If evidence were needed of the profound impact of the increase in court fees in can be found in newspaper articles over the past few days.
IT IS JUST ONE CASE
The Guardian reported on one case of a social worker (Amanda Hicks) who was owed £20,000 by an old family friend. He refuses to talk, to her. He attended a police interview with a solicitor and replied no comment. Now she has to sue for the money back. As the Guardian reports.
“The upshot is that Hicks is in an invidious position. She can pay the fees and pursue the defendant. But even if she wins her case she may never get the £1,500 back. Or she can drop the case, let her former friend off scot free and say goodbye to £20,000.”
The article goes on.
“The new problem caused by the court fee rises, however, is that the economics of suing often no longer computes. Even if you shoulder the burden of running the case, paying thousands, rather than hundreds, of pounds in court fees makes little sense if the defendant may not honour the judgment.
This is a particular issue for claims for £5,000 or more, as can be seen from the figures above. The fact is, however, that many ordinary people end up claiming between £5,000 and £30,000 for a building project, rental or personal business venture gone wrong. These are everyday claims, but the fees are amounts that everyday people cannot afford to lose.”
ATTACKS FROM ALL QUARTERS.
There has been a major lambasting of the decision in relation to court fees this week from many quarters. The Master of the Rolls is reported as stating:
“… that evidence collected by the Government to clarify whether fee increases would put people off taking their case to court had been “lamentable”.
“We warned that this research was hopeless but the impression I had was, such was the need to rush this through because there was a great big gap in the finances which had to be plugged,” he said. “…We were told there’s a £100m shortfall for justice.
“[The MoJ] made assumptions that demand would not be affected by these changes and they based that assumption on a very, very limited evidential base … I’m extremely sceptical about that.”
NO-ONE ASKED AMANDA HICKS
The “research”carried out to support the court fees increase was clearly inadequate. No-one asked Amanda Hicks. No-one considered what an ordinary member of the public, or ordinary business, could afford. No-one considered the central role that the civil courts play in civic life.
THE CENTRAL ROLE OF THE CIVIL COURTS IN CIVIC LIFE
The civil courts are places where a civilised society resolves its disputes. They are not perfect but they are better than any alternative. If people cannot sort matters out between themselves then they can go to a hearing and someone impartial, fair and reasonable will determine the issues. That determination takes place on the basis of the evidence before the court (and nothing else) and applying the relevant legal principles.
To have this mechanism in place is essential. Everyone can (and should) go into court expecting a fair hearing. This means that court is often the only place that the poor can stand on equal terms with the rich; where the bully or conman gets their comeuppance.
It is no use stating that “mediation” is the answer. This is part of the answer for certain cases. However mediation assumes a level playing field. This rarely exists.The rich, the powerful and those with all the advantages (which usually means all the money) will not mediate unless they know that, in the absence of agreement, the matter is going to be heard in court.
LARGE PARTS OF THE POPULATION ARE NOW DEPRIVED OF THE PRACTICAL ABILITY TO ISSUE PROCEEDINGS
Some, indeed many people and small businesses cannot afford the basic cost of the issue fee. Many lawyers cannot afford to act as bankers to their clients and advance the money.
- We know for a fact that large companies will abuse their suppliers by not paying promptly.
- We know there are plenty of people who would prefer not to pay at all.
- We know that there has been a dip in cases.
- We know that this was a policy introduced “in haste”
POLITICIANS THEN: SPENDING 100% OF THEIR TIME PASSING LAWS AND 0% OF THEIR TIME CONSIDERING WHETHER ANYONE CAN ACTUALLY HAVE ACCESS TO THEM
This is not just a matter of individuals. Small companies; medium sized companies and many other organisations now have to think hard and dig deep and risk much in order to recover money they are owed. It is not difficult to envisage a move over to less savoury and more illegal means of enforcement.
The truth is that the civil courts in this country are a central part of civic life and the economy. This reality is overlooked by those making the decisions. The lack of any grasp of reality in the statement that “litigation is very much an optional activity” is breathtaking.
