Senior judiciary response to MoJ's consultation on court fees reform proposal

The Senior Judiciary has responded to the ‘Ministry of Justice consultation paper court fees: proposals for reform (Cm 8751)’. The court fees reform proposals are intended to reduce the deficit on the costs of the civil and family court and to contribute to the costs of fee remissions.

This is essentially to be done by increasing the fees payable by those using the civil courts. The senior judiciary have set out their response, focussing on issues including access to justice and the undesired and unintended consequences of these proposals. They call for, among other things, a fully informed debate about some of the issues and policies arising in the proposal.

Summary of the senior judiciary's response

In essence, the senior judiciary considers it '...difficult to see the merits of proposals which would increase the costs to litigants but provide no tangible benefit to them or the judicial system more generally...' (para 56).

Although the senior judiciary's response was far more detailed, its main concerns included:

  • access to justice (a fundamental feature of any society committed to the rule of law), including:
    • civil and family courts are obliged to provide the opportunity to obtain legal redress to all sections of society, including those with limited resources. This may be affected if those court users face increased fees so as to subsidise other court users and/or society as a whole
    • access to justice at reasonable cost plays a vital role in 'moderating individual and commercial behaviour'. As such, it is of benefit to all, whether ‘court users’ or not’. The research conducted so far had neither investigated the likely impact on the broad range of civil court users drawn from all sections of society nor the broader social implications the proposals may have. However, the senior judiciary's view was that the imposition of enhanced fees would impose a material additional cost on domestic businesses, many of which are small and medium sized, and on individual litigants, many of whom have limited resources
    • the substantial proposed fee increases for judicial review will make 'only a small contribution to the ultimate objective of reducing costs but will inevitably have a substantial "chilling effect" on such applications. This was particularly important given judicial review 'operates as a critical check on the powers of the State and is a key mechanism to hold the Executive to account'
  • self-financing, including:
    • the justice system benefits the economy and society as a whole and, therefore, should be financed by society as a whole
    • given the central position of the courts in our society and their functions and duties undertaken in the public interest ‘it should not be a cause for surprise if their full costs cannot be recovered from those who need recourse to them and if there is therefore an element of public funding’
    • the justice system should not be self-financing and certainly not at the expense of certain parties being required to subsidise
  • injustice to civil court users—among other things, it would be unfair for potentially hard pressed civil court users to have to subsidise a family justice system (which is there for the interests of society as a whole) and/or have to fund those unable to pay their own fees (referring to the fee remission scheme). ‘A benefit given in and for the public interest might be expected to be a public expense’
  • undesirable and unintended consequences of introducing enhanced fees in 'commercial' cases, including:
    • the 'commercial courts' have 'an excellent international reputation as a forum to resolve disputes. Its continued success brings significant economic and wider benefits for the UK economy'. However, these proposals may result in litigants incorporating arbitration clauses in their contracts or, where they have a choice of forum, choosing to go elsewhere e.g. New York, Singapore, etc. i.e. these reforms could end up being counter-productive from a financial point of view alone
    • impracticalities arising from a misunderstanding of the way the courts operate in practice and which could result in strange situations arising including similar claims being treated very differently depending on the court in which they are brought, well advised parties choosing to issue in other UK courts with resulting transfer applications, etc.
    • there can be no justification for charging some claimants a lower fee than other claimants bringing a similar claim simply because their claims arise out of a different type of transaction and therefore fall to be determined in a different venue

What do you think? Do you agree? Have you any thoughts on the proposals? Please comment below.

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