N (No 2), Re Human Fertilisation And Embryology Act 2008

I gave judgment in this matter on 8 June 2016: Re the Human Fertilisation and Embryology Act 2008 (Case N) [2016] EWHC 1329 (Fam). I now have to deal with costs.

It will be remembered (Case N, paras 20, 24) that there were two unusual features of this case in comparison to the general run of such cases: first, that the applicant had to make an application to the court before the clinic, Complete Fertility Centre, Southampton, finally disclosed the relevant records; and, secondly, that the applicant instructed two firms of solicitors, the first, Fieldfisher LLP, who obtained the order for disclosure of the documents and the other, Child & Child, who were subsequently instructed, as Fieldfisher LLP’s agents, in the substantive proceedings. I should add that the order for disclosure was obtained in the Queen’s Bench Division; the substantive proceedings were brought in the Family Division.

I concluded my judgment as follows (Case N, para 24):

“The clinic must pay X and Y’s reasonable costs in full: both the costs of the solicitors they originally instructed and who obtained the order for disclosure of the documents, and the costs of the solicitors they subsequently instructed to bring their substantive claim to court.”

So far as material the order, after reciting that “the clinic should pay all the reasonable costs of the application including those of the solicitors originally instructed to advise the applicant, Fieldfisher LLP”, provided that:

“The Complete Fertility Centre shall pay the reasonable legal costs of the application for a declaration of parentage including those of Child and Child and Fieldfisher LLP

… The costs of the application shall be summarily assessed by the President of the Family Division.”

It is important, in light of some of the matters in issue between the parties, to note that Fieldfisher LLP were instructed in 2014, their first letter to the clinic being dated 28 October 2014. That was after the decision of Cobb J on 24 May 2013 in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357, but before the judgment of Theis J on 13 February 2015 in X v Y (St Bartholomew’s Hospital Centre for Reproductive Medicine Intervening) [2015] EWFC 13 and before my own judgment on 11 September 2015 in In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam), [2016] 1 WLR 1325. It was that judgment which, for the first time, set out the relevant law clearly and comprehensively. The brevity of the central part of my judgment in the present case (Case N, paras 13-16) is therefore apt to mislead. What by June 2016 was, as I put it (para 16), “simple and … clear,” would have been very far from simple or clear, indeed both complex and obscure, prior to September 2015.

The total costs claimed amount, exclusive of VAT, to £61,582.75. In the schedule with which I have been supplied, this total comprises four elements: (i) the costs of Fieldfisher LLP amounting to £36,325.10 (£21,506.00 of this being work on documents); (ii) the costs of Child & Child amounting to £15,840.00; (iii) counsel’s fees amounting to £8,500.00; and (iv) court fees of £365 and other disbursements amounting to £552.65, a total of £917.65. It is to be noted that Fieldfisher LLP continued to be involved after Child & Child were instructed, the latter acting, as I have said, as the former’s agents, and that there is no breakdown of the former’s costs as between the Queen’s Bench and Family proceedings.

The clinic articulates four points of challenge to the costs claimed in relation to the Queen’s Bench proceedings and a further nine points of challenge to the costs claimed in relation to the Family proceedings. The challenge to certain of the disbursements in the Family proceedings, amounting in all to £434.98, is conceded, so I need say no more about it. Most of the challenges relate to the costs of Fieldfisher LLP. I shall take the various points of challenge in turn, dealing first with the Queen’s Bench proceedings.

(1) The first point is that I do not have jurisdiction to assess the costs of the Queen’s Bench proceedings. Whatever might be the position otherwise, I cannot accept, in the particular circumstances of this case, that there is any substance in the point, given the clear terms of both the judgment and the order as set out in paragraph 3 above.

(2) The second point is that the hourly rates claimed by Fieldfisher LLP – Grade A, £430 before and £450 after 1 April 2015; Grade D, £195 – are “excessive given that this relates to a routine application and given that the paying party has already agreed reasonable costs.” It is said that it was not “necessary” for a Grade A to do the work, which could have been done by a Grade C, and that the rates which are reasonable and should apply throughout are: Grade A, £196, and Grade D, £126. In response, attention is drawn to the “complex and novel” nature of the litigation, and it is said that the rates claimed “match the rates sought and allowed … on summary and detailed assessment and reflect, inter alia, the complex and specialist work that [Fieldfisher LLP] undertake and their Central London location.” I do not think, in all the circumstances, and given the nature of the litigation, that there is any basis for challenging either the seniority of the fee-earners who did the work or their charging rates.

(3) The third point is that Fieldfisher LLP had estimated the costs of the application to be in the region of £2,435, a figure increased to £3,600.20 in the subsequent Form N260; so, it is said, the costs should be limited accordingly. In my judgment, there is, essentially for the reasons set out by way of response (which there is no need for me to rehearse here), nothing in this point.

