Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between :
BRITISH PREGNANCY ADVISORY SERVICE | Claimant |
- and - | |
SECRETARY OF STATE FOR HEALTH | Defendant |
DECISION ON COSTS
NATHALIE LIEVEN QC and RICHARD TURNEY
(instructed by Messrs Reynolds Porter Chamberlain LLP) for the Claimants
ELEANOR GREY (instructed by Department of Health) for the Defendants
Hearing dates: 28 January and 4 February 2011
Judgment
Mr Justice Supperstone :
On 14 February 2011 I ordered that this appeal be dismissed. I further ordered that (1) the Defendant’s oral application for the costs of this claim be determined on the papers and gave directions as to the filing and service of written submissions in respect of this application, and (2) there be no order for costs against the intervener. Pursuant to those directions the Claimant made written submissions dated 18 February 2011 and the Defendant responded with written submissions dated 22 February 2011.
The Claimant submits that the appropriate order should be no order as to costs. This is so for the following reasons:
The Claimant engaged in extensive correspondence with the Defendant before and after the claim was issued, to seek to persuade the Defendant to take action to remedy what the Claimant considered to be the current unsatisfactory situation in respect of misoprostol use. At no point prior to the service of his skeleton argument did the Defendant set out in any adequate detail his reasons for defending the claim, nor his legal position in respect of the use of s.1(3A) of the Abortion Act 1967 (“the 1967 Act”);
Second, despite that correspondence, the Defendant did not say whether or not he intended to defend the claim prior to the Acknowledgment of Service;
The Defendant explained for the first time in oral submissions that the underlying issue in the claim, namely the home use of misoprostol in Early Medical Abortion, could be addressed, in his view, through approving the home as a class of place under ss.1(3) and (3A) of the 1967 Act;
Fourth, there was a public interest in the resolution of the issue raised in the claim, and accordingly the Claimant should not be liable for the Defendant’s costs simply because its interpretation of the 1967 Act has been rejected by the court.
I shall deal with each of these points in turn.
Ground 1: correspondence with the Defendant and Defendant’s failure to explain his interpretation of the law.
The Claimant first approached the Defendant seeking to take forward proposals regarding the home use of misoprostol in 2001. In my view, the documents referred to at paragraphs 5 and 6 of the Claimant’s written submissions make clear the Defendant’s position on both the meaning of “treatment” and the scope of sub-section 1(3A). The Government’s position was that approval of a “class of places” should first of all be within a medical setting within the community before any consideration would be given to allowing women to undertake the final stage of an early abortion at home.
The Claimant wrote to the Defendant on 30 September 2009 raising for the first time the argument that “treatment” in s.1(3) did not encompass the administration of abortifacients. The Defendant’s letter in reply of 25 February 2010 set out the Government’s view that “treatment” under s.1(3) of the 1967 Act means that both tablets, used for medical abortion, must be administered on clinical premises, carried out in accordance with the direction of a medical practitioner, and under their ultimate supervision.
Ground 2: the Defendant’s failure to give early indication of whether he intended to defend the claim.
It must have been clear to the Claimant from the Defendant’s letter dated 25 February 2010 that the claim would be defended. On 12 April 2010 the Acknowledgement of Service was filed in which the Defendant stated that he intended to resist the claim. The Defendant’s evidence was filed in early June 2010.
Ground 3: Home use through approval of a class of place.
In 2003 and 2007 the Claimant was told that the Defendant considered that there was a potential to use s.1(3A) to designate homes as one of the permitted “classes of places” (see para 3 above). I do not accept that if the Defendant had been “willing to engage with the Claimant in respect of the approval of the home for Early Medical Abortions, the costs of the proceedings would have been avoided altogether”, as suggested in paragraph 7 of the Claimant’s written submissions, for the reasons set out in paragraphs 22 and 23 of the Defendant’s written submissions.
Ground 4: Public interest.
The basis of the Claimant’s argument on this ground is that the claim raises an important issue which needed to be resolved in the public interest. However the Defendant’s position on this issue of statutory construction was clear and the decision of the court is that the Defendant was correct. In my view the fact that the Claimant is a charitable body, acting not out of private self-interest but seeking to improve the services available to its clients, does not amount to an adequate reason for making the costs order the Claimant seeks.
For all these reasons, in my judgment, the Defendant is entitled to an order that the Claimant pay the costs of the claim.
I do not consider this to be a suitable case for summary assessment. The Defendant’s provisional estimate of its costs is in the region of £60,000 which makes the case a high-cost case. Further, the hearing went over into a second day and neither side served a schedule of costs in advance of the hearing.
Conclusion
In my judgment the Defendant is entitled to his costs of this litigation, such costs to be subject to detailed assessment, if not agreed, and I so order.