New Court Fees: A Lost Opportunity?

And so new court fees came into force yesterday.

Sir Rupert Jackson, in his final report (which is fast approaching its fourth birthday – doesn’t time fly?!), recommended only an inflationary increase in court fees (see Chapter 4 / the summary recommendation at page 463), but has there been a missed opportunity to not only increase revenues (at a time of swingeing cuts elsewhere in the system – so not simply to turn a profit, which would be quite wrong, but to ensure that budgets are spent on areas in greater need), but also to inject a sense of fairness into the (civil) fees (at least)?

At Chapter 4 of Jackson LJ’s final report, he cites inter alia APIL’s response to the preliminary report:

We do not support the Government’s policy of full cost pricing when setting court fees. We believe the civil court system should be funded by the taxpayer, with a contribution from court users, as providing access to the courts, and therefore to justice, is fundamental for a fair society.

That can only be right, as a general principle and particularly in the context of what APIL are all about. However, is it right that the taxpayer also funds/subsidises the (far, far) wealthier court users? Indeed, is it right that the taxpayer subsidises the (far, far) wealthier non-taxpayers who litigate in this jurisdiction?

It is said (see, for example, Chapter 7 of Sir Rupert’s preliminary report) that in 2009, 20% of HMCTS running costs were met by the MoJ’s budget – to the tune of £130million per annum. By 2011/12, that element of the MoJ’s budget rose to a whopping £233million according to the now closed consultation on fee remissions for the courts and tribunals – that’s more than the £220million Justice Secretary, Chris Grayling is hell-bent on shaving off the Legal Aid budget, by the way.

I understand and agree, in the main, with objections to ‘full-cost pricing’, but does it have to be a simple case of black and white? Is it really that undesirable or difficult to create a system of fees whereby (very crudely put of course – if sensationalism is good enough for the MoJ and Daily Mail, it is good enough for me too!) those using the state-of-the-art Rolls Building pay more than those using the Back-of-Beyond County Court/District Registry?

Two fees/issues immediately spring to mind:

1. Is it fair and reasonable that an individual/personal injury claimant requesting (say) a two-day multi-track trial of a dispute worth £30k pays the same hearing fee as a multi-national, £multi-billion corporation claimant requesting (say) a two(or more)-week multi-track trial of a dispute worth £millions (even if they pay rather different issue fees)?

2. Is it fair and reasonable that a receiving party with (say) a £74k bill of costs that is more likely than not to be subjected to an approximately two-hour provisional assessment pays the same fee as a receiving party with (say) a £99k bill of costs that could so very easily be subjected to a two(or more)-day detailed assessment hearing?

No, in my (admittedly over-simplistic) view. There are undoubtedly other areas where the fees may also be fairly revised/restructured, according to the nature/demands of any type/value of litigation.

While the profession might be, according to many, moving away from the billable hour and while fixed recoverable costs are nigh across the personal injury fast-track (and are soon to come, it seems, in all fast-track litigation), that doesn’t have to mean that court users shouldn’t pay court fees according/relative to their actual use of the system – and without necessarily offending the policy objection to ‘full-cost pricing’ nor indeed inhibiting access to justice. The rules/fees do not necessarily have to be unwieldy, providing for myriad possibilities, but they are surely far too generalised and unfair as they are.

The MoJ, in late 2011-early 2012, held a consultation on fees in the High Court and Court of Appeal, seeking to impose some changes such as that numbered 1 above (to which The Law Society was opposed, despite this jurisdiction being one of only a few to not charge trial/hearing fees relative to the duration of the trial). But what came of that? Nothing it would seem, despite the consultation having closed almost 18 months ago.

The MoJ has said:

It is imperative for savings to be made wherever possible.

Savings, of taxpayers’ money, could be justifiably made by not, for example, cutting fee remissions or decimating Legal Aid but by ensuring that those who can pay do pay.

On that note, I’m off for a Starbucks.

With grateful thanks to Adam Manning (@AdamManning) for his kind words and support!