Daily hearing fees are wrong in many ways and likely to drive international business to overseas alternatives, argues Simon Davis


Just when you thought that this government could not stoop any lower in its treatment of justice, another low blow comes along. Now the government is proposing the introduction of daily hearing fees in the Commercial, Chancery, Admiralty, Technology and Construction and Patents Courts.



In its consultation paper on court fees changes (see [2007] Gazette, 5 April, 1), the government acknowledges that these courts deal with much international business, but says dismissively that 'there is no evidence to support the suggestion sometimes made that larger fees would reduce the attractiveness of English law and our courts to these cases'.



I would put it another way: there is no evidence that introducing such fees would not reduce this attraction. In short, why on earth take the risk? That the risk is very real surely is not in doubt.



The paper acknowledges that one of the aims of the revised fee structure would be to provide stronger 'incentives' for users to consider mediation or other means to settle before trial. What an appealing message for an overseas party - if you come to the English courts, you can expect to be pressurised not to have your day in court. If parties are made to feel unwelcome, they will go where they are wanted.



Where they are wanted is in various arbitral fora. The parties are able to choose their arbitrators, procedure and venue, and know the whole process will be confidential. Modern arbitration venues have better facilities than London courts. The parties pay for the privilege but obviously think the ability to choose what they are paying for, in private, in modern surroundings, is worth it.



Overseas courts will also welcome them. Paris, Frankfurt and Dublin are all committed to expanding their facilities for handling commercial disputes.



It is unclear why the government has chosen now to launch this initiative. In consultations in 2004 and 2005, the idea of daily trial fees was condemned by a range of groups. Then and now we challenge the legitimacy of the government's position that civil justice should be 100% self-funded. This is in marked and unjustified distinction to its position in relation to health and education. The function of civil courts is to regulate the conduct of society as a whole, and it is wrong for the entire cost to be borne by those who become litigants, often unwillingly.



Now the trial fees proposal is back, just at the time when it is acknowledged that there has been an over-recovery by the state in the civil justice area, and when the government has explicitly recognised the importance of a high-quality court system in attracting overseas litigants by supporting a new Commercial Court. This was a welcome change from the initial dismissive reaction that there was no evidence (sound familiar?) of overseas parties going elsewhere because the Commercial Court's facilities were so poor.



The proposal is also economically self-contradictory. The government wishes civil justice to be self-funded, but seeks to drive down the number of people using the system, which in turn will reduce revenue and lead to increased fees, which will lead to fewer people using it and so on.



This government can find funds if it has the political desire - the money being wasted on the new Supreme Court is just one example. So how about heading in precisely the opposite direction to daily trial fees, by actively funding and promoting our civil justice system as one where parties can obtain high-quality justice, rather than putting effort into persuading users either not to come to our courts in the first place or to avoid trials once they get there. How about promoting access to justice, not denying it?



Simon Davis is president of the London Solicitors Litigation Association, and a partner at Clifford Chance