In past few months we have posted blogs about the evidence sessions held by the Commons Justice Committee into court and tribunal fees. We highlighted the prime question under consideration that focused on “…what is an acceptable amount to charge in order to preserve access to justice?..”
Today the Committee has published its report which – as was to be expected given the nature of the evidence it received – is heavily critical of the Ministry’s approach to the recent fee increases. Its headline conclusion is that major changes are urgently needed to restore an acceptable level of access to the employment tribunals (ET) system. The introduction of issue fees and hearing fees for claimants in ETs in July 2013, coincided with a drop of almost 70% in the number of cases brought. A judicial review by UNISON in connection with these increased ET fees is to be heard by the Supreme Court in due course.
Unsurprisingly, the Committee has no objection to the principle of charging fees to court users and says that some degree of financial risk is an important discipline for those considering legal action. It says that factors which need to be taken into account include the effectiveness of fee remission (i.e. discounting), the vulnerability of claimants and their means in comparison with respondents, particularly when individuals or small businesses come up against the state or major companies. Also the degree of choice which litigants have in whether to use the courts to resolve cases and achieve justice.
The report argues that there should be a clear and justifiable relationship in the fee system between these factors and the degree of financial risk that litigants should be asked to bear. The Committee concluded that the introduction of fees set at a level to recover or exceed the full cost of operation of the court requires particular care and strong justification.
Committee Chair, Bob Neill MP said: “Where there is conflict between the objectives of achieving full cost recovery and preserving access to justice, the latter must prevail.”
MoJ research into fees
The report raises serious concerns about the quality of the research produced by the Ministry of Justice. It shares the view expressed by the senior judiciary and others who gave evidence that it does not provide a sufficient basis to justify the proposals. It may be recalled that Lord Dyson, Master of the Rolls, described the MoJ research as “lamentable”. The Chair of the Bar Council described the research undertaken in relation to the domestic effects of fees as “insignificant” and the President of The Law Society said it was “poor.”
Employment tribunal fees
The Committee finds it unacceptable that the Government has not reported the results of its post-implementation review of the impact of employment tribunal fees one year after it began and six months after it said it would be completed. Bob Neill added:
“We understand the financial pressures on Ministers in a Department with unprotected spending. We also understand that the MoJ does not always have the luxury to be as rigorous and meticulous in preparing the ground for controversial policies as it might wish. But it is important that in such circumstances the Ministry is frank about that fact and does not represent the quality of its evidence base to be higher than it is.”
The Committee therefore recommends that the Government should publish immediately the factual information which they have collated as part of their post-implementation review of employment tribunal fees. The Committee says that without this information having been made available to it, its recommendations in relation to employment tribunal fees should be taken as indicating options for achieving the overall magnitude of change necessary to restore an acceptable level of access to justice to the employment tribunals system.
In addition the Government has said that fees are likely to discourage weak and vexatious claims, and this aim received support in evidence to the Committee from the Federation of Small Businesses and Peninsula Business Services. The Committee says that this is a reasonable objective, but notes the comments of the Senior President of Tribunals that it is too soon to say whether this has happened.
Other civil court and tribunal fees
On matters other than employment tribunal fees, the Committee’s conclusions and recommendations include:
- The Government should review the impact of the April 2015 increase in fees for money claims on the international competitiveness of London as a litigation centre and should not resurrect its proposal to double the current £10,000 cap or remove it altogether, unless such a review has been undertaken
- The increase in the divorce petition fee, from £410 to £550, should be rescinded. It is unwise for the Government to have brought forward proposals for fees set at a level to achieve full cost recovery in the Immigration and Asylum Chamber before having published its review of the impact of implementation of employment tribunal fees
- A pilot scheme should be set up of a system in which there is a graduated or sequential system of fee payments whenever there are substantial fees payable in total in respect of a case in the civil of family courts or tribunals, allied with the requirement for the respondent to pay a fee
- The Ministry of Justice should take up The Law Society’s suggestion that it should introduce a system for regular rerating of remission thresholds to take account of inflation, and that it should conduct a further review of the affordability of civil court fees and the remission system, considering means of simplification, for example through automatic remission for all basic rate taxpayers.
There is probably little in the report that was unexpected. It was widely believed that employment tribunal fees would be criticised along with the MoJ research on which increased fees were based.
A copy of the full Justice Committee report can be found here.
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.