The Civil Justice Council (CJC) has warned of the ‘chilling effect’ on access to justice of ‘wholly excessive’ fee increases proposed for judicial review cases.
Responding to the Ministry of Justice consultation on court fee reforms, the CJC also suggests that setting the fee for issuing specified money claims at a percentage of the claim represents a ‘tax on litigation’.
The Council, chaired by master of the rolls Lord Dyson (pictured) to promote the needs of civil justice, points to inconsistencies in the price rises proposed to raise the courts’ fee income by £625m.
It notes the proposals range from an 81% increase for middle of the range money claims, to a 12% increase for fee cases exceeding £300,000 in value.
Some of the proposed increases are ‘immense’, it declares, citing the 140% increase for issue fees for online county court money claims and a 114% increase in bankruptcy and insolvency applications.
The proposed 216% increase - from £215 to £680 - for judicial review permission to appeal applications, the Council brands ‘wholly excessive’, warning it will deter ‘many’ from bringing legitimate claims.
It suggests the fee increase will generate only a small sum, as in 2011 over 77% of such applications were for immigration and asylum cases, which would be exempted from paying fees through the remissions schemes.
The Council added that the increase would have a ‘serious effect’ on cases brought and the citizen’s ability to question or challenge public authority decisions and policies.
It says: ‘We are extremely concerned about the chilling effect on access to justice for such an important area of public law, in which the decisions and actions of public authorities can be subject to the independent scrutiny of the courts.’
The Council notes its concern over the ‘chilling effect’ on lower to medium value claims of the fee increases, suggesting litigants may opt not to bring claims where the court fee represents a significant proportion of the legal costs. The effect of the proposals could be counter-productive, it warns, resulting in a loss of court income rather than an increase.
Contrary to the government’s proposals, it says: ‘Price increases should be proportionate and set within a logical framework, explained and consistently applied.’
The consultation, says the council, perpetuates the impression that civil justice is not self-financing and suggests the effects of these reforms would be to increase the degree of civil justice’s subsidy of family justice.
The reduction in fees for Children Act applications by 33%, it says, is ‘out of kilter’ with the overall framework of fee increases.
The tone of the paper is that a ‘gentle touch’ is needed on family fees as they give rise to ‘difficult circumstances’. But the CJC says there is no similar consideration in civil matters such as debt, possession and other cases that also give rise to ‘very distressing circumstances’.
The council warns that setting the fee for issuing a specified money claim at 5% of the value of the claim, represents a ‘tax on litigation’.
Although the proposals set a cap of a maximum issue fee of £10,000, there is a risk that the measure will increase litigation costs at a time when the government and judiciary have been trying to reduce them.
It suggests there is a risk that cases will not be brought as the impact of very high court fees may be a tipping point for action not being brought.
‘From a defendant perspective, there is a prospect of major additional costs, given the number of claims being handled and perhaps the sense that the impact of the Jackson reforms has been lessened,’ it adds.
It also warns that this could be a ‘crossing of the Rubicon’ in terms of the approach to levels of fees for issuing court proceedings. ‘Once the principle is established, the government may seek to increase the percentage to what it feels the market will bear,’ says the CJC.
Elsewhere, it says that while removing the allocation and listing fee in all cases may increase administrative efficiency, it suggests that it may also have the effect of reducing the incentive and opportunity on parties to seek mediation.
The proposed fee of £1,090 to take a case to the Court of Appeal, it says, may prevent some unmeritorious cases being pursued, but it warns that with the increasing number of litigants in person, it risks making the Court of Appeal the ‘preserve of those who can afford legal representation or those on incomes so low they are exempt from fees’.