England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9th December 2008

1. MRS JUSTICE DOBBS: The claimants apply for (1) permission to apply for judicial review and (2) a protective costs order. On 10th October 2008, Mr Edwards-Stuart QC, sitting as a deputy High Court Judge, directed an inter-partes hearing.
2. The claimants seek permission to challenge the decisions of the defendant dated 9th January 2008 to issue research licences for research, valid for one year, under section 16 of the Human Fertilisation and Embryology Act 1990 ("the Act") to the two interested parties in this case. The process involves the creation of embryos by the insertion of the nucleus from a human cell into an enucleated animal oocyte. The grounds of the challenge are two-fold, namely that the defendant had no power to issue such licences and, alternatively, if it did have power, that the power was exercised irrationally.

The Background

3. The defendant is a government body, established in August 1991 following the passing of the 1990 Act. Its function is to licence and monitor UK clinics which offer IVF and DI treatments, and all UK based research into human embryos. The HFEA also regulates the storage of eggs, sperm and embryos.
4. The first claimant (CORE) is a public interest group, founded in 1994, which focuses on ethical dilemmas surrounding human reproduction, particularly the new technologies of assisted conception.
5. The second claimant (CLC) is a public interest group, concerned to uphold the sanctity and dignity of human life in the fields of law, ethics and public policy. It works closely with the first claimant on issues surrounding embryo creation.
6. The interested parties are the relevant departments of the University of Newcastle and Kings College, London conducting research in this field.
7. In early November 2006, Newcastle applied for a licence to create embryos by somatic cell nuclear transfer (SCNT) of human cells into enucleated animal oocytes for the purpose of: increasing knowledge about the development of embryos (para 2(2)(a) of the 2001 Regulations); increasing knowledge about serious disease (para 2(2)(b)); enabling any such knowledge to be applied in developing treatments for serious disease (para 2(2)(c)).
8. Following consultation in the late spring and summer of 2007, and after peer review, the licence was granted on 9th January 2008 for one year, pursuant to Schedule 2, paragraph 3 of the Act as amended.
9. In mid-November 2007, Kings College applied for a licence to generate disease-specific human embryonic stem cell lines by SCNT for the purposes within paragraph 2(2)(b) and (c) of the regulations.
10. Following the same procedure of consultation and peer review, the licence was granted on 9th January 2008 for a period of one year.
11. Also relevant for the purposes of the chronology is, that on 21st May 2007, CORE informed the defendant that the claimants had obtained a written opinion from leading counsel, which concluded that the defendant did not have the power to grant the licences. On 20th June, the defendant indicated that it would be making a policy decision on this question on 5th September.
12. On 16th July, the first claimant proposed the possibility of the defendant agreeing to a construction summons with each party paying its own costs. The defendant replied that this was premature and inappropriate, as no policy decision had yet been taken. The claimants did not pursue this avenue after the policy decision was reached on 5th September.
13. On 27th November, the defendant obtained legal advice (see page 175 of the bundle). The advice identified a two-fold approach, namely whether the embryo contains a full set of human chromosomes, and has the potential to develop into a human being if implanted. The advice steered the committee in the direction of exercising caution and treating the embryo as a live human embryo, in the absence of clear evidence that the embryo could never be viable, because the effect of finding that the embryo was not human was that the process would be completely unregulated. This was inconsistent with the Act's policy of ensuring regulation and avoiding a free for all.

The Grounds

Ground One

14. The claimants argue that the Act does not permit, and indeed imposes a prohibition on, the use of human hybrid embryos, so that the HFEA has no power to grant a licence in this case.
15. In support of that submission the following points are made:

(1) The Act was passed following the Warnock Committee report, White Paper and consideration of the issues in Parliament. The report, the White Paper and the observations of the Home Secretary made it clear, that there was to be a prohibition on the creation of human-animal hybrid embryos, with the exception of the hamster test. Any other trans-species fertilisation would be a criminal offence.

(2) Looking at the provisions of the Act, in particular sections 1 and 4 and Schedule 2 to the Act, it is clear that "human embryo" means a fully human embryo, and that there should be no hybrids. The process in this case involves the transplantation of the nucleus of a human cell containing a full set of 46 human chromosomes into an unfertilised egg of an animal from which the nucleus has been removed. However, the mitochondrial DNA of the cell would be animal, and other animal egg factors would be present, such as proteins and RNA, which activate the animal embryo genome that is completed upon fertilisation of an animal egg with an animal sperm. It is submitted therefore, that an enucleated egg is an animal gamete and that the implanted human nucleus takes the part of the human gamete. That being the case, the HFEA has no power to issue such licences.

(3) If human had meant half human, then the Act would have failed to outlaw inter-species hybrid embryos. Save for the exception of the hamster test, which had a perceived utility and thus was subject to regulation, the creation of hybrids would have been subject to a complete ban. In this case it is submitted that an animal hybrid embryo, whether created by fertilisation or CNR, is not a fully human embryo.

(4) Applying the principles to be gleaned from the case of Quintavalle [2003] 2 AC 687, the task of the court is to give effect, within permissible bounds of interpretation, to Parliament's purpose -- thus, statutes should be generally construed as "always speaking statutes". When considering the application, the HFEA erred in failing to consider what Parliament rationally intended, namely that only fully human embryos could be licensed. It is also noted that the defendant failed to adopt the definition of "human embryo" as set out in the advice it received from the lawyers. In any event, it is submitted that the real test is: what did Parliament intend in the 1990 Act?

(5) The new legislation expressly deals with the creation and regulation of animal human embryos. The technique involved in this case is called human admixed embryos. This is to be subject to regulation under section 4. The fact, that section 1 of the Act is amended to expressly provide that a human embryo does not include a human admixed embryo, supports the contention that the reference in the Act referred only to fully human embryos.

(6) The cautious tone employed by the defendant in its consultation document of April 2007 (page 557) where it indicated that as a result of a legal decision, it probably has the power to regulate the creation of CHEs, shows that the claimants' case is arguable.

16. The defendant makes the following submissions in relation to this ground, supported by the interested party:

(1) The defendant had a full and public consultation between April and July 2007, before deciding on 5th September 2007 that the CHE constitutes a live human embryo within the meaning of the Act. The question raised in the consultation process was whether, as a matter of principle, the defendant should issue research licences permitting the creation or use of CHEs. The consultation explored both scientific questions as to the nature of CHEs and whether they were properly to be considered as human. It also explored the ethical questions arising from their creation. The defendant applied Quintavalle, namely that Parliament has opted for a strict regime of control in this area under the 1990 Act and did not intend any activity to be unregulated. Further, scientific expertise indicated that CHEs fall within the same genus of fact as other embryos covered by the 1990 Act, because the embryo has a complete human genome and is live.

(2) The Act did not seek to define the term "human embryo" and the assessment of whether a particular embryo is human involves an exercise of scientific judgment. This the defendant did, following extensive consultation and expert consideration. The answer came back, that the embryos had a complete human genome and that the presence of a small amount of animal mitochondrial does not alter the position. This is a decision with which the courts would not lightly interfere. If the defendant is correct, then proper regulation is appropriate and the necessary conditions have to be considered as to whether a licence should be granted.

(3) If the embryos were not categorised as human, their creation would be unregulated. Neither section 4 nor any other section, assists the claimants, as there is no provision in the Act which is capable of being construed as prohibiting the creation of CHEs for research purposes. "Gametes" under section 4 are reproductive cells, having half the number of chromosomes as a normal adult cell, especially sperm or eggs. Section 4 refers solely to the mixing of human and animal gametes. Thus, if the claimants were right about the definition of "human embryo", it would mean that the interested parties could carry on the research without any regulation.

