Currently, across the UK, one of the most contested topics at Detailed Assessment Hearings is the subject of Court Fee Remission. When your client is eligible for Court Fee Remission, is it possible to claim back the associated court fees?
There have been several recent judgements from the district bench which can be described as somewhat contradictory. DDJ Jones (Cook vs. Malcolm Nicholls Ltd.) ruled that court fees of such a nature were recoverable, however DJ Jenkinson (Stoney vs. Allianz Insurance plc) found that they were not recoverable.
Cost Chambers Legal Costs Consultants were directly involved in the case of Cook vs. Malcolm Nicholls Ltd. where the defendant attempted to argue £10,000 in court fees was not recoverable since no attempts were made to secure the associated remission. The point made by the defendant was that the court fee was not payable by them, rather it was deemed unrecoverable inter-parties due to claimant failings. Surprisingly, it was also suggested in the case that if court fees were payable, in any case they were disproportionate.
With regards to the matter of Cook vs. Malcolm Nicholls Ltd. initially Cost Chambers Legal Cost Consultants prepared the claimants Bill of Costs. The defendants raised initial objections to the claimants Bill of Costs and made a settlement offer, at this stage the defendant did raise a dispute as to the recoverability of the £10,000 Court Issue Fee. Cost Chambers Legal Cost Consultants advised the instructing client with regards to the strength of the defendant’s argument and advised as to a sensible Part 36 proposal, which was put forward to the defendant and rejected. Subsequently the defendant served Points of Dispute which raised a significant argument as to the recoverability of the Court Issue Fee.
Cost Chambers Legal Cost Consultants prepared Points of Reply and these were subsequently served upon the defendant. As no agreement could be reached, the matter proceeded to a Provisional Assessment Hearing. Following receipt of the completed Precedent G by DDJ Jones, and agreement as to the calculation of the Provisional Assessment, it became apparent that the claimant had beaten their own Part 36 Offer. The defendant then proceeded to request an oral review upon the court’s decision with regards to the Court Issue Fee. In collaboration with Mr Michael Fletcher of Glaisyers Solicitors LLP, who prepared the claimants skeleton arguments which were filed and exchanged between the parties. The defendant’s skeleton argument was quite substantial. The court found in favour of the claimant, and the claimant had beaten their own Part 36 offer and was awarded their Costs of Assessment.
We saw in this case that DDJ Jones simply did not entertain these submissions. Furthermore, it was clearly stated that the defendant was liable for all court fees incurred by the claimant. Finally, given the court fee was set by parliament and as such is outside the scope of proportionality.
In addition to this there has also been further recent developments relating to this matter, and others, addressing whether such fees can be recovered. In Ivanov v Lubbe, HHJ Lethem held that fees were recoverable, and remission was available to the client.
This decision is essential in interpreting this issue because although it is not binding, it does prove to be a vital reference point in the argument for several reasons.
Not only is this this the first decision by a Circuit Judge, but in addition to this HHJ Lethem is a former Regional Costs Judge, provides training on costs/budgeting to the District Judiciary and is also a member of the Civil Procedure Rules Committee.
As such it seems that the judgement of Ivanov v Lubbe is a highly detailed and reasonable rationale judgement with regards to the Court Fee Remission dispute.
To sum up, utilising fee remission does not mean the claimant has not incurred any loss, rather only that the public purse was defunded to the same extent the claimant would have paid. This was in no way a case where the claimant was faced with paying for a more expensive model, compared to less costly option.
HHJ Lethem went on to conclude, using the renowned principles from the case of Peters vs. East Midlands Strategic Health Authority, and Bee vs. Jenson that, in principle, it is not unreasonable to pass on the costs of wrongdoing from the claimant on to the defendant.
From these judgements we can hopefully take it that cases of defendants who want to rely on a claimant’s financial vulnerability for grounds of disbursement will no longer be able to do so.
Cost Chambers Legal Costs Consultants continue to advise that applying for Court Fee Remission is only best practice and advisable when costs are larger, with a likelihood that they will run into several thousand pounds.
We also feel that it is very likely that we will see continued developments on the matter and other courts may reach different conclusions, so if you have any questions, we would always encourage you to get in touch to discuss the specific nature of your case.
Cost Chambers Legal Cost Consultants would also refer readers to Mr Gordon Exall, (Barrister at Kings Chambers) informative blog which can be found: