The senior judiciary has dismantled the government’s proposals to raise court fees, questioning the underlying policy, highlighting the “clearly inadequate” evidence and warning that introducing enhanced fees in commercial cases is “unworkable”.
The consultation response from the senior judiciary also argued that there can be “no justification” for increasing fees unless the money raised is ploughed back into the courts and the government permits or makes “proper investment” in the system.
The judiciary has long opposed the concept of full cost recovery in the courts, and the response noted that while the consultation paper opened with a clear acknowledgement of the role of the courts, the rest of it appeared “to be based on a view that resource to the courts is a matter of discretionary spending by those who can afford to and should pay its full cost and, in some cases, more than its full cost”.
The judges asked why civil litigants, rather than society at large, should subsidise the loss-making family courts and cover the cost of fee remissions. “These are issues of policy which it will be for Parliament to decide, but we are concerned that they should be openly acknowledged and explained so that there can be a fully informed debate.”
They were more forthright on the lack of research undertaken by the Ministry of Justice (MoJ) to assess the probable consequences of the proposals on the ability of parties to afford access to the courts and on their willingness to do so.
Having illustrated the shortcomings of what research there has been, the judges said: “The research so far undertaken does not therefore enable the judiciary to share the MoJ’s confidence that the proposals will not affect access to justice.”
The response said the rationale for charging enhanced – that is, above cost price – fees in Rolls Building cases “suggests that the role of the courts housed in the Rolls Building has not bee fully understood”.
There was no statistical evidence to back up the statement that there are “significant sums of money at stake” in commercial cases. “The intense publicity surrounding cases involving certain very rich individuals should not lead anyone to think that the great majority of individuals involved in litigation in the Rolls Building fall into that category or anything like it.”
The judges also expressed concern that enhanced fees “may affect the amount of international work which these courts currently attract, and will be counterproductive in the long term”. They may push litigants to prefer other forums or incorporate arbitration clauses into their contracts.
Domestic litigants, they added, could in many cases bring their action in the Queen’s Bench Division – not currently hit by enhanced fees – or courts outside London. “As this proposal stands, it is unworkable.”
The judges ended by saying that without the fees being retained with the court system and further investment so that the court service can be “modernised and made fit for purpose”, the fee increases proposed “would be wrong”.