Human Fertilisation and Embryology Authority v Argc Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 04 March 2016 |
| Neutral Citation | [2016] EWHC 460 (QB) |
| Docket Number | Case No: QB/2015/0391 |
| Court | Queen's Bench Division |
| Date | 04 March 2016 |
[2016] EWHC 460 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: QB/2015/0391
Jenni Richards QC (instructed by Carter-Ruck LLP) for the Appellant
Pushpinder Saini QC and Adam Solomon (instructed by Fieldfisher LLP) for the Respondent
Hearing date: 10 February 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This appeal from an order of Master Kay QC of 27 July 2015 represents another chapter in the long-running saga of disputation between the Appellant and the Respondent.
The Respondent (the Claimant in the proceedings) is the Human Fertilisation and Embryology Authority ('HFEA'), a body corporate established by section 5 of the Human Fertilisation and Embryology Act 1990 (the '1990 Act').
The Appellant (the Defendant in the proceedings) is the limited company under or by virtue of which The Assisted Reproduction and Gynaecology Centre ('ARGC') and The Reproductive Genetics Institute ('RGI'), both of which are fertility clinics based in Wimpole Street and Weymouth Street, London, respectively, are operated.
ARGC is referred to in the Respondent's designation as "Centre 0157" and RGI as "Centre 0206".
The driving force behind each of the clinics is Mr Mohammed Taranissi, a Consultant Obstetrician and Gynaecologist who specialises in the provision of IVF and other fertility services. He is the statutory Person Responsible ('PR') for both centres, a role required by section 17 of the 1990 Act (see paragraph 17 below).
I have been told by Ms Jenni Richards QC, who represents the Appellant, that the "clinics are internationally renowned, highly reputable and successful" and have, since their inception in 1995, consistently achieved very high success rates, often achieving twice the national average rate of success and some of the highest reported statistics in the world. So far as the UK is concerned, the statistics published by the Respondent in October 2014 confirm what is claimed. It is no part of my task to decide on these matters, but I have no reason to question what I have been told.
The Respondent issued Particulars of Claim in August 2014 seeking a total of £131,289.50 (plus interest) for alleged unpaid fees in connection with the Appellant's provision of IVF treatment cycles and donor inseminations provided by ARGC between August 2009 and February 2011. The basis for charging these fees will appear later (see paragraphs 18 and 19).
A formal request for payment of those fees was made in a letter from Mr Mark Bennett, the Director of Finance and Facilities of the Respondent, to Mr Taranissi dated 22 October 2012 (the 'October 2012 letter'). Although there now remains no dispute about the liability of the Appellant for those sums (and indeed I have been told that the sum claimed plus interest has now been paid), another feature of that letter lies at the heart of the present dispute between the parties. I will return to it below (see paragraphs 56 – 73).
Notwithstanding the ultimate resolution of that issue, the Appellant had served a Defence and Counterclaim in response to the Particulars of Claim in October 2014, at that stage putting the claim for unpaid fees in issue and raising a cross-claim. By an application notice dated 11 December 2014 the Respondent applied for summary judgment on its own claim for the unpaid fees and for summary judgment/strike out in respect of the Appellant's Counterclaim.
The hearing before the Master took place on 15 April 2015. By a letter dated 2 April 2015 the Appellant conceded that it would raise no argument in respect of the fees claimed on liability or quantum, but said it would seek to set off the sums due under its Counterclaim.
At the hearing on 15 April 2015 summary judgment was entered on the claim and the Respondent was awarded its costs. The Master struck out the part of the Counterclaim based on the Human Rights Act on the basis that it was bound to fail, but reserved judgment on the balance of the Respondent's application concerning the Counterclaim. The reserved written judgment was delivered on 27 July 2015. The Master's attention was drawn shortly after the hearing to the case of Arcadia Group Brands Ltd v Visa Inc [2014] EWHC 3561 (Comm) and he received written submissions from both parties about it. That case has subsequently been considered by the Court of Appeal: see paragraph 89 below.
As I have indicated, the Master's written judgment was delivered on 27 July 2015. He struck out the Appellant's counterclaim and ordered that there be summary judgment on the counterclaim. He refused the Appellant's application for permission to appeal, but Picken J granted permission to appeal on the papers on 9 October 2015.
Before turning to the issues raised, it would be convenient to highlight the relevant statutory provisions.
The statutory provisions
The provisions generally concerning licensing are fully described by Patterson J in The Assisted Reproduction and Gynaecology Centre and The Reproductive Genetics Institute v Human Fertilisation and Embryology Authority [2013] EWHC 3087 (Admin) at [32] —[47] and I gratefully adopt that analysis.
For the purposes of this case the provisions that need to be highlighted are as follows.
Section 8ZA, introduced with effect from 1 October 2009, specifies certain duties in relation to HFEA carrying out its functions as follows:
"(1) The Authority must carry out its functions effectively, efficiently and economically.
(2) In carrying out its functions, the Authority must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed)."
Section 17 provides for the "person responsible" as follows:
"(1) It shall be the duty of the individual under whose supervision the activities authorised by a licence are carried on (referred to in this Act as the "person responsible") to secure —
(a) that the other persons to whom the licence applies are of such character, and are so qualified by training and experience, as to be suitable persons to participate in the activities authorised by the licence,
(b) that proper equipment is used,
(c) that proper arrangements are made for the keeping of gametes, embryos and human admixed embryos and for the disposal of gametes, embryos or human admixed embryos that have been allowed to perish,
(d) that suitable practices are used in the course of the activities,
(e) that the conditions of the licence are complied with,
(f) that conditions of third party agreements relating to the procurement, testing, processing or distribution of gametes or embryos are complied with, and
(g) that the Authority is notified and provided with a report analysing the cause and the ensuing outcome of any serious adverse event or serious adverse reaction.
(2) References in this Act to the persons to whom a licence applies are to —
(a) the person responsible,
(b) any person designated in the licence, or in a notice given to the Authority by the person who holds the licence or the person responsible, as a person to whom the licence applies, and
(c) any person acting under the direction of the person responsible or of any person so designated."
Section 35B relates to fees and the relevant part is as follows:
"(1) The Authority may charge a fee in respect of any of the following —
…
(d) the exercise by the Authority of any other function conferred on it by or under this Act or by or under any other enactment —
(i) in relation to a licence,
…."
It is by virtue of the authority conferred by this provision that the Respondent was entitled to charge the Appellant for fees for work carried out whilst the Appellant was licensed by the Respondent.
If a fertility clinic is not licensed, it (and anyone providing those services) is committing a criminal offence if it provides fertility services: section 41 of the 1990 Act.
Section 23 confers on HFEA the power to give directions:
"(1) The Authority may from time to time give directions for any purpose for which directions may be given under this Act or directions varying or revoking such directions.
(2) A person to whom any requirement contained in directions is applicable shall comply with the requirement.
(3) Anything done by a person in pursuance of directions is to be treated for the purposes of this Act as done in pursuance of a licence …."
Section 24 contains provisions relating to directions concerning specific matters and subsections (5)-(7) are as follows:
"(5) A licence committee may from time to time give such directions as are mentioned in subsection (7) below where a licence has been varied or has ceased to have effect (whether by expiry, suspension, revocation or otherwise).
(6) A licence committee proposing to suspend, revoke or vary a licence may give such directions as are mentioned in subsection (7) below.
(7) The directions referred to in subsections (5) and (6) above are directions given for the purpose of securing the continued discharge of the duties of the person responsible under the licence concerned ("the old licence"), and such directions may, in particular -
(a)...
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