“In my judgment, a party who does not consider whether they are entitled to a fee remission and, thereafter make an application if there is any doubt, risks being unable to recover that fee from their opponent. If the opponent can demonstrate that the receiving party appeared to fall within the remission scheme, the onus will be on the receiving party to justify why the court fees were incurred. If as here, there is no such justification put forward, the fee should be disallowed under CPR 44.3. Such a party has not incurred the lowest amount it could reasonably be expected to spend. At the very least there has to be a doubt which is to be exercised in favour of the paying party.”
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.