Human Fertilisation and Embryology Authority v ARGC Ltd

On a strike out and summary judgment application, a claimant must address the pleaded cause of action actually advanced. A court should not conclusively resolve disputed factual issues where the claim is properly arguable. Evidence received later may assist in proving an existing cause of action, but does not ordinarily satisfy section 32 of the Limitation Act 1980 if the underlying facts were already known. Broad regulatory duties imposed on a public authority do not, without more, create a private action for breach of statutory duty or a common-law duty of care. The discretion to extend the one-year limit for a Human Rights Act claim requires consideration of all the circumstances, but substantial and unexplained delay may make extension unarguable.

The Human Fertilisation and Embryology Authority claimed unpaid statutory fees from ARGC Ltd. ARGC conceded liability for the fees but maintained a counterclaim arising from the Authority’s licensing, regulatory and investigative conduct concerning the Reproductive Genetics Institute in 2006 and later events.

Master Kay QC struck out the counterclaim and entered summary judgment for the Authority. ARGC appealed, contending that its pleaded claims were arguable, that an October 2012 letter supplied facts previously concealed, and that limitation should therefore be postponed or extended. The central issues concerned the counterclaim, limitation, section 32 of the Limitation Act 1980, section 8ZA of the Human Fertilisation and Embryology Act 1990, negligence, and article 1 of the First Protocol.

1. Appeal dismissed. The counterclaim was properly struck out and summary judgment was rightly entered for the Authority, although some of the Master’s reasoning was flawed.
2. The pleaded case concerned alleged misfeasance in public office, interference with article 1 of the First Protocol rights, and related tortious duties. It did not depend on a duty to renew the RGI’s licence. The allegations were sufficiently arguable for the misfeasance case to pass the interlocutory threshold, since targeted or untargeted malice, including subjective recklessness and bad faith, was capable of investigation at trial. That did not mean the claim would succeed.
3. The claims were nevertheless out of time. Losses arose principally from events and proceedings before October 2008. Later losses were inadequately particularised. The October 2012 letter, like earlier communications, supplied helpful evidence of information already known to ARGC. It did not provide a fact necessary to establish the cause of action, so section 32 did not postpone time.
4. Section 8ZA of the Human Fertilisation and Embryology Act 1990 imposed broad regulatory duties. It did not reasonably support a private claim for breach of statutory duty. Nor, absent bad faith, was a common-law duty of care in negligence reasonably arguable, particularly given the statutory procedures for challenging licensing decisions.
5. An article 1 of the First Protocol claim was also substantially late. Although the discretion under section 7(5) of the Human Rights Act 1998 was wide and required consideration of all the circumstances, the counterclaim showed that proceedings were brought only after the Authority sued for fees. That delay made an extension unarguable.
6. The appeal was dismissed, with summary judgment for the Authority.

• High Court (Queen’s Bench Division): Appeal from Master Kay QC’s order of 27 July 2015. Mr Justice Foskett dismissed the appeal and upheld the striking out of the counterclaim and summary judgment for the Authority.