COURT AND TRIBUNAL FEES AND HELP WITH FEES (REMISSION)

The application form

An application for help with fees, that is to avoid paying a court or tribunal fee altogether, or getting a reduction on the normal fee, is made on Form EX160 – Apply for Help with Fees – available here.

From 20 June 2016 potential users of the court have been able to apply for “Help with Fees” online at www.gov.uk/help-with-court-fees

“Help with Fees” is the name now given to fee remission.

The process for applying online is:-

court users will be able to enter their details and check them before submitting the application;

court users will receive an application reference number that needs to be written on their Court/Tribunal claim or application form;

if the application reference number is not written on the Court/Tribunal claim or application form, staff will not be able to process the application for help with fees;

the applicant will receive a confirmation email from the Court/Tribunal containing the application reference number;

the Court/Tribunal will then contact the applicant to let them know whether the application was successful or not, and if not if there is any additional information required;

there is no need to provide any paper evidence unless the court or tribunal specifically asks for it.

In June 2016 HM Courts and Tribunals Service updated its guide on how to apply for help with fees and that 20 page publication is on Form EX160A and the link is here.

The Ministry of Justice has published its response to the consultation on yet further increases in court fees, over and above the very substantial increases which took effect on 9 March 2015.

The current maximum fee of £10,000.00 will remain for the time being and thus the proposal to increase the maximum to £20,000.00 has been put on hold, but the Government has made it clear that this is a temporary reprieve and does not rule out implementing that proposal in the future.

Broadly all other fees are increased by 10% including those in the Court of Appeal, the Upper Tribunal (Lands Chamber), Judicial Review Proceedings, Civil Proceedings in the Magistrates’ Court, appeals to the County Court and to the High Court and in proceeding for the assessment of costs and in proceedings for enforcement.

Fees will be introduced in some other tribunals, beyond the Employment Tribunal and the Employment Appeal Tribunal.

No date has been given in relation to implementation.

Set out below is the Statutory Instrument which contains the current fees, that is with effect from 9 march 2015.

There then follows a piece on Court Fee Remission and links to Form EX160 application form for remission, and to Guidance Notes: Court and Tribunal Fees – Do I have to pay them?

Fees in Employment Tribunals were introduced by The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013.

2015 No. (L. )

Senior Courts Of England And Wales

County Court, England And Wales

Family Proceedings, England And Wales

The Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Made 5th March 2015

Coming into force in accordance with article 1

The Lord Chancellor, with the consent of the Treasury, makes the following Order in exercise of the powers conferred by section 92(1) and (2) of the Courts Act 2003(1) and section 180(1) of the Anti-social Behaviour, Crime and Policing Act 2014(2).

The Lord Chancellor has had regard to the matters referred to in section 180(3) of the Anti-social Behaviour, Crime and Policing Act 2014.

The Lord Chancellor has consulted in accordance with section 92(5) and (6) of the Courts Act 2003.

A draft of this Order was laid before Parliament and approved by resolution of each House of Parliament in accordance with section 180(7) of the Anti-social Behaviour, Crime and Policing Act 2014.

Citation and commencement

This Order may be cited as the Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015 and comes into force on 1st March 2015 or, if later, the next Monday after the day on which the Order is made.

Amendments to the Civil Proceedings Fees Order 2008

2.—(1) The Civil Proceedings Fees Order 2008(3) is amended as follows.

(2) In article 5 (remissions and part remissions), for paragraph (2)(a), substitute—

“(a) fee 1.2 if the fee relates to proceedings to recover a sum of money in cases brought by Money Claim OnLine users; or”

(3) In Schedule 1 (fees to be taken), for the column headers and for the text (in both columns) from “1. Starting proceedings (High Court and County Court)” to the end of the entry headed “Fees 1.1, 1.2 and 1.3”, substitute—

“Column 1 Number and description of fee	Column 2 Amount of fee (or manner of calculation)
1 Starting proceedings (High Court and County Court)
(a) does not exceed £300;	£35
(b) exceeds £300 but does not exceed £500;	£50
(c) exceeds £500 but does not exceed £1,000;	£70
(d) exceeds £1,000 but does not exceed £1,500;	£80
(e) exceeds £1,500 but does not exceed £3,000;	£115
(f) exceeds £3,000 but does not exceed £5,000;	£205
(g) exceeds £5,000 but does not exceed £10,000;	£455
(h) exceeds £10,000 but does not exceed £200,000;	5% of the value of the claim
(i) exceeds £200,000 or is not limited.	£10,000
1.2 On starting proceedings in CCBC cases brought by Centre users or cases brought by Money Claim OnLine users, to recover a sum of money where the sum claimed:
(a) does not exceed £300;	£25
(b) exceeds £300 but does not exceed £500;	£35
(c) exceeds £500 but does not exceed £1,000;	£60
(d) exceeds £1,000 but does not exceed £1,500;	£70
(e) exceeds £1,500 but does not exceed £3,000;	£105
(f) exceeds £3,000 but does not exceed £5,000;	£185
(g) exceeds £5,000 but does not exceed £10,000;	£410
(h) exceeds £10,000 but does not exceed £100,000.	4.5% of the value of the claim
Fee 1.1
Where the claimant does not identify the value of the claim when starting proceedings to recover a sum of money, the fee payable is the one applicable to a claim where the sum is not limited.
Fees 1.1 and 1.2.
Where the claimant is making a claim for interest on a specified sum of money, the amount on which the fee is calculated is the total amount of the claim and the interest.”

(4) In Schedule 1 (fees to be taken), for the entry in column 2 (amount of fee) corresponding to fee 2.1 (a) (case on the multi track) substitute “£1090”.

(5) In Schedule 1 (fees to be taken) for the entry in column 2 (amount of fee) corresponding to fee 2.1 (b) (case on the fast track) substitute “£545”.

Amendment to the Family Proceedings Fees Order 2008 3.—(1) The Family Proceedings Fees Order 2008(4) is amended as follows.

(2) In Schedule 1 (fees to be taken) for the entry in column 2 (amount of fee) corresponding to fee 1.2 (application for divorce etc), substitute “£410”.

EXPLANATORY NOTE

(This note is not part of the Order) This Order amends the Civil Proceedings Fees Order 2008 (S.I. 2008/1053) and the Family Proceedings Fees Order 2008 (S.I. 2008/1054).

Article 2(3) increases the fee (Fee 1.1) for starting proceedings to recover money where the sum exceeds £10,000 and alters the basis on which that fee is calculated. The fee is 5% of the amount claimed. Article 2(3) also merges two existing fees (Fees 1.2 and 1.3) which apply to starting proceedings by users of the County Court Business Centre and Money Claims Online. In those cases, the fee for starting proceedings where the sum exceeds £10,000 is 4.5% of the amount claimed.

Article 2(2) makes a minor amendment to the provision identifying exceptions from the provisions for remission to reflect the altered number of the fee for starting proceedings electronically by the Money Claims Online facility.

Articles 2(4) and (5) and 3 prescribe afresh, without altering the amount, three fees set before the enactment of section 180 of the Anti-social Behaviour, Crime and Sentencing Act 2014 (c. 12). Those three fees currently recover more than the costs of providing the service.

A full impact assessment accompanies this instrument.

Court Fee remissions

The whole question of court fee remissions has just become much more important with the massive increase in court fees – effective 9 March 2015 – implemented by The Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015.

To be eligible for a fee remission you must pass two tests, the disposable capital test and the gross monthly income test, and fill out Form EX160. Only the person who has to pay the court or tribunal fee can make a fee remission application. However, there are two exceptions to this rule:

applications to the Court of Protection on behalf of ‘P’ (a ‘person’ who lacks the capacity to make decisions); or

any person acting for or representing a child involved in legal action.

The guidance now says

“Minors: If you are acting for or representing a child involved in court or tribunal proceedings, in your capacity as a Litigation Friend, parent or guardian, you can apply for a full or part remission using your own details.”

The fee remission scheme is based on two tests:-

Disposable capital test;

Gross monthly income test;

You will have to pass both tests in order to be eligible for a fee remission.

Lord Dyson, The Master of the Rolls has expressed his concern, to the Lord Chancellor and Secretary of State for Justice, in relation to the increased fees and the potential impact on mid and higher value claims and in his letter of response Chris Grayling states that he has

“…asked officials to monitor the situation in respect of the type of higher value claims that are the cause of your concern and consider whether guidance needs to be strengthened on the use of the exceptional circumstances remission. This would work alongside the current standard remission scheme and ensure that those who have meritorious claims but are genuinely unable to fund the fee through other means, are not prevented from accessing the courts.”

DISPOSABLE CAPITAL TEST

In order to pass the Disposable capital test, this is the first test that must be passed, you must have a disposable capital of below the following thresholds and if you do then you will pass the disposable capital test and can continue to the gross monthly income test.

Court or tribunal fee	Disposable capital threshold
Your court or tribunal fee is:	You, and your partner’s disposable capital is less than:
Up to £1,000	£3,000
£1,001–£1,335	£4,000
£1,336–£1,665	£5,000
£1,666–£2,000	£6,000
£2,001–£2,330	£7,000
£2,331–£4,000	£8,000
£4,001–£5,000	£10,000
£5,001–£6,000	£12,000
£6,001–£7,000	£14,000
£7001 or more	£16,000

For people 61 years or older there is a single disposable capital limit of £16,000, regardless of the amount of the court fee.

If you have disposable capital equal to or more than the relevant threshold you will not be eligible for a fee remission and will be required to pay the fee in full.

The Ministry of Justice states that disposable capital is:-

“the value of savings, investments and so on which you and your partner (if you have one) have on the date the application is made. It does not include wages or benefits. However, if you are bringing proceedings with a contrary interest, do not include the value of your partner’s disposable capital, or any capital held jointly by you or your partner (for example, a joint savings account).”

Examples of disposable capital are as follows:-

capital held in any type of saving account(s); for example:
- all ISAs;

- fixed rate bonds
- market linked investment bonds or savings; or
- any other form of savings account.

any type of redundancy capital payment received;

stocks or shares;

any jointly held capital (where one or more parties have a financial interest in a disposable capital source);

second homes;

trust funds (where accessible), or any other fund available to you;

any type of disposable capital held outside the UK;

any type of capital financial product (for example, unit trusts, an OEICs/Open-Ended Investment Company, or derivatives

The following should not be included when calculating disposable capital:-

Bereavement Payment;

Self employed businesses – the capital value of your or (if you have one) your partner’s business;

Criminal Injuries Compensation Scheme;

First homes (the main property where you live);

Home contents (for example, furniture or clothing);

Independent Living Fund;

Insurance contracts – the cash value of (for example, life insurance);

Jobseeker’s Back to Work Bonus;

Lump sum payments made on illness, disability or death from insurance or endowment policies (all other insurance or endowment payments are considered);

Medical negligence or personal injury awards;

Personal or occupational pension schemes (the cash value of);

Student loans or student grants;

Sure Start Maternity Grants;

Tools and implements of trade (including vehicles used for business purposes);

Trust funds, and any other fund available, which you or (if you have one) your partner, cannot access or receive advances from;

Unfair dismissal awards;

Vehicles (for example, cars or vans) – the sale of which would leave you or your partner without transport

If you pass the disposable capital test then you can continue to the gross monthly income test which will also need to be passed in order to be eligible for a full or part remission.

