I am grateful to Michael Fletcher from Glaisyers Solicitors LLP for sending me a copy of a note of a judgment from Coventy County Court yesterday in  Cook -v- Malcolm Nicholls Limited.  It is a case concerning whether the claimant can recover the Court fee in circumstances where he may have been eligible for fee dispensation.  More surprisingly there was an attempt to challenge the fee on the grounds that it was “disproportional”.


“Judgement Note of Michael Fletcher of the ruling of Deputy District Judge Jones in Cook v Malcolm Nicholls Limited
Michael Fletcher, Costs Lawyer and FCILEX for the Claimant.
Brett Anderson, Costs Draftsman for the Defendant.
DDJ Jones
1. This is the judgment of Deputy District Judge Jones in the case of Ian Cook v Malcolm Nicholls Limited in Coventry County Court claim number B57YP191.
2. This is an Oral Hearing on D’s request following a provisional assessment.
3. I have had skeleton arguments from each advocate and have heard oral submissions. I am grateful to the advocates.
4. D’s request is on the discreet issue of the Court fee shown at item 15 in C’s bill of costs.
5. I determined and carried out the provisional assessment.
6. The claim was one for damages for personal injury. That concluded when D made a Part 36 offer which was accepted by C invoking CPR 36.13. The Court fee in issue is £10,000.00.
7. D says that the Court fee is not reasonable or proportionate. I am also advised that I must pursuant to CPR 44.3 resolve any doubt in favour of the paying party. D’s submissions are based on a scheme intended to allow access to justice. D says C would have been entitled to a fee remission. Within C’s bundle there are as Mr Anderson put it, a passport of benefits. D says C would have automatically qualified for a fee remission. I’ve been taken to C’s witness statement by Mr Anderson. In January 2015 C was not employed. Further I have been alerted to the [financial circumstances] of C’s Partner. D estimates that C was clearly eligible [for a fee remission]. D’s point is that C was unreasonable not to have applied for a remission. C’s solicitors did not apply for the remission.
8. D says that C’s solicitors were not sensible. I’m referred to Remnant and the classification of a proper disbursement. D says that the Court fee is not a disbursement in the solicitor client sense because a remission was available. D also relies on Francis v Francis and Dickerson regarding the sensible solicitor test. D says C’s solicitors should have explained and advised C that a remission was available. D also relies on the SRA Code of Conduct indicative behaviours, but I note that any reference to Court fee remissions is missing.
9. I’m not convinced that D can question the retainer between C and his solicitors.
10. Nor am I convinced that D can question the advice given by C’s solicitors to C.
11. D in context raises these matters to try and avoid payment of the fee.
12. D’s last issue was that the fee was disproportionate. I’m referred to the case of Kazakhstan Kagazy. But the fee is set by the Court Service. It is a fixed amount. Proportionality cannot apply to a fixed fee set by Parliament.
13. For C, I’m referred to Peters v East Midlands Strategic HA. That was a case of a public body being liable for the Claimant’s accommodation costs. I’m referred to paragraphs 89 and 93. Dyson LJ as he was then, found that a tortfeasor should pay.
14. I take the view that the Court fee is the Court fee. The Court Service has to operate. I therefore find that the issue raised by D will not be allowed. My original decision stands as regards the allowance of of the Court fee [between the parties].”


The argument in relation to Peters also figures in a post by Andrew Hogan in on his blog “Costs Barrister”, see the post “Hard Times”.

Andrew reviews the decision in Peters v East Midlands Strategic Health Authority [2010] QB 48, (that there was no duty on an injured claimant to seek publicly funded care) and concludes.

“If that is the position in relation to damages, it is difficult to see why it should be any difference in relation to costs, and a claimant declining to rely on a statutory right to fee remission and actually paying the court fees should be able to recover them as of right from the tortfeasor.”