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Tracey Hu
June 26, 2020
Supreme Court, UK

Whittington Hospital NHS Trust v XX [2020] UKSC 14: the limits of “public policy” in damages awards.

For fertility-challenged people looking to become parents, California is a haven. Unlike the United Kingdom and New Zealand, commercial surrogacy agreements are legal and enforceable. For prospective parents, it is both easier to find a surrogate, and to find an invaluable sense of certainty as to the outcome of the surrogacy.

For Ms XX, California became a necessity after the Whittington Hospital failed to diagnose her cervical cancer in a timely way. The life-saving cancer treatments left her infertile. Ms XX sought damages from the hospital, not only to cover surrogacy expenses in the UK, but also in California.

Lady Hale wrote for the 3-2 majority, allowing Ms XX damages for the California surrogacy expenses. In doing so, Her Honour was confronted by her own judgment in Briody v St Helens and Knowsley Area Health Authority [2001] EWCA Civ 1010; [2002] QB 856, 19 years ago, where her Honour denied an almost identical claim:  because commercial surrogacy arrangements were illegal in the United Kingdom, awarding damages to pursue such an arrangement overseas would be contrary to public policy.  

Nineteen years later, when faced with Ms XX, Lady Hale discussed at length the progressive legislative and social developments since Briody. Legal and social conceptions of what constitutes a family were no longer limited to the traditional heterosexual nuclear family; government policy had become friendlier towards surrogacy arrangements in certain cases; the public was increasingly familiar and comfortable with surrogacy as a way of founding a family. Times had changed sufficiently for her Honour to conclude that it was no longer contrary to “public policy” to award damages for the costs of a foreign commercial surrogacy, despite the fact that such an arrangement was still illegal in the United Kingdom.

Lord Carnworth wrote for the dissent. The majority of his Honour’s decision was dedicated to the importance of “legal policy” (as distinct from “public policy”), which required that the law be coherent; that different organs of the same legal system adopt a consistent approach to the same events, so as to achieve a consistent application of its policy objectives. As commercial surrogacy was still illegal in the United Kingdom, it would not be consistent to award damages to allow Ms XX to carry out the same activity overseas.

The two judgments raise fundamental questions. Lady Hale could be accused of legislating from the bench, or of simply being an astute observer of changing social norms that the legislative branch has not caught up to (see also Lord Carnworth could be praised for judicial restraint in leaving policy matters to the legislature, or criticised for prioritising form over substance – after all, unjust laws can originate from perfectly “coherent” legal systems, and the effect of those laws are all the more devastating for that coherence. Ultimately, this case supports greater judicial robustness in evaluating public policy arguments in damages awards for tort claims, and may be helpful in future cases in New Zealand where plaintiffs wish to be more forceful as to the type or scale of damages awarded.