However, if you do not pass this test, that is the disposable capital test, then you are not eligible for any fee remission and you do not need to consider the Gross monthly capital test.

GROSS MONTHLY INCOME TEST

There are two types of fee remission and you have to pass both tests in order to be eligible for a fee remission:-

Remission 1 – you will receive a full remission of a court or tribunal fee if you receive one

of the following benefits:-

Income-based Jobseekser’s Allowance;
Income-related Employment and Support Allowance;
Income Support;
Universal Credit – with gross annual earning sof less than £6,000.00;
State Pension – Guarantee Credit;
Scottish Civil Legal Aid; or

Remission 2 – you will receive a full remission if your gross monthly income is below the following thresholds:-

Gross monthly income cap thresholds – full remissions:
Gross monthly income with:	Single	Couple
No children	£1,085	£1,245
One child	£1,330	£1,490
Two children	£1,575	£1,735
£245 for each additional child

If your gross monthly income exceeds the above figures you may still receive a partial fee remission. For every £10 of income you have over the threshold set out in the above table, you will be required to pay £5 towards your court or tribunal fee. The court or tribunal will calculate whether you are required to pay a contribution towards the fee – known as a partial remission.

If your gross monthly income is over the below figures, or your expected contribution is higher than the fee required, you will not be eligible for a fee remission:

Gross monthly income cap thresholds – partial remissions:
Gross monthly income with:	Single	Couple
No children	£5,085	£5,245
One child	£5,330	£5,490
Two children	£5,575	£5,735
£245 for each additional child

You do not have to include the following benefits as part of your gross monthly income:-

· Armed Forces Independence Payment (AFIP)

· Constant Attendance Allowance

· Housing Element of Universal Credit

· Attendance Allowance

· Direct payments made under Community Care, Services for Carer and Children’s Services

· Industrial Injuries Disablement Benefit

· Back to Work Bonus

· Disability Living Allowance (DLA)

· Independent Living Fund payments

· Bereavement Allowance

· Disabled and Severely Disabled elements of Child Tax Credit

· Limited Capability for Work Element of Universal Credit

· Budgeting Advances paid under Universal Credit

· Disabled and Severely Disabled Child elements of Working Tax Credit

· Personal Independence Payment (PIP)

· Budgeting Loan

· Disabled and Severely Disabled Child elements of Universal Credit

· Any pension paid under the Naval, Military and Air forces etc (Disablement and Death) service Pension Order 2006

· Carer’s Allowance

· Exceptionally Severe Disablement Allowance

· Severe Disablement Allowance

· Carer Element of Universal Credit

· Financial support under an agreement for the foster care of a child

· Short Term Benefit Advances (STBAs )

· Childcare Element of Working Tax Credit

· Funeral Payment

· Universal Credit Advances

· Childcare Element of Universal Credit

· Housing Benefit

· Widowed Parents Allowance

· Cold Weather Payment

· Housing Credit Element of Pension Credit

Exceptional Circumstances

If a fee remission application is refused and you can prove that an unexpected and exceptional event has occurred that has seriously affected your ability to pay a court or tribunal fee, then you may not have to pay a court or tribunal fee as the Delivery Manager has the power to grant a full or part remission.

The Delivery Manager is the only person who can make this decision and it is based on the information given to the court or tribunal at the time the court or tribunal fee is due. The Delivery Manager’s decision is final and cannot be appealed.

Examples of exceptional circumstances may be when:

payment of a fee would mean non-payment of an essential service or utility bill (for example, water or gas) that is likely to lead to the service being cut off;

payment of a fee would mean non-payment of rent or mortgage amounts that are overdue, which could lead to you being made homeless;

you have personal responsibility for caring for a dependent adult and that care can only be paid for from your own resources;

you have suffered unexpected and sudden personal and financial loss or expense due to the death of a close family member or dependent relative; or

you cannot pay the fee due to uninsured loss or damage to personal belongings as a result of fire, flood, theft or criminal damage

Automatic Strike-out, Costs and Small Claims

CPR 3.7A 1(7) provides that if the trial fee has not been paid on or before the trial fee payment date, then the claim will automatically be struck out without further order of the court, and unless the court orders otherwise, the Claimant will be liable for the costs which the Defendant has incurred.

That is a draconian penalty which lawyers need to be aware of and if a claim is struck out an immediate application to reinstate should be made.

However, here I want to consider the effects of the automatic liability for payment of the Defendant’s costs, unless the court orders otherwise.

Qualified One-Way Costs Shifting

CPR 44.15 allows a Defendant to enforce “to the full extent of such orders” – that is exceeding damages, without permission of the court, where the proceedings have been struck out on the ground that –

(a) the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b) the proceedings are an abuse of the court’s process; or

(i) the Claimant; or

(ii) a person acting on the Claimant’s behalf and with the Claimant’s knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.”

Automatic strike-out for failure to pay the trial fee is not caught by this exception and thus, although the Defendant will have a costs order in its favour against a personal injury Claimant whose claim is struck out for failure to pay the fee, the Defendant will be unable to enforce that costs order.

Small Claims

CPR 27.14 sets out the limited circumstances in which costs may be ordered in the Small Claims Track, and the circumstances set out in CPR 3.7 do not come with any of the listed exceptions in CPR 27.14.

CPR 44.9 is headed “Cases where costs orders deemed to have been made” and reads:

“44.9

(1) Subject to paragraph (2), where a right to costs arises under –

(a) rule 3.7 or 3.7A1 (defendant’s right to costs where claim is struck out for non-payment of fees);

(a1) rule 3.7B (sanctions for dishonouring cheque);

(b) rule 36.13(1) or (2) (claimant’s entitlement to costs where a Part 36 offer is accepted); or

a costs order will be deemed to have been made on the standard basis.”

The rest of the rule does not apply to this situation.

Thus CPR 44.9 deems there to have been an order in those circumstances and, as we have seen, the strike-out is automatic.

Thus the effect of the combination of CPR 3.7 and CPR 44.9(1)(a) is that upon the non-payment of a trial fee the matter is automatically struck out and there is automatically deemed to have been a costs order made.

Thus the strike-out and the costs order occur without any judicial discretion or intervention. They are automatic.

Thus there is a clear contrast and conflict between these provisions and CPR 27.14

This issue needs clarifying as it will become of much greater importance as and when the small claims limit for personal injury rises to £2,000.00 generally and £5,000.00 in relation to road traffic accident matters.

The general small claims limit is already £10,000.00 and under the Briggs Reforms is proposed to rise to £25,000.00.

I am grateful to Alex Williams of Oriel Chambers for bringing this to my attention.

Case Law

In Lifestyles Equities CV v Sportsdirect.com Retail Ltd [2016] EWHC 2092

the claimant had brought a claim for an account and enquiry into damages and the court held that that was an action for damages and a higher court fee was payable than the sum that the claimant had paid.

The defendant, rather than applying to strike for abuse of process applied for the matter to be stayed pending payment of the additional court fee and the court granted that application.

The case of Lewis and Others v Ward Hadaway – see below – was not referred to at all and the court distinguished the case of Page v Hewetts [2013] EWHC 2845 (Ch) and this may represent a softening of the line in Lewis and Others v Ward Hadaway.

In Lewis and Others v Ward Hadaway [2015] EWHC 3530 (Ch)

the Chancery Division of the High Court held that issuing a claim form with the statement of value lower than the true value of the claim, and in the knowledge that it would be amended later to increase the value of the claim, was an abuse of process and this was the case even though prior to service the claim forms were amended and the increased court fee paid.
This case concerned 31 claims brought against a firm of solicitors that alleged professional negligence by them in relation to conveyancing matters.

Letters of Claim were sent and in each case the claim ran into several hundred thousand pounds.

However when the claims were issued, but not served, just prior to limitation expiring each Claim Form had a very much lower sum than that contained in the Letters of Claim and consequently low issue fees were paid.

In each case the Claim Form was amended just before service of the claim to the correct sum and the additional issue fee was paid.
The Chancery Division found an abuse of process because:-

it was always the intention of the claimants to amend their claims and the only reason that the sum claimed was deliberately and misleadingly set at a very low sum was to avoid paying the full fee

although the proper fee was subsequently paid this caused disruption to cash flow for the court system and increased administration by dealing with two sets of fees and two sets of Claim Forms

the public interest demanded that claimants did not behave in this way

there was a possible advantage gained by the claimant over the defendant by stopping time running by paying a lower fee to issue the claim

The claim forms were signed by a partner in the firm representing the claimants with a statement of truth, something that the court found difficult to understand

The solicitors pursued this strategy even though such conduct by them had been held in previous actions to be an abuse of process.

Although this matter was in the High Court a number of District Judges had reached the same conclusion on the same issue in cases involving the same firm of solicitors.

Due to the lack of prejudice to the defendant, and because the period of abuse was limited, the claims were not struck out.

However in relation to 11 of the claimants whose claims were delivered to the court office prior to limitation expiring, but where claim forms were only issued after limitation had expired, the judge gave summary judgment to the defendant.

Generally there is no problem in a claim form being issued out of time as long as it was delivered to the court office in time and indeed paragraph 5.1 of Practice Direction 7A provides that in those circumstances the claim is “brought” for the purposes of the Limitation Act 1980 on the date of delivery and not the date of issue.

Here the judge found that as those 11 Claim Forms were not accompanied by the appropriate fee the claims had not “been brought” and were thus out of time.

The judge referred to

Page v Hewetts [2012] EWCA Civ 805

Comment

This decision must be right. The issue of court fees is a political one and for solicitors deliberately to claim a low sum with the intention of subsequently increasing that claim is unacceptable and must be an abuse of process.

Very lucky not to have all of the claims struck out.

In the Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225

the Court of Appeal emphasised the need for exceptional circumstances before a party will succeed in obtaining an extension of time in relation to a statutory time limit for appealing.

This was an appeal against a decision of the Nursing and Midwifery Council and the statutory time limit is 28 days. The deadline was 8 March 2014; Ms Daniels did not contact her solicitors until 7 March 2014 and the Notice of Appeal was lodged on 11 March 2014.

The first instance judge concluded that Ms Daniels’ inability to find £235.00 to pay the court fee in time constituted a good reason for the delay. Taking into account that the period of delay was only three days and that the Nursing and the Midwifery Council had not suffered any particular prejudice, the judge held that there were exceptional circumstances which enabled the court to extend time.

The rules here, unlike, for example, the Civil Procedure Rules and the Employment Appeal Tribunal Rules, do not make any provision for extension of the time limit for appeal.

The Court of Appeal overturned the first instance decision, holding that there was no discretion to do otherwise on the facts of the case.

There was no evidence that Ms Daniels had been unable to raise the court fee. During February and March 2014 no one had given any consideration to the question of whether Ms Daniels was entitled to remission of the court fees. It appeared that she was.

