The current policy of full cost recovery in civil courts must urgently be reassessed, argues Kevin Martin

Law Society office holders have been on the road for the last month or so, travelling around the country as part of Chancery Lane’s ‘Have Your Say’ consultation. Speaking directly to our members about the changes already taking place and those we face ahead has been invaluable to us, as we go about creating the Law Society of the future.


We also had the chance to share thoughts on the wider issues affecting the profession. As we are already seeing the impact of the increase in family court fees implemented by the government in January of this year, it was no surprise that this was an issue of concern.


These increases place an unfair burden on people on low and middle incomes in society. The government asserts that exemptions and remissions, together with legal aid, ensure that access to justice for the less well-off is protected.


However, under current eligibility requirements, only the poorest members of society benefit. An individual with an average weekly income would certainly not qualify for an exemption and will not, therefore, be protected from the impact of increases to court fees. Protection must be given to litigants of modest means to ensure that access to the court system is available to them.


That the capped legal aid fund is under strain is common knowledge. This problem will be exacerbated by the increases in family court fees. Although individuals acting in person may apply for exemption of court fees, as in divorce, once such individuals have solicitors on the record, such as for an application for contact or ancillary relief, the solicitor pays the fee and is reimbursed by the legal aid fund.


The implications for the fund of the significant rise in fees must be given serious consideration, as must the impact on legal aid firms, as they are required to pay out the cost of the fees and await re-imbursement from the fund – reimbursement that might take place over an extended period of time. The greatly increased fees will aggravate the cash-flow burdens on the diminishing number of firms that undertake this essential work.


The difficulties that local authorities are having trying to manage limited resources in relation to children cases are also well known. The fee increases effectively harmonise fees in the family proceedings courts with equivalent fees in the county courts. The bulk of these fees is paid by local government authorities that are responsible for issuing care proceedings. These increases will have a clear impact on local authority resources, and will take resources away from the most vulnerable and deprived children in our society.


The impact on the members of the public should not be forgotten. The fee for a divorce petition has almost doubled from £180 in 2004 to £300 today. Such a staggering inflation-busting increase may lead to weaker parties being unable to take their cases to court, and to greater animosity and bitterness between parties to a dispute – a particularly undesirable effect where there are children involved.


The cost of applications for contact, residence and parental responsibility orders have also increased significantly. The Law Society considers that these increases are entirely inconsistent with government policy, which is to support parents having contact with their children, provided it is safe to do so. Instead, these increases make it more difficult for parents who need to access courts to apply for residence, contact or parental responsibility orders.


The Law Society fully acknowledges the government’s right to consider ways of making efficiency savings. However, we do not support the proposition that the costs of the Court Service should fall exclusively on litigants. The government must recognise that courts provide an important public service, and that taxation should help to pay some of the cost of running the courts.


The only solution is to reassess the current policy of full cost recovery. The future of our civil justice system is uncertain if this policy is pursued. A healthy civil justice system is essential for a socially and economically stable society and provides a benefit for all, not just those who use it.


The government must examine whether its current service delivery model provides value for money to its customers. The Court Service has vast overheads relating to heritage buildings, which are completely out of proportion to the services they provide. It is also unclear how the ‘cost’ of the service had been calculated. This should be explained and clearly visible.


The solution is not solely a matter of users of the courts generating revenue. The civil and family courts play a valuable role in society and serve the wider public interest. This should be recognised by the government in the form of key investment in modernising and maintaining the courts.


Relying solely on court fees as the mechanism to finance the continuing need for modernisation, infrastructure, and other improvements is unsustainable. It is worse than that. Increases are not matched by any corresponding reduction in general taxation. Therefore, they amount to a stealth tax on those who are compelled to resort to court proceedings. This is grossly unfair and hardly conducive to improving access to justice.


Kevin Martin is the Law Society President