Case K (No 2), Re Human Fertilisation and Embryology Act 2008

Where a judicial review claimant obtains all the relief sought, the claimant is ordinarily entitled to recover the costs, unless there is a good reason to depart from that approach. A conceded error of law which is determinative of the claim has substantial significance, even where factual disputes remain unresolved or other actors contributed to the circumstances giving rise to the proceedings. An interested party and the public authority may appropriately bear their own costs where both contributed to the need for the claim. The court may nevertheless order an interested party to reimburse the authority for an appropriate proportion of the claimant’s costs where that party bears significant responsibility for the underlying error.

In linked proceedings concerning the Human Fertilisation and Embryology Act 2008, the court had previously granted X a declaration in Family Division proceedings and made an agreed quashing order in related judicial review proceedings: [2017] EWHC 50 (Fam).

The remaining issues concerned costs. X sought his judicial review costs from the local authority. The local authority sought payment or contribution from the Registrar General. The Registrar General resisted both applications. The central questions were whether X had been wholly successful and how responsibility for the proceedings should be apportioned between the local authority and the Registrar General.

1. X was completely successful against the local authority in the judicial review. The claim was conceded on the short ground that the Registrar, for whose acts the local authority was liable, had erred in law in refusing to register the births. X obtained the relief sought.

2. The general approach in R (M) v Croydon London Borough Council [2012] EWCA Civ 595, [2012] 1 WLR 2607 applied. A claimant who obtains all the relief sought is ordinarily entitled to all costs unless there is a good reason to the contrary.

3. The unresolved factual dispute, reliance on the Registrar General’s Handbook, the clinic’s initial error and the local authority’s pragmatic conduct did not justify departing from that approach. The conceded error of law was determinative and was the factor of magnetic and determinative significance.

4. The local authority and the Registrar General were each to bear their own costs. Each bore a significant measure of responsibility for placing X in the position where judicial review proceedings became necessary. The principle concerning interested parties in R Smeaton v Secretary of State for Health [2002] EWHC 886 (Admin), [2002] 2 LR 146 was considered, but the unusual facts required a fair allocation of responsibility.

5. The Registrar General was ordered to reimburse the local authority one-half of the costs payable to X, namely £8,255.06. The local authority was ordered to pay X’s costs, summarily assessed at £16,510.12.

1. High Court (Family Division) In the earlier linked proceedings, the court made a declaration in the Family Division and an agreed quashing order in related judicial review proceedings: [2017] EWHC 50 (Fam).
2. High Court (Family Division) The present judgment determined the outstanding costs issues.