Fighting fees

There has been much discussion on the level of civil and family fees and principled arguments on the question of full cost recovery and the civil courts being self financing. So, while 'pile 'em high, sell 'em cheap' might not be the guiding principle in setting court fees, there are a number of ways in which litigants can legitimately minimise the court fees payable.

Deliberately under-estimating the value of a claim so as to keep down the initial fees is wrong, but it does happen and may be followed by an application to amend the claim form at a later stage to increase the value of the claim '“ and often at the same time seeking a re-allocation usually from fast to multi track '“ in the expectation that the extra issue fee will be overlooked. On the other hand, it can be costly to take too optimistic a view of the claim's worth and to endorse the claim form with an unrealistic value as this may well result in paying an unnecessarily high fee, part of which will be irrecoverable from the other side despite an order for costs in the claimant's favour. Defendants, when they seek to counterclaim an unspecified sum, are often aghast at the fee they are then asked to pay.

Both money claims (MCOL) and possession claims (PCOL) can now be commenced online and so not only can you take advantage of a step along the IT road and issue in your pyjamas, but they both attract lower issue fees. One added attraction now thrown in by the CPR is that for MCOL claims the Particulars of Claim can be served post issue.

Sanctions for non-payment

Of course, it can be a fatal mistake to forget, overlook or otherwise fail to pay certain fees at the appropriate time. CPR 3.7, headed 'Sanctions for non-payment of certain fees', which applies to fees payable on filing an allocation questionnaire, pre-trial checklist (listing questionnaire) and hearing fee, provides at sub-paragraph (4):

3.7

(4) If the claimant does not '“

(a) pay the fee; or

(b) make an application for full or part remission of the fee, by the date specified in the notice '“

(i) the claim will automatically be struck out without further order of the court; and

(ii) the claimant will be liable for the costs which the defendant has incurred unless the court orders otherwise.

Rule 3.7A imposes similar sanctions where the proceedings continue on the counterclaim alone and there are also understandably sanctions where the counterclaim fee itself is not paid. Finally, on this point, rule 3.7B imposes similar sanctions where a cheque tendered in respect of fees is dishonoured. In all cases, reinstatement is subject to the fee being paid.

It is possible, and not unknown, for parties to be inventive. Is it lawful, for example, for the parties to agree to litigate over a selected number of issues, or even one, and then apply the decision and findings to the non-litigated issues? While there may be an argument for suggesting that it could be an abuse not to place all the facts and circumstances before the court, equally the court should adjudicate on the issues that the parties place before it, such as liability and one small item of loss, and if the parties then seek to apply the decision to other matters then that is a matter for them. Clearly, any claimant seeking to litigate on that basis may wish to ensure themselves of the certainty of any such agreement as any subsequent claim on the same facts is likely to meet a swift and certain end. The fee saving consequence is clear.

Cooperative spirit

And the spirit of cooperation and litigious bonhomie can be taken further so that by agreement the claim can be 'down tracked' '“ the credit crunch cost/fees equivalent of down sizing '“ so, for example, a claim that is multi track perhaps by reason of quantum alone could by agreement be allocated to the fast track even if that means shoe-horning some of the multi-track procedural furniture into the confines of a fast-track home. The all round cost/fee saving of such cooperation and agreements is obvious, although, as Lord Woolf no doubt hoped for, requires less of a (procedural) adversarial approach from lawyers. It is sometimes to be seen.

This cooperation can be taken to the ultimate step of settling the dispute. Hearing fees are now required and represent a sizeable proportion of court fees payable. If the claim is settled prior to the hearing date, the fee is repaid on a sliding scale from 100 per cent, if 28 or more days before trial, to 50 per cent if not less than seven days (unless allocated to the small-claims track when it will remain at 100 per cent) and nothing thereafter; settling at the 'door' of the court should perhaps be replaced by a settlement several streets away.

So, there are bargains to be had. It does require some initial case planning, certainly an understanding of the issues that are likely to be involved and raised in the proceedings, a realistic appreciation of the value and likelihood of success of the claim, and, perhaps above all, procedural cooperation between the parties. And a settlement. All of which is probably no bad thing.