(4) The claimants need to show that it is arguable that there is a specific prohibition on the creation of such embryos. This is the only basis upon which they should succeed.

(5) Should there be any doubt as to whether this process should be regulated, it is cured by the 2008 Act, which expressly provides for regulation. The Act is due to come into force in October 2009.

(6) Quintavalle involved a bold construction of section 1. It was a much bolder decision than the scientific judgment that these embryos are human. The case laid great stress on the regulation and the strong presumption against this type of process falling outside the Act.

(7) The prohibition under section 3 of the Act, refers to a process whereby the nucleus of a cell of an embryo is replaced with the nucleus of another cell. It has no relevance in this case.

(8) Lord Millett in Quintavalle (at paragraph 43) was not seeking to construe the term, but was identifying the characteristics of the embryo.

(9) The court has to decide which approach best gives effect to the statute as enacted, regulated or unregulated, because it is impossible to read in any prohibitions.

Ground Two

17. The claimants submit that if the defendant did have power to grant a licence, it acted irrationally on two bases:

(a) that the preconditions to be satisfied in the Act had not been satisfied, and

(b) as the new Bill was going through Parliament, it was irrational to grant the licence before waiting to see what the will of Parliament was; that to do so, was usurping legitimate debate and the decision of Parliament, given that the Bill was controversial.

(a) Failure to satisfy the preconditions for granting the licence.

18. The claimants rely on the evidence of Dr James Sherley, Senior Scientist at the Boston Biomedical Research Institute, Massachusetts and Professor David Prentice, former Professor of Life Sciences at Indiana State University and Adjunct Professor of Medical and Molecular Genetics at Indiana University School of Medicine, noting that the latter was elected by the President's Council on Bioethics to write a comprehensive review on stem cell research for the Council's publication. His opinion was that the applications were neither necessary, nor desirable for the stated purposes under the Act, and that it was irrational for the HFEA to conclude otherwise because:

(i) there is little or no evidence that human cloning has been successful;

(ii) embryonic stem cells have never been obtained from cloned human embryos;

(iii) the animal hybrid embryos will contain a form of DNA from the animal;

(iv) existing cloning techniques suffer from debilitating DNA reprogramming defects known to occur in all cloned embryos;

(v) the mitochondrial DNA (ie, from the animal) would be foreign to the immune system of the recipient patient, thus the technology does not work;

(vi) by introducing animal elements, the research cannot yield any scientifically valid information which could improve homologous human cloning.

19. Further, it is contended, that the research is not necessary, nor desirable, given the success of a new technique of Yamanaka called IPSC (induced pluripotent stem cell) which was developed two years ago. This technique relies on re-programming adult cells, so that they behave like embryonic stem cells. Other points are made with regard to the approach of the peer reviewers and the addenda to the research proposal.
20. The contention is that the defendant made a decision without taking relevant factors into consideration. No adequate consideration was given to the fact that the whole basis of the applications was very different in the light of the scientific advances in IPSC.

(b) Making a decision during the passage of the Bill

21. With regard to the second limb of the submission, it is argued that, given the uncertainty as to whether CHE had the potential to develop, the defendant could not be sure that the embryos were human, even on their reading of Quintavalle, and that, having refused the claimants' suggestion of a construction summons, it was irrational to grant a licence in the light of the passage and debate of the new Bill in Parliament.
22. The defendant submits:

(1) This is an area of cutting edge science which is developing quickly. The decision was taken following full public consultation, detailed submissions from the interested parties, the issues raised by the claimants and careful consideration of the views of expert peer reviewers. Relying on the Court of Appeal case of R (Assisted Reproduction and Gynaecology Centre) v HFEA, 31st January 2002, it is submitted, that it is not the function of the court to enter the scientific debate, nor to adjudicate on the merits of the Board's decisions or any advice it gives. The only challenge lies on the issue of whether the Board exceeds or abuses its powers or responsibilities. This challenge by the claimants is a thinly disguised attempt to canvass the merits of a decision based on expert scientific judgment.

(2) It was appropriate for the HFEA, the statutory regulatory body, to take the decision on the basis of the current law, particularly having regard to the interests of the interested parties and the uncertain timetable of the future legislation.

23. The interested parties submit, that they justified the need for the research in their addenda, taking into account the new advances in technology. Their justifications found favour with the reviewers. They set out clearly in their papers why the conditions were met and the Committee so found.

Delay

24. There is another issue before the court, namely the question of delay.
25. The defendant and the interested parties submit, that permission should not be granted, because of the delay by the claimants in bringing the proceedings. It is argued, that the operative date is not 9th January 2008 when the licences were issued, but 5th September when the policy decision was made. The application, therefore, is months out of time. Even if the date of the granting of the licences is taken as the appropriate date, the claimants have still delayed and not brought their claims promptly. No good reason has been advanced for the delay. In support of their submissions, the defendant and interested parties rely on the following:

(1) No attempt was made to challenge the decision in September, even though the claimants had indicated that they were in possession of legal advice to the effect that there was no power to grant the licence since at least May 2007.

(2) It was clearly foreseeable that the interested parties would act on the granting of the licences. It was incumbent on the claimants to issue proceedings with particular urgency (Greenpeace case) because of the third party interests involved. The claimants had all the information they needed to institute proceedings.

(3) The proceedings were not issued promptly. They were issued without advance warning by way of letter before claim, to the prejudice of the interested parties. Had the claimants thought that there was a prima facie claim, but needed more information, they should have sent a letter before claim and asked for pre-action disclosure under the protocol.

(4) The claimants have acted in breach of the pre-action protocol.

(5) The claimants have provided no adequate explanation for the delay save to say, without specificity, that it took time to obtain legal advice, information under the Freedom of Information Act and expert evidence.

(6) Section 31 of the SCA provides the statutory framework for the rules in CPR 54. The relationship between the statute and the CPR was explained in R v Dairy Produce Quota Tribunal for England and Wales ex parte Caswell [1990] 2 AC 738 at pages 746 to 7. The court is entitled to refuse on the sole ground of delay without any requirement of a causal link between delay and prejudice (see also R v Secretary of State for health ex parte Furneaux [1994] 2 AER 652). Even if the claimants were able to establish good reason for the delay, leave may be refused if the court is of the opinion that the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration.

(7) Delay raises the bar. A strong prima facie case needs to be established by the claimants in order to obtain permission.

26. The interested parties, adopting those submissions, and addressing the issue of prejudice and the grant of relief, explained that an extension has now been given to Dr Lako. This took place at a meeting of the committee on 19th November. The next meeting of the committee is not scheduled until after the expiry of the licence. The minutes of the meeting show that an update was provided. The papers were sent to a peer reviewer, who approved the research, and the committee, having gone through the necessary scrutiny of the preconditions for granting an extension, granted an extension for three years. The research has proceeded. To stop it at this stage would throw any continuing licensing into confusion. One key employee would be lost and it would be difficult to replace him, even if the defendant were able to rely on the new legislation later in 2009. It would have a negative impact on the funding application currently in place. In relation to the second application, much time has been spent on grant applications which might not have occurred if the claimants had acted with expedition.
27. The claimants submit:

(1) Relying on the case of R v Hammersmith and Fulham LBC ex parte Burkett [2002] 1 WLR 1593 that an applicant is entitled to wait and see if the policy decision ripens into something more than theoretical, and that in this case, time ran from the decisions of January 2008.

