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Laura Hoyano

Faculty of Law, University of Oxford

Senior Research Fellow, Wadham College, Oxford

Barrister, Red Lion Chambers

Fellow of Middle Temple

Laura.hoyano@law.ox.ac.uk

Direct line: (44) (0)1865 277 986

Postal address:  Wadham College, Oxford, OX1 3PN, UK

Twitter: @LHoyano

Cross-Examination of Sexual Assault Complainants on Previous Sexual Behaviour: Views from the Barristers’ Row (Nov 2018) https://www.criminalbar.com/wp-content/uploads/2018/12/REPORT-FOR-CBA-WEBSITE-FINAL-ERRATA-with-Executive-Summary.pdf

On 17 December 2018 15:22:07 GMT, "Tettenborn A.M." <a.m.tettenborn@swansea.ac.uk> wrote:

Confirmation in the English CA today in ARB v IVF Hammersmith & Anor [2018] EWCA Civ 2803 that contract, as well as tort, bars any claim for the cost of raising a healthy child. To remind you of the facts, a private IVF clinic storing Boyfriend's gametes implanted them without his consent, unlawfully and in breach of contract with Boyfriend, into (ex) Girlfriend, who produced a healthy child for which Boyfriend became responsible. Boyfriend can sue for breach of contract, but can he get any damages for the upbringing cost? In tort he can't (Rees v Darlington [2004] 1 AC 309); but can he in contract? No: the position is no different.

Probably right, in so far as it's invidious to award damages to a parent that demonstrate full well to a child of that parent that he was unwanted in the first place (though if that is so, the conventional award in Rees v Darlington becomes awkward). A slightly worrying statement at [37], however, that it's somehow unjust as such to give more rights to those who pay for a service (private patients) than to those who don't (NHS patients). I don't get that. Surely the point of having a law of contract is precisely to enable those who aren't satisfied with the meagre rights the state gives them as a matter of course to buy better ones if they want them.

Would the claimant have been entitled to the Rees conventional award? Logically it's a bit difficult to distinguish Rees. But we'll never know, since he didn't ask for it.

Andrew 

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Andrew Tettenborn Professor of Commercial Law, Swansea University Institute for International Shipping and Trade Law School of Law, University of Swansea Richard Price Building Singleton Park SWANSEA SA2 8PP Phone 01792-602724 / (int) +44-1792-602724 Cellphone 07472-708527 / (int) +44-7472-708527 Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe Sefydliad y Gyfraith Llongau a Masnach Ryngwladol Ysgol y Gyfraith, Prifysgol Abertawe Adeilad Richard Price Parc Singleton ABERTAWE SA2 8PP Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

 

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