In the recent decision of Stoney v Allianz Insurance Plc, District Judge Jenkinson held that the court issue fee had not been reasonably incurred by the Claimant and therefore was not recoverable from the Defendant.

The successful argument from the Defendant was that pursuant to CPR 44.3, the fee was unreasonably incurred because the Claimant would have been eligible for a fee remission, yet never made an application to Her Majesty’s Courts and Tribunals Service (‘HMCTS’) for such a remission, to avoid incurring this disbursement at all.

The Judge considered that West v Stockport NHS Foundation Trust [2019] EWCA Civ 1220 was authority that certain disbursement amounts consisted of an ‘irreducible minimum’, such as this court fee, the amount of which is of course set by HMCTS.

The Claimant’s solicitors argued that their business model, like that of many personal injury firms, was for their client to purchase an ATE insurance policy, from which those disbursements would be reimbursed were the claim to fail. The firm would fund all disbursements at the outset of proceedings, such that fee, it was argued was in fact a solicitors’ disbursement, rather than the lay client’s disbursement. It was submitted that to apply for a fee remission was tantamount to misleading the court, when that fee was actually absorbed by the firm in these circumstances.

The Judge decided that the remission application was not an onerous task; the application form did not ask for whether or not the Claimant had alternative means of funding, or whether there were solicitors acting. Therefore the Judge held that the court fee was the Claimant’s costs, as opposed to a solicitors’ disbursement. On this basis, because there was nothing to suggest that the Claimant would have struggled to apply for a remission, but as a matter of fact would have been eligible for the same, it was unreasonably incurred disbursement.

In another County Court decision from 11 April 2019, Cook v Malcolm Nicholls Limited, Deputy District Judge Jones reached the opposite conclusion, namely that the court fee could be recovered against the Defendant. The Judge held that it was not appropriate for the Defendant to challenge either the terms of the retainer between the client and their solicitors, or the advice given from the solicitors to their client. The Judge further considered that it was reasonable for the Claimant to opt not to burden the taxpayer but to self-fund, concluding that ‘the court fee is the court fee. That has got to be paid’.

It follows that this decision, although non-binding, calls into question the assumption that a court fee will invariably be recoverable by a successful Claimant as against the Defendant. There is always the necessity of testing whether disbursements were reasonably incurred.

As the Judge in Stoney concluded, tt remains for either Parliament or the Civil Procedure Rules Committee to address the tension between these two schools of thought.