Kerry Underwood

COURT FEES: THREE NEW CASES

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

Remission And Recoverability

A claimant who could have applied for remission of the court fee does not do so and wins the case.

Is the losing defendant liable for that court fee? No or Yes, depending upon which court you are in.

 

In

Stoney v Allianz Insurance Plc Case No: E14LV817, Liverpool County Court 7 November 2019

the court said no, holding that the fee was unreasonably incurred as the claimant may have been entitled to fee remission, that is he would not have had to pay the fee.

The judge accepted that this meant that a necessarily incurred court fee, caused by the negligence of the insured, would be borne by the state and not the insurance company, but said that that was a matter for Parliament or the Rules Committee.

 

In

Cook v Malcolm Nicholls Limited Case No: B57YP191, Coventry County Court 11 April 2019

the court said yes:

 

I take the view that the court fee is the court fee. That has got to be paid.”

 

 

Comment

It would be a very simple matter indeed for the Civil Procedure Rules to say either:

“A successful claimant shall recover any court fee paid, whether or not that party could have sought remission of that fee”

or

“A defendant shall not be liable for a court fee incurred by a party who could have successfully claimed remission of that fee.”

Don’t hold your breath.

 

 

General Civil Restraint Orders

In

Chief Constable of Avon and Somerset v Gray [2019] EWCA Civ 1675 (11 October 2019)

the Court of Appeal allowed an appeal and set aside the High Court’s refusal to extend a General Civil Restraint Order.

It held that the High Court was wrong to conclude that the court fee payable under Practice Direction 3C.4.2- General Civil Restraint Order application fee-  represented an absolute or effective bar to litigating which justified not extending the General Civil Restraint Order despite his finding that the respondent was very likely to bring civil claims, including unmeritorious ones, if the General Civil Restraint Order was lifted.

The Court of Appeal retrospectively extended the General Civil Restraint Order from the date of the High Court application.

The Court of Appeal considered that although the current fee of £55 may be a significant sum for someone in receipt of benefits, it was not open to the court to hold that the fee represented a bar to litigation without evidence showing that the individual would be unable to access that amount of money by borrowing, support from friends or family, or obtaining legal aid or legal representation subject to a damages based agreement or conditional fee agreement.

The Court of Appeal also noted that for a meritorious claim, the General Civil Restraint Order application fee is returnable, and therefore described this as a “cash-flow” problem.

It considered that the fact that the fee would not be returned in an unmeritorious claim, represented a legitimate deterrent to making such claims.

It should be noted that there is no fee remission scheme in relation to vexatious litigants, but rather a vexatious litigant in these circumstances has to pay the full fee but it is then refunded if the application is successful.

That is the effect of Paragraph 19 of Schedule 2 of the Civil Proceedings Fees Order 2008 and the court said this:

 

“32. In my view, the relevant language of these regulations is clear. There is a distinction between “remission” and the refunding of a fee. Subject to other provisions, an impecunious litigant can apply for remission of the fee under paragraph 15 of Schedule 2 and, upon making the application, the date for payment of the fee is disapplied. To the extent that the application for remission succeeds, that fee never becomes payable. However, where a restraint order is in force against such an individual, then the prescribed fee “is payable in full”, and it follows the individual cannot make the application for remission. It also follows that the date for payment cannot be “disapplied” and therefore the payment must be made before the relevant issue or step in the action. Paragraph 19(3) simply means that, if the relevant individual has a reasonable claim and is granted permission then they will be put back into the position they would have been had remission of the fee been open to them.

33. In my view, the intention of these provisions is obvious: the requirement to pay the fee at the initiation of action must be taken to be part of the discipline imposed on vexatious litigants.”

Written by kerryunderwood

November 7, 2019 at 12:00 pm

Posted in Uncategorized

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