N (No 2), Re Human Fertilisation And Embryology Act 2008

Where an order expressly requires a party to pay reasonable costs of an application, the assessing court may assess costs incurred in related proceedings in another division if the order clearly covers them. Costs are assessed by reference to the nature, complexity and circumstances of the litigation. A tentative early costs estimate or proposed cap does not ordinarily restrict the recoverable amount where the matter develops differently. Challenges to detailed costs must identify the specific work or items said to be excessive. Duplication objections require a proper evidential basis.

The court had previously ordered Complete Fertility Centre Southampton to pay the reasonable costs incurred by the applicants in proceedings concerning a declaration of parentage. Those costs included work by Fieldfisher LLP in Queen’s Bench proceedings to obtain disclosure, work by Fieldfisher LLP and Child & Child in the Family proceedings, counsel’s fees and disbursements.

On summary assessment, the clinic challenged jurisdiction, hourly rates, the effect of an earlier costs estimate, the time spent on attendances and documents, alleged duplication, attendance at hearings, counsel’s fees and proportionality. The court determined the challenges and assessed the costs.

1. Jurisdiction. The court had jurisdiction to assess the costs of the Queen’s Bench proceedings. The previous judgment and order clearly required payment of the reasonable costs of the application, including the work undertaken by the solicitors originally instructed to obtain disclosure.
2. Hourly rates and seniority. Given the complex and novel nature of the litigation, there was no basis for reducing the claimed hourly rates or substituting less senior fee-earners.
3. Estimates and caps. An earlier estimate, and a tentative proposal to cap the Family proceedings costs, did not limit recovery. The proposal had been made in the hope of an early and non-contentious resolution which had not occurred.
4. Specificity of challenges. A challenge that attendance or document time is excessive cannot be sustained without identifying the particular items challenged. The court also rejected the objections to both firms attending hearings and conferences, as the case involved medical and family law issues and duplication had not been established.
5. Assessment. The claimed Queen’s Bench costs were summarily assessed in full. The court allowed the conceded reduction of £434.98 in Family proceedings disbursements and made a further overall reduction of £7,500, exclusive of VAT, for the disputed attendance and document items. The costs were summarily assessed accordingly.