However the Court of Appeal said that in case it was wrong on those factual findings it would consider the matter on the same factual basis that the first instance judge did. It would still have overturned the decision as there is no power, other than in exceptional circumstances, to override the 28 day limit.

The significance of the decision is in what is effectively double obiter guidance; that is had the facts been found by the judge been correct and had there been a general discretion to extend time, as there is under the Civil Procedure Rules and the Employment Appeal Tribunal Rules, then the Court of Appeal “could not fault the judge’s exercise of that discretion.”

This decision was given as the up to 600% hike in court fees came in. The Court of Appeal is clearly suggesting that failure to raise a court fee in time may be a good ground for extension, including retrospective extension, of a time limit.

Amending the Claim Form

Under CPR 17.1(1) a party may amend the Statement of Case at any time before it has been served on any other party.

Pre-service amendment does not require permission of the court and does not require the written consent of all the other parties. One or the other is required once the Statement of Case has been served.

Thus on the face of it you could put in a figure of, say, £50,000.00 and pay the court fee on that basis and then amend that Statement of Case to say £200,000.00 prior to service.

My view is that the court does have the power to order you to pay the increased fee, but it may buy time.

However Part 22 requires amendments to the Statement of Case, whether made prior to service or after service, to be verified by a Statement of Truth unless the court orders otherwise. Thus the default position is that you must verify the amendment by a Statement of Truth. That could be problematic as you would have to explain why the position had changed in a relatively short time. In my view the court would have the power to dismiss the case as an abuse of process.

Multiple Claimants

Where there is more than one Claimant in the same claim, the relevant law is the High Court and County Courts Jurisdiction Order 1991 – 1991 no. 724 (L.5), which is itself referred to in Part 7, Practice Direction 7A – “where to start proceedings”.

That part reads:-

“2.2 Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is 50,000 or more (paragraph 9 of the

High Court and County Courts Jurisdiction Order 1991 (S.I. 1991/724 as amended) describes how the value of a claim is to be determined).”

Paragraph 9 of the High Court and County Courts Jurisdiction Order 1991 reads:-

“Definition of value of action

9.—(1) For the purposes of articles 5 and 7—

the value of an action for a sum of money, whether specified or not, is the amount which the plaintiff or applicant reasonably expects to recover;

an action for specified relief other than a sum of money—

has a value equal to the amount of money which the plaintiff or applicant could reasonably state to be the financial worth of the claim to him, or

where there is no such amount, has no quantifiable value;

if one or more of the claims is of a kind specified in paragraph (b)(ii), has no quantifiable value;

in any other case, has a value which is the aggregate of the values of the claims as determined in accordance with paragraphs (a) and (b)(i).

(2) In determining the value of an action under paragraph (1), claims for—

unspecified further or other relief,

interest, other than interest pursuant to a contract, and

costs,

shall be disregarded.

(3) In determining the value, under paragraph (1), of an action which is brought by more than one plaintiff or applicant regard shall be had to the aggregate of the expectations or interests of all the plaintiffs or applicants.

(4) In determining the value of an action under paragraph (1)(a)—

the sum which the plaintiff or applicant reasonably expects to recover shall be reduced by the amount of any debt which he admits that he owes to a defendant in that action and which arises from the circumstances which give rise to the action;

no account shall be taken of a possible finding of contributory negligence, except to the extent, if any, that such negligence is admitted;

where the plaintiff seeks an award of provisional damages as described in section 32A(2)(a) of the Supreme Court Act 1981(28), no account shall be taken of the possibility of a future application for further damages;

the value shall be taken to include sums which, by virtue of section 22 of the Social Security Act 1989(29), are required to be paid to the Secretary of State.”

Thus you must put the sum of the two claims as the value of the claim and pay the court fee accordingly.

REFUNDS

A fee remission can be applied for before the case is issued or a refund can be applied for following payment of the court fee.

However, the time limit in which a refund of a court fee can be applied for is stated as within six months of paying the fee in Schedule 2 of The Civil Proceedings Fees Order 2008 and within three months of paying the fee on page 19 of the HM Courts & Tribunals Service’s own guidance on EX160.

Schedule 2 of The Civil Proceedings Fees Order 2008 states:-

“Refunds

9.—

Subject to sub-paragraph (3), where a party has not provided the documentary evidence required by paragraph 7 and a fee has been paid at a time when, under paragraphs 2, 3 or 4, it was not payable, the fee will be refunded if documentary evidence relating to the time when the fee became payable is provided at a later date.
Subject to sub-paragraph (3), where a fee has been paid at a time where the Lord Chancellor, if all the circumstances had been known, would have reduced or remitted the fee under paragraph 8, the fee or the amount by which the fee would have been reduced, as the case may be, will be refunded.
No refund will be made under this paragraph unless the party who paid the fee applies within 6 months of paying the fee.
The Lord Chancellor may extend the period of 6 months mentioned in sub-paragraph (3) if the Lord Chancellor considers that there is a good reason for an application being made after the end of the period of 6 months.

The HM Courts & Tribunals Service’s own guidance on EX160 and page 19 states:-

“For all courts and tribunals: You can apply for a refund (known as a retrospective application) if you have paid a court or tribunal fee within the last three months and can prove you would have been granted a remission at the time you paid the fee.”

It is also noted that the Courts will only be issuing retrospective remission where the individual applicant has paid the court fee and thus where a solicitor has paid the court fee then no retrospective fee remission can be made.

House of Commons Committee of Public Account – Legal Aid

The Ministry of Justice’s exceptional case funding scheme, which is intended to provide legal aid for people whose human rights would be breached without it, received 1,520 applications in the first year after the legal aid reforms against an estimate of 5,000 to 7,000, but only 69 cases were approved. The Ministry could not explain why applications were below expected levels but the legal aid providers consulted by the National Audit Office said that the complexity of the exceptional case funding scheme made it very difficult for people to apply.

Mesothelioma Victims

Victims of mesothelioma that are unable to trace an insurer for the employer responsible for the exposure to asbestos were left without a remedy until the passing of the Mesothelioma Act implemented by The Diffuse Mesothelioma Payment Scheme Regulations 2014 S.I. 916 made under section 1 and section 17(4) of the Act.

Eligible individuals may now apply for compensation packages worth an average of £123,000.00.

If your application is successful, the Scheme will pay you a fixed fee of £7,000 out of which you can pay your solicitor’s fee. If you incur legal costs of less than £7,000 you are entitled to keep the difference. If your legal costs exceed £7,000, you will be liable to make up the difference.

This compensation will not affect the disposable capital of an individual, when considering fee remission, as medical negligence or personal injury awards are specifically excluded from an individual’s disposable capital.

Employment tribunals

Employment Tribunal Fees

Fees in Employment Tribunals were introduced by The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013:

Employment Tribunal

The order divides claims to the Employment Tribunal into ‘Type A’ and ‘Type B’.

Under Schedule 2 of the Order Type A claims are:

Application by the Secretary of State to prohibit a person from running an Employment Agency.
Application by a person subject to a prohibition order to vary or set it aside.
Appeal against improvement or prohibition notice.
Appeal against assessment of training levy.
Complaint of deduction of unauthorised subscriptions.
Complaint relating to failure to deduct or refuse to deduct an amount to a political fund.
Complaint that an employer has failed to permit time off for carrying out trade union duties.
Complaint that an employer has failed to permit time off for union learning representatives.
Complaint that an employer has failed to pay for time off for union learning representatives.
Complaint that an employer has failed to permit time off for trade union activities.
Complaint that employer has failed, wholly or in part, to pay remuneration under a protective award.
Complaint that the Secretary of State has not paid, or has paid less than, the amount of relevant contributions which should have been paid into a pension scheme.
Breach of contract, except where the employer’s contract claim is made made by way of application as part of the employer’s response to the employee’s contract claim (as to which, see instead article 4 and Schedule 1 to this Order).
Reference to determine what particulars ought to be included in a statement of employment particulars or changes to particulars.
Reference to determine what particulars ought to be included in an itemised pay statement.
Complaint of unauthorised deductions from wages.
Complaint that employer has received unauthorised payments.
Complaint that employer has failed to pay guaranteed payment.
Complaint that employer has failed to permit time off for public duties.
Complaint that employer has refused to permit, or has failed to pay for, time off to look for work or arrange training.
Complaint that employer has refused to allow, or has failed to pay for, time off for ante-natal care.
Complaint that employer has refused to allow time off for dependants.
Complaint that employer has failed to allow, or to pay for, time off for trustee of pension scheme.
Complaint that employer has failed to allow, or to pay for, time off for employee representative.
Complaint that employer has failed to allow, or to pay for, time off for young people in Wales and Scotland.
Complaint that employer has failed to pay for time off on medical or maternity grounds.
Complaint that employer has failed to allow time of for studies or training or the refusal is based on incorrect facts.
Complaint that employer has unreasonably failed to provide a written statement of reasons for dismissal or the particulars are inadequate or untrue.
Reference in respect of a right to redundancy payment.
Reference related to payment out of National Insurance Fund.
References related to payments equivalent to redundancy payments.
Complaint that the Secretary of State has failed to make any, or insufficient, payment of out the National Insurance Fund.
Appeal against a notice of underpayment.
Appeal against a notice issued by the Commission for Equality and Human Rights where the notice relates to an unlawful act.
Complaint that prospective employer made enquiries about disability or health.
Application in relation to the effect of a non-discrimination rule in an occupational pension scheme.
Complaint in relation to a breach of a sex equality clause.
Complaint in relation to a breach of, or application in relation to the effect of, a sex equality rule in an occupational pension scheme.
Complaint in relation to a breach of a maternity equality clause.
Complaint in relation to a breach of, or application in relation to the effect of, a maternity equality rule in an occupational pension scheme.
Complaint in relation to terms prohibiting discussions about pay.
Complaint that a term in a collective agreement is void or unenforceable.
Appeal of decision of compensating authority.
Complaint that employer has failed to pay for remunerated time off for safety representative.
Reference that there has been a failure to consult with employee representatives about contracting out of pension scheme.
Complaint that employer has failed to pay for time off to carry out Safety Representative duties or undertake training.
Complaint that employer has refused to allow annual leave, compensation, payment, compensatory rest.
Appeal against improvement or prohibition notice.
Complaint in relation to refusal of annual leave or to make payment.
Complaint in relation to refusal to provide paid annual leave.
Complaint in relation to failure to provide free health assessments.
Complaint in relation to refusal of annual leave or to make payment.
Complaint that employer has refused to allow or failed to pay for time off for information and consultation or negotiating representatives.
Appeal against improvement notice.
Complaint in relation to failure of employer to inform or consult.
Complaint that employer has failed to allow, or pay for, time off for functions as employee representative.
Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body
Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body
Appeal against notice from Health and Safety Executive or a local authority
Reference to determine what particulars ought to be included in an itemised statement of stipend
Reference to determine what particulars ought to be included in a statement of particulars or changes to particulars
Complaint that employer has failed to allow, or pay for, time off for members of special negotiating body

Type A claims carry the following fees:

For a single claimant:
Issue	£160
Hearing fee	£230

For multiple claimants:

Issue fee:

2-10 claimants

11-200 claimants

Over 200 claimants

£320

£640

£960

Hearing fee:

2-10 claimants

11-200 claimants

Over 200 claimants

£460

£930

£1,380

Other fees
Reconsideration of a default judgment	£100
Reconsideration of a judgment following a final hearing	£100
Dismissal following withdrawal	£60
An employer’s contract claim made by way of application as part of the response to the employee’s contract claim	£160

Type B claims are not defined by the Order. They carry the following fees:

For a single claimant:
Issue	£250
Hearing fee	£950

For multiple claimants:

Issue fee:

2-10 claimants

11-200 claimants

Over 200 claimants

£500

£1,000

£1,500

Hearing fee:

2-10 claimants

11-200 claimants

Over 200 claimants

£1,900

£3,800

£5,700

Other fees
Reconsideration of a default judgment	£100
Reconsideration of a judgment following a final hearing	£350
Dismissal following withdrawal	£60

There is also a fee of £600 is payable by the respondent for judicial mediation which applies to both claim types.

