Fee Remission: Gibbs v King’s College NHS Foundation Trust

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Court Fees and Fee Remission

Court fees act as an acid test of the seriousness in bringing a claim, and also provide funding for the legal system. Thus, in personal injury and other types of court or tribunal cases, the need to pay Court fees arises. Whilst Court fees are imperative for the aforementioned reasons given, they also act as a barrier to entry for parties of limited financial means, ultimately, they may act as a barrier to Access to Justice. Given this, it is possible for parties in certain circumstances to seek a partial and/or full remission on any Court fees payable.

Due to this, before paying the fee, parties must firstly explore Court fee remission and to seek to apply for Help With Fees. As stated on the gov.uk website, persons whom have little or no savings, are on certain benefits or otherwise have a low income, may be entitled to have the whole, or at least a portion, of a given Court fee remitted.

Applying for fee remission in the County Court or otherwise can be lengthy process which extends well beyond the completion of an initial Ex160 form however. Given the cumbersome nature of the process, some firms may not fully explore the Court fee remission position. However, as the recent SCCO decision in Gibbs v King’s College NHS Foundation Trust (11/11/2021, SCCO case number: SC-2021-BTP-000671, ‘Gibbs’) demonstrates, this may be a costly process to skip over.

 

Gibbs v King’s College NHS Foundation Trust

During the course of a detailed assessment of the Claimant’s electronic bill of costs for a clinical negligence matter, a Point of Dispute was raised as to the £10,000 court fee incurred, given that the Claimant was in receipt of multiple benefits. The Reply was straightforwardly predicated on the fact that the Claimant cannot be required to mitigate its loss by way of relying on the public purse, a line of reasoning seen in the decisions in Peters v East Midlands Strategic Health Authority [2010] QB 48, Cook v Malcolm Nicholls Ltd Coventry County Court and more recently in Ivanov v Lubble.

Whether the fee had been reasonably incurred for the purposes of CPR 44.3 and CPR 44.4 assessment was considered to be a question to be answered on the specific case facts. The Claimant sought to squarely rely on the decision in Ivanov, para 56 of the same concluding ‘the… jurisprudence does suggest that it is not unreasonable for the Claimant to pass the costs of wrongdoing onto the wrongdoer…’, this mirroring the view of the Court in Peters . It was therefore, reasonable in Ivanov for the cost to be passed onto the Defendant. The hurdle for the Claimant was however, in part, the fact that the Ivanov decision was only persuasive authority. The SCCO was therefore in a position to consider Court fee remission largely afresh.

CPR 44.3(2), given that the matter was a standard basis assessment on the grounds of reasonableness, necessity and ultimately proportionality, is the starting point, the burden; therefore resting on the Receiving Party to show that the fee was reasonable to incur. Given the Claimant’s illness, fee remission would have likely been available; and therefore, the Claimant ought to have pursued the Ex160 Court fee remission by way of making an application. 

In considering the issue from the perspective of loss mitigation, in treating the question in costs as being akin to damages, the Court reviewed the decision in Thai Airways International Public Company Ltd v KI Holdings Co Ltd (formerly known as Koito Industries Ltd) & Another [2015] EWHC 1250 (Comm) and concluded that the Claimant had acted unreasonably in failing to seek remission.

In considering mitigation further, parliamentary intent was considered, as was the impact of any potential Court funding shortfall. The thrust of the Ivanov argument that a reliance on the fee remission scheme produced a loss to the public purse was rejected. Equally, it was considered that it would have been straightforward for the rules to require Paying Parties to reimburse any state funded Court fees. At Paragraph 32, the Court thus concluded, ‘I do not accept that the receiving party is in a position to elect whether or not to require the opponent to pay court fees where that party is entitled to a fee remission.’ Any failure to mitigate was an escalation of costs for the party itself to account for, rather than passing on such a cost.

As the Gibbs decision demonstrates, any failure to fully explore the remission process before paying the fee is likely to be considered an unnecessary escalation of costs, therefore falling foul of CPR 44.3(2)(b). It is thus prudent to apply for Help With Fees where this is possible in personal injury and other claim types. This is still fertile ground however – whether the same guidance applies for indemnity basis assessments is an open question, as is the chances of a successful appeal.

 

How can ARC Costs assist?

 

The ARC Costs team of Costs Draftsmen and Costs Lawyers are always happy to help with legal costs challenges and have been successful on numerous occasions in recovering Court fees which are contested. The team can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on our services, please visit our services page here or find out about our speciality areas of expertise on our legal costs page.

 

 

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