Senior judges have savaged government proposals for reforming court fees, warning that they are based on ‘inadequate’ and compromised research, and basic misconceptions about the way the courts operate.
They also warn of potentially ‘irremediable’ damage to the civil justice system, stating that they are ‘unable to share the Ministry of Justice’s confidence that the proposals will not affect access to justice’.
The MoJ published its proposals for reforming court fees on 3 December last year. These aim to place the courts on a ‘solid financial footing’, partly by ensuring wealthier litigants pursuing high-value civil cases pay fees that more accurately reflect the costs to the system.
In a forthright 19-page response, the senior judiciary indicates that the plans run counter to the accepted view that it is the ‘function and duty’ of the civil and family courts to provide the opportunity for legal redress to all.
Instead, the plans implicitly assume that ‘recourse to the courts is a matter of discretionary spending by those who can afford to and should pay its full costs, and in some cases more than its full costs’.
The judges point out that the civil courts are already fully self-financing, while the family courts run at a loss. New costs recovery proposals would hike civil court fees to slash the £125m combined deficit. But the judges argue that there is ‘no good reason’ for treating the civil and family courts as a single system.
‘The issue that must be faced, though not raised in the consultation paper, is whether it is right that parties in civil proceedings should pay more than the cost of the civil courts in order to fund the deficit in the family court system,’ they add.
The judges also point to the ‘fundamental change in policy’ proposed for fee remissions that are provided to those unable to pay court fees – a cost hitherto met from general taxation. The £25m bill for remissions would instead be met by hiking court fees in a ‘significant number of cases’ to a level exceeding the real cost of the proceedings.
This ‘novel concept’ would require primary legislation, the judges stress.
The judges go on to pour learned scorn on the MoJ’s research and impact assessment.
According to the MoJ, this suggested that ‘court fees are a secondary consideration in a decision to pursue litigation’, providing ‘reassurance that [the proposals are] unlikely to deter people from bringing arguable cases before the courts’.
This research is ‘clearly inadequate’, say the judges. Not only was it conducted by the same consultancy that is involved in developing the proposals on the MoJ’s behalf, it was based on just 18 telephone interviews with organisations and solicitors concerned largely with debt recovery claims.
It provides ‘no evidence’ on the likely effect on individuals and small and medium-sized businesses’, they add.
An assumption that user demand will not change in response to planned fee rises ’appears to contradict a basic law of economics’, they add. ‘The research so far undertaken does not enable the judiciary to share the MoJ’s confidence that the proposals will not affect access to justice.’