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Costs: consequences of claimant's failure to apply for fee remission

20 December 2021

Simon Fisher discusses a recent decision of Costs Judge Rowley in which the claimant's failure to apply for a fee remission meant that the issue fee was not recoverable from the defendant.

Gibbs v King's College NHS Foundation Trust [2021] EWHC B24 (Costs)

Costs Proceedings

The costs in this case arose out of a clinical negligence claim brought by the claimant in respect of the defendant's treatment of his mother.

The defendant's points of dispute to the claimant's bill of costs raised the point that the claimant was self-employed, and was in receipt of Employment and Support Allowance as well as the enhanced Living Component of Personal Independence Payment and the enhanced rate of the Mobility Component of Personal Independent Payment. The defendant submitted that in light of this, the claimant would be eligible for fee remission and put the claimant to proof that an application for issue fee remission had been considered.

Rather than answer the question directly, the claimant replied that he was not required to mitigate his loss by reliance on the public purse. However, during the course of the hearing the claimant's advocate confirmed that a fee remission had not been applied for.

Decision

Costs Judge Rowley reiterated the principle of a standard basis assessment; that the burden of proof is on a claimant to demonstrate that costs, including the court fee, were reasonably incurred and that any doubt must be resolved in the defendant's favour.

The judge found that if a defendant can demonstrate that a claimant appears to fall within the remission scheme and a claimant does not consider whether they are entitled to fee remission then a claimant risks being unable to recover that fee from a defendant:

"Consequently, if, as appears to be the case here, it was simply overlooked, should the court allow the fee as being reasonably incurred in any event? In my judgment the answer is no."

Costs associated with fee remission

The costs judge found the costs of making the application for remission may potentially be recoverable from a defendant, however the costs judge does not appear to have been taken to an argument that the costs of the application for remission are funding related so are to be disallowed pursuant to Motto & Ors v Trafigura Ltd & Anor (Rev 3) [2011] EWCA Civ 1150.

What this means for Insurers?

This case is a useful reminder of the availability of fee remissions for claimants and their impact on the costs payable by a defendant at the conclusion of the claim.

Court fee remission is considered on a case specific basis and each application is means tested on its own merits, but there may be aspects of the claim that indicate the availability of a fee remission to the claimant. The most obvious is a credit hire claim where impecuniosity is pleaded. In other claims, expert reports should highlight a claimant's employment status, and CRU certificates will show the nature of benefits being claimed. A further indicator of the eligibility for fee remission could be a claimant's request for an interim payment due to financial hardship.

It is also important to note that it is not only unemployed claimants that qualify for fee remission, but claimants that are in low or middle-income brackets may still be eligible for partial remission.

If you require any further information, please contact Simon Fisher

Further Reading