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Case summary: F & H (No 2), Re HFEA 2008 [2017] EWHC 964 (Fam)

29 June 2017

Summary:

This judgment follows on from In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) where Munby P made a costs order against the clinic involved. The same issues were common to both Cases F and H and, although different solicitors represented the respective families, the same leading counsel was instructed on behalf of them. The family in Case F claimed costs totalling £79,188.60 (ex VAT), comprising three elements:

  • the costs of the solicitors amounting to £14,151;
  • counsel’s fees amounting to £64,485 (leading counsel £63,835; junior counsel £650); and
  • court fees and other disbursements amounting to £552.60.

On top of that, a further sum of £1,625 (ex VAT) was claimed in relation to leading counsel’s fees for preparing the submissions in relation to costs. So, the grand total amounted to £80,813.60 (ex VAT). The family in Case H claimed costs totalling £70,108.93 (ex VAT):

  • the costs of the solicitors amounting to £16,636.33;
  • counsel’s fees amounting to £53,050 (leading counsel £33,350; junior counsel £19,700);
  • and court fees and other disbursements amounting to £422.60.

By the time the Form N260 was served, the solicitors’ costs had been re-calculated and amounted to £17,901, bringing the total to £71,373.60 (ex VAT). A second Form N260 showed further solicitors’ costs bringing the total to £74,332.60 (ex VAT). On top of that, a further sum of £1,170 (ex VAT) was claimed in relation to leading counsel’s fees for preparing the submissions in relation to costs. So, the grand total, exclusive of VAT, amounted to £75,502.60 (ex VAT).

The clinic was arguing that the costs in both cases should be referred for detailed assessment to a costs judge. In the alternative, and not disputing the costs of the solicitors, junior counsel’s fees or the disbursements in Case F, the clinic contended that, even when taking account of the novel and significant issues in the case, the fees charged by leading counsel (given the overlap between the cases) were too high. In relation to Case H, the clinic argued that both the solicitors’ and leading counsel’s fees were excessive.

Held:

Munby P refused to direct a detailed assessment and summarily assessed the costs with the following adjustments:

Case F - £7,500 was deducted from various brief fees, the brief fee for the final hearing was reduced from £25,000 to £17,500, the costs charged for work on the judgment were reduce from £1,888 to nil.

Case H - the solicitors’ costs were reduced by £750, leading counsel’s brief fees were reduced from £21,500 to £17,500, the work in relation to the judgment was reduced to nil as was the work in relation to the costs application. Interest was to be paid at the usual rate.

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