Employment Appeal Tribunal

Appeals to the Employment Appeal Tribunal are not categorised.

The order sets fees of:

Appeal fee	£400
Hearing fee	£1,200

Fee Remissions

To be eligible for a fee remission you must pass two tests, the disposable capital test and the gross monthly income test, and fill out Form EX160.

Only the person who has to pay the court or tribunal fee can make a fee remission application. However, there are two exceptions to this rule:-

applications to the Court of Protection on behalf of ‘P’ (a ‘person’ who lacks the capacity to make decisions); or
any person acting for or representing a child involved in legal action.

In the case of a litigation friend, they may sign Form EX160 on behalf of the Claimant but the application must be made in the name of, and for the benefit of, the Claimant, not the Litigation Friend.

The disposable capital test:

Court or tribunal fee Your court or tribunal fee is:	Disposable capital threshold You, and your partner’s disposable capital is less than:
Up to £1,000	£3,000
£1,001 – £1,335	£4,000
£1,336 – £1,665	£5,000
£1,666 – £2,000	£6,000
£2,001 – £2,330	£7,000
£2,331 – £4,000	£8,000
£4,001 – £5,000	£10,000
£5,001 – £6,000	£12,000
£6,001 – £7,000	£14,000
£7001 or more	£16,000

For people 61 years or older there is a single disposable capital limit of £16,000, regardless of the amount of the court fee.

The gross monthly income test:

Remission 1:

You will receive a full fee remission if you are in receipt of one of the means-tested benefits listed below:-

Income-based Jobseeker’s Allowance
Income-related Employment and Support Allowance
Income Support
Universal Credit with gross annual earnings of less than £6,000
State Pension Credit guarantee credit

The court or tribunal will need to see original and official evidence that you are in receipt of one of these benefits.

Remission 2:

If you and (if applicable) your partner’s gross monthly income is below these thresholds then you will receive a full fee remission:

Gross monthly income cap thresholds – full remissions:

Gross monthly income with:	Single	Couple
No children	£1,085	£1,245
One Child	£1,330	£1,490
Two Children	£1,575	£1,735
£245 for each additional child

If your gross monthly income exceeds the above figures you may still receive a partial fee remission.

For every £10 of income you have over the threshold set out in the above table, you will be required to pay £5 towards your court or tribunal fee. The court or tribunal will calculate whether you are required to pay a contribution towards the fee – known as a partial remission.

If your gross monthly income is over the below figures, or your expected contribution is higher than the fee required, you will not be eligible for a fee remission:

Gross monthly income cap thresholds – partial remissions:

Gross monthly income with:	Single	Couple
No children	£5,085	£5,245
One Child	£5,330	£5,490
Two Children	£5,575	£5,735
£245 for each additional child

The House of Commons has provided a written answer to the following questions:-

how much has been received by HM Courts and Tribunals Service in payment of employment tribunal fees since 29 July 2013?

how many

single; and

multiple claims

were received by employment tribunals between 1 January and 31 March 2014?

what the total value of all grants of remission of employment tribunal fees has been since 29 July 2013.?

The written answer provides that only 24% of remission applications between 29th July and 31st December 2012 were granted (in part or in full). The full statistics can be found in the Tribunal statistics – October to December 2013 and the Employment and EAT Tribunals quarterly statistics.

In Dozie v Addison Lee plc (2013) UKEAT/0328/13, [2013] ICR D38, [2013] All ER (D) 172 (Sep), the EAT held that it can hear an appeal without a fee being paid or a fee remission granted as an appeal is properly instituted at the point it is presented. Although this was an urgent appeal, the logic is that the EAT is free to hear a non-urgent appeal in such circumstances.

Given that a claimant appellant will have forked out £1,200 to have the employment tribunal claim heard and £400 for the initial EAT sift, that is £1,600 before the appeal is even listed, the EAT may become a bit charitable about the payment of a further £1,200 for the appeal hearing. After all, it is hard to see the EAT surviving on the small number of appeals that it will be receiving.

This particular reform is very significant as it has proved what many of us were saying, that the Jackson reforms are about attacking access to justice and removing the ability of ordinary people to resolve disputes in the courts, rather than any grand scheme to improve the court and tribunal system.

This has been confirmed by the massive increase – over 600% in some cases – in court issue fees which come in to place on 9 March 2015.#FootnoteB

EMPLOYMENT COSTS

In Sud v London Borough of Ealing [2013] EWCA Civ 949

the Court of Appeal upheld an employment tribunal order that a claimant, who had been successful in part, should pay 50% of the respondent’s costs.

The total, subject to detailed assessment in the County Court, is estimated at £100,000, resulting in the claimant having a potential liability of £50,000.

It is well known that the introduction of Employment Tribunal fees has caused an 80% reduction in cases and that Unison’s Judicial Review applications have failed.
Less well-known is that there are further fees of £1,600.00 to appeal to the Employment Appeal Tribunal, being a fee of £400.00 to lodge the appeal and £1,200.00 to proceed to a full hearing once leave has been given. This will typically bring the total fees to £2,800.00 once the original Employment Tribunal fees are added in.

Rule 34A(2A) of the Employment Tribunal Rules 1993 – SI 1993/2854 – provides:-

“If the appeal tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor.”

Thus the general no costs rule remains but an exception is made in relation to tribunal fees.

The Employment Appeal Tribunal has been interpreting and applying this rule in a harsh manner to appellants. It has rejected the suggestion that the winning party in an appeal should automatically have any tribunal fees refunded saying that that would involve adopting a costs shifting regime which does not exist in the Employment Appeal Tribunal.

In Look Ahead Housing and Care Limited v Chetty and Another [2015] ICR 375 – UKEAT/37/14

the Employment Appeal Tribunal was asked to make an order under Rule 34(A) (2A) of the Employment Tribunal Rules 1993.

Here the employer appellant had paid a total of £1,600.00 being the first fee of £400.00 to lodge the appeal and a further £1,200.00 to proceed to a full hearing once leave had been given.

Here the appellant had lost on every point argued before the Employment Appeal Tribunal but it had succeeded on one ground of the appeal which had in fact been agreed by the respondent to the appeal.

The appellant argued that it had succeeded in part on the appeal and had had to appeal to secure that success.
The respondent pointed out that the appeal had been lodged just two days before the expiry of the 42 day period for appealing and that the respondent had never objected to that particular ground of appeal as being unfounded or wrong.

To award costs against the respondent, that is the original claimant, would cause injustice. It would have been open to the appellant to seek reconsideration by the tribunal and had they done so it would have been obvious to the tribunal that it had made a mistake.

Neither had the appellant sought to agree this point with the claimant prior to incurring the fees in the Employment Appeal Tribunal.
The Employment Appeal Tribunal pointed out that the fees are paid whatever the result and are not refundable and “except perhaps in the most exceptional of circumstances, which very rarely if ever exist, the court never pays them back. Accordingly, what has to be achieved by application of Rule 34A (2A) is justice between the parties as to which should effectively incur the payment of fees which, viewed as between them, is a common expense which was incurred simply because there was an appeal.”

The Employment Appeal Tribunal said that although it was tempting to work on the same basis as the civil courts whereby costs are generally awarded to the party who substantially succeeds and are paid by the party who substantially fails that would be to adopt a costs shifting regime which did not exist in the Employment Appeal Tribunal. Rather the rules look simply at a question of repayment of fees which was necessary to pay in order to bring an appeal.
This is a disingenuous point as when Parliament set the system up in the 1960s as a costs free zone no one anticipated the introduction of punitive fees. Automatically to reject fee shifting because of a system designed to deal with a free procedure makes no sense.

Here the Employment Appeal Tribunal said that the appellant could have asked the original Employment Tribunal to reconsider the question and could have approached the claimant to see agreement on this particular point. Consequently the Employment Appeal Tribunal said:-

“I have concluded that there could have been and should have been action taken prior to the issue of the notice of appeal, of a kind which would not have imposed the payment of fees or an equivalent sum upon either party, and which should have been capable of remedying the injustice. In the light of that, I have concluded that in this case I should make no order as to costs: that is no order as to the repayment of fees.”

The Employment Appeal Tribunal then gave guidance in relation to other cases:-

“For the benefit of other cases which may follow, it seems to me that in a case in which an appeal is brought which is entirely rejected, there is no basis for any payment by the successful party to the appellant. Where there is an appeal which is partly successful, all will depend upon the particular facts. The rule does not permit the payment of the actual costs of litigation, apart from fees, from one party to another. What the court essentially has to assess is whether it was necessary to incur the expense in order to bring the appeal – this includes asking whether the appeal, as in the present case, could have been avoided by the appellant taking reasonable steps, or was made more likely to proceed by the behaviour of the respondent to it; it should then recognise the fact, if it be the case, that an appeal has largely failed or for that matter largely succeeded in deciding, in its discretion, exercised reasonably, whether it should award the full extent of the payment made by way of fees, or whether it should moderate that amount to a reasonable extent. A reasonable extent includes making no award at all, though in circumstances in which an appeal has been partly successful this would have to be carefully justified and is likely to be rare.”

A similar line was taken in

Hafiz & Haque Solicitors v Mullick and another [2015] ICR 1085 EAT where a firm of solicors successfully appealed against the making of a wasted costs order by the Emploment Tribunal.

The EAT accepted that it had been necessary to lodge the appeal and thus ordered the losing respondent to pay to the successful appellant the lodgment fee of £400.

However in relation to the hearing fee of £1,200 the EAT, presided over by its President, a High Court Judge, said at paragraph 56:

“56. However, I do think that different considerations apply here in respect of the £1,200. Given the correspondence, given what had taken place, there was room, it seems to me, for the solicitors to have spoken to the respondents at or immediately after the hearing before Judge Peter Clark and before the £1,200 came to be paid. If they had done so, I doubt it would ever have been necessary to pay this further sum. That is not a conclusion I am at all unhappy to reach in this particular case, given aspects of the background which it is unnecessary for me to refer to further.”

