In the matter of Ivanoy v Lubble (Central London County Court 17th January 2020) HHJ Lethem considered whether the Claimant, who was eligible for a Court fee remission, could recover the cost of Court fees from the Defendant after failing to obtain that remission.
The Claimant brought a personal injury claim for damages against the Defendant. The claim was issued under Part 7 and settled for £6,500. Costs could not be agreed so the Claimant made a Part 23 application seeking an order for costs and assessment of the same. The Court fee was one of the objections raised as the Defendant argued that as the Claimant could have obtained remission of the Court fee, the Defendant should not be liable for these costs.
The Defendant argued that the burden of proof was for the Defendant to prove the Claimant has failed to mitigate their losses and therefore, by not applying for a fee remission, the Claimant had failed to mitigate. The Claimant submitted that as the matter was a costs matter, the burden of proof was the reasonableness of the approach to not request a fee remission.
The Judge agreed with the Claimant. The judge found that as the Court was being asked to consider the award of the Court fee, the provision for assessing costs, and therefore CPR 44.3 applied rather than the Defendant’s argument of mitigation. CPR 44.3 clearly outlines that the burden of proof of the standard assessment lies with the Claimant to satisfy that costs are reasonably and proportionally incurred.
The Judge also contested the Defendant’s assertion that no loss occurs when a fee remission is obtained. He took the view that the recovery of the Court fee depleted the public purse, which led to less funds being available for the justice system. He reduced the argument down to who should pay the Court fee, the tortfeasor or the public purse?
The Judge ruled that it was not unreasonable for the Claimant to pursue the tortfeasor for the costs of the wrong doing. He also had sympathy on public policy grounds that the Defendant should not benefit from a system in place to support the Claimant’s access to justice, as this was not what the scheme was designed for. The Claimant was therefore able to recover the Court fee from the Defendant.
Is it reasonable to refuse to apply for a fee remission?
The Court in this matter relied upon the decision in Peters v East Midlands Strategic Health Authority  QB 48, to support their argument that it is not unreasonable for the Claimant to attempt recovery from the tortfeasor rather than the state. In Peters, the Claimant opted for self-funding care and accommodation (which was recoverable from the Defendant), rather than rely on government funding. The Defendant argued the Claimant should have mitigated these loses by pursuing government funding.
The judge in Peters, much like this matter, had no difficulty finding that there was no reason, in policy or in principle, that the Claimant should have to pursue government funding and was entitled to have the loss caused by the Defendant made right by the same party.
The ruling in this case substantiates the argument that the Claimant is entitled to pursue the tortfeasor for their costs entitlement even when an alternate form of funding such as the fee remission scheme is available.
This has been demonstrated using the arguments in Peters and has been upheld in matters such as this one and the similar case of Ian Cook v Malcolm Nicholls Ltd . The Court make it very clear that while the Claimant still has a duty to mitigate losses, the pursuit of the public purse to recompensate the Defendant for their wrong-doing is not only unjust but also inappropriate.