Father fails in damages claim against clinic after ex-partner forged signature for IVF treatment

A father who claimed that his former partner forged his signature in order to obtain the necessary consent for IVF treatment has had a seven-figure action for damages dismissed.

The man, “ARB”, sued IVF Hammersmith after discovering his former partner “R” had been impregnated using his sperm in October 2010.

A judge at the High Court in London ruled that the claimant did not sign the consent form and that the clinic was in “breach of contract”, but held that “legal policy” precluded his claim for damages.

Mr Justice Jay heard that ARB and R began their relationship in 2005 and in early 2008 the couple had IVF treatment at the defendant’s clinic, as a result of which a son was born in the autumn of that year.

A number of embryos had been frozen with the parties’ consent, and they signed agreements on an annual basis for these to remain in storage.

In March 2010 ARB and R returned to the clinic for advice and at various stages forms were signed.

R returned to the clinic on a number of subsequent occasions in April, May and October 2010 and was given a “Consent to Thawing of Embryos” form, which required signature by both of them.

Much later, R handed the clinic a Consent to Thaw Form dated 20 October 2010, signed by her and purportedly signed by ARB, on the basis of which an embryo was thawed on 2 November 2010 and successfully implanted in R’s womb.

ARB claimed damages for the cost of bringing up the girl, “E”, who was born in 2011, accusing his ex-partner of forging his signature on the Consent to Thaw Form.

He claimed that their relationship had irretrievably broken down in May 2010, and that in July R moved out of the home they had been sharing.

The father told the court he only found out what she had done when she sent him an unexpected email on Valentine’s Day.

Her pregnancy was already in its third trimester when she told him: “and by the way, I’m pregnant”.

ARB maintained that there were “no circumstances” in which he would or could have signed this form.

His claim was that E was an “unwanted child” and that the clinic should bear the “financial consequences”.

The mother denied that she forged her ex-partner’s signature, but the court heard expert evidence from a member of the Chartered Society of Forensic Sciences, examined the “questioned signature” on the Consent to Thaw form against originals of ARB’s signature and various copies of it.

She concluded that the features of the questioned signature amounted to “very strong positive evidence to support the view that the questioned signature on the Consent dated 20th October 2010 is not a genuine signature of the male partner but is an attempt to simulate the signature by means of tracing”.

IVF Hammersmith argued that medics had “not expected duplicity of this nature” and could not be blamed for failing to spot the forgery.

Mr Justice Jay said the father had succeeded on all issues “save the issue of legal policy”.

“Although he has lost this case, my judgment must be seen as a “complete personal and moral vindication” for ARB,” he added.

The judge found several examples of R “deliberately fabricating evidence” to try to undermine the case, and said she was guilty of “mendacious embellishment” when giving evidence.

Handing down the judgment, Mr Justice Jay said: “None of the contemporaneous documentary evidence remotely supports R’s case. Frequently in her oral evidence R was compelled to resort to accounts of conversations she said that she had with ARB, in order to support her version of events. Many of these conversations had not been prefigured in her witness statement.

“I have to say that some of her evidence was made up as she went along. Thus, I conclude that ARB did not sign the Consent to Thaw form on 20th October 2010 or at all. His signature was forged by R.

“I further conclude that he did not in fact give his informed consent to the procedure because he was not given all the necessary information which would have enabled him to provide his consent, he was not willing to have a child with R in September and October 2010, and he would not have signed the Consent to Thaw form had R asked him to do so.

“I am completely satisfied that ARB had not in fact been given sufficient information by R in relation to the number of embryos to be implanted and their stage of development. I am also completely satisfied that ARB had no intention of having another child with R after May 2010. In October 2010 R well knew that, which explains why she resorted to desperate, dishonest measures.”

However, in ruling in the defendant’s favour, the judge held the father’s claim against the clinic was “thwarted” due to the policy reasons set out in the House of Lords case of Rees v Darlington Memorial Hospital NHS Trust 1 AC 309.

He added: “The crux of the matter remains whether the legal policy enunciated by the House of Lords in Rees, and undoubtedly applicable to contractual claims founded on reasonable care obligations in the light of the principle of relevant equivalence or congruence which I have identified, should – for reasons of principle, logic and policy – apply equally to contractual claims founded on strict obligations in circumstances where the parties have not sought to quantify or liquidate the damages payable in the event of breach.

“This last aspect is crucial because the current focus is on the secondary obligation to pay damages arising under the common law. In my judgment, the same legal policy applies to thwart ARB’s claim…

“Whatever my personal response to this extraordinary case, acting in obedience with clear authority and principle compels me to uphold the clinic’s submission that legal policy precludes all of ARB’s pleaded claims.”

The claimant was given permission to appeal.