It is perfectly true that the solicitors in question had not covered themselves in glory. But they won the appeal and surely, more than in any other type of case, a lawyer is entitled to seek in open court the overturning of a wasted costs order. Such an order involves a finding of negligence against the solicitor and now involves automatic reporting to the Solicitors Regulation Authority ( Section 67(2) Criminal Justice and Courts Act 2015).

The fees were caused by one matter only: the Employment Tribunal got the law wrong. To refuse the successful appellant the return of the hearing fee- in effect a £1,200 fine- is wrong in principle. The solicitor’s conduct of the original employment tribunal litigation is not relevant- they were cleared of conduct warranting a wasted costs order.

This has the flavour of the old magistrates’ court joke” We find that there is a reasonable doubt and so we find you Not Guilty, but don’t do it again”.

Portnykh v Nomura International plc, Unreported, UKEAT/0448/13/LA

the Employment Appeal Tribunal took a different view:-

“On an application under rule 34A(2A) of the Employment Appeal Tribunal Rules, as amended, the successful Appellant asked this Tribunal to exercise its discretion to order the Respondent to pay him the amount of that fee as costs. An order to that effect was made on the general principle, subject to specific exceptions arising from the particular circumstances, that where a party had succeeded, the unsuccessful party, after consideration of, and subject to, the means of the paying party to make such a payment, should pay the fees incurred by the successful party. The issue should be looked at broadly and whether or not an appellant has succeeded on all points argued would be a relevant consideration but where, as here, there had been substantial success, payment of the equivalent of the full fee(s) should be the usual outcome.”

In Horizon Security Services Ltd v Ndeze and Another [2014] IRLR 854

the Employment Appeal Tribunal considered the principles involved in dealing with the refund of Employment Appeal Tribunal fees to a successful appellant.

Here Mr Ndeze was the first respondent to the appeal and PCS Group were the second respondent to the appeal.

Mr Ndeze had brought an unfair dismissal claim against PCS Group but they asserted that his employment had transferred to Horizon under the Transfer of Undertakings (Protection of Employment) Regulations 2006 and that was the decision of the Employment Tribunal.

Horizon successfully appealed to the EAT against that decision and the EAT substituted its judgment that the claimant’s employment had not transferred to Horizon.

Horizon then succeeded in its application for PCS to pay to it the sum of £1,600.00 representing the fees paid to appeal.

The EAT said that where an appeal had been allowed, in full or in part, the EAT has a broad discretion to order that a respondent pay to the appellant a sum no greater than the fees incurred. As a statement of general principle it would seem unjust if a successful appellant were unable to recover those fees from the party that resisted the appeal. That statement of general principle needs to be tempered to take account of the particular facts of an appeal and the issue will not be clear cut if for example the appellant has only been partly successful.

It is also relevant to take into account the respondent’s means.

However the general expectation must be that the successful appellant will be entitled to recover the sums paid from a respondent who has sought to resist the appeal.

Comment

Why should a party who has won before the Employment Tribunal, due to an error of law by that Employment Tribunal, have to pay £1,600.00 to the other party when the Employment Appeal Tribunal corrects that error?

Surely Her Majesty’s Courts and Tribunal Service should pay where the expense has been incurred entirely by the error of the Employment Tribunal.

Fee Remission

Here the EAT, Judge Hand QC sitting alone, also considered the appropriate order where an application had been made for fee remission:-

“Where an application had been made for fee remission this Tribunal has power to postpone payment until the outcome of the application for fee remission is known and to make payment conditional upon the application for remission being rejected.”

This is correct but reflects an absurd rule. If a multi-million or billion pound business loses an appeal why should it not be responsible for the fee irrespective of whether the appellant will or will not get fee remission?

Letting a rich company off the hook simply means that appellants of modest means have to pay more to bring an appeal.

This was an appeal against an interlocutory order. Full feels are still payable. Thus if there is an appeal against the substantive decision in due course then the fees payable in the Employment Appeal Tribunal will double to £3,200.00.

A hearing fee of £1,200.00 for a judge sitting alone on an interlocutory matter, maybe without an oral hearing, is by any standards exorbitant.

In Metroline Travel Ltd v Stoute [2015] UKEAT/0302/14 Unreported

the respondent to an Employment Tribunal claim successful appealed against that tribunal’s finding that Type 2 Diabetes necessarily constituted a disability.

The substantive claim had been disposed of and the claimant had no interest in the appeal, which was of importance to the respondent employer in relation to other employees and potential claims, a fact recognised by the EAT which said:-

“I have been persuaded that I should allow the appeal and determine it and not regard it as being entirely academic, but it is an appeal that has been brought for the benefit of the Respondent…”

Nevertheless the EAT ordered the claimant to reimburse his employer for the £1,600.00 EAT Appeal fee occasioned by the Employment Tribunal’s mistake.

Fees Not Recoverable if Paid by Union

In Goldwater v Sellafield Ltd [2015] IRLR 381 EAT

the claimants successfully appealed against an Employment Tribunal finding in relation to deductions from wages.

However the Employment Appeal Tribunal refused the successful appellant employees the return of the £1,600.00 fees as these had been paid by their trade union.

Deciding this important point on the papers only HH Judge Shanks, sitting without members, said that Rule 34A(2A) limits the amount of any costs order to “any fee paid by the appellant” and said:-

“…the plain fact is that the appellants have paid no fees at all in this case and that the maximum order that can be made is therefore nil.”

Rule 76(4) of the Rules of Procedure for Employment Tribunals contains similar wording.

Many Employment Tribunal and Employment Appeal Tribunal matters are funded by trade unions and in other cases it is not unheard of for solicitors to pay the fees upfront.

Rule 34(2) of the EAT rules defines “costs” as including “fees… incurred by or on behalf of a party… in relation to the proceedings.”

Given that definition it seems clear that the intention of Rule 34A(2A) was to limit the maximum that could be awarded rather than to restrict the circumstances in which an award can be made.
The result is absurd. Presumably if the union gives the fee to the appellant who then pays it, it is recoverable. What happens if a solicitor pays the fee without having got money on account from the client?
This is a very poor decision which may have been avoided if submissions had been heard rather than the matter being dealt with on the papers and would almost certainly have never been made by a full tribunal enjoying the wisdom of employer and employee representatives.

In Secretary of State for Justice v Lown [2016] IRLR 22 EAT

Mr Lown succeeded in the employment tribunal in claims for unfair dismissal and wrongful dismissal against his employer the Secretary of State for Justice.

The Employment Appeal Tribunal allowed the secretary of state’s appeal due to the mishandling of the case by the employment judge and sent the matter back for rehearing in front of a fresh tribunal.

However Mr Lown was ordered to pay the Employment Appeal Tribunal fees, not costs, of £3,200.00, the fee being £1,600.00 per appeal even in relation to the same matter.

So Mr Lown has to pat the Secretary of State for Justice £3,200.00 to reimburse the EAT fees the secretary of state pays himself, all because the employment judge for whom the Secretary of State for Justice is responsible, screwed up.

You could not make it up.

In Aslam v Travelex UK Ltd [2015] ICR Digest D21

The employment Appeal tribunal upheld the decision of an employment tribunal dismissing a claim for non-payment of the hearing fee.

The claimant was initially represented by an organisation who appeared on the ET1 application to the tribunal and who applied for remission of the issue fee.

That organisation was replaced by another one and the tribunal wrote to the new representative stating that a hearing fee of £950.00 was due or remission application had to be submitted by a specified date.

The date passed and the tribunal dismissed the claim under Rule 40(2) of the Employment Tribunal Rules Procedure 2013.

The organisation representing the claimant submitted an application for reinstatement under rule 40(5), stating that the representative dealing with the case had been ill.

The employment judge refused the application on the grounds that it would not be in the interest of justice to allow it.

The Employment Appeal Tribunal upheld that decision, signalling a hard line on the issue,

Evidence of President of the Employment Tribunals

60% of claimants have been shut out of the Employment Tribunal system by the introduction of employment tribunal fees, according to Judge Brian Doyle, President of the Employment Tribunals, in his evidence to the Justice Committee of the House of Commons. He said that ” the introduction of fees has had an adverse effect upon access to justice.”

Fees have not increased the uptake of employment tribunal judicial mediation.

The President suggested that employers should have to pay a fee to be allowed to file a response and that employers should also pay the hearing fee.

The evidence of the President is in marked contrast to the findings of the Administrative Court in the failed Judicial Review proceedings in relation to employment tribunal fees.

ALL COURT FEES

A full list of the court fees can be found here and I set these out below.

County Court Fees

Commencing proceedings

1.1	Issuing a claim (excluding County Court Business Centre (CCBC) cases or Money Claim Online cases) to recover a sum of money which:
	does not exceed £300 exceeds £300 but does not exceed £500 exceeds £500 but does not exceed £1,000 exceeds £1,000 but does not exceed £1,500 exceeds £1,500 but does not exceed £3,000 exceeds £3,000 but does not exceed £5,000 exceeds £5,000 but does not exceed £10,000 exceeds £10,000 but does not exceed £200,000 exceeds £200,000 or is not limited (If the claim also includes a non-money claim, an additional or alternative fee will be payable (see fees 1.4 and 1.5 below).)	£35 £50 £70 £80 £115 £205 £455 5% of the value of the claim £10,000
1.4	Issuing a claim for the recovery of land:
	other than where using the Possession Claims Online website using the Possession Claims Online website (Where a money claim is additional or alternative to a claim for the recovery of land, only fee 1.4 is payable.)	£280 £250
1.5	Issuing a claim for any remedy other than the recovery of a sum of money or the recovery of land. (Where a money claim is additional or alternative to a claim for the recovery of goods, only fee 1.5 is payable. Where a money claim is additional to a non-money claim (other than a claim for the recovery of goods or land), fee 1.5 will be payable in addition to fee 1.1. Where a money claim is alternative to a non-money claim (other than a claim for the recovery of goods or land), whichever is the greater of fee 1.5 and fee 1.1 will be payable. Where more than one non-money claim is made in the same proceedings, fee 1.5 is payable only once, in addition to any fee which may be payable under fee 1.1.)	£280
1.6	Issuing a claim against an additional or substituted party	£50
1.7	Issuing a counterclaim	The same fee as if the remedy sought were the subject of separate proceedings
1.8(a)	Application for permission to issue proceedings	£50
1.8(b)	Issuing of costs only proceedings	£50

Proceedings in the County Court Business Centre (CCBC)

1.2

Issuing a claim to recover a sum of money which:

does not exceed £300

exceeds £300 but does not exceed £500

exceeds £500 but does not exceed £1,000

exceeds £1,000 but does not exceed £1,500

exceeds £1,500 but does not exceed £3,000

exceeds £3,000 but does not exceed £5,000

exceeds £5,000 but does not exceed £10,000

exceeds £10,000 but does not exceed £100,000

£25

£35

£60

£70

£105

£185

£410

4.5% of the value of the claim

Proceedings by Money Claim Online users

1.3

Issuing a claim to recover a sum of money which:

does not exceed £300

exceeds £300 but does not exceed £500

exceeds £500 but does not exceed £1,000

exceeds £1,000 but does not exceed £1,500

exceeds £1,500 but does not exceed £3,000

exceeds £3,000 but does not exceed £5,000

exceeds £5,000 but does not exceed £10,000

exceeds £10,000 but does not exceed £100,000

£25

£35

£60

£70

£105

£185

£410

4.5% of the value of the claim

Making an application

2.4	Making an application on notice (if no other fee applies and the application is not made in an appeal notice)	£155
2.5	Making an application without notice or by consent (if no other fee applies and the application is not made in an appeal notice)	£50
2.5	Filing a request for judgment on admission or in default	Nil
2.6	Making an application for a witness summons (except where a judgment debtor is required to provide information in connection with the enforcement of a judgment)	£50
2.7	Application to vary a judgment or suspend enforcement	£50

Hearing fees

These fees are payable by the claimant only, unless the case proceeds on the counterclaim alone, when they are payable by the defendant. Fee 2.1 is not payable where the court fixed the hearing date on the issue of the claim.

