AB, R (On the Application Of) v Human Fertilisation And Embryology Authority

Urgent interim relief should be granted only where the statutory and welfare-related preconditions for the substantive relief have been addressed. Where circumstances materially change, the court may discharge interim relief rather than stay it, particularly where the original order cannot lawfully operate.

A protective costs order is discretionary. The court must consider the public importance of the issues, the public interest in their determination, the claimant’s private interest, the parties’ resources and likely costs, and whether the claimant would probably discontinue without protection. A private interest is relevant but not automatically fatal. Complete financial evidence and evidence addressing likely discontinuance remain important.

The claimant, anonymised as AB, sought judicial review of the Human Fertilisation and Embryology Authority’s refusal to issue a special direction authorising the retrieval and storage of gametes from her seriously ill partner, P. An urgent order had previously permitted retrieval and required the Authority to authorise temporary storage.

The Authority applied to discharge or vary that order. The court considered whether the order should remain in force pending an expedited substantive hearing, including the need for prior consideration of P’s best interests by the Court of Protection, the change in P’s medical condition and the hospital’s licensing position. The court also considered AB’s application for a protective costs order.

1. Interim relief. The order made by Globe J on 24 December 2013 was discharged. Consideration of P’s best interests and an order from the Court of Protection were necessary before a judicial review claim concerning the Authority’s decision could properly arise.
2. The basis for urgent relief had materially changed. P’s condition had stabilised and the do-not-resuscitate order had been lifted. A stay was therefore inappropriate, although AB remained entitled to seek fresh urgent relief if P’s condition or other circumstances changed.
3. The order could not in any event stand in its existing form because the hospital was unlicensed. The parties also agreed that no retrieval or storage should occur pending the expedited hearing, so discharge did not defeat the claim for judicial review.
4. Protective costs order. The governing considerations were those summarised by R (on the application of Plantaganet Alliance Ltd) v Secretary of State for Justice and others [2013] EWHC 3164 (Admin), drawing on R (Corner House) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 (CA). The court considered whether the issues were of general public importance, whether the public interest required resolution, AB’s private interest, the parties’ resources and likely costs, and whether AB would probably discontinue and act reasonably if protection were refused.
5. The application was refused. Although the scope of section 24 of the Human Fertilisation and Embryology Act 1990 raised an issue of general public importance, AB’s private interest was overriding, the evidence of her assets was incomplete, and there was no evidence that she would probably discontinue the claim without a protective costs order.

• High Court (Administrative Court): Globe J made urgent interim orders on 24 December 2013. On 14 January 2014, Carr J discharged those orders and refused a protective costs order.