Family Law Hub

Case K (No 2), Re Human Fertilisation and Embryology Act 2008 [2017] EWHC 783 (Fam)

Costs order made against the fertility clinic where there had been mistakes with the paperwork.

  • Case numbers omitted

    Neutral Citation Number: [2017] EWHC 783 (Fam)



    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 12 April 2017

    Before :


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    In the Matter of the Human Fertilisation and Embryology Act 2008

    (Case K) (No 2)

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    Case dealt with on paper

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    This judgment was handed down in open court

    Sir James Munby President of the Family Division :

    1. In these two linked cases I gave judgment on 19 January 2017: Re the Human Fertilisation and Embryology Act 2008 (Case K) [2017] EWHC 50 (Fam). In the one case, proceeding in the Family Division, I made a declaration in the terms sought by the claimant, X. In the other case, an application by X for judicial review in the Administrative Court, I made a quashing order in agreed terms.

    2. There is no issue as to the costs of the proceedings in the Family Division, but I now have to determine the costs of the judicial review proceedings in accordance with the following directions as set out in the order I had made on 13 October 2016:

    “The issue of costs shall be dealt with by way of written submissions in accordance with the following timetable:-

    i) The Claimant shall file and serve written submissions within 14 days of the approval by the Court of this Consent Order;

    ii) The Defendant and Interested Party shall file written submissions in response within 14 days of service of the Claimant’s submissions;

    iii) The Claimant shall have 7 days thereafter to file any submissions in reply to the Defendant’s and Interested Party’s submissions.”

    The Defendant is the relevant local authority: see Case K, paras 5, 25. The Interested Party is the Registrar General.

    3. In written submissions dated 30 November 2016, X seeks an order for costs against the local authority, though not against the Registrar General, essentially on the ground that he was successful in the judicial review proceedings. He invites me to assess his cost summarily in the sum of £16,510.12 (inclusive of VAT). The local authority, in written submissions dated 14 December 2016 supplemented by an email dated 23 December 2016, seeks orders (a) that the Registrar General pay its costs or in the alternative (b) that there be no order for costs and in any event (c) refusing X’s application for costs against it. The Registrar General, in written submissions dated 9 January 2017, submits (a) that there should be no order as to costs and in any event (b) that he should not have to pay the costs of the local authority.

    4. I deal first with X’s application for costs against the local authority.

    5. The kernel of X’s case is the principle expounded by Lord Neuberger of Abbotsbury MR in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607, paras 59-61:

    “59 … Where … a claimant obtains all the relief which he seeks, whether by consent or after a contested hearing, he is undoubtedly the successful party who is entitled to all his costs, unless there is a good reason to the contrary. However, where the claimant obtains only some of the relief which he is seeking (either by consent or after a contested trial) … the position on costs is obviously more nuanced …

    60 Thus in Administrative Court cases just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims. While in every case the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

    61 In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and as the successful party that he should recover his costs …”

    X submits that this is a case of type (i).

    6. The local authority resists this, in summary because, it asserts: (a) that it was relying on the Registrar General’s published guidance in the Handbook – so it is the Registrar General who should be paying X’s costs; (b) that it adopted an approach to the proceedings that was helpful, sensitive and pragmatic in seeking to arrive collaboratively at the right outcome, for instance by not challenging the grant of permission out of time; and (c) that it does not necessarily agree X’s account of events on the two occasions when he and his partner sought to register the births (raising in this connection the question of why neither X and his partner nor the clinic drew the Registrars’ attention to the Form IC). The Registrar General makes similar submissions and adds as further reasons why there should be no order for costs: (a) that the dispute of fact as to precisely what happened on the two occasions when X and his partner sought to register the births remains unresolved (see Case K, para 15); and (b) that the clinic was to blame (i) in setting off the whole chain of events and (ii) in failing to assert to the local authority (see, again, Case K para 15) that there was in fact an adequate written notice, a Form IC, even though there was no Form WP and no Form PP.

    7. The short point, at the end of the day, in my judgment, is that, as against the local authority, X was completely successful. The claim was conceded, and my judgment proceeded, on the short ground that the Registrar (for whose acts the local authority is liable) erred in law refusing to register the births: Case K, paras 23-25, 30-31. X succeeded in his legal argument and obtained the order he wanted.

    8. In my judgment, none of the various points canvassed by the local authority and the Registrar General provides any justification for departing from the general approach outlined in R (M). The fact that what actually took place before the Registrar remains to an extent unresolved is neither here nor there, for the Registrar’s error of law was conceded and, having been conceded, was determinative. The fact that the Registrar was relying on the Registrar General’s Handbook is neither here nor there as between X and the local authority. The fact that but for the clinic’s initial error there never would have been the need for proceedings is factually correct but, again, neither here nor there. To repeat: X succeeded because of what is conceded to have been the Registrar’s error of law. That, at the end of the day is, in my judgment, the factor of magnetic, indeed determinative, significance. I should add that the point faintly argued by the Registrar General, based on something said by the clinic before there was any suggestion of judicial review proceedings, that I am entitled to infer that the clinic will meet X’s costs of the judicial review proceedings, is in my judgment wholly lacking in merit and cannot in any event have survived the very clear order set out in paragraph 2 above.

    9. I shall accordingly order the local authority to pay X’s costs of the judicial review proceedings. There has been no challenge to the schedule of costs, nor, in my judgment, could there be. So I shall summarily the costs in the sum of £16,510.12.

    10. I turn to consider the question of whether the Registrar General should be ordered to pay the local authority’s costs. The local authority’s key point is that, as it would have it, the real cause of what happened was what is now accepted to have been the error in the Registrar General’s Handbook. The Registrar General, on the other hand, points to: (a) the principle that an interested party is normally neither entitled to costs nor exposed to liability for costs (see R Smeaton) v Secretary of State for Health [2002] EWHC 886 (Admin), [2002] 2 LR 146, paras 431-435); (b) various of the factors I have referred to in paragraph 6 above; (c) the fact that the Registrar never sought guidance from the Registrar General before deciding not to register the births; and (d) the fact that “in law” the error was that of the Registrar, for whom the local authority is liable, and that the attempt to make the Registrar General liable is “misguided in light of the statutory scheme.”

    11. In my judgment, the fair, just and reasonable outcome in this most unusual case is that, so far as their own costs are concerned, the local authority and the Registrar General should each bear their own costs. In their different ways, each has to bear a significant measure of responsibility for having put X in a position where, if he was to be rescued from the position in which the state’s failings had put him (see Case K, para 21), he had no choice but to issue a claim for judicial review. I can see no real justification for ordering either to pay the costs of the other. The real question, in my judgment, is whether the Registrar General should be required to reimburse the local authority in relation to the costs I have ordered it to pay X.

    12. As the competing submissions summarised in paragraph 10 above highlight, both the Registrar General and the Registrar share some measure of responsibility for what happened, the one because of the error in the Handbook, the other because of the omission to seek further guidance. To leave the local authority alone responsible for meeting X’s costs would, in my judgment, significantly and unfairly exonerate the Registrar General from the consequences of the uncorrected error in the Handbook but for which the problem would never have arisen. As I have already said, in their different ways, each has to bear a significant measure of responsibility for having put X in the position in which he found himself. In my judgment, broad justice will be done as between the local authority and the Registrar General if I order the Registrar General to reimburse the local authority one-half of the costs that I have ordered the local authority to pay to X, in other words, the sum of £8,255.06.

Judgment, published: 11/05/2017


See also

Published: 11/05/2017


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