Here, our Adam Grant (Costs Lawyer and member of the senior management team at KE Costs Lawyers) looks in detail at the important subject of the recovery of court fees and the need for remission applications.

RECOVERY OF COURT FEES AND THE NEED FOR REMISSION APPLICATIONS

For over a decade now the Civil Proceedings Fees Order 2008 has provided untold numbers of points of dispute between paying and receiving parties in respect of court fees.

The order itself creates provisions for the remission of court fees for litigants of limited means.

Fee earners will not need to be told about the amount of detail required to complete a fee remission application or how time consuming and frustrating they can be.

This is especially the case given that these applications must be completed each time a court fee is incurred – not on a per case basis.

Paying parties argue within points of dispute that should a party, who is entitled to a remission chooses not to obtain one, then any subsequent court fee would not be reasonably incurred.

The implication of this is that the court fee will not be recovered from the paying party.

With issue fees on larger cases stretching to five figures, this is often a significant dispute between parties at assessment.

The receiving party’s reply to such an argument usually focused upon the principles in Peters -v- East Midlands Strategic Health Authority [2010] QB 48 and a decision of HHJ Lethem in the County Court – Ivanov –v- Lubbe 17th January 2020.

Essentially that a claimant has the right to seek from a tortfeasor a loss which has been sustained rather than rely upon the public purse.

In Peters this related to a care claim, with the defendant arguing that the claimant should rely upon state provision rather than seek recovery of that loss from them.

This was rejected and the principle is thus transposed onto court fee remissions – a principle endorsed in practice in Ivanov.

This position has been rejected in Gibbs –v- King’s College NHS Foundation Trust sitting in the SCCO 22nd November 2021.

This case examined the core of the dispute, whether it was the state that would bear the loss of the court fee where a remission was available, or the tortfeasor.

Master Rowley rejected the principle that the use of a fee remission was a loss to the public purse.

He held that it was not appropriate to conclude that a claimant who uses the fee remission scheme (even if they might have been entitled to oblige the tortfeasor to pay the fee) had caused the state to lose money it was expecting to receive.

A distinction was drawn between Peters, which referred to the recovery of a loss that had been incurred, and the incurrence of a fee which would otherwise not have been required.

The result of this rationale was that the £10,000.00 issue fee in dispute was not recovered from the defendant, on the basis that the claimant would have been entitled to a remission had one been actively applied for.

In this particular case the claimant’s bill of costs contained entries which confirmed that consideration had been given to a potential application for a fee remission. The conclusion of Gibbs must be that if in doubt, submit an application for a fee remission.

If rejected, a claimant has a stronger argument that the subsequent court fee has been reasonably incurred and should fall recoverable.

Slightly more helpfully for a claimant, Gibbs did confirm that the costs of making an application are recoverable between the parties. Time spent establishing a claimant’s position and drafting the application would, in Master Rowley’s view, be reasonably incurred in principle.

We would thus urge all clients, where there is a significant court fee to be incurred, to a) actively consider the issue of fee remissions and apply for one if in any doubt and b) record your time for doing so to ensure that is recovered from a paying party.

If you have any queries in respect of the above please do not hesitate to contact Adam Grant,
Costs Lawyer ([email protected]) or 0151 728 3217.

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