany’s abnormalities would not be picked up by the 20 week scan, but they were not detected.  Fifthly Bethany did have a serious chromosomal abnormality.  
The 11 week plus 4 days scan
22.	On 20 October 1997 Ms Chinnock had her 11 week plus 4 days scan at the hospital operated by the NHS Trust.  The sonographer showed some concerns, and asked to do more scanning.  After completing the scans she said that she had some concerns and wanted Ms Chinnock and Mr Schumann to see a consultant.  The sonographer said that there was thickening in the back of the neck, and it could be associated with Downs or Edwards syndromes.  
23.	In fact a nuchal translucency of 4.8 mm was recorded.  This meant that Ms Chinnock’s scan adjusted risk for any trisomy (or chromosomal abnormality) was 1:13.  This figure was not given to Ms Chinnock, and Ms Chinnock made it clear that if she had known of such a risk she would have opted for a termination.  Mr Redfern has particularly relied on this fact.
24.	Ms Chinnock and Mr Schumann met the consultant obstetrician at the hospital.  He said that a nuchal translucency was a soft marker for abnormalities, and relayed the successful normal birth of a child who had also had a nuchal translucency.  Ms Chinnock and Mr Schumann said that they wanted further tests if there was any chance of any disability.  
CVS test
25.	The tests offered were: CVS, which was the option immediately available; amniocentesis, which it seems would have been available from week 14 onwards of the pregnancy, although Ms Chinnock understood that it would be from week 15; and cordocentesis, which would be available from week 20 onwards.
26.	The CVS was performed the following day by another consultant.  It was not explained to Ms Chinnock that there were two parts to the test, but it was common ground before me that a CVS test consists of a direct analysis, and a further culture.  In fact, and unknown to Ms Chinnock and Mr Schumann the culture part of the test was not undertaken, and its absence was not reported.  
27.	The direct sample from the CVS test provided a normal result.  It appears that this was because the chromosome mutation which affected Bethany occurred after fertilisation, and the mutation probably affected only the fetus, and not the membranes and placenta.  A sample for a culture was also taken, but that produced no result.  If the culture had produced a result, the evidence establishes that this would also have been negative because of the very unusual way in which Bethany’s chromosomal abnormality had manifested itself.  The chance of getting such a false negative was only 1:1000.  The evidence also establishes that if either an amniocentesis or a cordocentesis had been carried out, Bethany’s chromosomal abnormality would have been detected.  Ms Chinnock was told of the normal result.
Further scans
28.	The pregnancy continued.  Further scans were undertaken at 20 weeks, 22 weeks, 25 weeks, 26 weeks, 27 weeks, 28 weeks, 29 weeks, 31 weeks, 33 weeks, and 35 weeks.
29.	The scan at 20 weeks, and ones immediately following, showed a small baby, but no fetal malformation could be identified.  The growth of Bethany was not off the percentile chart, and for a period she was growing in accordance with her own low percentile.
30.	On 18 February 1998, at a scan carried out at 28 weeks plus 6 days, the consultant radiologist noted poor growth, which meant that the baby was not even growing along the line of her own low percentile.  He also wrote “in spite of normal karyotype I strongly suspect there is some major abnormality with this baby but cannot define it”.  Ms Chinnock was not told about this strong suspicion, and said that if she had been told about this, she would have asked for a termination.  This is another fact particularly relied on by Mr Redfern.  
31.	By this stage of the pregnancy (over 24 weeks) the provisions of the Abortion Act 1967 meant that an abortion would not have been lawful on the basis only of a strong suspicion of abnormality.  However it is clear that if Ms Chinnock had asked for a termination at this stage because of strong suspicions that there was a serious abnormality with the baby, she would have been offered further testing, and, as recorded above, an amniocentesis or cordocentesis would have proved the serious chromosomal abnormality.  