(2) The defendant itself took legal advice following 5th September on (inter alia) the power to grant the licence.

(3) With regard to the decisions made on 9th January 2008, the claim was brought promptly bearing in mind that:

(i) the claimants' past conduct indicates that they are not interested in delaying matters. They suggested an early construction summons which was declined;

(ii) the HFEA, having said that a decision on the licences would be made in November, took much longer. The claimants did not know when the decision would be forthcoming and thus have their pro bono lawyers and scientists on stand-by;

(iii) the experts are very busy and their reports were not completed until 3rd and 4th April. Counsel was acting pro bono and was also busy;

(iv) following the decisions, the responsible thing to do, was to review the information upon which the decisions were made, by making a request under the Freedom of Information Act. It took time to decide what was needed and to assess what was received;

(v) the claimants have limited resources for what is a complex application;

(vi) the court should consider the extent of the alleged prejudice to the third parties caused by the alleged lack of promptness in commencing the proceedings. The case of Furneaux can be distinguished, because it was dealing with section 31(6) of the Supreme Court Act 1981 which refers to the prejudice arising from the granting of relief sought. Neither the defendant nor the interested parties have sought to rely on section 31(6).

Judgment

28. This is not a substantive hearing; that being the case, whilst this judgment has sought to summarise the competing arguments as fully as possible, it is hoped without doing disservice to them, the reason for the decision will be much shorter than would have been the case in a substantive hearing. For the avoidance of doubt, the court has read the pleadings, skeleton arguments, witness statements and relevant exhibits, legislation and the authorities, although not every detail of the arguments and evidence have been set out.

The Legislation

29. The relevant sections from the 1990 Act read as follows:

"1. Meaning of "embryo", "gamete" and associated expressions

(1) In this Act, except where otherwise stated --

(a) embryo means a live human embryo where fertilisation is complete, and

(b) references to an embryo include an egg in the process of fertilisation

and, for this purpose, fertilisation is not complete until the appearance of a two cell zygote.

(2) This Act, so far as it governs bringing about the creation of an embryo, applies only to bringing about the creation of an embryo outside the human body; and in this Act --

(a) references to embryos the creation of which was brought about in vitro (in their application to those where fertilisation is complete) are to those where fertilisation began outside the human body whether or not it was completed there, and

(b) references to embryos taken from a woman do not include embryos whose creation was brought about in vitro.

(3) This Act, so far as it governs the keeping or use of an embryo, applies only to keeping or using an embryo outside the human body.

(4) References in this Act to gametes, eggs or sperm, except where otherwise stated, are to live human gametes, eggs or sperm but references below in this Act to gametes or eggs do not include eggs in the process of fertilisation . . .

3. Prohibitions in connection with embryos

(1) No person shall --

(a) bring about the creation of an embryo, or

(b) keep or use an embryo

except in pursuance of a licence.

(2) No person shall place in a woman --

(a) a live embryo other than a human embryo, or

(b) any live gametes other than human gametes.

(3) A licence cannot authorise --

(a) keeping or using an embryo after the appearance of the primitive streak,

(b) placing an embryo in any animal,

(c) keeping or using an embryo in any circumstances in which regulations prohibit its keeping or use, or

(d) replacing a nucleus of a cell of an embryo with a nucleus taken from a cell of any person, embryo or subsequent development of an embryo . . .

4. Prohibitions in connection with gametes

(1) No person shall --

(a) store any gametes, or

(b) in the course of providing treatment services for any woman, use the sperm of any man unless the services are being provided for the woman and the man together or use the eggs of any other woman, or

(c) mix gametes with the live gametes of any animal

except in pursuance of a licence . . .

11. Licences for treatment, storage and research

(1) The Authority may grant the following and no other licences --

(a) licences under paragraph 1 of Schedule 2 to this Act authorising activities in the course of providing treatment services,

(b) licences under that Schedule authorising the storage of gametes and embryos, and

(c) licences under paragraph 3 of that Schedule authorising activities for the purposes of a project of research . . .

41. Offences

(1) A person who --

(a) contravenes section 3(2) or 4(1)(c) of this Act, or

(b) does anything which, by virtue of section 3(3) of this Act, cannot be authorised by a licence

is guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding ten years or a fine or both . . .

SCHEDULE 2 . . .

(3) A licence under this paragraph cannot authorise any activity unless it appears to the Authority to be necessary or desirable for the purpose of providing treatment services."

30. Turning to the Human Fertilisation and Embryology (Research Purposes) Regulations 2001, section 2 reads:

"Further purposes for which research licences may be authorised

2.(1) The Authority may issue a licence for research under paragraph 3 of Schedule 2 to the Act for any of the purposes specified in the following paragraph.

(2) A licence may be issued for the purposes of --

(a) increasing knowledge about the development of embryos;

(b) increasing knowledge about serious disease, or

(c) enabling any such knowledge to be applied in developing treatments for serious disease."

The Merits

31. Although the issue of delay is one that has been raised by the defendant, it is useful to look at the merits first, as these could have some bearing on any decision the court may make on the issue of delay and its consequences.
32. I start with ground two first, as it is the more straightforward of the two. I agree with the defendant's submission, that this challenge amounts to an attempt to argue the merits of the expert evidence, and that it is not the function of this court to entertain such an approach. It is quite clear, looking at the evidence in this case and the reasons given by the committee in January 2008 (see pages 180 onwards), that proper consideration was given to the relevant issues. On the evidence in front of the committee, including the submissions by the claimants, and in view of the green light given by the majority of the peer reviewers, the decision cannot be characterised as irrational.
33. As for the decision to grant the licence while the Bill was going through Parliament, the defendant as the regulatory body, is entitled to act on the law as it stands and as it understands it. A decision had been made based on scientific evidence that the technique fell to be regulated, and thus the defendant was obliged to consider the necessary pre-conditions to granting or refusing a licence. This ground, in my judgment, is unarguable.
34. I turn to ground one, which at first blush might seem to be attractive and thus arguable. However, it is important to look at the argument closely. In so doing, I find that the challenge is not arguable for the following, amongst other, reasons.
35. Before setting those out, however, it is useful to look at the case of Quintavalle [2003] 2 AC 687. The headnote to the case sets out the background to the decision and the summary of it, and it is sufficient for these purposes. The court's attention was drawn to paragraphs 4 to 5, 8 to 10, 13 and 18 of the speech of Lord Bingham of Cornhill, and paragraphs 25, 26 and 28 of the speech of Lord Steyn, and paragraphs 33 to 36 of the speech of Lord Hoffman, and finally paragraphs 39 to 45 of the speech of Lord Millett, which deal variously with the three levels of control imposed by the Act, statutory construction and the purposive approach. The ambit of section 3(3) deals with prohibition. These paragraphs need not be set out in full for the purposes of this judgment, although it is to be noted that the court has read the whole authority.
36. I turn to the reasons for rejecting the claimants' submission:

(1) I have considered the 1990 Act against the background material, the case of Quintavalle and the development in science, to ascertain what best gives effect to the policy of the statute as enacted. In my judgment, the clear purpose of Parliament can be detected, namely that these activities should be regulated. One only needs to quote Lord Bingham at paragraph 13 of Quintavalle to that effect:

"The solution recommended and embodied in the 1990 Act was not to ban all creation and subsequent use of live human embryos produced in vitro but instead, and subject to certain express prohibitions of which some have been noted above, to permit such creation and use subject to specified conditions, restrictions and time limits and subject to the regimes of control briefly described in paragraph 4 above. The merits of this solution are not a matter for the House in its judicial capacity. It is, however, plain that while Parliament outlawed certain grotesque possibilities (such as placing a live animal embryo in a woman or a live human embryo in an animal), it otherwise opted for a strict regime of control. No activity within this field was left unregulated. There was to be no free for all."