(4) The fourth point is that the “level of attendance and documents time are considered excessive.” The response is that the point is “embarrassingly ill-pleaded” and that the complaint is not articulated by reference to any specific items in the detailed list of attendances set out in the bill. I agree that, in the absence of even the most cursory reference to specific items being challenged, this ground of challenge cannot be sustained.

I turn to the points of challenge in relation to the Family proceedings.

(1) The first point is that the costs are disproportionate to the matters in issue. Reference is made to a proposal from Fieldfisher LLP at the outset to cap costs in the sum of £10,000, exclusive of VAT, and the costs, it is said, should be limited to that figure. The response is that this was no more than a tentative suggestion at that stage made in the context of what was hoped to be – though in the event not achieved – an early, swift and non-contentious resolution of the matter. There is, in my judgment, no basis, as matters have turned out, for imposing any such cap.

(2) The second point is that the hourly rates claimed by Fieldfisher LLP – Grade A, £430 before and £450 after 1 April 2015; Grade D, £195 – are “excessive based upon the nature of the claim and work undertaken.” It is suggested that the appropriate rates are: Grade A, £320, the amount claimed by Child and Child; and Grade D, £126, in accordance with “the applicable guidelines.” The response is the same as in relation to the corresponding point in the Queen’s Bench proceedings. My decision is the same.

(3) The third point is that “the level of attendance [on client – 13 hours] is considered excessive given the work undertaken.” It is submitted that 7 hours is “reasonable in the circumstances.” The response “by way of compromise” is an offer to accept 12 hours. I shall return to this below.

(4) The fourth point is that the time claimed for “attendances on others” – a total of 14.3 hours for the Grade A fee-earner and 0.2 hours for the Grade D – is “high based upon the work undertaken.” It is suggested that “some of the work undertaken by [Child and Child] appears to be duplicative of that undertaken by [Fieldfisher LLP].” The Grade D figure is not challenged; what is offered is 4 hours for the Grade A. The response is that “there were a large number of organisations and people to be communicated with” and that there has been no duplication. By “way of compromise” a figure of 13 hours for the Grade A is suggested. I shall return to this below.

(5) The fifth point is that the time spent in relation to documents – 41.6 hours for the Grade A and 15.2 hours for the Grade D – “is considered excessive”, that a “disproportionately high amount of time [has been] claimed for some individual items and that “there appears to be some overlap and duplicated costs generated due to the involvement of two sets of Solicitors.” A question is also raised as to whether the majority of the costs relate to a negligence claim which in the event, as I understand it, was never pursued. An offer is made of 17 hours for the Grade A and 8 hours for the Grade D. The response is that the complaint is embarrassingly ill-pleaded” given the very detailed breakdown provided, that there was no duplication of work as between the two firms of solicitors and that none of what is claimed relates to the negligence claim. The counter-proposal is 38 hours for the Grade A and 14 hours for the Grade D. Again, I shall return to this below.

(6) The sixth point relates to attendances at hearings. It is said that the costs of Child and Child should not be allowed – “attendance by two sets of solicitors and Counsel is excessive.” The response is that it was appropriate for both to be in attendance in a matter which “involved questions of medical and family law.” In my judgment, there is nothing in this point.

(7) The seventh point is related to point (6). Complaint is made of duplication when both firms attended hearings and a conference with counsel. The response is in essence the same as in relation to point (6), so is my decision.

(8) The eighth point relates to counsel’s fees which are “considered to be excessive.” It is said that insufficient information has been provided to justify the costs claimed. It is said that counsel’s fees should be limited to £5,000 rather than the £8,500 claimed. The response is that the fee overall is reasonable given the novelty and complexity of the matter – though it is to be noted that counsel was instructed in this after I had given judgment in In re A – and the totality of the work done by counsel both in and out of court. Given the nature and quantity of the work done, I see no basis for challenging this fee.

The result is that, in relation to the Queen’s Bench proceedings, I shall summarily assess the costs in the amounts claimed. In relation to the Family proceedings, there will be the conceded reduction of £434.98, exclusive of VAT, in relation to the disbursements: see paragraph 6 above. This leaves the reductions appropriate in relation to those items in the Family proceedings referred to in paragraphs 14, 15 and 16 above, in relation to each of which some, albeit not very large, concessions have been made. The spread of the arguments can be summarised as follows: (a) the total hours claimed are Grade A [13 +14.3 + 41.6 =] 68.9; Grade D 15.2; (b) the total hours contended for by the clinic are Grade A [7 + 4 + 17 =] 28; Grade D 8; (c) the counter suggestion is Grade A [12 + 13 + 38 =] 63; Grade D 14. In my judgment, the fair, appropriate and just adjustment taking everything into account is to reduce the costs claimed under these headings by a total of £7,500, exclusive of VAT. I summarily assess the costs accordingly.