32.	I should record that there were some notes in the medical record identified and relied on by Mr Smith on behalf of Ms Rea, and Mr Cannon QC on behalf of VW, and in particular a GP note dated 28 January 1998, suggesting that Ms Chinnock might have been told that the baby was seriously disabled but given no diagnosis.  Ms Chinnock said in evidence that she did not believe that the note was accurate, and it does not seem from the documents before me that Ms Chinnock had ever been told that the baby was seriously disabled.  Ms Chinnock was aware of the nuchal translucency as a soft marker, and that there were concerns which justified repeated scanning.  It is very likely that the NHS Trust, if any action had been pursued against them, might have relied on such documents, but these documents did not make Ms Chinnock’s claim against the NHS Trust unarguable, and they were not the basis on which VW and Ms Rea advised Ms Chinnock not to pursue her action against the NHS Trust.  These documents might be relevant to an assessment of what Ms Chinnock lost by not pursuing the claim against the NHS Trust, but are not in my judgment relevant to the issue of whether there was any breach of duty by VW and Ms Rea.
33.	On 24 February 1998, when the pregnancy was at week 30, an appointment was made with a fetal medicine consultant, but he considered that further intervention was inappropriate.
34.	On 21 April 1998 Ms Chinnock gave birth to Bethany.  At some stage after the birth, and when told about Bethany’s condition, the consultant radiologist had said to Ms Chinnock words to the effect that everyone had known that there was something wrong.
The claim against the NHS Trust
35.	Mr Schumann made contact with Gary McFarlane, a solicitor then with Wolferstans. In March 2000 Mr McFarlane moved from Wolferstans to VW and the case against the NHS Trust moved with him.  The file note recording that contact is headed “Chinnock-Schumann” and that is relied on by Mr Redfern in support of the point that Mr Schumann was a client.  
36.	The first meeting took place on 20 April 2000 at Ms Chinnock’s parents’ home, but at the last minute Mr Schumann was not able to attend because Bethany had had to be taken into hospital for emergency treatment.
37.	On 4 May 2000, in a letter relied on by Mr Cannon, VW wrote to Ms Chinnock dealing with a possible claim for Bethany, and a possible claim for Ms Chinnock.  There was no discussion about a possible claim for Mr Schumann.  
38.	In September 2000 Jan Markland, (“Ms Markland”) was given day to day control of the case.  By letter dated 26  September 2000 Ms Markland wrote to Ms Chinnock dealing with possible claims for Bethany and Ms Chinnock, but not dealing with a possible claim for Mr Schumann.  The first meeting between Ms Chinnock and Mr Schumann and Ms Markland took place on 22 December 2000 in Ms Markland’s offices in Bristol.
39.	Experts were consulted.  These were: Dr Weston, a consultant radiologist who dealt with issues of scanning; Mr Campbell, a consultant obstetrician, who dealt with issues of the care and tests provided to Ms Chinnock; and Professor Patton, a consultant geneticist, who dealt with issues of what tests might have shown.  Reports were produced, and various letters were written by VW to the experts.  Ms Chinnock raised issues by email with the experts.
40.	Initial funding was by way of Community Legal Services Funding for investigations into Bethany’s claim.  It became clear that there was no viable claim that could be made on behalf of Bethany, and advice was given to that effect.  No complaint is made in respect of the advice given to that effect.  Investigations continued into Ms Chinnock’s claim.
41.	On 12 April 2001 a claim form was issued in Ms Chinnock’s name against the NHS Trust.  This was just before 3 years had elapsed since Bethany’s birth.  
42.	On 18 May 2001 VW in turn instructed Ms Rea, a barrister experienced in clinical disputes.  The instructions to Ms Rea were headed in the name of Ms Chinnock alone, and asked whether Ms Rea would act on a conditional fee agreement.  
43.	In the event a limited Community Legal Services Funding Certificate for Ms Chinnock’s claim was obtained on 7 June 2001.  In the letter dated 8 May 2001 VW had written to the Legal Services Commission and noted that in the course of investigating the claim for Bethany, it had come to their attention that there might be a potential claim for Ms Chinnock.
The conference on 13 July 2001
44.	There was a conference at VW’s offices in Bristol on 13 July 2001.  Mr Campbell and Professor Patton attended by phone.  At the conclusion of the conference advice was given that the claim should not proceed.  The conference lasted between 1.5 and 2 hours.
45.	I heard evidence from Ms Chinnock, Mr Schumann, Ms Markland and Ms Rea about the conference.  In my judgment all of the witnesses were doing their honest best to assist me in their evidence generally, and in particular about what had happened at the conference.  Ms Rea had the worst recollection of events (only a recollection of the room and view from the window) and seemed to me to be very defensive when questioned by Mr Redfern.  I accept Mr Smith’s submission that this was probably because of the strain of these proceedings for professional negligence, but in my judgment it was also partly due to her obvious resentment of the proceedings, which manifested itself when Ms Rea and Mr Redfern argued and Ms Rea made critical comments about the form of questions she was being asked during cross examination.  