(2) Dealing with the first limb of the claimants' argument, namely that human means "fully" human, the effect of this argument would mean that the process involving the insertion of a human nucleus containing the full 46 human chromosomes into an enucleated animal egg (in other words, an egg with the animal chromosomes removed) would fall outside the Act.

(3) Reliance was placed on Lord Millett's speech at paragraph 43 as being the definition of the human embryo:

"Now whatever may be the status of an organism created by CRN before its single cell has split into two, once it has reached the two-cell stage it is an embryo in every accepted sense of that term. In the case of a human embryo, it is a live human organism containing within its cell or cells a full set of 46 chromosomes with the normal potential to develop and, if planted in a woman, to become a foetus and eventually a human being. While there may or may not be good reasons for distinguishing between the different processes by which embryos may be created when it comes to regulating their creation, no one has been able to suggest a reason why Parliament should differentiate between the different processes when it comes to regulating their subsequent use. The placing of a human embryo in an animal is not the less abhorrent because the embryo was created by CNR."

But that test, as it has been dubbed, has to be seen in the context of what Lord Millett was saying. I do not see it as seeking to lay down an immutable definition, especially in the light of what is said at paragraph 45:

"With this introduction I can turn to the wording of section 1(1). The definition in para (a) is in part circular, since it contains the very term to be defined. It assumes that the reader knows what an embryo is. The purpose of the opening words of the paragraph is not to define the word 'embryo' but to rather to limit it to an embryo which is (i) live and (ii) human. These are the essential characteristics which an embryo must possess if it is to be given statutory protection. The important point is that these characteristics are concerned with what an embryo is, not how it is produced. They are clearly necessary; the question is whether they are sufficient."

(4) The Act did not seek to define "human embryo". What is "human" will be dependent on the particular facts of any case and informed by scientific knowledge at the time. I do not accept the claimants' submission, that the fact that this technique is in a separate category under the new Act, means that Parliament did not intend it to fall within the definition of "human embryo" under section 1 of the 1990 Act. The technique was unknown and not envisaged at the time. What is clear, as I have already found, is that regulation of these activities was important. The approach advocated by the defendant's lawyers in the advice of November 2007 -- namely to take a cautious approach by treating the technique as coming within regulation -- is, in my judgment, in accordance with the spirit and purpose of the 1990 Act. The fact that it is unknown, whether the embryo can develop into a human, is not fatal in the context of this case. It is to be noted that those who applied for the licences thought that the technique fell to be regulated by the Act. Both institutions took legal advice on the matter and, as a result, submitted their application to the defendant.

(5) Reliance on section 4 of paragraph 3 of Schedule 2 does not assist the claimants. The prohibition in the section is clear and the exception in the Schedule very limited. The meaning of the word "gamete" can be seen from the Oxford concise medical dictionary, namely a mature cell, the ovum of a female or the spermatozoon of a male. Gamete is a haploid containing half the number of chromosomes. This technique is a far cry from what was envisaged in section 4, namely the mixing of animal and human gametes. There may be cases which, as has been noted, might fall within the spirit of the prohibition but, in my judgment, this is not one of them. The claimants' contention that an enucleated egg is an animal gamete is, when the definition is clear, straining interpretation to unacceptable limits. One only has to look at the new Act, to see that Parliament clearly distinguished between gamete and human embryos. Moreover, the prohibition and exception in Schedule 2, paragraph 3 still apply, namely that the exception to the mixing of human and animal gametes is the hamster test. This can be seen on examination of the amendments to section 1, 4, 11 and Schedule 2, paragraph 3.

(6) As for what Parliament intends, we now know this. It is to be found in the new Act; an Act which recognises the need to move on with the development of science and which allows for amending regulations to be made to reflect developments when they occur within the intention of the Act. The technique in this case called human-animal embryos is to be regulated. This is in keeping with the approach taken by the defendant when it granted the licences in January 2008.

37. For the reasons stated, I take the view that this ground also is not arguable.

Delay

38. I turn to the question of delay. As to the date when time should run, I consider it to be arguable on the Burnett case that time should not run from 5th September. I will therefore consider the case on the basis of the decision made on 9th January 2008. My conclusion is that the claim was not brought promptly for the following reasons:

(1) The public consultation set out the defendant's provisional views in relation to the definition and its powers. The claimants were on notice.

(2) The claimants had advice from leading counsel by at least May 2007, to the effect that the defendant did not have power to issue licences for this research.

(3) The claimants did contact the defendant and suggest a construction summons. However, when the defendant declined in July on the ground that it was premature as no policy had been formulated, the claimants did not pursue this suggested route once the 5th September press release had been issued and the defendant's position, however cautiously, set out.

(4) The claimants knew the basis of the research proposal. If it is correct that the IPFC science had been around for two years, one would have expected the claimants to have obtained information from the experts relied on to that effect already, thus making the preparation of statements for this hearing akin to an administrative matter.

(5) Given that leading counsel had advised that the defendant had no power to issue the licences, one assumes that this was based on some scientific information. The submission, that considerable work under the Freedom of Information Act was needed, does not hold water in my view. The advice was there and the scientific basis for the giving of the advice must have existed. Even if that were not the case, the claimants could (as noted by the defendant) have obtained pre-action disclosure following the protocol, which they did not.

(6) The claimants were aware of the decisions from at least 13th January. They did know that the licences would be due to start imminently. There was no justification for not following the pre-action protocol, so that the parties would be on early notice before the research started, thereby allowing them to make an informed judgment about whether or not to start. The argument that the interested parties have not stopped the research since the issuing of proceedings does not assist the claimants, so far as initiating the pre-action protocol before the licence started is concerned.

(7) As noted earlier, the essence of what the experts from the USA had to say must have been known to the claimants some time ago. The claim could have been filed earlier with a note, that supporting evidence was to follow.

(8) Dealing with the observation of leading counsel for the claimants that the case was being done on a pro bono basis and that counsel's lack of availability due to being busy on other cases was a factor to take into consideration, is not one which finds favour with the court. While it is admirable that counsel are prepared to do the case pro bono, this should not mean that the case is in a different category in relation to it being dealt with expeditiously by counsel.

