Is The Failure To Obtain A Fee Remission A Bar To Inter Partes Recovery?

Fee Remission

A challenge we are seeing increasingly often goes along the lines of:

if the receiving party could have, but did not, obtain a fee remission then the fee in question was unreasonably incurred and is not payable by the paying party.”

There have been some competing first instance decisions, leaving the issue ripe for argument in each case. The matter has however now been considered on appeal by HHJ Lethem in the Central London County Court.

Following a detailed consideration of relevant authority, he concluded that the fact that a receiving party might have been eligible for a fee remission but did not apply for one was immaterial for the purpose of inter partes recovery.

“Some claimants will avail themselves of fee remission and the Defendant will not be required to reimburse this. Others will seek to pass on the payment to the tortfeasor. The thrust of the case law to which I have referred is that the Claimant has an election as to who to recover from and this is no more than one of a number of individual characteristics that arise in any assessment of damages and costs… there are strong public policy grounds for saying that it is not unreasonable for a Claimant to preserve the public purse and direct the cost of wrongdoing on the tortfeasor. These are relevant considerations to an assessment of reasonableness under rr. 44.3 and 44.4.”

This is a decision with which not everyone agrees, including Costs Judge Rowley who, in November 2021, came to a contrary view in Gibbs v King’s College NHS Foundation Trust [2021] EWHC B24 (Costs).

PANAYOT IVANOV V STEVEN LUBBE (HHJ Lethem, Central London County Court)