46.	In the event very little turns on this, because Ms Markland took a very comprehensive note, based on manuscript notes, which were written up on the Monday after the conference on the Friday.  All the witnesses deferred to the notes.  In particular Ms Chinnock had said in her witness statement at paragraph 63 that neither Ms Rea nor Ms Markland had addressed with the experts: (a) the determination of Ms Chinnock and Mr Schumann not to have a disabled baby; (b) steps which could have been taken to avoid the outcome which occurred; and (c) other tests which were available which would have identified the chromosomal abnormality.  When cross examined Ms Chinnock was taken to passages of the conference note dealing with those issues.  Ms Chinnock said that her recollection remained as set out in her witness statement, which I accept, but agreed that the note was accurate, which I also accept.
47.	I will deal with further aspects of the conference when considering the allegations of breach of duty.  At the conclusion of the conference it was decided that negligence could be argued for in relation to the lack of communication about the absence of the CVS culture result, but that this would not have led to further testing, and so causation could not be proved.  It was decided to write a letter of complaint to the NHS Trust about failings in the treatment, but it was decided that the claim could not be pursued.
The claim form lapses
48.	After the conference Ms Markland wrote by letter dated 16 July 2001 to Ms Chinnock setting out the result of the conference. 
49.	No Particulars of Claim were produced to be served with the Claim Form, and the claim against the NHS Trust lapsed.
Later developments
50.	The evidence shows that Ms Chinnock and Mr Schumann continued to provide devoted care to Bethany until Bethany’s death.  It is only right to record that everyone paid tribute to their dedication.
51.	Ms Chinnock and Mr Schumann later separated and divorced.  When Mr Schumann was getting legal advice about his divorce from his current solicitors he was asked in January 2009 if he had other legal issues, and raised the issues relating to Bethany.  Mr Schumann informed Ms Chinnock of these developments after a meeting with the solicitors on 3 February 2009.
52.	On 25 March 2009 Mr Schumann rang VW and asked for the papers.  A form of authority was prepared.  By letter dated 26 March 2009 Ms Markland prepared a joint form of authority for the release of the papers, albeit with the names transposed.  Mr Redfern relies on this form of authority as showing that Mr Schumann was a client of VW.  Ms Markland responded saying that he had rung and asked for the papers, she wanted a form of authority from both, and that his interest as Bethany’s father entitled him to see papers which part related to Bethany’s claim.
53.	On 21 July 2009 Mr Schumann was advised by his current solicitors that he could not sue the NHS Trust, but that there might be a claim against VW and Ms Rea.  Ms Chinnock was told in July 2009, in a telephone conversation with Mr Schumann, that VW may have failed to investigate properly the case in negligence against the NHS Trust.  Mr Redfern says that this was the knowledge needed to be obtained by Ms Chinnock and Mr Schumann.
54.	Ms Chinnock and Mr Schumann issued proceedings on 8 July 2010 against VW, claiming that, contrary to the advice that was given, there was a good claim against the NHS Trust, which could not now be pursued.  On 19 January 2012 Ms Chinnock and Mr Schumann issued proceedings against Ms Rea.  
Applicable legal tests
55.	In relation to the applicable law there is much common ground between the parties, and I am grateful to Mr Redfern, Mr Cannon and Mr Smith for their helpful submissions.
56.	The first legal issue relates to limitation.  Mr Redfern relied on the provisions of section 14A of the Limitation Act.  This provides for a three year period from the starting date defined by section 14A(5) which is “the earliest date on which the Plaintiff … had both the knowledge required for bringing an action in respect of the relevant damage and a right to bring such an action”.  The issue in this case is what is the “knowledge required for bringing an action in respect of the damage”.  
57.	Section 14A(6) provides that such “knowledge” means “knowledge both (a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in subsection (8)”.  Subsection (8), so far as is material to this action, provides that those facts are: “(a) that the damage was attributable … to the act or omission which is alleged to constitute negligence; and (b) the identity of the Defendant …”.  Subsection (9) provides that “Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purpose of subsection (5) above”.  