39. I find that the claim was not filed promptly; that the pre-action protocol was not followed; that, in my judgment, good reasons have not been advanced for the delay or failure to follow the protocol. I conclude that there has been undue delay.
40. I am satisfied that to allow the application to proceed -- and this is on the basis that I am wrong in relation to the merits -- and, if successful, it resulting in the relief sought, would cause significant prejudice to the third party. I have already alluded to the prejudice alleged. Dr Lako makes it clear in her statement that anyone familiar with stem cell research recognises that such research requires certainty that it will not be interrupted arbitrarily. Disruption would render resumption of the work very difficult.
41. There is a third reason why permission is refused. That is on the basis that, in my judgment, it would not be in the interests of good administration to grant the relief sought. The effect of granting such relief, would be to enable the claimants to challenge the granting of the licence on a basis which the court has already considered to be totally without merit, namely on the ground of whether the decision was irrational. I have seen the recent minutes of the meeting which extended the licence for three years. It is quite clear that the committee reconsidered the matter against the statutory framework, asking the right questions and acknowledging the advances in IPFC technology. It was satisfied, for the reasons it gave, that the continuation of the research came within the statutory framework. To have the decision quashed and to have to start again would serve no good purpose. It would be disruptive, time consuming and costly and, in my judgment, to no good effect.
42. As for the first ground of appeal, with regard to the definition of "human embryo" and the lack of the power of the defendant to grant a licence, that has been answered by Parliament in the new Act. It would be futile to suggest that the licence be revoked for what might be a matter of months, with the attendant disruption to the third parties, whilst knowing full well that Parliament intends such work to be subject to regulation by the defendant, who has the power to grant licences in appropriate cases. To be expending the court's time and resources, as well as those of the defendants and the interested parties, bodies relying to some degree on public funding, in debating what Parliament intended, is not in the interests of good administration, in my judgment; the more so, when it is now known what Parliament intends in this regard. For those three reasons, permission is refused.
43. MISS ROSE: My Lady, there is an application by the defendant for the costs of the acknowledgment of service and also the costs of the preparation of supplementary submissions and evidence dealing with the issues of delay and the protective costs order. Can I refer your Ladyship to our original skeleton argument where we set the arguments out. It is page 23, paragraph 79. The normal position under the Mount Cook case is that a defendant's costs of acknowledging service are recoverable if permission is refused. We have summarily assessed our costs at a little over £20,000. That is in the schedule at volume C, tab 16, page 549.
44. In terms of the recovery of those costs and the amount, it has been recognised by the Court of Appeal that a failure by a claimant to comply with the pre-action protocol is likely to increase the defendant's costs of acknowledging service and that this should be reflected in the order for costs. Your Ladyship can see that in the White Book. It is page 1547 right at the bottom of the page. It is the decision of the Court of Appeal in Ewing v The Office of the Deputy Prime Minister:

"The court also said where a claimant does not follow the pre-action protocol procedure, he must expect to put his opponent to greater expense in preparing the summary grounds. This may be reflected in any order for costs against him if permission is refused."

That was Brooke LJ in that case. That is the costs of the acknowledgment of service.

45. We also seek our costs of preparing additional evidence and submissions in relation to the application for a protective costs order and on the issue of delay. As regards the protective costs order, the Court of Appeal in the Cornerhouse case clearly set out a procedure which claimants seeking a protective costs order ought to follow when applying for one. In particular, it required claimants to make the application for the protective costs order when seeking permission for judicial review as part of the application for permission.
46. MRS JUSTICE DOBBS: And this one came later.
47. MISS ROSE: This one came later. Not only that, there was material non-disclosure. In particular, the Countess Quintavalle, the first claimant, wholly failed to disclose her own history of litigation, including the fact that she had previously pursued judicial review all the way to the House of Lords and had paid £150,000 in legal costs. It was obviously highly material to the question of her propensity to litigate on these kind of issues. The Christian Legal Centre failed to disclose the fact that it was paying a sum of almost £100,000 a year as a retainer to a barrister, Paul Diamond, for advice on the liberty issues, again highly relevant to the resources available for the funding of legal expenses. We were required to be put to the expense of ourselves putting in evidence about the history of the Countess Quintavalle in bringing litigation on these issues, including evidence about the costs that we had obtained previously, and to put in submissions concerning the inadequacy of the disclosure that had been made in relation to resources. That prompted a further lot of evidence both from the Countess and the Christian Legal Centre with further submissions made which we then had to respond to.
48. The history was similar in relation to delay. In response to our summary grounds raising the issue of delay, further evidence and submissions were then put forward by the claimants to which we had to respond. We submit that the whole case was presented by the claimants in a wholly unsatisfactory way: failure to comply with pre-action protocol, failure to make the application for a protective costs order in the way required by the Court of Appeal, material non-disclosure and repeated rounds of further submissions and evidence to which we had to respond. The result was that we incurred further costs which we summarily assessed. Your Ladyship can see at paragraph 18 that that is in the sum of £4,049 and £3,811, and the references to the schedule are given there: pages 719 and the 780 of bundle C. We have had no response at all from the claimants to these summary costs schedules, even though they have had them for a considerable period of time.
49. My Lady, this is in fact a case in which, in my submission, a very good argument could be made by the HFEA that the circumstances of the permission hearing are such that, exceptionally, costs ought to be awarded for the oral permission hearing as well, because in effect there has been full substantive argument, but we only seek the costs that I have indicated. In my submission, that is a wholly moderate and conservative position for us adopt. We respectfully invite your Ladyship to order the costs and to assess them in those amounts.
50. MISS GREY: My Lady, we too have an application for costs. I am very happy that they should be dealt with sequentially. I just wanted to make that plain.
51. MRS JUSTICE DOBBS: Do we have a figure in your case?
52. MISS GREY: Your Ladyship has not received the schedule of costs, but it has been served on the claimants. If I could hand it up. (Handed). Your Ladyship sees it is again a modest claim. It is a claim only for the costs of the acknowledgment of service, and in fact there is also a small claim made for the preparation and improvement of this statement of costs itself, which possibly raises separate issues.
53. MRS JUSTICE DOBBS: I have two pages here. It is the total on page 2?
54. MISS GREY: It is the total on page 2, although I have to acknowledge that the total includes roughly a hundred pounds for the preparation and approval of the statement of costs itself which is possibly a slightly different element of costs. There your Ladyship has, in particular on the first page, the sum of just over £1,400 for the costs of filing the acknowledgment of service.
55. Your Ladyship will be aware of the principles that tend to govern the application for costs on behalf of interested parties. The relevant notes are in the White Book, page 1547, if your Ladyship wishes to turn it up. Essentially the point is that generally the court does not order the unsuccessful claimant to pay the costs of interested parties unless there was some separate issue or separate interest calling for the interested party to appear and the authority of Bolton v Secretary of State for the Environment appears both at page 1547 and 1552. The question is whether or not there is some separate interest which justifies it. My Lady, we say that there was. In particular in this case the interested parties wished to be heard and wished to file evidence on the subject of delay and prejudice which are matters that the HFEA would not have been able to speak to. That, together with the response to ground two, the attack on the justification for scientific evidence, both amount to good reasons for a separate award of costs for the interested parties.
56. If you look at the figure you will see that it is, with respect, a modest one. It is essentially composed of something in the region of 4 to 5 hours time which, for the time taken to assess all the papers in this matter and to file the short acknowledgment of service, we would submit is eminently reasonable.
57. MR PARSONS: My Lady, we submit that although your Ladyship has the power to order costs for the acknowledgment of service and for dealing with the protective costs order, either in the exercise of your Ladyship's discretion there should be no order as to costs, or the order should be a modest amount of a few thousand pounds and not a total of £30,000. There are two reasons for this. First of all, dealing with the acknowledgment of service, that is in the sum of just about £20,000. My learned friend referred to the Mount Cook case, which your Ladyship should have in the last tab of the bundle.
58. MRS JUSTICE DOBBS: Yes, can you remind me of the page? Wait, I have it. There are two reasons you say.
59. MR PARSONS: The first is that the Mount Cook case explains that although normally, except in exceptional circumstances, the costs of actual attendance would not be permitted, the costs of dealing with the acknowledgment of service would normally be permitted. But it makes the point -- and if your Ladyship could turn to the tab 17, paragraph 60. Paragraph 76 contains the principles, and I do not think there is a dispute before the parties that your Ladyship has the power to make these costs. Paragraph 60 refers to the burden on the court, which in paragraph 2 says Mr Steel, who was the counsel in that case:

"He drew particular attention to the indication in paragraph 24 of the Report that, in recommending the introduction of acknowledgements of service, it was not expected that defendants or other interested parties should incur substantial expense at the permission stage."

