The Civil Justice Council has become the latest and one of the most influential bodies to lay into the government’s proposed increases in court fees, warning that they could have a “chilling effect” on people who want to bring claims.
The CJC – whose chair is the Master of the Rolls, Lord Dyson – also said that changing the fee for issuing a specified money claim to be a percentage of the value of the claim was arguably “a tax on litigation”.
In its response to the Ministry of Justice consultation, the CJC complained that it “perpetuates the suggestion that civil justice is not self-financing”, when the effect of the reforms would actually be to increase the degree of civil justice’s subsidy of family justice.
“The tone of the paper is that a gentle touch is needed on family fees as cases give rise to ‘difficult circumstances’ and this is unquestionably true. However, there is no similar consideration on civil matters such as debt or possession cases and many others, which also give rise to very distressing circumstances.”
It was highly critical of the inconsistency of fee increases – from an 81% increase for middle-range money claims (between £5,000 and £15,000), to a 12% increase for cases exceeding £300,000 in value. The response highlighted some “immense” rises, such as 216% for judicial review permission to appeal applications, 140% for issue fees for online county court money claims, and 114% for bankruptcy/insolvency applications.
It said: “The council is concerned about the potentially chilling effect on lower to medium-value claims of the fee increases, as litigants may opt not to bring claims where the court fee represents a significant proportion of the legal costs and is significant in relation to the overall value of the claim.
“There is a danger that the effect of the proposals could be counter-productive in such cases, and represent a loss of court income rather than an increase.”
It was similarly worried about the increase in judicial review fees – particularly in the fee for permission to proceed, from £215 to £680. “We are extremely concerned at the chilling effect on access to justice for such an important area of public law.”
At the same time, reforms to fee remissions meant that the CJC did not share the confidence of the government that these would ensure court fees do not inhibit access to justice.
“We consider that there will inevitably be equality impacts arising from the fee increases,” it added.
On specified money claims, the CJC said it was concerned that telephone interviews with just 18 organisations was the basis of the government’s evidence that court users would prefer a fee that was a proportion of the value of the claim.
“Although the proposals set a cap of a maximum issue fee of £10,000, there is a risk that this measure will increase litigation costs at a time when the government and judiciary have been trying to reduce them. There is a risk that cases will not be brought as the impact of very high court fees into the equation may be a tipping point for action not being brought.
“From a defendant perspective, there is a prospect of major additional costs, given the number of claims being handled, and perhaps a sense that the impact of the Jackson reforms has been lessened.”