Shaw v Leigh Day (A firm) [2017] EWHC 825 QB (judgment here)

Attention family representatives! Absolutely nooo pressure at all, it's just that if you don’t get your client the closure they want out of an inquest, now you can be sued for damages for causing them distress. That is the effect of this recent High Court decision.

The tweetie-birds-round-head inducing litigation saga is set out in more detail below. In a nutshell, Mrs Shaw's elderly father had a cardiac arrest following complications of a trans aortic valve procedure (TAVI). She instructed Leigh Day, one suspects on a private basis (although this isn’t clear from the decision), and there was an Article 2 inquest at the end of which the jury concluded that the death was an unintended result of a therapeutic procedure and made no criticisms of anyone.

The inquest left Mrs Shaw dissatisfied and, so far as she was concerned, lacking answers to key questions. Even though there has been since been a successful negligence action against the hospital and the surgeon, the High Court has now cleared the way for her to claim £5,000 for mental distress from Leigh Day caused by what she says is the poor job they made of getting disclosure and representing her at the inquest.

Mrs Shaw’s mental distress claim was initially struck out by a District Judge on the ground that it disclosed no reasonable cause of action. The legal test for non-pecuniary damages for mental distress as a result of breach of contract is whether a major object of the contract (it doesn’t have to be the contract’s only or even primary purpose) is to give pleasure, relaxation or peace of mind. It’s not unusual for such awards to be made in holiday cases when the claimant finds their paradise beach hotel is actually a building site … but an inquest??

Andrews J was careful to distinguish between the contractual duty to take reasonable care to secure a proper investigation, which does exist, and a contractual duty to obtain a specific inquest conclusion which does not. She stated clearly:

“the contract was not concerned with achieving a particular verdict” 1

Everybody put the kettle on and chillax?    Not quite.

She went on to say that: “The answer that is ultimately provided following an inquest may not be the answer the deceased’s family is hoping for…However, the client is still expecting an answer based on a satisfactory factual investigation, an answer that will give him or her the peace of mind or sense of satisfaction that comes with knowing that the matter has been properly and thoroughly investigated, and that is the very reason that they engage a lawyer to look after their interests. Inquests have an emotional element that is unique, and absent from other forms of legal process.”

Finding that Mrs. Shaw had a realistic prospect of persuading a trial judge that when she engaged solicitors to represent her at inquest an important object of that contract was:

 “to obtain peace of mind

(or as families sometimes put it after an inquest or other form of public inquiry, “closure”)” 2

Andrews J overturned the DJ’s decision to strike out the claim.

One of the advantages of claiming damages for mental distress is that the claimant does not have to prove that the distress amounts to a recognised psychiatric injury. Such damages are far from restricted to holiday cases: they have been awarded in other professional negligence actions including clinical negligence. (See for example the CA awards of damages in Yearworth [2009] 3 WLR 118 for distress caused by disposing of sperm banked by men needing cancer treatment. Also the decision in Less and Carter v Hussain [2013] Med LR 383, where the father of a stillborn baby argued for distress damages as an alternative to a nervous shock claim). However, this is the first case to engage the question of whether alleged breach of contract in failing properly to represent at inquest could give rise to an award of damages for distress.

The Judge’s decision that this novel claim should not have been dealt with summarily is obviously correct, but it still leaves a sense of unease. Why? Three reasons spring to mind. First, the lack of an easy appeal from a coroner’s decision (and particularly procedural decisions). Next, the risk that already often fraught inquisitorial proceedings are made even more adversarial. Finally, the worry that the reality gap between what really goes on at an inquest and what the High Court thinks goes on, means that expectations of what lawyers can and should do are set too high, particularly when families have a massive funding/access to justice problem.

Here are some very common situations:

  • the coroner interprets the “how” question narrowly so that the events the family wants investigated aren’t
  • a disclosure decision is made to withhold key documents from all IPs
  • the coroner refuses to call any expert evidence
  • in a multi-factorial death the coroner sets a limited scope so that the actions of the agency the family is most angry with go completely unscrutinised
  • the coroner decides that evidence from a witness the family particularly wants to question is irrelevant.

If the investigation the coroner sets up is always going to be unsatisfactory to the family, how far do you have to go as the representative? Are you obliged to JR? How is that to be funded? Most of these decisions will involve the exercise of a judicial discretion and that’s incredibly hard to challenge successfully. And there’s this catch 22: the closer you are to the inquest, the less likely you are to get an injunction but if you JR after the unsatisfactory investigation you’ll be looking for a second inquest. Who is going to fund that? Does your contractual duty to provide closure demand that you try a last minute appeal - even though the chances of success are less than 50% - in the hope of frightening the coroner into allowing the family to ask the questions it wants answered?