It was not intended that the acknowledgment of service would lead to a claim for tens of thousands of pounds. That is the first point.

60. The second point is that this is a case which, had your Ladyship been minded to grant leave, was one which could properly fall within consideration for a protective costs order. The Court of Appeal made it clear that in cases of a protective costs application, if the defendant was successful in resisting the protective costs on paper, the costs which would be awarded relating to that would not normally exceed £1,000, and if an oral hearing, £2,500. The relevant section is tab 12 of the authorities bundle at page 2627. Your Ladyship sees, it is paragraph 78 at B:

"We would not normally expect a defendant to be able to demonstrate proportionate costs exceeding £1,000."

61. MISS ROSE: Can I ask my learned friend to read the beginning of paragraph 78.
62. MRS JUSTICE DOBBS: That is what I was doing, to set it in context.
63. MR PARSONS: Well, if your Ladyship would read paragraph 78 in its entirety.
64. MRS JUSTICE DOBBS: The point that is made is that you should make your application at the beginning.
65. MR PARSONS: That is a separate point and I am going to deal with that.
66. MRS JUSTICE DOBBS: It is relevant to that figure because it is saying that if you make your application right at the beginning the defendant knows where it stands in relation to responding, and it has to make certain adjustments.
67. MR PARSONS: It is relevant, but I am just dealing at the moment with the costs of the acknowledgment of service.
68. MRS JUSTICE DOBBS: I know, but you have mentioned the figure of £1,000 or £2,500. What is being said here at the beginning of paragraph 78 is that the application should be made with the application for judicial review, the relevance being, as it seems to me, that the defendant knows what they are in for and then has to take a commercial decision as well as a legal decision as to how far and in what detail they can deal with the matter given that this claim is being made. If it is not done with the original claim, the defendant is going to go all guns blazing in ignorance. That is the relevance. This figure of £1,000 that you gave me has to be read in context.
69. MR PARSONS: My Lady, in this case we indicated that we would make a protective costs order at the time of the application.
70. MRS JUSTICE DOBBS: You had better show me. As I understood it from Miss Rose's submissions, the application came later. Let us get that, as a matter of fact, right.
71. MR PARSONS: If your Ladyship takes tab A --
72. MRS JUSTICE DOBBS: Also the figure of £1,000 is in relation to the protective costs order as opposed to the acknowledgment of service, is it not?
73. MR PARSONS: Yes. Your Ladyship has taken me out of step. The point I was simply making is that the normal course of events in a protective costs order is that the amount would be £1,000 to £2,500. The court would not have been intending that in circumstances where people make protective costs orders with permission that by the side door they would be exposing themselves to a very large sum of money before the protective costs order is even determined. That is the submission I was making on that point. If the Court of Appeal said that the proportionate amount of a protective costs order is £1,000 on paper and £2,500 orally, the indication that in a case that would be appropriate for the protective costs order, or might be, the mere fact that that application is heard at the same time as permission should not explain why there is a very large claim for costs at the permission stage. That was the submission I was going to make to your Ladyship.
74. I was then going to go on and deal with the second point on the protective costs order and the fact that my learned friend says it came later. Yes, the application was made later but it was highlighted. In section 7 at page 7.
75. MRS JUSTICE DOBBS: Where are we?
76. MR PARSONS: Bundle A, My Lady.
77. MRS JUSTICE DOBBS: Yes. It ticks the box.
78. MR PARSONS: Yes. Page 7 and then page 42, Miss Quintavalle's statement served in support of the application at paragraph 31 highlights -- page 42.
79. MRS JUSTICE DOBBS: Yes, I have it.
80. MR PARSONS: Highlights the intention to make a protective costs order which is analogous to what your Ladyship is saying should have been done in respect of expert evidence. If you are not ready, you should highlight it. This is not a case of a claim out of the blue. It was highlighted but it was not ready to make that application. That would have an impact on the amount spent on the acknowledgment of service. The £20,000 --
81. MRS JUSTICE DOBBS: Was it in fact taken up, as indicated in that statement, with the HFEA? The statement indicated that the matter was to be discussed with the HFEA.
82. MR PARSONS: We sent a letter with the application. We sent the two together. We did not send a separate letter and then issue the application.
83. MRS JUSTICE DOBBS: The statement gives the impression that it was going to be discussed with the HFEA to see what their view was and then, depending on that, they might make an application.
84. MR PARSONS: That was the intention. At the time the application was made, it was highlighted that there was an intention to make a protective costs order.
85. MRS JUSTICE DOBBS: But it was also highlighted that there would be discussion with the HFEA first before deciding whether to issue the application.
86. MR PARSONS: Yes.
87. MRS JUSTICE DOBBS: But that did not happen.
88. MR PARSONS: No. Against that background, the £20,000, which is meant to be a modest sum -- and we would submit would be unfair for bringing that sort of sum in the back door before you have dealt with the protective costs order -- is in respect of the grounds of acknowledgement and summary grounds for contesting the claim at tab 16 of the bundle. The schedule is in respect of the acknowledgment of service and the grounds of contesting.
89. MRS JUSTICE DOBBS: Where are you now? Which volume are you in. I am at tab 16. What page?
90. MR PARSONS: Page 539. Your Ladyship has to bear in mind that the £20,000 is obviously claimed for the work in preparing this, but it goes into 539 to 548. Your Ladyship will see that half of this deals with ground one, which the HFEA had two legal advices from solicitors on and two separate legal advices from my learned friend on before. It cannot have taken very much time. Ground two is one and one third pages and ground three, the delay, is just over a page. Your Ladyship will see at 5.1 the documents that are annexed to this: the consultation paper, press release, one letter and one case. As to the cost itself, both parties have the most expensive firms in London. One can see the hourly rates and £10,000 for attending on documents.
91. It cannot be said, with respect, that any failure to follow the protocol in any way could have led to greater costs, because the issues canvassed in the grounds are simply the legal arguments, the reason why it was related to science and the delay. So the protocol does not cause any additional costs. My Lady, we would submit that, as a matter of principle, the sum for the acknowledgment of service should be significantly less than £20,000, only a couple of thousand pounds at the most.
92. As regards the protective costs order, your Ladyship has seen the Court of Appeal's guidance on that.
93. MRS JUSTICE DOBBS: Yes.
94. MR PARSONS: My learned friend makes various prejudicial comments. She first of all says that the failure to follow procedure may lead to an increase in costs. Here it does not. One would still have to deal with the PCO, however it was done, whether it was done originally or not, and it was anticipated in the original application. It is then said there is a material non-disclosure. Two are alleged and both of them are not right. The PCO is an inter partes hearing.
95. First of all it is said that Countess Quintavalle did not disclose that she had paid legal costs in previous proceedings. But these were costs paid to my learned friend's clients and to Morgan Cole, the solicitors who provided the lawyers. It is well known that CORE has been involved in other cases. There is no non-disclosure there, and your Ladyship has seen the skeletons. One of the points that is made is having, in the public interest, pursued previous applications which have raised points which have gone to the House of Lords and been extremely expensive. Countess Quintavalle says she cannot continue to do that.
96. MRS JUSTICE DOBBS: That is what she says in her affidavit.
97. MR PARSONS: But it is not a non-disclosure to say you have paid in a previous case, particularly when those cases are well known.
98. Secondly, it is said that there was a failure to disclose the £100,000 for retaining a barrister. In a way this highlights the problem. My learned friend takes a lot of points that have to be answered. One of the points was that we need to know all the details you are paying. The actual sum was £50,000, which it is explained on this statement which your Ladyship has read, was hypothecated. It was given for a specific purpose, ie, for religious liberties advice. Mr Diamond was paid that money -- £8,000 a month -- until it ran out. If one looks at the bank statements, one can see that they ran out in August and there have been no such payments since. It was simply a one off gift for a specific purpose and was a specific sum. There are no sums available. So again, no non-disclosure.