2.1(a)	On the multi-track	£1,090
2.1(b)	On the fast track	£545
2.1(c)	On the small claims track where the sum claimed:
	does not exceed £300 exceeds £300 but does not exceed £500 exceeds £500 but does not exceed £1,000 exceeds £1,000 but does not exceed £1,500 exceeds £1,500 but does not exceed £3,000 exceeds £3,000	£25 £55 £80 £115 £170 £335

Rebate of hearing fees

2.1

On the multi-track or fast track if the court has been notified that the case has been settled or discontinued:

more than 28 days before the hearing

between 15 and 28 days before the hearing

between seven and 14 days before the hearing

100%

75%

50%

On the small claims track if at least seven days’ notice in writing is given before the hearing date

100%

Costs

5.2	Request for detailed assessment where the party is not legally aided, where the amount of costs to be assessed:
	does not exceed £15,000 exceeds £15,000 but does not exceed £50,000 exceeds £50,000 but does not exceed £100,000 exceeds £100,000 but does not exceed £150,000 exceeds £150,000 but does not exceed £200,000 exceeds £200,000 but does not exceed £300,000 exceeds £300,000 but does not exceed £500,000 exceeds £500,000	£335 £675 £1,005 £1,345 £1,680 £2,520 £4,200 £5,600
5.3	Request for the issue of a default costs certificate	£60
5.4	Appeal against a detailed assessment decision	£210
5.5	Request or application to set aside a default costs certificate	£110

Appeals

2.3

Filing an appellant’s notice (or a respondent’s notice where the respondent is appealing or asking the appeal court to uphold the order for different or additional reasons):

in a claim on the small claims track

in all other claims

(Fee 2.3 does not apply on appeals against detailed assessment decisions.)

£120

£140

Enforcement

8.1	Issue of a warrant of control against goods except to enforce payment of a fine:
	in CCBC cases or cases in which a warrant of control is requested in accordance with paragraph 11.2 of Practice Direction 7E (Money Claim OnLine cases) in any other case	£70 £100
8.2	Request for a further attempt at execution of a warrant	£30
8.3	Application for a judgment debtor or other person to attend court to provide information in connection with enforcement of a judgment	£50
8.4(a)	Application for a third party debt order (The fee is payable in respect of each third party against whom the order is sought even though several orders can be sought in one application.)	£100
8.4(a)	Application for the appointment of a receiver by way of equitable execution	£100
8.4(b)	Application for a charging order (The fee is payable for each charging order sought.)	£100
8.5	Application for a judgment summons	£100
8.6	Issue of a warrant of possession or delivery	£110
8.7	Application for an attachment of earnings order (The fee is payable in respect of each defendant against whom an order is sought.)	£100
8.8	Consolidated attachment of earnings order or administration order	10p per £1 or part thereof of the money paid into court for debts to creditors
8A.1	Request for service by a bailiff of an order to attend court for questioning	£100

Requests for copy documents

4.2	A document on a computer disk or in other electronic form	£10 per copy
4.1	In other cases	£10 for ten pages or less, then 50p per subsequent page

High Court Fees

Commencing proceedings

1.1	Issuing a claim to recover a sum of money which:
	does not exceed £300 exceeds £300 but does not exceed £500 exceeds £500 but does not exceed £1,000 exceeds £1,000 but does not exceed £1,500 exceeds £1,500 but does not exceed £3,000 exceeds £3,000 but does not exceed £5,000 exceeds £5,000 but does not exceed £10,000 exceeds £10,000 but does not exceed £200,000 exceeds £200,000 or is not limited (If the claim also includes a non-money claim, an additional or alternative fee will be payable (see fees 1.4 and 1.5 below).) (Note the financial thresholds of the High Court: see Practice note, Case management: which court: High Court or County Court?)	£35 £50 £70 £80 £115 £205 £455 5% of the value of the claim £10,000
1.4	Issuing a claim for the recovery of land (Where a money claim is additional or alternative to a claim for the recovery of land, only fee 1.4 is payable.)	£480
1.5	Issuing a claim for any remedy other than the recovery of a sum of money or the recovery of land. (Where a money claim is additional or alternative to a claim for the recovery of goods, only fee 1.5 is payable. Where a money claim is additional to a non-money claim (other than a claim for the recovery of goods or land), fee 1.5 will be payable in addition to fee 1.1. Where a money claim is alternative to a non-money claim (other than a claim for the recovery of goods or land), only fee 1.1 will be payable. Where more than one non-money claim is made in the same proceedings, fee 1.5 is payable only once, in addition to any fee which may be payable under fee 1.1.)	£480
1.6	Issuing a claim against an additional or substituted party	£50
1.7	Issuing a counterclaim	The same fee as if the remedy sought were the subject of separate proceedings
1.8(a)	On an application for permission to issue proceedings	£50
1.8(b)	Issuing of costs only proceedings	£50

Making an application

2.4	Making an application on notice (if no other fee applies and the application is not made in an appeal notice)	£155
2.5	Making an application without notice or by consent (if no other fee applies and the application is not made in an appeal notice)	£50
2.5	Filing a request for judgment on admission or in default	Nil
2.6	Making an application for a witness summons (except where a judgment debtor is required to provide information in connection with the enforcement of a judgment)	£50
2.7	Application to vary a judgment or suspend enforcement	£50

Affidavits

12.1	For each person swearing an affidavit	£11
12.2	For each exhibit referred to in an affidavit	£2

Hearing fees

These fees are payable by the claimant only unless the case proceeds on the counterclaim alone, when they are payable by the defendant. Fee 2.1 is not payable where the court fixed the hearing date on the issue of the claim.

2.1(a)	On the multi-track	£1,090
2.1(b)	On the fast track	£545

Rebate of hearing fees

2.1

On the multi-track or fast track if the court has been notified that the case has been settled or discontinued:

more than 28 days before the hearing

between 15 and 28 days before the hearing

between seven and 14 days before the hearing

100%

75%

50%

Costs

5.2	Request for detailed assessment where the party is not legally aided, where the amount of costs to be assessed:
	does not exceed £15,000 exceeds £15,000 but does not exceed £50,000 exceeds £50,000 but does not exceed £100,000 exceeds £100,000 but does not exceed £150,000 exceeds £150,000 but does not exceed £200,000 exceeds £200,000 but does not exceed £300,000 exceeds £300,000 but does not exceed £500,000 exceeds £500,000	£335 £675 £1,005 £1,345 £1,680 £2,520 £4,200 £5,600
5.3	Request for the issue of a default costs certificate	£60
5.4	Appeal against a detailed assessment decision	£210
5.5	Request or application to set aside a default costs certificate	£110

Appeals in the High Court

2.2

Filing an appellant’s notice (or a respondent’s notice where the respondent is appealing or asking the appeal court to uphold the order for different or additional reasons)

(Fee 2.2 does not apply on appeals against detailed assessment decisions.)

£240

Appeals in the Court of Appeal

13.1	Filing an appellant’s notice (or a respondent’s notice where the respondent is appealing):
	where permission to appeal or an extension of time for appealing is applied for	£235
	where permission to appeal is not required or has been granted by the lower court	£465
13.1(c)	Filing an appeal questionnaire	£465
13.2	Filing a respondent’s notice where the respondent wishes the appeal court to uphold the order for different or additional reasons	£235
13.3	Filing an application notice (This fee is not payable for an application made in an appeal notice.)	£235

Judicial review

1.9(a)	For permission to apply for judicial review	£140
1.9(b)	On request to reconsider at a hearing a decision on permission	£350
1.9(c)	Where the court has granted permission to proceed with a claim for judicial review: if the judicial review procedure has commenced (Fee 1.9(c) is £350 where fee 1.9(b) has been paid and permission was granted at a hearing.)	£700
1.9(d)	Where the court has granted permission to proceed with a claim for judicial review: if the claim for judicial review commenced otherwise than by the judicial review procedure	£140

Enforcement

7.1	Sealing a writ of control, possession or delivery	£60
7.2	Application for a judgment debtor or other person to attend court to provide information in connection with enforcement of a judgment	£50
7.3(a)	Application for a third party debt order (This fee is payable in respect of each third party against whom an order is sought)	£100
7.3(a)	Application for the appointment of a receiver by way of equitable execution	£100
7.3(b)	Application for a charging order (This fee is payable in respect of each charging order applied for)	£100
7.4	Application for a judgment summons	£100
7.5	Request or application to register a judgment or order, or for permission to enforce an arbitration award, or for a certificate or a certified copy of a judgment or order for use abroad	£60

Requests for copy documents

4.2	A document on a computer disk or in other electronic form	£10 per copy
4.1	In other cases	£10 for ten pages or less, then 50p per subsequent page

Searches

10.2	Official certificate of result of search for each name in any register or index held by the court	£45
10.3	Search in person of the court’s records, including inspection, for each 15 minutes or part of 15 minutes	£10

Arbitration

10.4(a) and 10.5(a)	Appointment of a Commercial Court judge as an arbitrator or umpire	£2,455, then £2,455 for every day (or part of a day) after the first day of the hearing
10.4(b) and 10.5(b)	Appointment of a Technology and Construction Court judge as an arbitrator or umpire	£2,455, then £2,455 for every day (or part of a day) after the first day of the hearing

READER COMMENTS:-

Claire Hodgson’s comment on 3 March 2015:-

Impact assessment indeed. and as you know, Kerry, in some cases one can’t put a final defined value on a claim….

Kerry Underwood’s reply:-

Claire

There is so much that I could say about these increases, but it has been said already and rather more politely than I would put it.

Kerry

Nick Bettridge’s comment on 2 March 2015:-

Thanks Kerry. Very helpful as always.

What do you make of the PicArbs being offered by Mr Ritchie QC?

http://www.picarbs.co.uk/index.htm

I saw it in the Gazette but it’s the first I have heard of it. It deserves to be a success in my view and I will certainly be giving it serious consideration.

