Court fee changes in force since 6 March 2017
Pursuant to the Civil Proceedings Fees (Amendment) Order 2016 (SI 2016/1191) made on 6 December 2016, new court fee rules were introduced from 6 March 2017.
There will be a new process whereby the court will send out a notice to the Claimant when the trial date is set which will state the amount of the trial fee, the date by which it is to be paid and the consequence if not paid.
The trial fee will now be required to be paid at least 28 days before the date of the hearing or 28 days in advance of the Monday of the week of the listed trial hearing date. There are two exemptions to this rule; firstly where the court has set the main hearing date less than 36 days before the trial is set to begin, then the fee is due within 7 days of the notification and secondly where a party has applied for a fee remission and the decision in regard to the same remains outstanding at the point the fee becomes due, but is then refused in part or in full, the fee is payable either within 7 days after the court giving notice of refusal or at least 28 days prior to the trial date of the Monday of the first week of the notified trial period, whichever is later.
Pertinently the rules surrounding the refunding of hearing fees was also revised significantly. It is now the case that should a claim settle or be discontinued after the hearing fee has been paid, there will no longer be a full or partial refund of the hearing fee paid.
Furthermore, the amendments to CPR 3.7A1 and 3.7AA will reflect the changes made to sanctions for non-payment of trial fees and will provide for an automatic striking out of the claim or counterclaim if the trial fee is not paid by the stipulated date, with the added punishment of the Claimant paying the Defendant’s costs. There will no longer be a service of notice requiring payment of the outstanding fees or warnings of the failure to pay given in the matter which would subsequently allow further time for payment.
The rules clarify that the hearing fee is always payable by the Claimant unless the case is continuing on the counter claim alone and it is not payable where the court fixed the trial date upon issue of proceedings. In the case of a counterclaim only then identical provisions will apply.
No changes have been noted at this stage in relation to the Hearing fees themselves in fast and multi-track matters however the small claims Hearing fees have been changed.
It is important to note that the new rules will only apply if both parties are notified of the trial date by the Court. If the parties are only notified orally, the ‘old’ rules as per CPR 3.7 and CPR 3.7A apply.
Any cases in which the Court has given notice of trial or start of the trial period prior to 6 March 2017 will not be affected by the new rules.
CPR amendments coming into force on 6 April 2017
Case and Costs Management
The amendments coming into force on 6 April 2017 apply in particular to cases subject to case and costs management. It should be noted in particular that the changes, as underlined below, replace 'budget' with 'budgeted costs' clarifying the point that budgeted costs mean costs to be incurred and that incurred costs are not budgeted costs.
3.15 Costs management orders
(1) In addition to exercising its other powers, the court may manage the costs to be incurred (the budgeted costs) by any party in any proceedings.
(2) The court may at any time make a “costs management order”. Where costs budgets have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made. By a costs management order the court will—
(a) record the extent to which the budgeted costs are agreed between the parties;
(b) in respect of the budgeted costs which are not agreed, record the court's approval after making appropriate revisions;
(c) record the extent (if any) to which incurred costs are agreed.
(3) If a costs management order has been made, the court will thereafter control the parties' budgets in respect of recoverable costs.
(4) Whether or not the court makes a costs management order, it may record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings.
3.18 Assessing costs on the standard basis where a costs management order has been made
In any case where a costs management order has been made, when assessing costs on the standard basis, the court will—
(a) have regard to the receiving party's last approved or agreed budget [budgeted costs] for each phase of the proceedings;
(b) not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so; and
(c) take into account any comments made pursuant to rule 3.15(4) or paragraph 7.4 of Practice Direction 3E and recorded on the face of the order.
(Attention is drawn to rules 44.3(2)(a) and 44.3(5), which concern proportionality of costs.)
Practice Direction 3E
7.3 If the budgeted costs or incurred costs are agreed between all parties, the court will record the extent of such agreement. In so far as the budgeted costs are not agreed, the court will review them and, after making any appropriate revisions, record its approval of those budgeted costs. The court's approval will relate only to the total figures for budgeted costs of each phase of the proceedings, although in the course of its review the court may have regard to the constituent elements of each total figure. When reviewing budgeted costs, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.
7.4 As part of the costs management process the Court may not approve costs incurred before the date of any costs management hearing. The Court may, however, record its comments on those costs and will take those costs into account when considering the reasonableness and proportionality of all subsequently budgeted costs.
7.7 After its budgeted costs has been approved or agreed, each party shall re-file and re-serve the budget in the form approved or agreed with re-cast figures, annexed to the order approving the budgeted costs or recording the parties' agreement.
The new CPR 3.15(4) overturns the decision made by the Court of Appeal in Sarpd Oil International v Addax Energy SA. By way of an amendment, rather then concluding that the costs budgeting hearing should be the opportunity to consider whether the incurred costs are reasonable and proportionate, the new rules allow the judge to record his or her views on incurred costs without the need for an assessment or a costs management order. Additionally the new CPR 3.18 (c ) compliments the ability of the court to record its comments as per CPR 3.15(4) and paragraph 7.4 of PD3E, when the Court is assessing costs on the standard basis.
The effect of the inclusion of such rules within the costs management regime will be to allow the Court to make comments about incurred costs and consequently the extent to which such costs have been agreed between the parties.
Amendments have been made to CPR 45 following the Court of Appeal decision in Qader v Esure Services Ltd, Khan v McGee. The rule applying to the application of fixed costs in RTA and EL/PL claims now provides the following: ‘for as long as the case is not allocated to the multi track’. Confirming that fixed costs will cease to apply when an action is allocated to the multi track. The previous £25,000 upper fixed costs limit has been revoked. Accordingly a claim that falls out of the portal remains subject to fixed costs, regardless of its value, unless it is reallocated to the multi-track.
There have been consequential changes to a number of Court forms. It's important to ensure you are using an up to date copy of any Court form. The forms being amended are:
- Precedent R
- N461 notes