99. My Lady, we say £30,000 for a preliminary costs hearing is not proportionate. This is a case where one has to be proportionate as to costs. These are public interest cases. Of course we lost, but one can see from the other cases, such as the Quintavalle case that went to the House of Lords, that because these are cutting edge technologies they do raise ethical considerations where people on both sides can have legitimate but quite conflicting views. Theses are cases which inevitably will often come before the court. The purpose of a permission hearing is both to stop cases going forward that are not meritorious but also to cap the costs for both sides. If parties come before the court in legitimate cases, even if they lose them, and find they have a bill of £30,000, it will actually stifle the cases. The whole idea of a protective costs regime is to enable cases like this to come forward. It would be unfair if that was then circumvented because the PCO has to be heard at the same time as the permission hearing. Otherwise we would have to apply for the PCO hearing before the permission hearing and that would simply add more costs. It would make no difference whether this was done in time or not, because the two points, grounds one and two, would have come before the court in any event. The HFEA do not say "Had there not be delay of course we would put our hands up". Points one and two would always have to be argued and my learned friend's £20,000 is spent dealing with points ones and two.
100. As for the interested party's costs, it is a modest sum. They are entitled to a sum. If you look at what they actually say in their response which is very short, it is tab 15 of bundle C.
101. MRS JUSTICE DOBBS: Yes.
102. MR PARSONS: Page 531 is an example. Page 534 is in a similar vein.
103. MRS JUSTICE DOBBS: The statements of Dr Lako came with the skeleton argument, in my recollection.
104. MR PARSONS: Yes. Of course, again, if your Ladyship looks at the hourly rates of those involved you can see it may be a modest sum but it is still quite a lot of money for three paragraphs.
105. MRS JUSTICE DOBBS: That is what they produced. They did have to read something first.
106. MR PARSONS: Look at the hourly rates.
107. MRS JUSTICE DOBBS: We have a total of five hours. Five hours of preparation is claimed.
108. MR PARSONS: I am not going to spend hours arguing, but it is still quite a lot of money. He managed to get another £60 just looking at that one sheet of paper. My Lady, those are my submissions.
109. MISS ROSE: My Lady, on the matter of principle in relation to the PCO, the obvious point about paragraph 81 in the Cornerhouse case is that that sum of £1,000 is predicated on an application being made promptly and properly with the application for permission. The implications for that are not simply those identified by your Ladyship that the defendant knows from the outset what the situation is, but also it is said at paragraph 81 that the application should be supported by full evidence. What your Ladyship has seen in this case is that full evidence was not given, and it is no answer to that for the claimants to say "Well, the defendants knew that the Countess had previously paid a large costs bill". This application was being made to the court for a decision on the papers in relation to both permission and the PCO. Therefore the defendant, seeing that the Countess had failed to make disclosure, was forced to be put to expense to make good the defect.
110. Similarly, it is no answer for them to say "Well, we have now put in evidence in relation to Mr Diamond's retainer". That information was not given to the court until queried their first statement. Again, therefore, we were forced to be put to expense to persuade them to make full disclosure to the court of the true provision of resources of the Christian Legal Centre. That explains the sums of £4,000 odd and £3,000 odd in relation to the further submissions in relation to delay.
111. So far as the sums are concerned in relation to permission, I made the point that the original claim form made no reference at all to the policy decision taken on 5th September. Again, that whole history was completely missing. We had to refer to it in our summary grounds and identify to the court that whole point that in fact a previous decision in principle had been made, which was then considered in further evidence given by the claimants. It is all very well for Mr Parsons to say our summary grounds were fairly short, but in order to produce those summary grounds first we had to read the two volumes of material submitted by the claimants, including significant scientific evidence on which we had to take instructions before we concluded that it added nothing of substance.
112. I also make the point that the hourly rates charged by my instructing solicitors are significantly lower than their benchmark commercial hourly rates, and your Ladyship will see also significantly lower than the hourly rates charged by Clifford Chance. On behalf of the interested party, the partner of Clifford Chance was charging £625 an hour. The partner acting on behalf of Herbert Smith charged only £425 an hour. Your Ladyship can see a very significantly reduced hourly rate to take account of the fact that this is a public sector client.
113. The claimants finally say that this is a matter where people may legitimately take different views and the matter should come before the court. We make two points in response to that. Firstly, the claimants who seek to pursue public interest litigation have a responsibility to do it responsibly, to get their tackle in order, to act promptly, to comply with the pre-action protocol and to make proper disclosure when they put the evidence in. It is not good enough for them to make a kind of sloppy application, as made in this case, then to say "Well, we are all acting pro bono, we cannot be held accountable for our errors" and expect the taxpayer to fund the excess costs that we have had to incur because of their conduct in these proceedings, which has been unacceptable.
114. My Lady, for all those reasons we do submit that our full bill -- in fact it is about £28,500 in total -- should be allowed.
115. MISS GREY: Madam, if I can reply briefly to the submissions in relation to the interested party. I am glad that there is an acknowledgement that they should receive something. I am glad that there is also an acknowledgment that these costs are indeed modest. On their modesty, if your Ladyship looks at the claim, the costs of the acknowledgment of service, there is a claim for what was less than four hours work on behalf of both interested parties, which yes, I accept resulted in two short documents being filed with the court, but that represents a distillation of the process of reading all the papers in this matter to the extent they needed to be read, of contacting the clients, of obtaining instructions from them -- because your Ladyship will see those acknowledgments of service to which you have been referred briefly foreshadowed the evidence of Dr Lako and Dr Winger in setting out the work the interested parties have done pursuant to the licence that they have been granted -- and represents also a decision upon tactics and a need to intervene. In terms of the modesty of this claim, we would submit that is evident when your Ladyship looks at it, by the contents of the acknowledgment of service. One cannot measure their value in terms of the number of words written but looks instead at the work that they represent.
116. My Lady, the other point that was made in relation to these costs is on the hourly rate. The general point is made that it is Clifford Chance. I make two points in reply to that. Firstly, my instructing solicitor, without, as it were, going into the details of his CV, is a considerable authority and had been involved with these issues already, so he comes to it with a background of knowledge and experience which represents, in part, why the hours spent on the acknowledgment of service are indeed so modest. You would not see that if a different firm, without the background involvement and experience, had been involved in this matter.
117. The second point I make, my Lady, is if your Ladyship cares to turn to page 1367 of the 2008 White Book, your Ladyship should have there the guideline rates for summary assessment in January 2007. If you turn over the page you will see London bands. City of London Grade A is £380 an hour. Grade A is a solicitor with over eight years post-qualification experience, including at least eight years litigation experience, which those instructing me are. So the hourly rate that is claimed, being either £355 or £375 an hour for the work of the senior assistant, is below the hourly sum suggested as being appropriate in January 2007. The only claim that goes over that is the very small element for the approval of the statement of costs. Those are my points, my Lady.
