On 9 February the Commons Justice Committee held its last evidence sessions on court and tribunal fees. Although Justice Minister Shailesh Vara MP got a rough ride from the MPs on the Committee, he sought to defend the Government policy to increase court fees beyond the cost to the State of providing civil justice. The policy seems unlikely to change, despite strong judicial antipathy and despite the views of the Law Society and Bar Council representatives who gave evidence immediately before the Minister. The body of this piece offers a snapshot of some of the key criticisms levelled against the Ministry.
Chantal-Aimée Doerries QC, Chair of the Bar Council argued that although a contribution, by way of court fee, to the cost of providing justice was acceptable, she believed the significant increase in court and tribunal fees had had a detrimental effect on access to justice. The State had an obligation to provide access to justice for all and justice should not be treated as a commodity sold by the State, in some instances by way of charging fees that exceeded the cost of the service. She maintained that funding the justice system by the State via taxation should be no different to funding provided to the health and education services.
The Committee asked whether the value of a claim was the correct criterion on which to base the level of fee, given that complexity is not governed by value alone. Those giving evidence agreed that the value of claim did not necessarily reflect the complexity of the matter and undertook to examine the point further and provide the Committee with written evidence. It should be noted that the appropriateness of correlating complexity with value is an argument likely to be encountered should the Government take forward Sir Rupert Jackson’s recent proposal to further extend fixed recoverable costs.
Ms Doerries said that she had a fundamental concern with ‘enhanced’ court fees and would like to see research into the impact of such fees. [‘Enhanced’ being the MoJ’s label/euphemism of choice for fees over and above the cost of the service]. She added that huge changes in civil justice, notably those introduced by Jackson LJ and by the Legal Aid, Sentencing and Punishment of Offenders Act, were in place but without very much evidence of their impact to date. She agreed with Lord Dyson MR’s evidence to the Committee on 26 January that the MoJ’s research into increased court fees was “lamentable”. She added that it was insignificant and did not cover the breadth of court users.
MPs asked if larger law firms might have a competitive edge over small firms because they might be more able to fund the court fees as disbursements. Law Society President Jonathan Smithers said that was probably true, with larger firms taking on the associated risks. Smaller law firms might well have cash flow problems. Ms Doerries said that there was no evidence that barristers’ chambers pay such fees.
The Committee was concerned that that international competiveness could be damaged because of the increased court fees. Ms Doerries said that court fees in England and Wales were now higher than those charged by the vast majority of our competitors. Singapore, New York and Germany were making moves to attract international legal business.
Courts Minister Shailesh Vara MP opened his evidence with the general point that we must have a court system that is fit for purpose and sustainable. He stated that court fees raised in one field can rightly be used elsewhere in the court system. He stressed that the courts should not be exempt from the economic recovery process that the country faced. He dismissed concerns about the impact of court fees on the international competiveness of the English legal system. He maintained that a £10,000 court fee in relation to a multi-million claim was a tiny proportion of the overall value of the case. He added that lawyers regularly increase their fees, but that had not deterred people from using our courts. People chose English courts because of top quality judiciary and lawyers: the court fees are tiny.
He would not be drawn on when would be the right time to conduct research into the impact of the increased fees and bravely attempted to justify the MoJ’s consultation that took place before the ‘enhanced’ fees were introduced. He did not accept the criticism voiced by Lord Dyson MR that the MoJ consultation was lamentable. He said that the MR had focused on just one of five areas of consultation. His adding that the consultation had been conducted by the highly-regarded Ipsos MORI organisation simply did not cut any ice with the Committee.
Committee Chair Robert Neill MP reminded the Minister that nobody had said that the consultation conducted by the MoJ was adequate and that the judiciary had expressed serious concerns in advance. On that point, the passage below is taken from Lord Dyson’s appearance before the Committee at the end of January:
“…we have warned of the real dangers. We also warned that the research that was done by the Government before they embarked on this course was lamentable, frankly… we warned that the research was hopeless. The impression I have is that there was a need to rush this thing through, because there was a great big gap in the Department’s finances that had to be plugged. I got the sense that it was almost a desperate way of carrying on. I am sorry to use this very strong language.”
Mr Vara emphasised to the Committee that Ministers act in good faith and make difficult decisions, some of which were not welcomed with open arms; but that the Government has to face up to the economic conditions. His defence of the policy may have a feeling of protesting too much.
Mr Neill thanked the Minister and said that after receipt of further written evidence on points of clarification the Committee would issue its final report on court and tribunal fees, probably later this year. Given the nature and tone of the recent evidence sessions about court fees, it would seem reasonable to proceed on the basis that the thrust of the report is likely to be fairly critical of the Ministry’s policy and of its background work in the period before implementation.
About the Author
Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.