When negotiating costs on a file, it is not unusual to encounter the paying party contest the Court fees on the ground that the Claimant should have mitigated their loss by investigating whether they were eligible for a Court fee remission.

This is not just wrong in practice but in my opinion, ethically wrong too. The tortfeasor in any claim, is essentially arguing that the general public should pick up some of the Bill for their (alleged) negligence.

There are a couple of cases that are relevant to consider here, the first of which is Peters v East Midlands Strategic Health Authority [2010] QB 48.  The matter involved the Defendant arguing that the Claimant, who would need care for the rest of their life, should not be claiming for private health care and aid, but instead, should be using the local authority and the NHS.

The Court of Appeal found that a Claimant was entitled as of right, to damages from the tortfeasor in preference to dependence on the statutory obligations of a local authority and that it is reasonable for a Claimant to opt for self-funding and damages rather than to seek provision of care and accommodation at public expense.

The consequences this has for Court fees in practical terms, is whether a Claimant has an obligation to apply for an assessment of their financial position and whether the Defendant can argue that the Claimant has failed to mitigate in failing to do so.

Fast forward to this year, and a further matter of Cook v Malcolm Nicholls Limited has surfaced.

The matter related to specifically if a Claimant could recover their Court fees in a situation in which, they may have been eligible for fee remission.  The Claimant was unemployed at the time and as such, the paying party argued that the Claimant failed to mitigate his losses by not applying for fee remission and therefore, acted unreasonably.

Deputy district Judge jones ruled that; “For C, I’m referred to Peters v East Midlands Strategic HA. That was a case of a public body being liable for the Claimant’s accommodation costs. I’m referred to paragraphs 89 and 93. Dyson LJ as he was then, found that a tortfeasor should pay.

I take the view that the Court fee is the Court fee. The Court Service has to operate. I therefore find that the issue raised by D will not be allowed. My original decision stands as regards the allowance of the Court fee.

Summary

As found above, although Peters was strictly in relation to damages, we are starting to see the common law application cross to legal costs also.  If you are struggling to recover your Court fees, please do not hesitate to contact ARC Costs to find out how we can assist.

The ARC Costs team are always happy to help, and I can be contacted via email at info@arccosts.co.uk, or by telephone on 01204 397302.

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