F and H (No 2), Re Human Fertilisation And Embryology Act 2008

Where an order directs one party to pay another’s costs and reserves any dispute about quantum, the court may summarily assess the costs rather than direct detailed assessment. The assessment must take account of the nature, novelty and complexity of the issues, the work undertaken, overlap between related proceedings and the opposing submissions. Costs may be reduced where particular fees are excessive, duplicative, inadequately explained or incurred for an unjustified costs submission. Work undertaken in reviewing a judgment may be included within the allowance for the substantive hearing rather than recovered separately. Interest may run from the date of service of the relevant bill at the usual rate.

Following the determination of two related applications concerning legal parenthood under the Human Fertilisation and Embryology Act 2008, the court had to determine the applicants’ costs. The relevant orders required the clinic to pay the applicants’ costs and referred any dispute about quantum to the President of the Family Division.

The applications were dealt with on paper. The clinic opposed detailed assessment and challenged various solicitors’ and counsel’s fees, including fees affected by common preparatory work in both cases. The central issues were whether detailed assessment should be ordered, what sums should be allowed on summary assessment, and from what dates interest should run.

1. The court declined to direct detailed assessment by a costs judge. Having regard to the terms of the orders and all the circumstances, it summarily assessed the costs in both cases.

2. In Case F, the court reduced certain fees for hearings and refreshers, reduced the fee for the final hearing, and allowed no separate sum for reviewing the judgment because that work had been taken into account in the allowance for the final hearing. No separate sum was allowed for preparing the costs submissions.

3. In Case H, the court accepted the claimed fee-earners’ charging rates in view of the complex and novel issues. It reduced the solicitors’ costs by £750, made no reduction to junior counsel’s fee, reduced the aggregate leading counsel fees, and allowed no separate sum for reviewing the judgment or preparing the costs submissions.

4. The assessment took account of the overlap between the two cases and the common benefit of preparatory work. The court also disallowed an unexplained increase in Case H’s original bill, but allowed further costs for which no challenge had been made.

5. Interest was awarded at the usual rate. It ran in Case F from 18 March 2016, in Case H from 8 October 2015, and on the further Case H costs from 3 June 2016.

The costs in both cases were summarily assessed accordingly.