British Pregnancy Advisory Service v Secretary of State for Health

A claimant seeking to avoid an adverse costs order must show more than that the proceedings raised an important public issue or were brought by a charitable body. Where the defendant’s legal position was sufficiently clear before proceedings, and the claimant’s interpretation was rejected, the ordinary consequence is that the successful defendant receives its costs. The court may direct detailed assessment where the costs are substantial and summary assessment is unsuitable.

The court had previously dismissed the claimant’s appeal on 14 February 2011. It then directed that the defendant’s application for the costs of the claim be determined on written submissions and made no order for costs against the intervener.

The claimant sought no order as to costs. It relied on pre-action correspondence, the defendant’s alleged failure to explain its position or confirm whether the claim would be defended, the possibility of resolving the issue through approval of the home as a class of place under the Abortion Act 1967, and the public importance of the claim.

1. The application for no order as to costs was refused. The defendant was entitled to the costs of the litigation.
2. The correspondence showed that the defendant had made its position sufficiently clear. The defendant’s position was that, under section 1(3) of the Abortion Act 1967, both tablets used for medical abortion had to be administered on clinical premises, in accordance with a medical practitioner’s direction and under that practitioner’s ultimate supervision. The defendant’s position on the scope of section 1(3A) was also sufficiently clear.
3. The claimant should have understood from the defendant’s letter of 25 February 2010 that the claim would be defended. The acknowledgment of service subsequently confirmed that intention, and the defendant filed evidence in early June 2010.
4. The court rejected the suggestion that earlier engagement about approval of the home for early medical abortions would necessarily have avoided the proceedings. The defendant’s position on the statutory construction issue was clear, and the court had held that the defendant was correct.
5. The public importance of the issue, and the claimant’s charitable status and public-interest purpose, did not justify departing from the usual costs outcome. The defendant’s costs were therefore payable, subject to detailed assessment if not agreed. Summary assessment was unsuitable because the provisional estimate was approximately £60,000, the hearing extended over two days, and neither party had served a costs schedule.

• High Court (Administrative Court): on 14 February 2011 the appeal was dismissed. On 18 March 2011 the court ordered the claimant to pay the defendant’s costs, subject to detailed assessment if not agreed.