I’m sure that most practitioners will be aware that the issue of Court Fee Remission has been the subject of recent reporting and so I thought it would be a useful idea to provide some clarity on a topic which continues to provide some confusion.
No-one can have missed the fact that Court fees have increased steeply in recent times with the most recent increases taking effect from 30/9/21 and so it is more important than ever that practitioners are certain that their client does not qualify for Fee Remission before issuing proceedings and incurring these substantial sums. This is the now one of the first arguments that the majority of Paying Parties will make when faced with a claim for costs inclusive of one or more Court fees and the response needs to be watertight.
Early judgments had appeared to provide support to any Receiving Party who had failed to apply for Fee Remission:
In Cook v Malcolm Nicholls Limited Case No: B57YP191, Coventry County Court 11 April 2019 the Defendant disputed the Court fee paid on the basis that fee remission was available to the Claimant whose solicitors did not apply for its benefit and the Court took the view “that the Court fee is the Court fee. That has got to be paid. If there is a claim for remission, then the Court service still has to offer it, it still provides a service, and the assessment is still utilised”. The Court Fee was allowed.
However, such support has since faded and received some strong criticism. In Stoney v Allianz Insurance Plc Case No: E14LV817, Liverpool County Court 7 November 2019: the Defendant argued that the Court fee was unreasonably incurred because the Claimant would have been entitled to apply for Fee Remission. The Claimant’s solicitors accepted that no such application was made or even discussed and the Court found that the Court fee was not reasonably incurred and not recoverable by reference to CPR 44.3.
The most recent decision on this is that of Gibbs v King’s College NHS Foundation Trust (11/11/21):
in which it was held that a party who was eligible for Fee Remission, and who did not claim it, could not normally expect to recover the Court fee from the Paying Party. The Judgment was given in very clear terms: “a party who does not consider whether they are entitled to a fee remission and, thereafter make an application if there is any doubt, risks being unable to recover that fee from their opponent. If the opponent can demonstrate that the receiving party appeared to fall within the remission scheme, the onus will be on the receiving party to justify why the court fees were incurred. If as here, there is no such justification put forward, the fee should be disallowed under CPR 44.3. Such a party has not incurred the lowest amount it could reasonably be expected to spend. At the very least there has to be a doubt which is to be exercised in favour of the paying party”.
So where are we now? We are in a position where there are no guarantees whatsoever that a party will successfully recover their Court fees where it is evident that they could have and indeed should have, applied for Fee Remission. The case of Gibbs did provide some positivity for Receiving Parties in that the Court did comment that the costs associated with making an application for Fee Remission are recoverable between the parties and this is certainly an issue that I have personally had some success on at Provisional Assessment where a Costs Officer allowed the costs of dealing with Fee Remission in full on the basis that “if eligible, both Claimant and Defendant would benefit.” Paying Parties do still seek to dispute this however, on the basis that such costs are relevant to funding and as such, irrecoverable. The arguments will no doubt continue on both sides but there is one thing we can be certain of at this stage, always consider Fee Remission.
Should you have any questions, then please do not hesitate to contact the writer, Melanie Pearson, here.