The question of whether a hearing fee is recoverable when a Claimant was eligible for a remission, but a fee remission was never considered, was recently dealt with on appeal in the case of Ivanoy v Lubble.
The Circuit Judge had to consider many issues in reaching the decision as to whether the hearing fee was recoverable from the Defendant. The first was where the burden of proof lay in relation to the issue of the hearing fee. Having considered CPR r.44.3 the Circuit Judge determined that the rules made it clear that the burden of proof on a standard basis assessment lay on the receiving party to satisfy the Court that the costs were reasonable and proportionate and that the rule engages similar issues to those involved in mitigation of loss arguments. On that basis the burden of proof on the fees issues lay with the Appellant to satisfy the Court that it was not unreasonable to forgo the fee remission scheme.
The Circuit Judge then went on to dispose of the argument of the unpredictability or burden for fee remission which would afford the Claimant any reason for failing to make the application given the basis of the fee remission scheme was to give litigants of modest means access to justice and was used by litigants in person who had no legal representation. The Circuit Judge commented that hundreds of people of limited means successfully navigated the forms on a daily basis and received fee remissions. There was no reason to believe that a requirement to make the application would represent an unreasonable burden on the Claimant. Further, there could be no argument that the scheme was unpredictable as an application could be made and the Claimant would then find out if they were eligible.
The main issue the Circuit Judge had to consider was whether it was reasonable to expect a Claimant to use the scheme or whether this places a burden on the taxpayer that is unreasonable. The Circuit Judge acknowledged that the public purse was depleted by the amount that would otherwise have been paid and on this basis there was less in the public purse to devote to the justice system as a whole. The Circuit Judge considered r.44.3, r.44.4 and applicable case law and agreed that there were strong public policy grounds for saying that it is was not unreasonable for a Claimant to preserve the public purse and direct the cost of wrongdoing on the tortfeasor.
The Circuit Judge was satisfied that is was not unreasonable for the Claimant to pass on the hearing fee to the Defendant and, subject to the Court being satisfied that the fee was incurred, the Court fee was recoverable from the Respondent.
If you have any further questions or require MRN’s assistance, please Ask the Experts!