Best regards and keep up the good work.

Nick Bettridge

Kerry Underwood’s reply:-

Nick

Thank you. Inevitably private law will thrive. For the cost of the clinical negligence issue fee – £10,000.00 – you could get a retired Law Lord for a 2 day arbitration. However there are huge social and legal disadvantages in mediation in the personal injury sector:

– they are private, so no new law is established

– the law is not developed/clarified

– potential defendants/tortfeasors are not put off by potential negative publicity

– damages guidelines become much harder to establish

There are plenty of other disadvantages too. Would the basic concept of negligence ever have been established through arbitration, rather than a court system?

Kerry

Richard Coulthard’s comment on 3 March 2015:-

What about a claim for an unspecified sum e.g. PI claims where you would plead the claim in a bracket i.e. £50k – 100k. How do you assess the amount of the fees – is it the up level of the bracket? I confess that I have not read the full explanatory notes but I can’t see express reference to this point.

Given the huge additional cash flow burden this will place on firms and also the added risk on difficult cases we are going to have to go through the hassle of considering fee exemptions at the outset as part of the risk assessment process and prior to issuing proceedings.

Kerry Underwood’s reply:-

Richard

Yes- see above – it is all based on brackets. In the case of an unlimited claim, or one where the claim is £200,000 or more, the fee is £10,000. A claim of £50k to £100k attracts a fee of £5,000.00 – no doubt about it.

You will certainly have to consider fee exemptions in every case – arguably you should anyway already – it will also be more important to consider all forms of ADR as the paying party could say : “If you had been pro-active about ADR we could have saved £10,000 issue fee”. Reality is you could get a retired judge to hear the case for much less than the court fee.

Kerry

Richard Coulthard’s reply:-

Historically the statement of value has always been linked to the court fee e.g. there was a £15k – 50k bracket, £50k – 100k bracket etc etc

Under the new scheme however the 5% fee applies to all claims between £10k – 200k. Is there any reason therefore why you couldn’t limit a claim to any figure in that bracket – e.g. the claim is limited to £75k or even a random amount, say £56k, for arguments sake?

If you do this are there dangers if you need to later amend the statement of value? In PI particularly the value of the claim may not be fully known at the point of issue, particularly if limitation has been an issue. It also begs the question as to whether Defendant costs draftsman will use this against you at the end of a claim for example a claim issued limited to a value of £100k which later settles at say £25k due to change in medical evidence or litigation risk. I can see costs draftsman arguing that the recoverable court fee should be limited to 5% of the recovered amount rather than the statement of value. What do you think?

Kerry Underwood’s Reply:-

Richard

Under the new scheme it is clear that the brackets only apply from £0.00 to £10,000.00, for which there is a specific fee and then there is another band of a claim which is either unlimited or exceeds £200,000.00 and the fee for that is again a fixed sum, that is £10,000.00.

However where a claim is between £10,000.00 and £200,000.00 then, as you correctly say, the fee is 5% of the value of the claim.

Thus my view is that you can indeed limit a claim to any figure in that bracket and the fee would then be 5% of that limit. Thus if one limited the claim to £100,000.00 then the fee would be £5,000.00.

The statutory instrument is not clear, and neither is the explanatory note, but I believe that that is the way it will be interpreted by the courts.

I am certain beyond any doubt that defendant paying parties will indeed seek to limit the recoverable issue fee to the sum actually awarded. Thus in the example you give of a claim limited to £100,000.00 which settles at £25,000.00, then the issue fee would have been £5,000.00 but I am sure that the defendants will seek to argue that they should only pay £1,250.00 being the appropriate issue fee on the sum actually paid out in damages, that is £25,000.00.

Thus one is caught between the devil and the deep blue sea as I believe there would indeed be difficulties in successfully amending the statement of value after proceedings have been issued. Thus the safest course is clearly to limit the claim to the maximum possible, and indeed to add a percentage for safety’s sake and contingencies there as well but that inevitably means that there will be a risk of not recovering the whole issue fee.

Obviously guidance on this point in advance of the increase would have been welcome………

Kerry

Sarah Thomsen’s comment on 4 March 2015:-

Presumably protective claims issued this week will attract the lower court fee?

Kerry Underwood’s reply:-

Yes.

Simon Bradshaw’s comment on 5 March 2015:-

I would not want to be working at the Bulk Claims Centre today or tomorrow!

(I had to very quickly draft a claim form on Tuesday to properly reflect a claim with multiple causes of action, as my instructing solicitor was not unreasonably worried that an attempt to issue it at the end of the week might find the claim in a long queue of others rushed in ahead of the fee rise.)

Kerry Underwood’s reply:-

All rushed through with indecent haste and with Ministers lying about potential impact.

John Kushnick’s comment on 5 March 2015:-

Does this affect Stage 3 Rapid Claims fees and infant approval fees? the courts have been inconsistent abotu Part 8 fees to say the least.

Kerry Underwood’s reply:-

John

No.

Kerry.

Paul Carroll’s comment on 5 March 2015:-

Hi. If I have a file with say £20k hire and £5k PI but I would be happy with say £15k hire could i limit the issue fee to £20k?

Kerry Underwood’s reply:-

Yes.

John Kushnick’s second comment on 5 March 2015:-

Lord Faulks: “Anyone advising a claimant will probably need to satisfy that claimant that there is at the very least a better than even—probably a 75%—chance of success before they commence proceedings.”

And they say satire is dead.

Kerry Underwood’s reply:-

John

Hard to believe that any of that speech was given by a Justice Minister in the United Kingdom Parliament. The wretched Bridget Prentice said that legal services should be like buying baked beans. This is the end result.

Kerry

Sue King’s comment on 5 March 2015:-

Hi Kerry

If acting for a client under a CFA that provides the client never has to pay the court fees win, lose or draw or has an ATE policy to cover own disbursements, then presumably the client cannot apply for fees remission?

Obvious I would have thought but argument raging in the office.

Thanks,

Sue

Kerry Underwood’s reply:-

Sue

There has to be a primary obligation on the client to pay the issue fee in the event of success; otherwise the indemnity principle kicks in and you can never recover that fee from the other side, just as with ordinary costs. I would be amazed if the ATE policy says otherwise.

Given that there is a primary obligation on the client to pay then, yes, in my view the client can apply for remission. There is almost certainly a duty to the potential paying party to minimize costs by seeking remission; if you fail to do so in circumstances where you could have got remission then why should the other side pay?

Kerry

Luke Hallinan’s comment on 6 March 2015:-

People in ivory towers without a clue about how the real world works.

Kerry Underwood’s reply:-

Luke

That is the most charitable explanation. The less charitable one is that they know exactly what they are doing and exactly the effect it will have.

Kerry

Geoff Jeffington’s comment on 11 March 2015:-

It seems to me that the safest course of action might be to err very much on the side of caution and underestimate the value of the claim, to achieve a lower fee (as long as in so doing you do not find yourself in the realms of the Fast Track when it should be a Multi Track matter).

CPR 16.3(7) says “The statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to.”

So the judge’s hands are not tied by your pleaded statement of value. The Defendant is hardly likely to raise issue with the point during the course of the matter – as in so doing they will merely be destroying any complaint they could later seek to make that too high a fee was paid. Even if they did, you would simply pay the fee that they proposed was appropriate, safe in the knowledge that they could not then argue the toss at the end of the matter.

If you later felt comfortable that you were going to achieve significantly more than pleaded in your statement of value, you could amend the Claim Form and pay the surplus issue fee.

Kerry Underwood’s reply:-

Geoff

I think that that is a dangerous idea. The court is not compelled to award more than claimed and in the current anti- claimant hysteria I think it most unlikely that they will.

I do not follow your point about the defendants. True it is that they will not complain about the fee being too low, but they will beyond doubt protest loudly at any attempt to recover damages above the limit claimed. Understating the claim also has a depressing effect on Part 36 offers etc – it lowers expectations all round.

Kerry

Tim Beasley’s comment on 13 March 2015:-

I cannot see anywhere whether the fee for applications, listing etc have changed.

Kerry Underwood’s reply:-

Tim

They have not. But another consultation closed on 27th February and that proposes doubling the uncontested application fee from £50 to £100 and increasing the contested fee from £155 to £255.

Kerry

Paul Carroll’s comment on 16 April 2015:-

Hi Kerry

If you were issuing for two claimants (driver/passenger) one valued at £9000.00 the other £4000.00, should I restrict the claim value to £9000.00 or £13000.00?

Many thanks for all your help.

Paul

Kerry Underwood’s reply:-

Paul

The relevant law is the High Court and County Courts Jurisdiction Order 1991 – 1991 no. 724 (L.5), which is itself referred to in Part 7, Practice Direction 7A – “where to start proceedings”.

That part reads:-

“2.2 Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is 50,000 or more (paragraph 9 of the

High Court and County Courts Jurisdiction Order 1991 (S.I. 1991/724 as amended) describes how the value of a claim is to be determined).”

Paragraph 9 of the High Court and County Courts Jurisdiction Order 1991 reads:-

“Definition of value of action

9.—(1) For the purposes of articles 5 and 7—

(a) the value of an action for a sum of money, whether specified or not, is the amount which the plaintiff or applicant reasonably expects to recover;

(b) an action for specified relief other than a sum of money—

(i) has a value equal to the amount of money which the plaintiff or applicant could reasonably state to be the financial worth of the claim to him, or

(ii) where there is no such amount, has no quantifiable value;

(i) if one or more of the claims is of a kind specified in paragraph (b)(ii), has no quantifiable value;

(ii) in any other case, has a value which is the aggregate of the values of the claims as determined in accordance with paragraphs (a) and (b)(i).

(2) In determining the value of an action under paragraph (1), claims for—

(a) unspecified further or other relief,

(b) interest, other than interest pursuant to a contract, and

shall be disregarded.

(4) In determining the value of an action under paragraph (1)(a)—

(a) the sum which the plaintiff or applicant reasonably expects to recover shall be reduced by the amount of any debt which he admits that he owes to a defendant in that action and which arises from the circumstances which give rise to the action;

(b) no account shall be taken of a possible finding of contributory negligence, except to the extent, if any, that such negligence is admitted;

(c) where the plaintiff seeks an award of provisional damages as described in section 32A(2)(a) of the Supreme Court Act 1981(28), no account shall be taken of the possibility of a future application for further damages;

(d) the value shall be taken to include sums which, by virtue of section 22 of the Social Security Act 1989(29), are required to be paid to the Secretary of State.”

Thus you must put £13,000.00 as the value of the claim, that is the sum of the two claims, and pay the court fee accordingly.

Kerry

Gary Whitaker’s comment of 4 November 2015:-

Say you issue protectively before March 2015 and the case is then stayed. You then finalise quantum evidence and case value has increased tremendously. You want to increase the statement of value on the pleadings. Do you pay the old court fee upon amending statement of value to increase it or are you bound by the new court fee? This could be an £8,000 difference in court fee.