The purely fact-finding, peace-loving, non-adversarial, truth-getting inquiry that is an inquest is often spiky enough without the added burden and worry for family representatives of having to mind their backs where their own client is concerned. And the effect of the decision is not limited to family IPs. The purpose of the family’s contract with its lawyers maybe to obtain closure but the institutional client – or the doctor – has a different agenda. The peace of mind that may form an object of the “defence” IP’s contract with its lawyers will be of a different type to the family’s since their interests are opposed. The institutional/professional IP may want to shut down lines of enquiry, limit questions, confine scope, stay under the radar and importantly minimise reputational damage. The lawyer who doesn’t accomplish that is also vulnerable to a contract claim for damages for distress.

And then we have access to justice. Hard economic reality means that family lawyers have to cherry pick deaths in the same way they have to cherry pick claims. And that’s before fixed fees. There is little enough incentive to represent the family of an unmarried, childless adult without the added disincentive of being sued for causing mental distress to the bereaved. It’s already tempting for lawyers to walk away from cases involving the deaths of some of the most vulnerable in society because their claims are close to worthless. This decision, whilst right in law, increases that temptation.

 

Postscript: The litigation in more detail

After her father’s death in September 2007, Mrs. Shaw suspected negligence and instructed Leigh Day in April 2008. By June 2009, the family had discovered that the TAVI was a new procedure subject to a clinical trial and in September 2010, Leigh Day issued a negligence claim on behalf of the estate against the hospital Trust and operating surgeon, Dr. Kovac.

Meanwhile, the coroner set an Article 2 inquest with a jury and the hearing, in January 2011, lasted 13 days. The jury's conclusion was that death was an unintended consequence of the therapeutic TAVI and no adverse findings were made against the hospital or surgeon. Mrs Shaw launched JR proceedings to challenge that outcome: permission was granted but the substantive application failed (R (Shaw) v HM Coroner Leicester [2013] Inquest Law Reports 10) and permission to appeal was refused by the Court of Appeal (R (Shaw) v HM Coroner Leicester [2014] Inquest Law Reports 116).

Mrs Shaw was dissatisfied with the service provided by Leigh Day. She considered that it failed to obtain sufficient documents and evidence about the TAVI and trials to enable counsel to put all relevant facts before the coroner and jury and to support the concurrent damages action. The relationship broke down and Leigh Day came off the record in February 2012. A solicitors' negligence action, in contract and tort, was issued in April 2014 and struck out by the DJ in May 2015 on the ground that it disclosed no reasonable cause of action. One of the pleaded allegations is that JR failed because some of Mrs. Shaw's complaints could and should have been articulated by her representatives at the inquest. Pausing there, it should be noted that the firm robustly denies all allegations and intends to fight Mrs. Shaw's claim.

Over on the clinical negligence action, the estate's claim for damages for personal injury resulted in 3 applications for specific disclosure against the surgeon and the Trust and one disclosure application against the TAVI valve manufacturer. In June 2015 the Trust finally submitted to judgment and Dr. Kovac followed suit in October 2015. The defendants agreed that the costs of the inquest were costs incidental to the clinical negligence claim following Roach v Home Office [2009] Inquest LR 45. There was an assessment of damages hearing that month at which the estate was awarded £13,686 odd. The judgment in that case, Shaw v Kovac [2015] EWHC 3335 (QB), is of no small interest to clinical negligence practitioners since it resulted in a decision that there is no free standing claim for damages for undergoing surgery in the absence of informed consent. Note that in October 2016, the Court of Appeal granted Mrs. Shaw permission to appeal that decision.

We now arrive at 2017. In January, the High Court heard an application arising out of Mrs. Shaw’s claim against various companies concerned with the TAVI valve for aggravated, exemplary and restitutionary damages (Shaw v Medtronic Corevale LLC and others [2017] EWHC 3335 (QB). Lavender J decided that those claims should not proceed.

Returning to this decision, the appeal against the DJ's decision to strike out Mrs. Shaw's personal claim for damages for solicitors' negligence was heard in early April and the new evidence about the outcome of the clinical negligence action was admitted. Leigh Day robustly denies the contract claim and plans to fight. The outcome will be fascinating.

 

1. Para 27
2. Para 29