118. MRS JUSTICE DOBBS: This is an application by both the defendant and the interested party for costs to be summarily assessed. The defendant makes the following points. Firstly, the defendant is entitled to the costs of the acknowledgment of service by virtue of the court's decision. Secondly, the failure by the claimants in not carrying out the pre-action protocol is likely to increase the costs of the defendant. Thirdly, they have expended additional costs in preparing evidence and further submissions on the issue of delay and the protective costs order. The defendant draws attention to the Court of Appeal's decision in the Cornerhouse case which sets out the procedure for the claimants to apply for a protective costs order. It is submitted that the claimants failed to carry out the procedure recommended. It is also submitted that there was material non-disclosure by the first claimant which necessitated extra work, to ensure that the court was fully appraised of the relevant matters of fact, in order to determine the issue. Simply put, the defendant says that the claimants have presented this case in a wholly unacceptable and sloppy way, not following any of the protocols.
119. The figure claimed for the acknowledgment of service and summary grounds, is some £20,783 plus two additional figures of £4,000 odd and £3,800 in relation to the protective costs order and delay. The submission is made that this is one of the cases where in fact the defendant could have asked for its costs of the hearing in this case.
120. The interested party makes an application for a modest sum in relation to their position. The court's attention is drawn to the fact that the court generally does not order such awards of costs in relation to the interested party unless some separate interest or issue calling for them to appear arises. Miss Grey for the interested party identifies that the interested party needed to deal with the issue of delay and the consequent prejudice in relation to which the defendant would not be able to speak, and also with regard to submissions which needed to be made in relation to justification in relation to ground two.
121. Mr Parsons on behalf of the claimants accepts that the court does have power to award costs for the acknowledgment of service, and indeed for the protective costs order in the exercise of its discretion. But he submits that the court should make no order for costs or an order for a few thousand pounds. Two reasons have been advanced. First of all, that the courts do not envisage that the parties should incur substantial expense at the permission stage, and certainly not a claim worth £10,000. Secondly, in relation to the figures given in the Cornerhouse case, when talking about an application under the protective costs order, costs of no more than £1,000, or £2,500 at a hearing, would be appropriate. That being the case, it should not be the situation that a large figure be claimed through the side door for the actual summary grounds of defence.
122. Mr Parsons points to the fact that indeed the claimants had highlighted in the claim form that such an application was to be made, and also in the accompanying witness statement that was appended to the claim form. That court notes that what the statement said, was that there would be contact and discussion with the defendant to see what their view was in relation to a protective costs order. Following that, a decision in effect would be made as to whether an application needed to be made. As it happened, there was no such consultation with the defendant, as alluded to in the statement, and the letter to the defendant was sent at the same time as the application for the protective costs order. So although it was foreshadowed in the claim form, the procedure as set out in the statement was not carried out. Therefore the first time that the defendants were aware of the application, was when the application itself was submitted.
123. Dealing with the summary grounds, Mr Parsons submits that, first of all, one has to set this against the background of fact that the defendant already had legal advice in this case, including advice from counsel, particularly in relation to ground one; that ground two -- the summary grounds are very short, and indeed in relation to delay they are also very short. He makes the point that £10,000 for attendance on documents is excessive. Failure to follow the protocol, he submits, has not caused any additional costs.
124. He deals with what is said to be the material disclosure failures and he indicates that, indeed, some of the matters not mentioned were well known to the defendant in any event. To impose heavy costs on claimants in these sorts of cases, where cutting edge science and ethical considerations come into play and for which it is in the public interest to bring to court, would be disproportionate on the claimants.
125. Dealing with the submissions and application by the interested party, Mr Parsons indicated that they are entitled to costs, but queried the figures in terms of the lawyers employed to carry out what he says was a very short acknowledgment of service.
126. In response, Miss Rose says, shortly, that there was a huge volume of material to consider in this case, that the hourly rates charged in the schedule are much lower than the benchmark commercial rates charged by that particular firm and lower than the hourly rates of the solicitors for the interested party, and that those who pursue public interest litigation have no less a duty to do it properly and to prepare proper applications and not do it shoddily.
127. I am satisfied, following the normal principles, that in principle costs are awardable to both the defendant and the interested party, because the interested party has justified the issues on which it appeared before this court, and indeed the court needed its assistance in order to deal with the issue of delay and any prejudice. The real issue, in my mind, is, looking at the costs claimed, whether they are reasonable, taking the view I do that the claimants' applications were made in a haphazard way. I also take the view, that when the Act received the Royal Assent early last month, that there should have been some serious consideration given to pursuance of certainly one of the grounds in this case, given that the intention of Parliament is crystal clear in relation to this matter. Proper consideration was not given to it and this case has come to a full hearing.
128. Whilst I appreciate that one is not considering the costs of the appearance here, because no such application has been made in relation to the costs of the defendant appearing to defend the case, it is relevant, in my view, to look at the conduct of the claimants overall in approaching this case. Therefore, as I said, the objections that are made by the claimants, save for the issue of time spent in the schedule on costs, are outweighed by those submissions made by the defendant and interested party.
129. I do not think I have a schedule for the two separate amounts, or do I? I do not have it flagged.
130. MR PARSONS: They are at pages 719 and 780 of volume C.
131. MRS JUSTICE DOBBS: Give me a moment. As I indicated, the issue that the court had to had look at, in my view, is the reasonableness of the costs. I have been asked to summarily assess them. I take the view, as I have already indicated, that the claimants' submissions, in the light of the claimants' actions, are not well-founded, certainly that there should be no order for costs, or indeed that there should only be a few thousand pounds.
132. I turn, first of all, to the schedule for the acknowledgment of service in the sum of £20,738.63. In my judgment, I agree with Mr Parsons that the figure of £10,000 plus spent on attendance on documents is excessive and I intend to reduce the overall claim by £6,000. So reducing the total of solicitors by £6,000 and then there can be a reassessment of what the total figure is.
133. I now turn to the schedules at 719 and 780, one in the sum of £4,000 odd and one in the sum of £3,800. Both of them relate, it says, to the defendant's statement of costs for the claimants' protective costs application. The second one is a further statement of costs in relation to the protective costs application. With regard to the first application, I propose to reduce that by £750. With regard to the second application, it seems to me that there is an excessive number of hours in relation to attendance on documents, and I intend to reduce that also by £750.
134. Turning to the interested party, it seems to me that this is a very modest claim. Had there been a higher claim, the court would not have been surprised. It seems to me that it cannot be said, other than the lawyers involved, have used their time well and that the fees claimed are below the guidance as set out in the White Book. So I order that the full sum of £1,520 be paid to the interested party.
135. MR PARSONS: My Lady, what we would ask for is some time to pay the costs. Your Ladyship has seen evidence that --
136. MRS JUSTICE DOBBS: What are you asking for?
137. MR PARSONS: Two months. Bearing in mind it is Christmas.
138. MRS JUSTICE DOBBS: I thought you were going to ask for longer. I am going to say three months, bearing in mind it is Christmas and New Year.
139. MR PARSONS: We would be happy with three months. If it is opposed and there are other issues then I have some instructions on other matters.
140. MRS JUSTICE DOBBS: Miss Rose, I hope you do not oppose that.
141. MISS ROSE: No. The only point to make is that the costs are the liability of both claimants jointly and severally.
142. MRS JUSTICE DOBBS: Yes. Can I thank all counsel for their help in this matter.