58.	It is not just actual knowledge which will count against a Claimant.  Constructive knowledge may count.  Section 14A(10) provides that “knowledge” includes “knowledge which he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek”.  There is proviso to the effect that a person should not be deemed to have knowledge of facts about which he did not know if he had taken reasonable steps to obtain advice.
59.	These provisions have been extensively considered in other authorities.  Both parties relied on Lord Nicholls’ formulation in Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682.  In that case it was held that section 14A(8)(a) knowledge (“of the material facts about the damage in respect of which damages are claimed”) meant knowledge in broad terms of the facts on which the Claimant’s complaint was based and of the Defendant’s act or omissions and where the Claimant “knows there is a real possibility his damage was caused by the act or omission in question”.    
60.	The second legal issue relates to the duties owed to Mr Schumann.  A contractual duty will be owed if there was a retainer of VW or Ms Rea.  In the circumstances of this case a tortious duty will be owed to Mr Schumann by VW or Ms Rea if: (1) Mr Schumann retained VW or Ms Rea; (2) VW or Ms Rea assumed responsibility to advise Mr Schumann; or (3) it would be fair, just and reasonable to impose a duty of care on VW or Ms Rea to advise Mr Schumann.  This appears from Whitehead v Searle [2008] EWCA Civ 285; [2009] 1 WLR 549 at paragraphs 30 and 36.
61.	It might be noted that the law relating to whether Mr Schumann, as father, has a personal action for Bethany’s wrongful birth has not, as yet, been settled in English law.  There was an interesting discussion of the relevant cases by Griffith Williams J. at first instance in Whitehead v Searle [2007] EWHC 1060 (QB) at paragraphs 94-97, but it has been said that there are difficulties with such a claim.  It does seem that the gratuitous care provided by a father in a wrongful birth case has been recovered in actions by some fathers.  It appears that recoveries have been made by mothers for the gratuitous care provided by fathers, who then hold any such sums recovered on trust for the father.
62.	The third legal issue is the test for breach of duty.  It is common ground that a professional (whether the doctors acting for the NHS Trust, or VW or Ms Rea) will only be found to be in breach of duty if they have failed to do what a reasonably competent practitioner would do having regard to the standards normally adopted in the profession.  
Claim is statute barred
63.	It is common ground that the primary limitation period expired six years after the claim against the NHS Trust lapsed.  On the evidence before me this was six years after 12 August 2001.  The proceedings were started in 2010 and 2012 respectively.  It is therefore necessary to consider whether the Claimants are entitled to rely on the provisions of section 14A of the Limitation Act.
64.	In my judgment the provisions of section 14A of the Limitation Act do not assist the Claimants.  This is because as at August 2001, when the validity of the claim form expired, the Claimants knew that the claim against the NHS Trust was not being pursued, and that they would not be obtaining any damages from the NHS Trust.  This was the material knowledge about the damage for the purposes of section 14(6)(a) and was not in issue before me.  
65.	The next question is whether, for the purposes of section 14A(6)(b) of the Limitation Act, the Claimants knew about the matters set out in section 14A(8).  The Claimants knew that the reason that the action had not been pursued was because the Defendants had advised them not to pursue the action at the conference of 13 July 2001, which the evidence establishes that they knew was the last chance for the claim to proceed.  The evidence also establishes that Ms Chinnock’s subjective, and understandable, view was that she was dumbfounded that the NHS Trust had not diagnosed Bethany’s disability before birth.  In these circumstances the Claimants knew that the loss of the action was attributable to “the act or omission which is alleged to constitute negligence” namely the allegedly negligent advice given in conference.  This was more than knowledge in broad terms of the facts on which the Claimant’s complaint was based, and was actual knowledge that the damage was caused by the act or omission in question, namely the advice given in conference.  
66.	The Claimants also knew of the identity of both VW and Ms Rea, which was the other part of section 14A(8) material to this claim.  Subsection (9) makes it clear that the Claimants cannot rely on the fact that they did not know that the advice was negligent to extend time.  The fact that Mr Schumann found out that he might bring an action against former professional advisers, and informed Ms Chinnock about this, which are facts relied on by Mr Redfern, is not knowledge that was required for the purposes of section 14A.
67.	In these circumstances the provisions of section 14A of the Limitation Act do not assist the Claimants.  The action is statute barred.  This is sufficient to dispose of the action, but I have set out my conclusions on the other matters raised by the preliminary issue.
