Gibbs v King’s College NHS Foundation Trust [2021] EWHC B24 (Costs) (22 November 2021)

The apparent discrepancy between the fee being paid in February 2017 and fee earners subsequently considering a fee remission led to the following point of dispute: “… C would be eligible for an issue fee remission and incurring the fee is in reasonable costs. C is put to proof that an application for issue fee remission was considered, prepared, and the outcome of the same.” [3]

The reply to that point of dispute was set out in the following terms: “There is no requirement for C to mitigate their loss by reliance on the public purse…” [4]

The burden of proof is clearly on the receiving party to demonstrate that the costs are reasonable and proportionate. In this case C, as receiving party, has provided no evidence to demonstrate that this item of costs has been reasonably incurred. In particular, there is no evidence as to the thought process in incurring the court fee of £10,000 in circumstances where the claimant was, sadly, very ill and presumably might have been eligible for fee remission. [17]

incurring a court fee which did not need to be incurred can only be seen as escalating the costs incurred by one or other of the litigants. Such expenditure is for the party’s own account. In other words, it is a solicitor and client cost, not one recoverable between the parties. [37]

a party who does not consider whether they are entitled to a fee remission and, thereafter make an application if there is any doubt, risks being unable to recover that fee from their opponent. If the opponent can demonstrate that the receiving party appeared to fall within the remission scheme, the onus will be on the receiving party to justify why the court fees were incurred. If as here, there is no such justification put forward, the fee should be disallowed under CPR 44.3. Such a party has not incurred the lowest amount it could reasonably be expected to spend. At the very least there has to be a doubt which is to be exercised in favour of the paying party. [38]