Court fees have gone up. This will pose a significant extra cost for claimants to get their case started, and an equally significant cost for defendants who end up settling the case and meeting the claimants’ costs, including reimbursement of the court fees.
Concerns we identify arising from claims issued in haste just before the increase took effect include:
- Claims not properly formulated
- Suing the wrong defendant or getting the defendants names wrong
- Inability to serve proper particulars on time
- Failure to follow pre action protocols
Within the next four months we can expect requests for stays, and extensions of time for service of the claim form and particulars. It may also be possible to strike out claims that were not ready to be issued (if the claimant has no intention of pursuing the action at that point it is an abuse of process: Nomura v Granada (2007) but it may not be in insurers' interest to do so if the claim is reissued with the new higher court fee. It's also fair to assume in the post-Denton climate that judges are going to be sympathetic to claimants who acted quickly to avoid a rise in fees that was publicly opposed by sections of the judiciary.
Longer-term issues that could arise include claims against solicitors for issuing too early and/or misdescribing the claim. Where the claim is funded by a CFA there may well be problems with inappropriate success fees and insufficient insurance cover. There will have been a lot to sort out in a short time. Where success fees and premiums are still recoverable (insolvency, defamation and mesothelioma claims) there may be additional arguments when it comes to assessment.
Concerns about claims issued in the future include:
- Claimants underestimating quantum in order to pay a lower issue fee
- Desire, possibly on both sides, to settle claims before issue in order to avoid paying fee
If the claimant has paid the incorrect fee, there may be a Page v Hewetts (2013) limitation argument enabling a strike out. There will also be arguments about whether the claimant can amend the case to increase the claim at a later point. The desire to avoid the issue fee, particularly relevant where the claimant cannot fund it easily, may suggest taking a hard line pre-issue or alternatively a pro-active approach to settling early.
What matters is that everyone involved is aware of the pressures claimants are under regarding court fees. Whether the particular facts of a case open up an opportunity to strike out or agree terms to amend will vary on a cases by case basis.