No duty owed to Mr Schumann
68.	This was the issue that caused me the most difficulty.  I accept Mr Schumann’s evidence that he did not give particular thought to whether he was a client or not, but that he believed himself to be a client.  I also consider it likely that if Ms Chinnock had a viable claim for wrongful birth, sums would have been recoverable for the gratuitous care that Mr Schumann had provided to Bethany.  I also accept Ms Markland’s evidence that she did not consider Mr Schumann to be a client, but interested as the father of Bethany, for whom the initial investigations had been carried out.  I accept that Ms Rea was instructed only to advise on behalf of Ms Chinnock.
69.	It was common ground that Mr Schumann did not make any payments to VW, nor did he have the benefit of any legal aid funding.  In these circumstances I find that there was no contractual duty owed by VW or Ms Rea to Mr Schumann and that there was no retainer of VW or Ms Rea by Mr Schumann.
70.	However I note that although initially VW was not retained by Ms Chinnock, the client was Bethany who had the benefit of legal aid, VW kept Ms Chinnock’s claim under consideration, see for example the letter dated 4 May 2000, and had provided early advice about limitation periods applicable to that claim.  This is relied on in Mr Schumann’s favour.  I also note the headings on the documents referred to by Mr Redfern.
71.	However the documents do not establish that either VW or Ms Rea gave advice to Mr Schumann.  The fact that a file note was headed “Chinnock-Schumann” does not assist because the evidence before me established that Bethany took both her parents’ names and was called “Bethany Chinnock-Schumann”.  The fact that Mr Schumann was asked for a form of authority for the release of documents does not prove that he was given advice, and demonstrates only that he had a proper interest in matters as Bethany’s father.  In these circumstances there was no assumption of responsibility on the part of VW or Ms Rea to Mr Schumann.
72.	That leaves the third way in which it was considered possible that duties might be owed to Mr Schumann, see paragraph 60 above, namely it would be fair, just and reasonable to impose a duty of care to advise.  In my judgment it would not be fair, just and reasonable to impose such a duty of care.  There was nothing, in the particular circumstances of this case, to justify the imposition of such a duty.  Further, there was nothing to distinguish Mr Schumann’s case from the approach taken by the Court of Appeal in Whitehead v Searle to a similar issue involving a father and a wrongful birth claim, where such a duty on the part of the father had been denied.
73.	I therefore find that neither VW nor Ms Rea owed contractual or tortious duties to Mr Schumann.
	   No breach of duty by VW or Ms Rea
74.	The main breaches of duty pleaded against VW and Ms Rea were that: (1) the experts were permitted to attend by telephone; (2) Dr Weston, the expert on the scanning which had been carried out, did not attend; and (3) there was insufficient questioning of the experts at the conference.  It is fair to record that it was the third aspect of the claim on which Mr Redfern concentrated.  He submitted that there was a very strong claim against the NHS Trust, and that there had been a failure to question the experts on the failure to report in terms the 1:13 risk identified at the 11 week plus 4 days scan, and the failure to pass on the consultant radiologist’s strong suspicions of major abnormality on 18 February 1998. 
75.	It is common ground that Mr Campbell and Professor Patton attended by telephone.  In my judgment, there is no force in the complaint about this.  Ms Markland and Ms Rea had rightly identified areas for further inquiry with Mr Campbell and Professor Patton but the conference needed to be arranged in time to settle Particulars of Claim before 12 August 2001, if the claim was to be pursued.  There were difficulties in arranging a time convenient for all, and attending by telephone assisted in finding a date (see the attendance notes dated 26 and 28 June 2001). Attending by telephone meant that costs which needed to be controlled because of the limitations on community funding, could be controlled.  
76.	It is common ground that Dr Weston did not attend the conference.  In my judgment there is no force in the complaint.  Dr Weston was the consultant radiologist.  He confirmed that the scanning had been carried out with reasonable care and skill.  He properly identified areas for further inquiry for other experts.  However by the time of the conference there was no relevant input to be had from him.