- Amanda Hicks has an option. She can write off the £20,000 owed to her.
- The thousands of firms that have to issue proceedings each year to be paid also have an option. They can write off the money and go out of business.
The irony is the higher the figure due and the poorer the person or business owed the money the greater the risk in paying out court fees. The fees will be considerably higher. Someone may be able to afford to issue if they are owed £1,000 but not at all if they are owed £100,000. You may be able to afford to issue if you had suffered whiplash but not if you had suffered the loss of an arm.
Rarely can such an ill-considered; poorly-researched; fundamentally misconceived policy have led to such major difficulties for individuals and businesses on the ground. Rarely can such feeble attempts to justify the action have given rise to open derision.
The fact is that many (if not most) people and small businesses have been priced out of the court system. The government, in past times, “welcomed” the Jackson Report. It was a key part of that report that court fees stayed the same. The blatant hypocrisy which has led to the Report being welcomed on one hand and totally ignored on another, has had a major impact in real terms.
Further (and one ridiculous aspect of the whole thing) is that in cases where the government is the defendant it picks up the bill in any event. Both the NHS, local government and other public bodies are paying back when they are defendants. They face similar fees when they are claimants. The insurance industry has also suffered with the payment of additional court fees in all cases where claimants are successful.
NOBODY NOTICES AND WE DON’T CARE
Could be the mantra of those responsible for all this. Nobody plans to go to court. Very few people want to go to court. However it is an essential civic right. There are few interest groups that support would be litigants. The brutal reality is that by these ill-considered increases the Ministry of Justice are destroying part of the fabric of civil society.
LORD PANNICK IN THE HOUSE OF LORDS
“Today, we are debating an order that he has brought forward which will do incredible damage to the legal heritage because it will impede access to justice. As the Minister mentioned, this order will substantially increase the fees that claimants must pay when they start legal proceedings. If you want to sue for between £10,000 and £200,000, you will need to pay an upfront fee of 5% of your claim. To claim £200,000, you will need to find £10,000. That is a 576% increase on the current fee of £1,515.
The Minister is of course correct to say that Parliament approved Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, which authorises the Lord Chancellor to prescribe fees above the cost of providing the court service to litigants. That is the power that Mr Grayling is now exercising. But is it a fair, reasonable or proportionate exercise of that power? Plainly not. For litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries.
The Government have suggested that court fees will be a small fraction of the legal expenses which a claimant will incur, but many claimants will not have to pay their legal expenses at the outset of proceedings. They will not have such a substantial sum of money available at the outset of the case, or they may be able to pay these court fees only by doing without competent legal representation. The deterrent effect on litigation will, I think, make it most unlikely that the increased charges will produce the anticipated £120 million which the Government hope to produce by this order.
If anyone has examples of the way in which the increased court fees have caused injustice. If anyone has access to the original “research” upon which the decisions were made this would also be interesting.
- An open letter to all those who assert that “litigation is very much an optional activity.”
- Court fees: links for today
- Higher Court fees in the (not too distant) future.
- Justice Committee inquiry into the effects of the increase in court fees: how to respond.
- The debate on court fees in the House of Lords: well worth reading.
- John Hyde in the Law Society GazetteSenior judges lambast government over court fees.
- Nick Hilborne in Legal Futures Dyson condemns “desperate” MoJ over enhanced court fees
- The Guardian Top UK judges denounce “dangerous” increase in court fees
- The Independent Soaring court fees “will discourage ordinary people from seeking justice”
- Legal Cheek Court fees row reveals huge rift between government and judiciary.
- The Express and Star Top judge warns rise in court fees “risks access to justice”.
- The Guardian on Staggering price of civil court fees comes with a human cost
- The Independent: Increasing court fees to pay for legal system “smacks of the state selling justice”, says Bar council chair.
- John Hyde: Vara’s court fees defence is a charade.
- Nick Hillborne: Vara rejects Lord Dyson’s criticism of enhanced court fees.