The government justifies the huge increase in civil court fees as a way to recoup the cost of services. But do the rises threaten access to justice? Lucy Trevelyan reports

A whopping across-the-board rise in civil court fees – which saw some fees more than double – was introduced in the English courts in January, with full recovery of court costs firmly in the government’s sights.


During the Department of Constitutional Affairs’ (DCA) consultation on the fee increases, lawyers who raised concerns that such huge hikes would deter litigants and deny access to justice for the less well off, appear to have had their fears realised. However, it was only last month that the government released a summary of the responses to the consultation, which took place almost a year ago.


Three fee bands have been introduced for money claims above £200,000, with the highest charge more than doubling to £1,700. In the High Court, fees for non-monetary claims rose from £180 to £400, for example, while applications for detailed assessments increased from £250 to £600.



Kate Tregidgo, an insurance litigation solicitor at City firm CMS Cameron McKenna, says: ‘It now costs more to issue and pursue a claim in the English courts than ever before. This increase in court fees brings with it a natural concern that some potential claimants will be denied access to justice in the courts, because the court process has been priced out of their reach.’


All areas of law where court proceedings are issued have been affected by the increases, she says, although high-value commercial claims were hit hard. ‘For example, issuing a claim where the sum sought is more than £300,000 has seen a 113% increase, whereas claims for less than £100,000 have seen a much smaller fee increase of 17%,’ she says.


The Association of Personal Injury Lawyers (APIL) is concerned about the impact of such large increases. Lawyers working for claimants in personal injury cases are particularly hit as they have to stump the bill for court fees up front. A spokeswoman says: ‘The current level of court fees is much too high, and has recently been increased again. The result is that, for a case with a claim value of between £5,000 and £15,000 which is tried in the county court, the fee for commencement of proceedings has increased by 25% in five years. For a large-value case of £300,000 or more which is tried in the High Court, the fee has increased by 325% in five years. This is a serious threat to access to justice.’


She adds: ‘Any further rises will be resisted strenuously by APIL, and we would also like to see more of the fee burden fall to defendants, especially where the defence is funded by an insurance company.’


Anthony Maton, executive committee member of the London Solicitors Litigation Association, says that although there is not yet any firm evidence in the form of court statistics on the true impact of the increases, anecdotal evidence appears to show that they are having an effect on potential litigants.


‘I am being told that the fee increases are stopping proceedings being issued in smaller cases, because of the disproportionate cost. It is certainly a further disincentive to litigate, and adds to the general momentum towards negotiation and settlement that is already prevalent in the system,’ he says.


Ms Tregidgo says the additional money will be used to improve the court service, for example in areas such as IT where huge expenditure is required to modernise systems, and this should result in a better service overall for court users.


Indeed, the DCA estimates that the new rates will double High Court income to £37 million, while rises in family rates should see a 22% increase in income to £11.5 million. The department says the increase in fees was necessary to recover the cost of court services and that the fees are proportionate to the amount sought.


Ms Tregidgo adds: ‘It could also be said that an increase in fees might deter malicious or time-wasting litigants who might now think twice before bringing unfounded claims against innocent parties because of the initial increased front-loading costs.’


Mr Maton disagrees: ‘You might say it encourages people to think before commencing litigation because of the cost. The reality, however, is that it does not affect significant commercial clients, who can wear the cost, albeit not impressed by the rises. Rather, it affects those for whom litigation is already a very large cost in any event. It means smaller clients are further deterred from litigating.’


Mr Maton says this simply further exaggerates the position whereby the civil justice system is available to the rich and the poor, but not those in between: ‘Until either lawyers’ fees drop dramatically – which will not happen unless someone interferes with the free market – or genuine contingency fees are introduced, allowing lawyers to take a percentage of damages awards, most individuals and many companies will continue to be effectively excluded from the civil justice system.’


He adds that the government’s aim to force parties to pay for the full cost of the courts, which is also opposed by the judiciary, is unfair: ‘You would not expect a citizen to meet the full cost of a hospital or school when they choose to use them. All companies and individuals pay taxes to the government, the idea of which is to pay for the state infrastructure that we all need to use, as and when we need to use it. The court system should be free to all who need to use it at a particular time.’


David Smythe, a partner at City firm Kingsley Napley, says that although it is fair to expect litigants to pay some of the costs of their cases, expecting them to foot the full bill is wrong. ‘My view is that the state should provide. There is no point giving people rights if they can’t enforce them because they are too expensive. Wealthy clients and large companies should perhaps pay more of the costs than impecunious individuals – it’s difficult to devise a system which takes account of the needs of everybody.’


He says the potential litigants who have been hit the hardest are those who fall just outside the eligibility thresholds for legal aid.


According to Mr Maton, the new levels of civil court fees make the UK much more expensive than other jurisdictions: ‘Canadian courts do charge but typically around the US$150 to $200 (£85 to £113) mark. In the US there is no recovery of costs.’


Chris Tayton, an associate with Clarkslegal in Reading, says the huge fee increases may prompt international litigants to abandon the English courts and take their disputes to other jurisdictions.


‘Our court system is generally recognised as a world leader in legal services, which is why so many disputes are referred here. It would be a massive loss if parties were discouraged from referring disputes to this jurisdiction because of court fees. It may also have a knock-on effect of actually reducing revenue to the courts – through a loss of legal business – which would defeat the point of increasing fees.’


He also sees an injustice in forcing litigants to bear the full brunt of the court costs, particularly for appeals, which serve as precedents for the benefit of all future court users.


‘[It is unfair] to expect individuals to pick up the whole bill for the determination of issues of law where judgment will ultimately benefit the country as a whole, as would be the case if the government introduces the proposed hourly fees for trial and appeal to the Court of Appeal. The civil courts should continue to receive state funding given their importance to society.’


The mooted hourly trial fee for High Court trials and appeals to the Court of Appeal is one of the most controversial moves. The proposal – which was to be introduced in April but is currently on hold pending further consultation – is to make a trial fee payable, together with the fee on listing for trial, as a fully refundable deposit. Out of the deposit, a fee of £200 for each hour or part of an hour of the trial or appeal hearing would be taken, and any unused deposit returned.


Ms Tregidgo says: ‘This will only add to the already increased cost of litigation, and it may lead to an expectation amongst parties that, because they are paying for a judge’s time, they will be able to select their judge in the same way that a party has a say in the selection of an arbitrator or mediator.’


Mr Maton adds: ‘This is a disgraceful idea. The time it takes to hear a dispute in court can be out of proportion to the amounts at stake. If a judge is to charge by the hour, it will be a further and larger disincentive to parties without much funding to litigate. It also transgresses the fundamental principle that the state will provide someone to make a binding decision in disputes between its citizens. If that person is not free, then they are not accessible to all.’


The delay to hourly rates was the most significant of the concessions made by the DCA following the consultation. The responses, it accepted, ‘show that there is more to be done to develop a proposal for a better-targeted fee system’.


It said it will do this with reference to the general principles laid out by the then Lord Chancellor, Lord Irvine, in 1998. First on his list of nine was ‘fees should not prevent access to justice’. Lawyers can only hope it is this, rather than full cost recovery, that remains the top priority.


Lucy Trevelyan is a freelance journalist