77.	I also find that there was no negligence, on the part of either Ms Rea or VW, in relation to the questioning of the experts at the conference.  Before the conference the experts had been fully briefed, sent comprehensive medical notes, and produced reports.  There was no need to send them draft statements from Ms Chinnock or Mr Schumann, a complaint which was made on behalf of the Claimants, in circumstances where all the relevant information from the Claimants was communicated.  This included in particular the fact that Ms Chinnock and Mr Schumann did not want a disabled child, and sufficient reference had been made to the reason for that in the medical notes and information provided to the experts.
78.	Ms Chinnock had been fully involved with the developing picture as experts had been instructed, reported, identified areas for other expertise, and other experts had been instructed.  Ms Chinnock had produced her own perceptive and relevant questions for the experts.
79.	There was no lack of effort on the part of VW or Ms Rea.  Ms Markland had considered how to build the case against the NHS Trust in the letter dated 17 May 2001.  Ms Rea had, before the conference, considered with Ms Markland areas which Ms Rea hoped might yield a basis for the claim.
80.	None of the experts criticised the failure to communicate the 1:13 figure itself to Ms Chinnock in their reports.  There was no evidence that a failure to communicate the 1:13 figure itself fell below appropriate professional standards, even having regard to the particular circumstances of Ms Chinnock or Mr Schumann.  It is also fair to record that in the Particulars of Claim Ms Chinnock and Mr Schumann did not make complaint about the failure to communicate this information to them, when setting out what was the original case against the NHS Trust.  I do not criticise this approach, because it is plain from the expert evidence which was obtained in 2001 that the proper response to the 1:13 result was to offer further testing, which was done.
81.	At the conference there was discussion, on page 2 of the conference note, of what was to be communicated to Ms Chinnock after the CVS test.  Mr Campbell set out his own practice, and there was discussion about the likely test which would have followed that.  Ms Rea followed that up and specifically asked Mr Campbell whether he could say it was negligent not to tell the parents that a culture test had not been obtained and that it was negligent thereafter not to offer further testing which would have been either an amniocentesis or cordocentesis.  Mr Campbell replied saying “no, that was going too far”.  
82.	In relation to the “strong suspicion” of “major abnormality” by the consultant radiologist on 18 February 1998 there was discussion about the consultant obstetrician’s advice after a referral following the consultant radiologist’s scan.  No one suggested that the consultant radiologist should have shared his suspicion with the patient, and there was no evidence before me that a failure to do so, even having regard to the particular circumstances of Ms Chinnock and Mr Schumann, was a failure to act with reasonable care and skill.  The evidence showed that the consultant radiologist had properly referred Ms Chinnock to the consultant obstetrician.  
83.	Mr Campbell was pressed on the point that consultants at the NHS Trust were concerned about the baby’s development.  Ms Rea asked “all had a bad feeling and, therefore, why wasn’t something done.  The parents were saying monthly that they didn’t want an abnormal baby and surely something should have been done”.  Mr Campbell answered this saying “this was not an unreasonable decision as a way to manage this pregnancy”.  He continued stating that there was lack of communication and that is why the parents felt let down.  Mr Campbell did not say that the lack of communication fell below the standards to be expected of a reasonable prudent and competent consultant in dealing with Ms Chinnock, and there is no evidence to suggest that any such statement could be made.
84.	I have no doubt that if Mr Redfern had conducted the conference he would have asked different questions of the experts.  He may have been more forceful with the experts.  However that is not the test to be applied when considering whether VW, acting by Ms Markland, or Ms Rea, acted in breach of duties owed to Ms Chinnock.  In my judgment the questioning by VW and Ms Rea at the conference was of an appropriate and professional standard.  Indeed, in my judgment, both Ms Markland and Ms Rea did all that could have been expected to be done in deciding whether Ms Chinnock had a viable claim for wrongful birth.
85.	I note that Ms Chinnock and Mr Schumann also complained of being rushed and overwhelmed at the conference.  This complaint is not sustainable.  Ms Markland identified the possible need for a conference on 14 June 2001.  By letter dated 4 July 2001 Ms Markland reported on the difficulties of arranging dates convenient for all.  By letter dated 6 July 2001 Ms Markland reported that the only time that all could attend was between 3 and 4 pm on Friday 13 July 2001.   
Conclusion
86.	For the detailed reasons given above I find that: (1) these claims are statute barred; (2) there was no contractual or tortious duty owed by VW or Ms Rea to Mr Schumann; and (3) there was no breach of duty on the part of VW or Ms Rea.  In the circumstances I dismiss these claims.