A system of fee waivers/reductions is available to Claimants to allow them to access Court and Tribunal services either for free (full remission) or at a reduced charge (partial remission). The purpose of this is to allow wider access to the legal system in furtherance of the principle of access to justice.
Whilst this system is nothing new, over the past few months Just Costs have seen a significant increase in enquires from defendant’s legal representatives into whether enquiries have been made into the Claimant’s eligibility for court fee remissions. These enquiries have usually been made in Points of Dispute, sometimes with Part 18 questions. It is their contention that in the absence of such enquiries they should not be required to pay the incurred court fees.
Of course whether your client will qualify for full or partial remission will depend upon their personal circumstances which we discuss further below. We have seen these enquiries raised by the paying parties in a wide variety of case types over recent months. Obviously a PL or EL matter may involve people from of all manner of backgrounds and incomes however it should be noted that defendant’s are paying particular regard to certain types of claim, namely:
a. Credit Hire Claims – Impecuniosity.
b. Noise Induce Hearing Loss (NIHL)
In the context of Credit Hire Claims where the claimant is impecunious it should therefore be no surprise that they should be entitled to a remission by virtue of being impecunious! In the context of NIHL, we are dealing with a group of people who worked in industry and were not provided with sufficient hearing protection if any. Whereas with other types of cases the claimants may be of any age or financial background the claimants in NIHL cases are often in their 60’s and 70’s and therefore likely to be retired and on limited incomes.
It is therefore not surprising that paying parties have paid particular regard to these claims as there is a high probability that the Claimant will qualify for either full or partial fee remission. It was the case before the substantial increase in NIHL compensation cases being pursued (often referred to as the Quindell Spike) that the great majority of these settled pre proceedings. There were therefore no court fees to be concerned about. However, as paying parties have sought to defend these claims more vigorously we are now in the positon where the great majority of NIHL claims are now litigated. Often additional court fees can be incurred in NIHL cases owing to the need for companies no longer trading to be restored to the register of companies.
We should now consider the process of establishing whether the claimant qualifies for fee remission and how to go about this:
Is my Client eligible?
On receipt of instructions (or at very least before proceedings are issued) you should consider whether your client is eligible for full or partial remission of courts fees on consideration of their circumstances.
The guide to the Court and Tribunal fee remission system is set out in form EX160A. The substance of which we will briefly discuss below:
The system is based on 2 tests:
1) the disposable capital test (based on household capital, to include a partner if applicable); and
2) the gross monthly income test (based on household income, to include a partner if applicable)
Both tests have to be passed in order for the applicant to be eligible for a fee remission and any application has to be supported by evidence.
The applicant needs to have less than £3,000 in savings and investments if they are under the age of 61.
If, however, either the court fee is between £1,000 and £10,000 or if the applicant or their partner are aged 61 or over, the applicant can have up to £16,000 in savings.
• money in ISAs and any other savings account;
• joint savings accounts that the applicant shares with their partner;
• fixed rate or investment bonds;
• any lump sum (e.g. a redundancy payout);
• stocks and shares;
• trust funds (or any other kind of fund);
• second homes;
• any money or property outside of the UK;
The applicant needs to be on a low income or be in receipt of one of the following benefits:
• income-based Jobseeker’s Allowance (JSA);
• income-related Employment and Support Allowance (ESA);
• Income Support;
• Universal Credit (and you earn less than £6,000 a year);
• Pension Credit (Guarantee Credit);
• Scottish Civil Legal Aid (not Advice and Assistance, or Advice by Way of Representation);
If the applicant is not on any of the above benefits, they will need to earn less than £1,085 a month before tax if they are single, or £1,245 if they have a partner.
The applicant can earn an extra £245 on top of that for each child they have.
For example, if the applicant has a partner and 2 children they have to earn less than £1,735 to be eligible for help with fees.
Depending on the applicant’s gross monthly income, they may be entitled to either a full or part remission (assuming they pass the disposable capital test).
• some benefits
• pensions (state, work or private without guarantee credit)
• rent from anyone living with the applicant and other properties that they own
• payments from relatives
• maintenance payments e.g. from an ex-spouse
• income from selling goods publicly or privately, including over the internet
• student maintenance loans, grants or bursaries (except for tuition fee loans)
Applications for remission must be made before the court fee is paid (this can be done online). As this could potentially delay the claim, all applications will aim to be processed within 5 working days from receipt. Emergency applications (e.g. limitation date imminent) can be made without supporting evidence, but the applicant must provide an undertaking that they will bring evidence or pay the court fee within 5 working days.
A separate remission application has to be made for each individual court fee, given that the applicant’s circumstances may change over time.
Why is it important you make these enquiries?
Not only should you make these enquires as part of your professional duties but if you fail to make these enquiries you run the risk of being unable to recover the court fees you have incurred inter partes at the conclusion of the case.
It is important to remember that this not only encompasses the usual court fee’s associated with Part 7 proceedings but would also include any court fee’s incurred as a result of restoring a company to the register or any court fee’s associated with the provisional/detailed assessment process also.
A failure to make these enquiries could result in the loss of £1,000’s per case.
What can I do if I have failed to make these enquiries?
You may apply for a refund of a Court fee retrospectively (a retrospective application) if they think they would have been eligible for a remission at the time, this has to be done within 3 months of the fee being paid.
It is important to note that applications for refunds outside of this timeframe will not be accepted.
Written by Ashley Squires - Costs Draftsman
The purpose of this blog is to provide information and discussion. Nothing on this blog should be relied upon as a substitute for advice from a qualified Solicitor regarding any actual legal issue or dispute. Nothing on this website should be construed as legal advice or perceived as creating a solicitor – client relationship. Just Costs Limited can accept no liability in contract or tort to any person, firm or company that relies on or makes use of the above, or any part thereof.