Birth registration error leads to shared costs order

An interested party has been ordered to contribute half of the costs a defendant was ordered to pay a man who had to take legal action to challenge a registrar’s refusal to register him as the father of children conceived by sperm donation.

In the Matter of the Human Fertilisation and Embryology Act 2008 (Case K) (No 2) [2017] EWHC 783 (Fam) involved two linked cases before Sir James Munby, president of the Family Division.

In one, proceeding in the Family Division, the judge made a declaration that the claimant, X, was the legal parent of the children. In the other case, an application by X for judicial review in the Administrative Court, he made an order quashing the original registration of the birth.

The local authority admitted that the decision not to register the father arose from an error in the handbook for registration officers, which was issued by the Registrar General, who oversees registration services to the public.

While X could have sought a reissued birth certificate, that would include wording which would tell anyone looking at it that the children were the result of assisted conception – and the couple had not planned to tell their children that they were conceived using donor sperm. Judicial review was needed to quash the original certificate, hence the second proceedings.

The case was brought against the local authority, while the Registrar General was added as an interested party.

On costs, Sir James ordered the local authority to pay X costs of £16,510, but made no order for the local authority and Registrar General own costs as between each other.

“The fair, just and reasonable outcome in this most unusual case is that, so far as their own costs are concerned, the local authority and the Registrar General should each bear their own costs.

“In their different ways, each has to bear a significant measure of responsibility for having put X in a position where, if he was to be rescued from the position in which the state’s failings had put him, he had no choice but to issue a claim for judicial review.

“I can see no real justification for ordering either to pay the costs of the other. The real question, in my judgment, is whether the Registrar General should be required to reimburse the local authority in relation to the costs I have ordered it to pay X.”

Given their joint responsibility, “to leave the local authority alone responsible for meeting X’s costs would, in my judgment, significantly and unfairly exonerate the Registrar General from the consequences of the uncorrected error in the Handbook but for which the problem would never have arisen”.

Munby LJ held that “broad justice” would be done by ordering the Registrar General to reimburse the local authority half of the costs he ordered the local authority to pay to X.

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Costs News
Published date
24 May 2017

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