The government, and the Ministry of Justice in particular, has been keen to advocate and implement the Jackson reports. The costs of litigation should be proportional and, in effect, this means reduced. However in all the discussions in relation to the increase of court fees the MOJ appears to have ignored the Jackson report. Instead of considering the report the MOJ relied on its own methodology which, apparently, involved making 17 phone calls. It is worth noting that the Jackson report recorded that court fees were too high and should only be increased in line with inflation. Apparently, in the implementation of the Jackson proposals, there is one law for practitioners of law and another for the Ministry of Justice.
3.35 In chapter 7 of the Preliminary Report I expressed the view that court fees were too high and that the principle of full cost pricing was wrong in principle. During Phase 2 of the Costs Review there has been almost universal agreement with the views expressed in PR chapter 7. The Association of Personal Injury Lawyers states:
“We do not support the Government’s policy of full cost pricing when setting court fees. We believe the civil court system should be funded by the taxpayer, with a contribution from court users, as providing access to the courts, and therefore to justice, is fundamental for a fair society.”
HM Revenue & Customs states: “HMRC supports the conclusion of Phase one of the review that the MoJ proposals to achieve full cost pricing should be reconsidered.”
The Law Society in its Phase 2 submission repeats and adopts its response to the MoJ consultation on this issue in 2008, as follows:
“The Law Society continues to be fundamentally opposed to the Government’s policy of full cost recovery. We accept that there is a cost to running the court system and that it is appropriate for litigants to be charged a fee towards that cost, if only to discourage frivolous litigation. However, it must be set at a level which enables there to be proper access to justice for all in society. We are concerned that any policy which seeks to obtain full recovery of the costs will undermine this by potentially setting a level of fee that will discourage people from bringing legitimate disputes. This applies particularly for those on low incomes but who, nevertheless, do not qualify for fee concessions. The impact of the continuing policy of full cost recovery is therefore likely to exclude more people from the civil justice system.”
3.36 Other responses were to the same effect as those set out in the previous paragraph. These confirm my provisional view as expressed in the Preliminary Report.
3.37 I am further fortified in my provisional view by the Segmental Analysis Reports published by the MoJ. These show that the fee recovery “gross v expenditure” over the last four years was as follows: Year 2005-6 115% Year 2006-7 108% Year 2007-8 104% Year 2008-9 103%
3.38 This shows that over the last four years HMCS82 has set court fees for civil work at a level above full cost pricing.
3.39 I recognise that, at least in the present economic climate, it is unrealistic to propose a reduction in court fees, even though such a reduction would be welcome and would be very much in the public interest. Instead I shall limit myself to the recommendation that there be no further increases in civil court fees, save increases which are in line with the Retail Price Index rate of inflation. All receipts from civil court fees should be ploughed back into the civil justice system, not used to subsidise other parts of the legal system.
3.40 Remission of court fees. I draw the attention of DWP local offices to the fact that letters from those offices are required, in order to enable clients who are on benefits to obtain remission of court fees: see chapter 1 above, paragraph 4.4 (iv). I do not make this the subject of a specific recommendation, but stress the fact that (a) such letters are needed in order to facilitate access to justice and (b) the DWP regards it as appropriate for such letters to be written: see chapter 1 above, paragraph 4.5.