The “Guidance” on the current form EX50 simply states:

“Time for payment of fees
Court fees are payable at the time you file any document or commence any process requiring a fee, unless otherwise stated.”

It seems this can wash either way.

Lack of judicial guidance and the fact each Court operates to its own drum beat mean some do agree whilst some don’t agree that its the old fee that applies.

Any guidance much appreciated.

Kerry Underwood’s reply:-

Gary

You will have paid the issue fee; on the face of it there is no additional fee payable simply for serving, so if no increase then no additional fee. I realise that you are saying that there is a significant increase. My instinct is that if there is an additional fee payable then it is based on the NEW rate of fees, with credit being given for anything that you have paid already. You can of course amend without leave prior to service. Presumably you are assuming, correctly in my view, that the increase will be picked up by the Defendant and/or judge at a CMC and the court will demand an extra fee, as it is entitled to do. As you say – could go either way but my instinct is that you are hit with the new, higher fee – it will be open to abuse if it were otherwise.

Good question though!

Kerry

Written by kerryunderwood

November 25, 2015 at 8:30 am

Posted in Uncategorized

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[…] Court and Tribunal Fees and Remissions […]

KERRY’S BLOGS: A GUIDE | Kerry Underwood

December 1, 2015 at 2:32 pm

Reply
- I am increasingly coming across scenarios where an application is being made to Court on notice attracting a fee of £255.00 only for a resolution to the application being reached between the parties. However, once a Consent Order / Tomlin Order is filed with the Court, the Court are requesting a further £100.00 for the privilege, thus paying twice in respect of the same application. Surely this cannot be correct but I am unable to find any guidance or authority anywhere. I would be interested to hear from anyone with their thoughts on this issue.
  
  Craig Shipp
  
  October 28, 2019 at 12:55 pm
  
  Reply
  - Craig
    No case law as far as I am aware, and my reading of the rules is that they are entitled to do this, although it is clearly a rip-off. Thank you for bringing it to my attention.
    Kerry
    
    kerryunderwood
    
    December 2, 2019 at 3:17 pm
Reblogged this on Kerry Underwood.

kerryunderwood

July 27, 2016 at 10:01 am

Reply
Re Online Application. ” Only the person who has to pay the court or tribunal fee can make a fee remission application” .In a PI cases is it acceptable for the ourselves as the solicitors to call the client and go through the online form with them and (if they are eligible) then write remission reference on the Court form ? Does this cover PAD applications too ?

dominicmoss

July 27, 2016 at 10:35 am

Reply
- Dominic
  
  It is certainly permissible for you to go through the form with the client and to assist the client in completing the form and that would apply to any type of application, including one for pre-action disclosure.
  
  I can see no objection to then writing the remission reference on the court form.
  
  The key thing to avoid is any suggestion that the client him or herself would not have had to pay the fee if remission was not granted, that is that the solicitor or a trade union or whatever would have paid it.
  
  In Goldwater v Sellafield Ltd [2015] IRLR 381 EAT
  
  the Employment Appeal Tribunal refused the successful appellant employees the return of the £1,600.00 fees as these had in fact been paid by their trade union.
  
  That involved slightly different wording in relation to the Employment Tribunal Rules of Procedure, but was even more graphic as that was not a refund on grounds of economic need but because the party had won.
  
  If an application is refused because it was not the person who has to pay the court or tribunal fee making the application, then you can you be in a double bind.
  
  Firstly you do not get the remission and therefore the fee has to be paid.
  
  You then win the case. Salt is rubbed into the wound by the defendant potentially successfully arguing that they should not have to pay the court fee as had the matter been handled properly then remission would have been granted and there would have been no fee.
  
  Kerry
  
  kerryunderwood
  
  August 5, 2016 at 8:10 am
  
  Reply
Hi Kerry,
V useful as always.
I note you unequivocally state that EX160 should be completed in the name of and for the benefit of the child, not the Litigation Friend. I have, however, been told by both my local county court and the CCMCC that it should be completed in the name of the Litigation Friend and based on the Litigation Friend’s finances. Of course I really want to side with you, but if you are correct then surely hardly any fees would ever be paid when the Claimant is a child, and in cases where fees have been paid defendant costs lawyers would have been arguing that the fees should not have been paid?
have you any further thoughts?
Andy

Andy

March 2, 2017 at 11:20 am

Reply
- Many thanks.
  
  You are right and I am wrong and I have amended the blog accordingly.
  
  The guidance previously was that Form EX160 had to be completed in the name of the child.
  
  However, precisely to avoid a child getting the benefit of fee remission, it is indeed now the Litigation Friend’s details and finances that are taken into account, and the point you make is entirely correct.
  
  The guidance says:
  
  “Minors: If you are acting for or representing a child involved in court or tribunal proceedings, in your capacity as a Litigation Friend, parent or guardian, you can apply for a full or part remission using your own details.”
  
  Thank you for bringing this matter to my attention.
  
  Kerry
  
  kerryunderwood
  
  March 13, 2017 at 4:02 pm
  
  Reply
  - Hi
    Do you mind telling me which guidance you are looking at? I cannot see any reference to Minors or Litigation Friends in either EX160 or EX160A.
    And in the entry above are we suggesting that the Litigation Friends themselves must complete the online application on their own computer – ie that we cannot gather the information from them and do it for them?
    Andy
    
    Andy
    
    March 14, 2017 at 10:54 am
  - Andy
    
    There is no specific reference in the updated EX160 or EX160A as there was in the previous EX160A guidance form
    
    The details to be inserted in the form are those of the Litigation Friend, but the solicitor is able to gather that information and complete the form.
    
    Kerry
    
    kerryunderwood
    
    April 7, 2017 at 2:16 pm
  - Thanks Kerry. I reckon that’s probably worth another tenner to the Taverners.
    
    Andy
    
    April 7, 2017 at 3:23 pm
I am coming up against situations where the Claimant solicitor has not applied for fee remission, a bill has been drawn, including the Court fee and now the Defendant is refusing to pay the Court fee as a fee remission was not carried out and full/part remission would have been allowed. Is there any counter argument to this or is the Claimant solicitor basically stuffed as the fee hass paid to the Court and the Defendant isn’t liable?

Nikki Brigg

March 6, 2017 at 5:22 pm

Reply
- Nikki
  
  You can apply for a refund within 3 months of paying the fee, but eligibility is applied when the fee was paid, not when the refund is applied for, so that may help in some cases.
  I am unaware of any cases specifically on the point, but it seems to me a basic mitigation of loss point – so yes, stuffed indeed in my view.
  
  Kerry
  
  kerryunderwood
  
  March 13, 2017 at 2:04 pm
  
  Reply
Andy

many thanks 🙂

Kerry

kerryunderwood

April 7, 2017 at 3:49 pm

Reply
Good morning Kerry.
I am aware that you can apply for a fee remission prior to issue but is there any limit on how long before?
Thank you

Melissa Dodds

April 10, 2017 at 9:24 am

Reply
- Good Morning Melissa
  
  That is correct, you can apply for a fee remission prior to issue but in the guidance there is no limit on how long before issue you can apply for a fee remission.
  
  However the guidance does state that you can apply for a refund up to three months after the fee was paid but to qualify you must have been eligible for a fee remission at the time the court fee was paid.
  
  This is all dealt with in great detail in my book Personal Injury Small Claims, Portals and Fixed Costs which can be order from Amazon here.
  
  Many thanks
  
  Kerry
  
  kerryunderwood
  
  April 10, 2017 at 11:17 am
  
  Reply
  - Great.
    
    Thank you Kerry.
    
    Melissa Dodds
    
    April 10, 2017 at 11:30 am
Pleasure

kerryunderwood

April 10, 2017 at 11:31 am

Reply
Hi Kerry,

If you act on behalf of a person who does not have capacity in a personal injury case with a family member as the litigation friend, when you issue court proceedings and apply for a fee remission, whose details should be used on the EX160 form?

The EX160A guidance is not clear and focuses on if the party is a minor (use the parents/guardians details), or making an application to the Court of protection – which I am not doing.

Would it be right to use the individual’s details but then ask the litigation friend sign the form?

Many thanks,

Andrew

Andrew

August 22, 2017 at 12:05 pm

Reply
- Andrew
  
  On page 5 of form EX160A the guidance states that generally only the person who has to pay the court or tribunal fee can make a fee remission application.
  There are two exceptions to this rule, firstly where an application is made to the Court of Protection on behalf of a person who lacks capacity to make decision and secondly any person acting for, or representing a child, involved in a legal action.
  
  In your personal injury case you have a litigation friend acting for a person who does not have capacity. The Court of Protection is not involved and the individual is not a child so neither of these exceptions apply.
  
  Therefore you are correct. The details used to complete the form should be those of the individual lacking capacity and the form should then be signed by the litigation friend.
  Kerry
  
  kerryunderwood
  
  August 23, 2017 at 11:30 am
  
  Reply
Hi Kerry,
Does a client have to submit a new help with fees each time an application is made?

Bill Sethi

December 14, 2017 at 2:57 pm

Reply
- Hi Bill
  
  HM Courts and Tribunals Service have provided a guide on how to apply for help with fees – Form EX160A.
  
  At the bottom of page 4 it states
  
  “About your application (question 3)
  
  A Help with Fees application is required at each stage of your case where a fee is payable including where a hearing fee maybe applicable.
  
  You need to give the name or number of the court or tribunal form that you’re using.
  
  You can usually find the form name at the top of the form, and the number at the bottom.
  
  If you don’t have a form name or number, for example if you’re applying for help with a hearing fee, then write ‘hearing fee’ as the answer to this question.”
  
  Therefore a Help with fees application will need to be made at each stage of the case where a fee is payable.
  
  Many thanks
  
  Kerry
  
  kerryunderwood
  
  December 15, 2017 at 12:48 pm
  
  Reply
Kerry
If Claimant pays a fee. If they did not apply for remission and may have been eligible and then go on and are successful. Can the claimant still recover the court fee or can D rely on failure to apply for remission?

Would appear to me a D is trying to pass responsibility for court fee indirectly to the tax payer in these circs.

Any view

Garret

May 31, 2018 at 11:33 am

Reply
- Garret
  
  Defendant can rely on the failure to apply for remission; in those circumstances as the claimant has incurred unnecessary, and therefore unrecoverable, costs.
  
  It is true that that has the effect of passing the cost on to the taxpayer, but that happens in all sorts of situations where a claimant receives state concessions.
  
  There is a clear duty to consider court fee remission in any case, and failure to do so is negligence and inadequate professional service, almost certainly depriving the solicitor of the right to any fee at all, which by virtue of the indemnity principle will generally let the paying party off the hook.
  
  However, the indemnity principle does not apply in fixed costs cases.
  
  This is all dealt with in my book – Personal Injury Small Claims, Portals and Fixed Costs, which has a whole chapter on the subject. Cost £50 for 3 volumes, available from Amazon or Underwoods Solicitors – just visit Amazon or our website.
  
  Kerry
  
  kerryunderwood
  
  June 2, 2018 at 2:09 pm
  
  Reply

Kerry Underwood